Texans could get more time before foreclosures

Texans would have more time to fix their troubled finances before losing their homes under a bill passed by the Senate last week.

Current law allows just 20 days for homeowners receiving a foreclosure notice to resolve their mortgage default, one of the quickest processes in the nation. The Mortgage Foreclosure Deferment Act would extend this notice period to 45 days.

It also would provide at least 14 days for an owner and 60 days for a renter to vacate a foreclosed property.

If the bill, which now goes to the House, becomes law, it would apply to foreclosures initiated after Sept. 1.

One in 10 Texas homeowners are at risk of default and foreclosure, according to a recent report from the Mortgage Bankers Association of America.

“Recent headlines tell the story that more Texans are at risk of losing their homes to foreclosure,” said the bill’s author, Sen. Craig Estes, R-Wichita Falls.

“This bill will give Texas homeowners more time to work with their lender to try and reach an accommodation to stay in their homes while meeting their financial obligations.”

Sen. Leticia Van de Putte, D-San Antonio, said home-owners could use the extra time to work with nonprofit groups that help negotiate loan modifications.

Texas Attorney General Greg Abbott, whose office has cracked down on foreclosure rescue scams, recommended that the Legislature allow a debtor more time to cure a loan default before a notice of sale.

The bill requires a notice of rights to be included with the default notice. The lender would have to provide contact information for a person authorized to assist the debtor on the delinquent loan.

Owners who have received foreclosure notices would have to notify any tenants of a pending foreclosure within five days.

“While most homeowners may never feel the threat of home foreclosure, it is an issue that can impact all of us when it strikes our neighbors, friends and family,” Estes said.

By JANET ELLIOTT, Houston Chronicle

TRCC Fines 3 Area Homebuilders

The Texas Residential Construction Commission has fined several Texas home builders, including levying a $260,000 fine against a Victoria builder.

The $260,000 fine was against James Del White of J.D. White Construction for failing to pay consumer judgments, the misappropriation of or misapplication of trust funds, a failure to timely renew as a builder and a repeated failure to respond to a homeowner’s complaint.

The TRCC fined William Gaston of Austin’s Gaston Premier Homes more than $42,000 for failing to pay a consumer judgment and failing to timely renew as a builder.

Jaime Lozano of Lozano Construction in Edinburg was fined $40,000 for failing to provide a follow-up report to a state inspection and to respond to a complaint filed with the commission. The company also failed to register a home or to pay a home registration fee, state inspection process fee or late fees.

Texas homeowners can research registered builders or remodelers by visiting the commission’s Web site at www.TexasRCC.org.

Did your HOA Jump the Gun When it sued you? If so, you may be spared paying their Attorneys' Fees

Homeowners Associations are filing more lawsuits than they used to. I'm not sure of the reason for this, but the types of suits are as varied as are the subdivisions in Texas. In many instances the suits seek to collect upon unpaid assessments. In others, they are filed to enforce declarations/CCRs/restrictive covenants. In virtually all cases -- irrespective of the nature of the HOA's claims -- there is a request for recovery of attorneys' fees and court costs. It is important to note that HOAs are not automatically entitled to recovery of their costs and fees in every case. Further, many times HOAs are required to provide written notice prior to filing suit. If an HOA or its attorney fails to follow the strict procedure required by the Texas Property Code, costs and/or fees may not be recoverable.

Section 209.006 of the Texas Property Code generally mandates notice before an enforcement lawsuit may be filed by a Homeowners Association. It provides:

(a) Before a property owners' association may suspend an owner's right to use a common area, file a suit against an owner other than a suit to collect a regular or special assessment or foreclose under an association's lien, charge an owner for property damage, or levy a fine for a violation of the restrictions or bylaws or rules of the association, the association or its agent must give written notice to the owner by certified mail, return receipt requested.

Subsection (b) of Section 209.006 provides that the notice must: (1) describe the violation or property damage that is the basis for the suspension action, charge, or fine and state any amount due the association from the owner; and

(2) inform the owner that the owner: (A) is entitled to a reasonable period to cure the violation and avoid the fine or suspension unless the owner was given notice and a reasonable opportunity to cure a similar violation within the preceding six months; and (B) may request a hearing under Section 209.007 on or before the 30th day after the date the owner receives the notice.

It is important to understand that certain types of suits -- those seeking a Temporary Restraining Order or Injunctive Relief -- are not subject to the notice provisions. However, a party to such a suit may request that the Court compel mediation. See Section 209.007(d)

Written notice is also a prerequisite in those instances where an HOA seeks recovery of attorneys' fees or costs. Such claims are governed by Texas Property Code Section 209.008(a), which provides:

"A property owners' association may collect reimbursement of reasonable attorney's fees and other reasonable costs incurred by the association relating to collecting amounts, including damages, due the association for enforcing restrictions or the bylaws or rules of the association only if the owner is provided a written notice that attorney's fees and costs will be charged to the owner if the delinquency or violation continues after a date certain."

Many times, an Association and/or its lawyer will fail to issue the notice required by Section 209.008. In those instances, there is a good chance that an Owner or other person sued by an HOA can avoid having the HOA's fees and costs taxed against them.

Any time you are sued -- whether by an HOA or otherwise -- you should make a timeline of events leading to the suit. The Property Code is not the only provision of Texas law that requires notice before attorneys' fees can be recovered. A similar provision exists in contract disputes and other legal contexts. Knowledge is power, and it is higly advisable to consult with both the applicable law and an experienced attorney any time you are faced with litigation.

Perhaps one day HOA litigation will slow down - there are initiatives pending at the Texas Legislature which might curtail the filing of some HOA-related suits. Until then, read your CCRs, abide by the covenants, and remain ever-vigilant of your rights under Texas law.

Can my spouse take my kids and leave Texas?

If you have all lived in Texas for at least 6 months and in the same county for at least 90 days, then you are a resident of that county.

If your spouse or significant other, decides to take the kids and leave the state, you need to IMMEDIATELY go hire an attorney and get papers served on the other parent to get them into a Texas court.

If you wait 6 months or more then the county you live in loses jurisdiction over the kids.

If you have any questions, I charge $100 an hour to sit down and talk to you.
It might be will worth your peace of mind.

For unmarried fathers

If you are not seeing your child(ren), please consider hiring a private attorney to assist you. The TX A G will set up child support, but they usually won't make the mother cooperate regarding visits.

It is well worth your money to hire an attorney to REPRESENT YOUR BEST INTERESTS.

If you are not married to the mom, then if she won't cooperate, you definately need a judge to ORDER her to cooperate.

Why not set up child support and visits at the same time? It's quicker than going to the TX A G office.

Free child support - TX A G office

If you are not receiving child support, then go to the TX A G office in your neighborhood.

They are slow due to the overwhelming requests for assistance. However, they are FREE

Pre-divorce consultation

For $100 per hour, I will sit down with you to discuss what you need to do if you are considering separation/divorce.

I think it is money well spent.

I will give you the current law in the State of Texas.

Knowledge is power!

Emancipation in Texas

I get this question from many 17 yr. olds so I thought I'd post my comments again.

The TEXAS FAMILY CODE Chapter 31 (available on-line) covers REMOVAL OF DISABILITIES OF MINORITY.

Chp. 31.001 cover the requirements - a resident of TX, 16 or 17 yrs. old, self-supporting and managing their own financial affairs. (BF supporting does not qualify!)

Chapter 31.002 is regarding the legal document that must be filed - called A PETITION.
Must state the name, age and place of residence of the child and the name and place of residence of both parents; reasons why removal would be in the best interests of the child; and the purposes for which removal is requested. Usually a parent has to verify the pleading.

Chapter 31.003 is concerning the county to file the document. You file where the child lives.

Chapter 31.004 - The Judge SHALL appoint an amicus attonrey or attonrey ad litem to represent the child's interests at the hearing.

The only children that usually get emancipated are musicians and athletes. It is done in order that they can sign legally binding endorsements and contracts.

The costs prevent most teen-agers from seeking emancipation. Filing fee is approx. $250, attorney to draft the papers would be at least $500, attorney to represent child (appointed by the Judge) can run easily over $500 - anticipate the cost being at least $1,000.

Many judges are of the opinion that a 17 yr. old can wait less than 12 months to become an adult.

Check out my client comments on www.avvo.com

I asked some former clients to write a few comments about me. Wow! Their comments touched my heart.

www.avvo.com

Check out my attorney endorsements on www.avvo.com

I asked a couple of attorneys to write a comment about me on www.avvo.com.

Part 1: Public Works Projects & Subcontractors ("First Tier Claimants")

For the next couple of weeks we will be posting a series of blogs relating to Public Works Construction Projects & Subcontractors ("First Tier Claimants"). Construction or improvements to public property are commonly referred to as public construction, public works contracts, or public projects. Some examples of public property are schools, courthouses, hospitals, highways, and bridges. On public projects, a subcontractor provides materials or labor to a general contractor whose contract is with a public entity. Unlike private property projects, a subcontractor cannot place a lien against public property due to nonpayment. Consequently, in order to protect their interests and increase their odds of receiving payment in full, subcontractors must be aware of the process and deadlines specific to public projects. In most cases, subcontractors on public projects who have not been paid by the general contractor may make a claim on the payment bond posted by the general contractor. A payment bond is a bond posted by the general contractor for the protection of subcontractors and sub-subcontractors. In more limited circumstances, subcontractors may have limited lien rights in money owed to the general contractor.



Please visit our blog again in a few days for Part 2: Public Works Construction Projects & Subcontractors: Prime Contracts Less Than $25,000.00.



Texas law governing public projects can be found in Texas Government Code Chapter 2253 (formerly known as the McGregor Act) and Texas Property Code Chapter 53.



Posted by Sarah F. Berry.

Austin Divorce Lawyer Tip Regarding Separation, Community Property, and Divorce in Texas.

I am asked all the time whether there is a way to "legally" separate in Texas. The short answer to this question is no. There is no "Legal Separation," per se, in Texas. There are no Court proceedings to essentially put a marriage "on hold." To the contrary, even though the parties may be living in separate homes and doing everything separately, the community property presumption still applies to the marriage.

In Texas, all property (and liabilities) on hand at the time of Divorce are presumed to be those of the "community." The community property presumption exists irrespective of whether the parties are living together at the time they divorce, or whether they are separated.

Over the years, I have had several cases where the parties separated and then went on with their lives -- sometimes for many years -- accumulating properties (and debts). Sometimes, the assets, which included real estate, stocks, and mutual funds, appreciated substantially. These assets, just like all of the other property, are subject to being divided by the Court. This sometimes comes as a shock to the party that finds out that they have to share the property that they separately bought, paid for, and maintained.

As a result, when you separate and fail to follow through with a Divorce, all assets are subject to a "just and right" division by the divorce court. Likewise, despite a separation, the debts that are accumulated by either spouse will also be presumed to be community debt. For example, you and your husband separate. He goes out and charges a big screen TV on the joint credit card. Not only is the credit card company going to look to you for payment, the divorce court can order that you pay part of the debt (hopefully, the TV is still around and maybe you can get it).

One way around these problems, is to enter into a Property Agreement Between Spouses so as to eliminate community property (and community liabilities). With such an agreement, the Divorce court could treat all property owned at the time of Divorce as the separate property of one or the other spouse. Even accounts that are jointly owned are oftentimes treated under this type of an agreement (and, hence, by the Court) as being owned 50% by each spouse. Such an agreement could completely avoid the possibility of having the Judge (or worse, yet, a jury) decide what constitutes a "just and right" division of the property.

This type of agreement is a relatively simple document that can prevent the continued accumulation of community assets and liabilities, even during a period of separation. If you would like to set up a consultation with an Austin, Texas Divorce Lawyer, contact Erik E. Cary.

Austin Divorce Lawyer Tips about Common Law Marriage.

Many people believe that they can become married by virtue of only living together. "I have lived with my boy/girl friend for the last 12 years, do we have to get a divorce?" Although the answer to this question is relatively simple, there are some complications that you should keep in mind.

A common law marriage (or "Informal Marriage" as it is called in Texas) can be established in two ways:

(1) By the actual signing of a "Declaration of Marriage" under Texas Family Code, Section 2.402 -- by signing the Declaration, the law will treat the parties as having been married for all purposes; or,

(2) By creating an Informal Marriage under Texas Family Code, Section 2.401 (a) (2).

Under the second scenario, the Informal Marriage is created by: (a) forming an agreement that the parties are to be married, (b) by living together (or "co-habitating"), and (c) by holding themselves out to the public as being married. It also bears noting that the parties must have been "unmarried" at the time of their agreement. If they were actually married, then the second marriage would be void under Texas Family Code, Section 6.202. Interestingly, you could overcome the impediment to marriage by actually ending the prior marriage(s) and then continue living together as husband and wife (and continue holding yourselves out as being married), then the marriage would be essentially ratified under Texas Family Code, Section 6.202(b). It is also important to note that in order to have the requisite consent to marriage, the persons forming the agreement to be married must be over the age of eighteen (18).

As a result, clearly you cannot become married only by living together. This is true, even if you have a child or children together. More is required. So, the answer the question: "Should we file for a Divorce if we have just lived together?" is probably "no." You should also be aware that Texas law provides for a cut-off period for establishing the common-law or informal marriage. After you have stopped living together, your "spouse" will have two years within which to "establish" the "Informal Marriage." Texas Family Code, Section 2.401(b). Significantly, this provision applies in other contexts other than just a Divorce -- perhaps, say a Probate or Administration of an Estate, too, for example.

Many people believe that after the two years is up, there is no need to get a divorce (even if they were common-law married). In my opinion, this is a bad idea. A rebuttable presumption is just that -- rebuttable. Let me give you an example that maybe you haven't thought about. You start living together with your boyfriend and at some point agree to be married, you (or he) start telling others that you are married. The law now treats you as being married. Let's take it a step further and say that you decide to separate and not get a Divorce. What happens if you have significant property? What happens if you die? You may have an incentive for the other person to file a divorce action, a challenge to your probate, or show up at an administration of your estate later on. The rebuttable presumption is nice, but this it not the same an an actual "adjudication," or court decision that is much more difficult to overcome later. To complicate matters, if you are deceased, you are not there to tell your version of events.

As a result, if you are common law married (or if there is, perhaps, any possible argument that you could be), and you decide to stop living together, it may be best to actually get a divorce. This is especially true if you either: (a) plan to get remarried -- you don't ever want to be accused of "Bigamy," under Texas Penal Code, Section 25.01, or (b) you have significant property, inheritance, life insurance, etc., and don't want to be a target for a vengeful former spouse.

Taking the law into your own hands can be very dangerous, if you have questions about how any of this works, you should seek the advice of an experienced divorce lawyer or Texas Family Law Attorney.

Need a probate attorney or a will drafted

I highly recommend W. Kevin Alter at 2020 S W Freeway #225, Houston, TX 77098. His phone number is 713-526-2333

www.hebinckalter.com

If you need a criminal attorney

Damaris G. Quijano
713-943-7400

On-line Parening Class

www.positiveparentingonline.com

If you need an immigration attorney

Damaris G. Quijano
8485 Gulf Freeway #C
Houston, TX 77017

713-943-7400

Need a great electrician!

I highly recommend GILBERT MOODY. He has been in business over 37 years. No job is too small for him!
713-494-2416

Great Pawn Shop

For an unique pawn shop try THE WRIGHT PAWN & JEWELRY CO. located at 6218 Westheimer Road, Houston, TX 77057.

One afternoon my mom and I spent at least 3 hours in there. So much stuff...so little time!

Interior Design & Fung Shui Consultation

I highly recommend Susan Daniels for your interior decorating needs and to have your home and office fung shui'd. Her phone number is 281-367-3581.

Great VET!

I highly recommend Bellaire Richmond Pet Hospital located at 5808 Bissonnet, Houston, TX 77081. Their phone number is 713-668-6882.

Their groomer is the best too!

A. Charles Weiner, CPA

If you need a great CPA call "Chuck Weiner" at 713-782-5707.

I highly recommend Chuck Weiner!!

Geographical Restrictions and Relocation Issues in Austin and Travis County Texas

Geographical restrictions and relocation issues generally come up in three contexts: (1) at the time of a divorce or other Suit Affecting the Parent-Child Relationship (“SAP-CR”), (2) during a suit for modification when one parent seeks to move or “relocate” and there is a geographical restriction which does not permit this move, or (3) where there is no geographical restriction – or the restriction is insufficient – to prevent the proposed relocation, and the other parent wants to prevent the relocation – also usually with a suit for modification.

Because of our rapidly changing world regarding relatively inexpensive video-conferencing options, the constant connectivity of the internet, and relatively quick airline options, the attitudes of Judges and our law has been changing – although slowly. Here are some of the basics regarding Geographical Restrictions and Relocation Issues in Texas.

A. Texas Public Policy.

The Texas Family Code sets out that it is the public policy of the State of Texas to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam. Code § 153.001(a)(1). As a result, obviously, “frequent and continuing contact” between parent and child is more likely when the child lives nearby. This is the primary reason that Geographical Restrictions are imposed.

Also, on the subject of “frequent and continuing contact,” it should be noted that the Texas Family Code, Section 153.137, makes clear that the Standard Possession Schedule only constitutes a presumptive minimum amount of time that a parent should have with his / her child.

B. Best Interests of Child.

For decades the Legislature has made clear that Texas Courts should be primarily concerned in conservatorship and possession and access issues with what is in the “best interests of the child.” Tex. Fam. Code § 153.002. As a result, and because of the fact that there is sometimes a big debate between parents as to what is “best” for their children – especially when the parents reside in two different homes or come from differing cultures – there is much room for disagreement as to whether the Court should impose geographical restrictions, and whether a proposed move (or relocation) due to family, job opportunities, or other issues, will be deemed to be in the child’s best interest. However, we should keep in mind that this will ultimately be what the Courts are concerned about.

C. Who has the Right to Choose?

If a parent is appointed as the “Sole Managing Conservator,” or SMC, then this parent usually has the exclusive right to determine the primary residence of the child. Also, the individual who is appointed as the “primary” Joint Managing Conservator, or JMC, will also likely have the exclusive right to determine the primary residence.

It should also be noted that under the “Parenting Plan” provisions of the Family Code, the Final Decree granting conservatorship must either:

(1) establish a geographic area for the residence, or
(2) specify that the managing conservator may determine the residence without regard to geographic location.

Tex. Fam. Code §§ 153.133; 153.134.

D. Types of Geographical Restrictions.

The primary custodian is oftentimes restricted to a specific geographical region. Some of the more common restrictions are:

(1) mile limitation – say 100 miles;
(2) The County of the Suit;
(3) The County of Suit and “contiguous” or “adjoining” counties;
(4) The entire State of Texas; or,
(5) A specific city.

For example, in the Austin, Texas area, a common geographical restriction that courts might impose upon the primary conservator might be “Travis County or any county adjoining Travis County.” If this provision were part of your divorce decree it would mean that you could relocate to any home (house, apartment, condominium, etc.) within Travis County, or any county that abuts Travis County – these counties are: Blanco County, Burnet County, Caldwell County, Hays County, Lee County, and Williamson County.

E. Modification Lawsuits.

In the typical modification lawsuit, the Court is concerned with whether there has been a “material and substantial change in circumstances” in order to justify the change in terms. In suits for modification, it has been specifically held that a parent’s (or conservator’s) desire to move (or relocate) can be a material and substantial change in circumstances. Bates v. Tesar, 81 S.W.3d411, 430 (Tex. App. – El Paso 2002, no pet.). However, no every desired move will bring about a material change. Id. In determining whether the move is justified, and in addition to the “best interests” of the child as addressed above, the Court will look to:

(1) The distance of the proposed move;
(2) The proximity, availability and safety of travel arrangements.
(3) The quality of the relationship between the non-primary parent and child;
(4) The nature and quantity of the child’s contact with the non-primary conservator;
(5) The possibility that the relation would deprive the non-primary conservator of regular and meaningful access to the child;
(6) The impact of the move on the quantity and quality of the child’s future contact with the non-primary conservator;
(7) The motive for the proposed move (or opposing the move); and,
(8) The feasibility of preserving the relationship between the non-primary conservator and the child through suitable visitation arrangements.

F. Allocation of Relocation Expenses.

The Family Code allows for the court to allocate any increased expenses resulting from one conservator’s relocation. Tex. Fam. Code § 156.103. The allocation is to be made “on a fair and equitable basis, taking into account the cause of the increased expense and the best interest of the child.” Id. The statute creates a rebuttable presumption that any increased expenses should be paid by the relocating party.

G. Jury Issues.

It should be noted that not all issues arising in the context of a family law matter may be submitted to the jury; however, under Texas Family Code § 105.002, with regard to relocation, a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of:

(1) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child;
(2) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child’s primary residence; and
(3) if a restriction is imposed, the determination of the geographic area in which a joint managing conservator must designate the child primary residence.

H. Remedies for Violation of a Geographical Restriction.

The Court can take action with respect to any parent who violates a geographical restriction. If the move is without the parent’s consent, the non-relocating parent could file a Habeas Corpus action commanding a peace officer or the conservator to produce the child to the Court. The Court can also use the geographical restriction violation to modify the Court’s order, including up to modifying conservatorship, or perhaps other potential modifications of the Order. Finally, the Court can issue a Show Cause Order, and hold a contempt hearing to determine whether punitive contempt (i.e. – incarceration or fine) is appropriate.

If issues relating to geographical restrictions are likely to come up in your Divorce or SAP-CR case, or if you expect to have issues concerning relocation matters, or a modification suit, you should hire an experienced family law attorney to help you with your case.

Adult B'nai Mitzvah

On Saturday, May 2, 2009, 4 congregants who have been studying for the past 18 months will participate in the FIRST ADULT B'nai Mitzvah at Houston Congregation for Reform Judaism.

If you are interested in attending, just send me an email and I'll be glad to give you additional information.

fran@familylaw4u.com

San Antonio Residents Fire Back At Homeowners Association and Builder

A group of residents of the West Oaks Estates subdivision in San Antonio, Texas are fighting back against what they believe is an unmeritorious attack by their homeowners association, and the builder/developer who controls the HOA. In a counter-suit filed in Bexar County District Court in San Antonio, Texas, the residents have accused the West Oak Estates HOA, Inc., and McMillin Development of breach of contract, real estate fruad, violations of the covenants, and conversion.

The counter-suit, which was filed in response to a series of suits initiated by the builder and HOA against 19 families who purchased their properties in the subdivision PRIOR TO the time that the builder recorded the covenants/restrictions. In the original suit the HOA and builder seek a judicial declaration that the properties are subject to the declaration of covenants and restrictions("CCRs") and to mandatory membership, despite the fact that the builder dropped the ball in timely filing the CCRs with respect to the residents' particular unit of the subdivision.

In the counter-suit, the residents deny the applicability of the restrictive covenants to their properties. In addition, they have alleged that membership in the HOA is not mandatory for them. In support of that argument, the residents have argued that the law in Texas, and even before Texas or the United States were established, provides that a covenant does not run with the land unless it "touches and concerns the land." It is clear from records recorded with the Bexar County Clerk that the restrictive covenants applicable to the West Oaks Estates HOA were not filed until AFTER each of the Counter-Plaintiffs purchased their properties.

The residents are represented by San Antonio attorney Trey Wilson, who has handled HOA litigation before both on behalf of and against homeowners associations. Wilson maintains that the West Oaks Estates HOA is not a proper Plaintiff in the lawsuit because there is no membership in the HOA by his clients. "Restrictive Covenants are treated by Courts as contracts, and since it is undisputed that my clients are not members of the HOA, there is no contractual privity between them and the HOA which would allow the HOA to bring this suit," said Wilson.

There is currently no trial date in the case.

Great Texas HOA Absue/Reform Handbook Posted by Harris County Homeowner

Barbara J. Hogan, a long-time advocate of HOA reform and crusader against its abuses published a fine paper entitied "A Handbook For Texas Legislators Relating to Homeowners Association Issues." According to her introduction, Ms. Hogan wrote the Handbook over the course of 2 years, and intends for it to be a resource for legislators when considering HOA-related bills.

I have read the Handbook, and find it to be well-researched and very informative. A copy of it is available in format at Ms. Hogan's website (www.texashoaissues.com), or view the .pdf version by clicking HERE. Congratulations to Ms. Hogan.

Austin, Texas Homeowner group sues man over metal roof

By Asher Price/AMERICAN-STATESMAN

Joe Sigel put a metal roof atop his West Austin house in 2007 to cut energy use and improve the home's look. Now it has landed Sigal in court, facing a suit by a homeowners association that says he violated its rules.

Sigel, who owns the Art on 5th gallery, had lived in his house for more than five years when he decided to replace the composition roof with a metal one. "It's energy-saving; it looks better; it improves the neighborhood," said Sigel, who lives alone in the house, which has about 3,900 square feet and was built in 1998.

But the Treemont Homeowners Association, which filed suit against Sigel in September in Travis County District Court, says Sigel did not ask its permission before erecting the roof, which it says violates a rule barring "galvanized steel sheet" on roofs. No court date has been set.

"The Architectural Committee has determined that the roof reflects light in an unacceptable manner," the filing says. It says Sigel finished the roof after being given notice by the homeowners association.

The conflict comes as lawmakers again wade into whether homeowners associations should be able to prevent their members from trying measures that would cut their energy use.

"It's not just an environmental question; it's also a covenant question," said Larry Parks, the attorney for the homeowners association, which represents homeowners just south of Bee Cave Road and west of MoPac Boulevard (Loop 1). "He neglected to meet his obligation to his neighbors by not obtaining the approval of the homeowners association."

At least one of his next-door neighbors said he supports Sigel. The roof "looks great. It adds to the style of the neighborhood. It's something we as a neighborhood should look to going forward," said Todd Davidson, the neighbor. "He didn't get permission in the first place, and he should have, but the homeowners association is being petty about this."

Many houses in Austin have metal roofs. They were common in Austin in the 19th century after railroads began shipping the material, said John Mayfield, an architect who sits on the board of the Heritage Society of Austin.

Many barns also had roofs of corrugated metal, "with a crimped look, kind of like a potato chip," Mayfield said. Old metal roofs, which were susceptible to rust, were typically painted. They began going out of fashion in the mid-20th century as cheaper materials, such as shingles, began to supplant them, he said.

Sigel said he replaced the original shingle roof because it was developing black algae. The new roof, made from steel coated with an aluminum-zinc alloy marketed as Galvalume, cost Sigel $30,000, according to Jason Snell, Sigel's lawyer. (Sigel said he does not want to paint the roof to cut down on glare because the paint will peel and leave the roof looking chalky.)

Sigel, who said he was not asked to stop the construction of the roof until it was near completion, said his energy use from May through October 2007, under the old roof, was 11,265 kilowatt-hours. During the same period in 2008, under the new roof, he said he used 7,952 kilowatt-hours of electricity.

Putting a metal roof on a house is "the most energy-efficient approach you can implement," said Ed Clark, a spokesman for Austin Energy, which oversees the city's Green Building program. "It reflects heat back out, reduces heating and cooling, and encapsulates heat within during the wintertime," he said.

Peter Pfeiffer, an architect specializing in green building, said metal roofs can cost three times as much as their more conventional counterparts. The roof "minimizes excess gain of solar radiation," said Pfeiffer, whom Sigal paid to make a presentation about the metal roof to the homeowners association's architectural committee this year. "You want as light a roof as possible, just as a white or silver car sitting in the sun will be less hot inside than a black car or a brown car."

Several lawmakers have made proposals this session to bar homeowners associations from preventing members from putting solar panels atop their houses.

A 2003 state law prevents property owners associations from prohibiting water-saving measures such as installing rain barrels or implementing efficient irrigation systems.

"We're running into this more and more," Pfeiffer said, "where a lot of these subdivision restrictions were written before people understood the effects of dark roofs or by people who don't understand building science."

Texas Bill Aimed At Preventing HOA Foreclosures Receives Committee Hearing

House Bill 899, filed by Rep. Harold Dutton of Houston, would prevent Homeowners Associations from foreclosing upon Texas homesteads. It was filed in response to numerous complaints of HOA abuses, including mass foreclosures, foreclosures upon sick and elderly homeowners, and even foreclosure upon soldiers deployed to war.

The Bill, originally filed in January, was the subject of a hearing yesterday in the powerful House Business and Industry Committee, chaired by Rep. Joe Deshotel of Port Arthur.

As currently proposed, HB 899 would add a new Section 202.010 to Chapter 202of the Texas Property Code. The proposed Section 202.010 would read as follows:

Sec. 202.010. FORECLOSURE OF CERTAIN LIENS. A restrictive covenant may not be adopted that places a lien on real property to secure payment of a debt created by the covenant unless the covenant exempts a homestead, as defined by Section 41.002, from foreclosure of the lien.

Unfortunately, even if passed, the Bill would only apply to restrictive covenants (CCRs) adopted on or after the effective date of the Act.

The Committee also considered yesterday HB 1760, which would extend the limitations period for homeowners seeking to file suit against persons seeking to foreclose liens placed upon property under Chapter 51of the Texas Property Code.

I believe that both Bills are necessary to protect Texas homeowners from abuses often committed by those with lien authority over their homes. Accordingly, I support passage of both HB 899 and HB 1760, and encourage you to support these bills by contacting your eleceted official in the Texas Legislature.

West Oaks Estates HOA / Builder Dispute Settled

Yesterday we successfully resolved the dispute existing by and between 17 families residing in the West Oaks Estates subdivision, and their San Antonio HOA (West Oaks Estates Homeowners Association) and builder (McMillin Homes). R L Wilson, P.C. Law Firm serves as attorneys for the 17 families, who were sued (each in different suits) by McMillin and their homeowners association (the "WOEHOA") in November 2008.

The skirmish involved the failure of the builder/developer to annex Unit 2 of the development into the Restrictive Covenants established for Unit 1 PRIOR TO selling homes to the 17 families. This gaffe resulted in our clients' homes not being subject to mandatory membership in the HOA, and the homeowners not being legally required to pay association dues or abide by the restrictions applicable to those residents who purchased homes after the discrepancy was cured by the builder. We characterized their homes as a "donut hole" in the rules and payment obligations imposed upon the subdivision by the late-filed Restrictions.

When the builder asked the 17 families to voluntarily submit to the restrictions and voluntarily pay HOA dues, they refused, citing what they deemed to be past abuses by the developer-controlled HOA. When various "incentives" offered did not entice them to voluntarily join the HOA, our clients were served with lawsuits filed jointly by McMillin and the WOEHOA. They brought those suits to our firm, and asked us to vigorously defend them and preserve their freedom from what they consider to be an oppressive HOA. As lawyers who regularly litigate claims involving homeowners associations in Texas, we were glad to step up to the plate.

Along with Answering the suits on behalf of the 33 Defendants, we sought and achieved consolidation into a single action, and then advanced various counter-claims against the builder related to promises of community facilities that were never delivered, including a "resident's park." Other counter-claims that were asserted related to fraud in the inducement, conversion of HOA dues paid prior to the time the residents realized they were not required to pay, and fraud in a real estate transaction.

Fortunately, after yesterday's 9 hour marathon mediation session --- in which both sides fought hard but finally succumbed to reason -- the case was settled. In the end, our firm's clients were not required to join the HOA, but did agree to pay a reasonable and reduced "license fee" as their "fair share" of the cost of maintaining the development's gates and roads. This seemed to be a satisfying resolution to all involved, and I was thrilled to receive a late-night "thank you" e-mail from the client representative.

We are proud of the work our law firm did in the case, and of our track record as lawyers in lawsuits involving HOAs in and around San Antonio, Texas. We look forward to the "celebration bar-b-q" our clients invited us to!

More Media Coverage on Our Client -- Coach Randy Palmer

Coach Randy Palmer, a client of R L Wilson, P.C. Law Firm received formal notice of his termination as the Athletic Director and Head Football Coach for the Poteet ISD this week. Cary Clack of the San antonio Express News published this unnerving but accurate analysis of the Coach's dilemna:

Last month, the Poteet school board voted to not renew the one-year probationary contract of its athletic director, Randy Palmer.

To dismiss a popular and competent administrator who, as head football coach, led Poteet High to a playoff berth in 2008, the board's reasons must have been unimpeachable.

One reason is that Palmer used a baseball field for football practice. That meant that instead of athletes running on the field with cleats, he had athletes running on the field with cleats, an unforgivable violation.

Another reason Palmer's contract wasn't renewed is, as Express-News reporter Zeke MacCormack wrote, "he failed to quell the outpouring of support for him after the board's preliminary vote Feb. 23 to not renew his contract."

So the school board's timeline looks like this: The board fired Palmer in a preliminary vote in February, and because he was so popular, there was an outpouring of support for him, and because he didn't use his popularity to stop the outpouring of support for him, the board fired him for good in March.

So if there had been no outpouring of support for him after he got fired in February, he wouldn't have gotten fired in March?

In essence, Palmer was fired in March because he couldn't keep people from being upset that he was fired in February.

How do you do that? What's in your strawberry shortcake to produce that logic?

This is Alice in Wonderland meets George Orwell meets H.G. Wells because somewhere in there you're going to need a time machine to make sense of it.

"Son, we're firing you?"

"Why?"

"Because when we announced we were firing you last month you didn't keep people from protesting that we fired you."

"So you're firing me because, after announcing previously you were firing me, people were angry that you were firing me, so to punish me you're going to fire me and anger more people that you're firing me?"

"Yes."

The day after the board's second vote to fire Palmer, in an admirable display of civil disobedience, more than 100 students at Poteet High left their classes.

You've done some good when that many students risk punishment for you.

What was Palmer to tell his admirers who have publicly stood in solidarity with him during the past six weeks?

"I appreciate your support and the fact that you are upset with my firing, but please do not show your support for me over my firing or I will get fired."

Since Palmer was fired because he didn't quell the outpouring of support after the preliminary vote to fire him, does the fact that he wasn't able to quell the support for him after the second vote to fire him mean that his next employer must fire him?

Do you even understand that last paragraph?

Neither do I.

But it's at least as clear as the reasons for firing Randy Palmer.

Kelo Rears Its Greedy Head in Houston

For landowners, their is no more controversial case than the Supreme Court’s 5-4 decision in Kelo v. City of New London permitting the use of eminent domain to transfer private property from one owner to another under the guise of furthering economic development. In response to this 2005 decision, dozens of state legislatures passed bills curbing the effects of Kelo, including Texas, which made it illegal for a municipality to condemn property solely for private economic development. Yet that is exactly what Mayor Bill White and the City of Houston have seemingly done.

In a front page story, Sunday’s Houston Chronicle details the fate of a miniscule parcel of property - .09 acres - that lies at the very heart of a $12.5 million land sale.

“The complex case, involving a series of land transactions and a web of relationships between elected officials at City Hall and developers, raises the question of whether the city abused its power in taking land it now is hard-pressed to prove that it needed, land that a developer was seeking to control.

“It looks as if the city of Houston was all too eager to bulldoze the people — and condemn the property — that prevented a powerful political donor from realizing his ambitions,” said Andrew Wheat, research director for Texans for Public Justice, a nonpartisan watchdog group that has conducted several studies of the use of eminent domain law in Texas.”

Eric OKeefe: The Land Report

Mission Creek Homes Avoid Auction

The foreclosure threat hanging over more than 80 homes in the Mission Creek community came to nothing on Tuesday after the homeowners association opted not to go through with the foreclosures after all.

Initially, the South Side homeowners association had filed to foreclose on dozens of homes because of unpaid association dues. That number of foreclosures — on about 21 percent of the homes in the neighborhood, according to foreclosure tracking service RexReport.com — would have been unprecedented.

Some homeowners had not paid their estimated $130 in annual neighborhood dues because they were upset that a promised park had not yet been developed and that the association didn't return phone calls and letters.

But most communities have covenants that give a homeowners association the right to foreclose for unpaid dues.

Neither the developer, builder, HOA management company nor association attorney responded to voice messages left by the San Antonio Express-News.

Randy Gool of the Austin-based Westar Realty Corp said homeowner associations sometimes use foreclosure as a way to get paid. “They really don't want the property and can't afford to have it,” he said.

If a homeowner association does foreclose, Texas homeowners have a 180-day right of redemption.

But even with that right, problems for the homeowner can snowball. “They're going to have the pay the fees, the late fees, the attorney's fees,” real estate attorney Carl Pipoly said.

And Gool said the homeowner association foreclosure might trigger the first lien holder — the mortgage lender — to foreclose, too.

The legislature passed the 180-day rule after an elderly Houston widow lost her home thanks to unpaid homeowner association dues, Gool said.

Foreclosure Listing Service Inc. said the Mission Creek postings made up half of the total homeowners association-related foreclosure postings for April and helped create a 745 percent increase in those postings compared with the same month last year.

By Jennifer Hiller - Express-News

A BILL of RIGHTS for HOMEOWNERS in ASSOCIATIONS

This Article drafted by David A. Kahne of the Law Office of David A. Kahne, and presented by The AARP Public Policy Institute, a part of the Policy and Strategy Group of AARP. It is copied to this Blog from the Website of Texas Homeowners for HOA Reform.

1. The Right to Security against Foreclosure

An association shall not foreclose against a homeowner except for significant unpaid assessments, and any such foreclosure shall require judicial review to ensure fairness.

2. The Right to Resolve Disputes without Litigation

Homeowners and associations will have available alternative dispute resolution (ADR), although both parties preserve the right to litigate.

3. The Right to Fairness in Litigation

Where there is litigation between an association and a homeowner, and the homeowner prevails, the association shall pay attorney fees to a reasonable level.

4. The Right to Be Told of All Rules and Charges

Homeowners shall be told - before buying - of the association's broad powers, and the association may not exercise any power not clearly disclosed to the homeowner if the power unreasonably interferes with the homeownership.

5. The Right to Stability in Rules and Charges

Homeowners shall have rights to vote to create, amend, or terminate deed restrictions and other important documents. Where an association's directors have power to change operating rules, the homeowners shall have notice and an opportunity, by majority vote, to override new rules and charges.

6. The Right to Individual Autonomy

Homeowners shall not surrender any essential rights of individual autonomy because they live in a common-interest community. Homeowners shall have the right to peaceful advocacy during elections and other votes as well as use of common areas.

7. The Right to Oversight of Associations and Directors

Homeowners shall have reasonable access to records and meetings, as well as specified abilities to call special meetings, to obtain oversight of elections and other votes, and to recall directors.

8. The Right to Vote and Run for Office

Homeowners shall have well-defined voting rights, including secret ballots, and no director shall have a conflict of interest.

9. The Right to Reasonable Associations and Directors

Associations, their directors, and other agents shall act reasonably in exercising their power over homeowners.


10. The Right to an Ombudsperson for Homeowners

Homeowners shall have fair interpretation of their rights through the state Office of Ombudsperson for Homeowners. This ombudsperson enables state oversight were needed, and increases available information for all.

Origins of the HOA's right of Foreclosure...Understanding Inwood vs. Harris

Nonprofit homeowners' association brought action against homeowners who were delinquent in their payment of assessments. The 152nd District Court, Harris County, Jack O'Neill, J., awarded association judgment but denied foreclosure. The association appealed. The Houston Court of Appeals, Dunn, J., 707 S.W.2d 125, affirmed. Association petitioned for review. The Supreme Court, Robertson, J., held that homestead law did not protect homeowners against foreclosure for failure to pay assessments.

San Antonio HOA Moves to Foreclose on 84 Homes

In a rare move, a South Side homeowners association has filed to foreclose on 84 homes in the Mission Creek community because of unpaid association dues.

That’s 21 percent of the roughly 400 homes in the community, based on data from RexReport.com. The 84 are set to go on the auction block April 7 at the Bexar County Courthouse — an event that would devastate the neighborhood’s property values, experts say.

Judith Gray, an attorney hired as the auction trustee, said the association is foreclosing because many homeowners have not paid dues for several years, and the multiyear loss of those dues is making it difficult for the association to function and to provide services required by the city.

“We’ve got a lot of stubborn people who believe they do not have to pay homeowners dues,” Gray said. “They have on average not paid homeowners dues for two to three years.”

Partly at issue is a community park that one of Mission Creek’s builders, Sivage Homes, and homeowners say the association has been promising to develop for several years. Currently, the park site comprises grass and trees.

Also fueling anger, homeowners claim, is the lack of response from the association when they call for an update on the project or any other issue in the neighborhood. Letters and phone calls go unanswered.

Neither developer Harry Hausman of HLM Development nor association board members responded to multiple voice messages left by the San Antonio Express-News.

Homeowners such as Cynthia Carrillo say they have deliberately stopped paying their $130 in yearly dues in response to being ignored.

“They are maintaining the front area where they sell those homes, but aren’t doing anything else,” Carrillo said. “If they are going to get $130 from all these people, they need to return people’s calls and put in more than those flower beds.”

The association’s attorney says it’s the nonpayment that’s preventing the association from following through on promised projects.

“If we don’t do this (collect the fees), the homeowners association cannot survive to do what homeowners want and have the park taken care of, have lights on in the park and cut the grass,” Gray said.

Most communities have covenants that give a homeowners association the right to sue property owners, assess penalty fees and even foreclose if dues aren’t paid.

The association usually must issue written notices asking a homeowner to pay and then file a lawsuit before starting foreclosure proceedings.

Cities encourage homeowners associations as a way to maintain housing and community standards to preserve home values — the source of property taxes — with minimal city involvement.

But if the 84 homes are auctioned, it could severely undermine home values in Mission Creek, one real estate expert said.

“That would be a spectacular event, and I can’t think of how it would be positive for the community,” said Al Kiris, agent and general partner at Bradfield Properties. “That’s unusual.”

Studies back this up. One conducted by the University of Missouri at St. Louis found that homes within a mile of a foreclosure typically see a hit in value.

For instance, between 2000 and 2008, homes nearest a foreclosed property lost an average 1 percent of their value. Between January 2006 and September 2008, when the market was more sluggish, homes nearest a foreclosure lost up to 5 percent in value.

Some of the homeowners facing foreclosure say their nonpayment is not from protest against the association, but a simple misunderstanding.

Adam Chavarria says his unpaid dues were the result of poor communication from the association as to his payment due date.

Chavarria, who bought his home in July 2004, said the association had sent a bill and coupon book in previous years to help in payments, but not last year.

“I didn’t have a problem paying,” he said.

Chavarria says his next personalized written communication from the association was a “formal notice” of default telling him to pay $267.58, including $100 in legal fees, or have his home auctioned off between 1 p.m. and 4 p.m. April 7.

“That was kind of a shock. For a couple hundred dollars, I thought that was a bit much,” Chavarria said.

Still, he said, he paid the fees.

As of Friday, the showdown between Carrillo and the association continued. Carrillo was adamant she wouldn’t pay the nearly $700 in fees she was assessed until an association representative speaks with her.

“I’m willing to come to a compromise,” she said. “But I should not have to pay fees and penalties and all that. They are not doing anything for the community.”

She hopes someone from the association will call her back and give a place where she can go and pay in person, rather than send something in the mail.

By Aïssatou Sidimé - Express-News

Why use our firm

The Baez Law Firm, P.C. has been helping San Antonina's for years. We do not participate in the hype of television, although we have several commercials on TV, we simply help people with their legal needs.

When you have been injured by another person negligence, you need to have a legal team that will take care of you. You need a law firm that will treat you, not as a number, but as a person. Our clients come from all facets of life, yet, they have one thing in common, they need legal help.

Although our law firm handles auto accidents and all personal injury cases, we also have attorneys that specialize in family law, business law, criminal law, bankruptcy, appeals and many more areas of law.

For the most part, insurance companies will be friendly with you, when you suffer as a consequence of their insurer's negligence, but do not be mislead. They are not your friends they are there to protect their investors and stockholder's bottom line, not yours. We are here for that.

JUDGE WATCH: Another Texas Judge Arrested by the FBI

You read these stories, and you just know you're seeing a future Law & Order episode ....

Last Thursday, after an investigation with an undercover FBI agent posing as a defendant pending trial, the FBI arrested El Paso state district judge Manuel J. Barraza, 53, on four counts of federal criminal activity that is being described as taking bribes and soliciting sex from defendants appearing before him.

Officially, the grand jury indictment includes three charges of "wire fraud and deprivation of honest services" and a fourth charge of lying to a federal agent. Judge Barraza has been released from custody after posting $10,000 bail.

El Paso District Attorney is Reviewing Every Case that Went Before Barraza

Meanwhile, the El Paso district attorney is reviewing every case that has gone before Judge Barraza and it's expected that some of these cases will be tossed out as a result of the prosecutor's investigation. Even though the judge has only been on the bench a short while, that review is going to encompass over 100 cases.

Apparently, it didn't take Barraza long ....

Barraza just got elected judge last November. And,according to investigators, Barraza started these solicitations for money and sex long before he took the bench in January. In fact, Barraza purportedly starting inviting defendants to pay him money and sex for his influence as a judge shortly after he won the election on November 2nd.

Shocking Blow to a Once-Promising Career

Barraza, now a grandfather of four and father of two, built a legal career as a criminal defense attorney who represented complex and notorious criminal defendants, including serial killer Richard Ramirez (known as "the Night Stalker" in the media) as his local counsel.

However, maybe there was a hint of things to come: the El Paso Times is reporting that Barraza was charged with attempting to bribe a probation officer back in 1983, but the charges were dismissed for lack of evidence.

What Happens to Manuel Barraza?

First, he's going to have to face those federal charges. Then, maybe Barraza can go back to practicing law. But his short stint as a member of the judiciary (did he even reach 90 days on the bench?) is the end of Manuel Barraza, Judge.



Sources:

Houston Chronicle
http://www.chron.com/disp/story.mpl/ap/tx/6359175.html

Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/DN-judgearrested_03tex.ART.State.Edition1.4a96528.html

El Paso Times
http://www.elpasotimes.com/politics/ci_12060597

Proposed constitutional amendment would prohibit HOA foreclosures

AUSTIN – Homeowners associations in Texas would lose their power to foreclose on individual homeowners for nonpayment of dues and other fees under a proposed constitutional amendment filed Friday by a Dallas-area lawmaker.

The amendment and companion legislation by Rep. Burt Solomons, R-Carrollton, would provide more rights and protections for homeowners in HOA neighborhoods – including thousands in North Texas and across the state who have faced losing their homes for not paying dues.

"Things have gotten out of control with homeowners associations," Solomons said. "It's amazing that the courts have allowed them to foreclose on homesteads for something as minor as getting behind on association dues. ... We have to restore some balance."

There are an estimated 20,000 homeowners associations in Texas.

Solomons said the plight of many Texans in HOAs has been illustrated in news stories, such as when a Frisco homeowner was threatened with fines by his association in August for parking his Ford F-150 pickup in his driveway. HOA rules there required that nonluxury trucks be kept in the garage.

"Some of the requirements are excessive. Are you really going to fine somebody because their fence is six inches too high?" Solomons asked.

Rick Stopfer, an Irving City Council member and longtime board member for the Valley Ranch homeowners association, said the constitutional amendment would cripple the ability of HOAs to carry out their responsibilities.

"People agree to pay certain dues and fees when they become a homeowner in a community with an association. There has to be some type of penalty for those who are not willing to abide by the agreement," he said.

Solomons' proposal, which is expected to be opposed by HOA groups, would submit a constitutional amendment to Texas voters that would prohibit foreclosures by associations on homesteads within their jurisdiction.

That foreclosure authority dates to a 1987 ruling by the Texas Supreme Court. Texas is one of only a handful of states that allows HOAs to foreclose on members.

The amendment states that a homestead within an HOA would be "protected from forced sale for the payment of a debt" to the association. It would allow an association to place a lien on the property, which would entitle it to payment once the house is voluntarily sold by the owner.

A companion bill filed by Solomons would revamp the state's homeowners association laws, giving homeowners access to HOA meetings and records and requiring fair and transparent elections of homeowner boards.

His bill also would take aim at associations that prohibit use of solar panels by homeowners – a rule that Solomons said is out of step with current efforts to switch to more environmentally friendly types of energy.

Sen. Royce West, D-Dallas, is carrying similar legislation in the Senate.

Stopfer said he could not recall any instance where a Valley Ranch homeowner was forced to give up his home for nonpayment of dues or fees. Where there are problems, he added, a payment plan can typically be set up.

By TERRENCE STUTZ / The Dallas Morning News

Rep. Solomons Proposes Reform of Texas HOA Laws

Adapted from a Press Release from State Rep. Burt Solomons (Carrollton)

On April 27, 2009, Rep. Solomons announced plans for a sweeping reform of the state's homeowners’ association laws, including a constitutional amendment that would prohibit foreclosure of a homestead by a homeowners’ association. Solomons, a recognized real estate attorney in the North Texas area who served for fourteen years on the House committee with jurisdiction over homeowners’ associations, said the legislation is necessary. “It’s clear to me that while homeowners’ associations are valuable” said Solomons, “things have just gotten out of control with some of them. I think it’s amazing that in Texas the courts, not the legislature, have allowed homeowners’ associations to foreclose on a homestead.”

Solomons’ constitutional amendment, HJR 76, would give citizen of Texas the right to vote on whether to prohibit foreclosures by homeowners’ associations on homesteads, whereas HB 1976, filed today, proposes sweeping reforms to the operation of homeowners’ associations, including requirements to allow homeowners access to all homeowners’ association records, meetings, and to fair and transparent elections. Solomons’ proposed changes also give homeowners powerful tools to enforce the law. “Many homeowners’ associations have abdicated their responsibilities to management companies and attorneys who can not be held accountable and use penalties and attorneys’ fees to harass and intimidate homeowners who question the use of their association dues or the arbitrary enforcement of rules or bylaws,” stated Solomons. In response, he has proposed changes that will give homeowners greater access to the courts to battle homeowners’ associations by providing court and attorney fees to homeowners if the homeowners’ associations fail to comply with statutory requirements, as well as granting the courts the authority to assess fines against the associations.

The proposed legislative changes also address a myriad of issues which have negatively impacted homeowners, including priority of payment and prohibiting bans of solar panels. Homeowners are monetarily disadvantaged by prohibitions of solar panels, the use of which could dramatically lower the energy consumption and costs to homeowners. “At a time when the entire nation is focusing on renewable energy and the reduction of negative impacts on our air quality” said Solomons, “it is beyond me why we allow homeowners’ associations to ban the right of individuals to generate their own electricity in a reliable, environmentally-friendly method.”

The bill also addresses the priority of payment issue. While homeowners’ associations are currently prohibited from foreclosing on a home for failure to pay fines or attorneys’ fees, many associations will redirect a homeowners’ payment of association dues to pay for those outstanding fines or fees, which leaves their dues in arrears. Under the law now, failure to pay dues is the only reason for which an association may foreclose on a home; thus redirecting payments allows a homeowners’ association to foreclose on homeowners who have made good faith efforts to stay current with their obligations.

Solomons offered major reforms to homeowners’ association laws last session, but they died on the last day of session. “It is estimated that there are over 20,000 homeowners’ associations in Texas impacting citizen throughout the state,” said Solomons. “While some are conscientious about their fiduciary duties to their neighbors, others tend to operate like little fiefdoms. This is a strong property rights state and I believe we should ensure that homeowners’ associations can not intimidate and harass Texans out of their homes.”

Austin Lawyer Tip: Retroactive Child Support.

In both Texas paternity cases and other Suits Affecting the Parent-Child Relationship “SAP-CR” cases (including Divorces), a Texas court may order so-called “retroactive” child support, or what is essentially back child support for periods of time in the past where child support was not ordered, but where there was a duty of support.

In a Texas paternity case, absent evidence that the prospective obligor knew about the obligation and “sought to avoid the establishment [of an Order],” the Court will presumptively limit the award of retroactive child support four years of support. Tex. Fam. Code § 154.131. In setting the amount of retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:

(1) Whether the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;

(2) Whether the obligor (Dad), had knowledge of his paternity or probable paternity;

(3) Whether the award of retroactive support will impose an undue hardship upon the obligor or his family, and

(4) Whether the obligor provided any actual support or other necessaries before the filing of the action.

In ordinary SAP-CR cases under Tex. Fam. Code § 154.009 (a), the Texas Courts can order a parent to pay retroactive child support if the parent:

(1) has not previously been ordered to pay support for the child; and

(2) was not a party to a suit in which support was ordered.

Notwithstanding Subsection (a), the court may order a parent subject to a previous child support order to pay retroactive child support if:

(1) the previous child support order terminated as a result of the marriage or remarriage of the child's parents;

(2) the child's parents separated after the marriage or remarriage; and

(3) a new child support order is sought after the date of the separation.

In these situations (as contrasted with paternity, above), the Court may order retroactive child support back to the date of the separation of the child's parents.

It is also significant to note that unless the Texas Office of the Attorney General was “a party to an agreement” which settles past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate retroactive support when the Attorney General so requests.