Texas Eminent Domain Bill Progressing Through Legislature

The highly anticipated eminent domain bill (SB 18) could be voted out of the Texas House and be on its way to Governor Perry as early as this Saturday. The bill is scheduled for second reading today, which means it will be read on third reading Saturday while the House is in session. The Bill passed out of the Texas Senate on May 7, 2009.

Earlier this week, the House Land and Resource Management Committee voted the bill out of committee with a few amendments (also called Committee Substitutes). All provisions critical to property owners were left intact.

Both the United State and Texas constitutions require that the taking of private property must be for a "public use," and that when an authorized entity takes private property for a "public use" that it must compensate the owner for the property taken. The exercise of the power of eminent domain is generally recognized as a necessary tool of government; however, many have argued that over the years this power has been expanded and used in ways that are improper.

C.S.S.B. 18 makes changes, additions, and deletions, to various provisions in Texas law in an attempt to reform the power, limitations, process, and various other aspects of the power of eminent domain and condemnation in this state.

To see the Legislature's Analysis of the Bill and its specific provisions, click here.

Ranch is Nation's Largest Piece of Property For Sale

They say everything's bigger in Texas, and ranches are usually not the exception to that Rule. We enjoy many of the nations largest ranches, with such legends as the King Ranch, XIT, and Waggoner, Texas is legendary for its wide open spaces.

But the largest piece of property for sale in the United States today is New Mexico's Bell Ranch. At 290,100 contiguous deeded acres, the ranch comprises 453 square miles. By comparison, the entire City of San Antonio had a total area of 412.07 square miles (source: 2007 U.S. Census).

The Bell Ranch was assembled 40 years ago by the heirs of William Lane. It features Bell Mountain, a dramatic butte punctuating the landscape of San Miguel County just east of Santa Fe. The Canadian River flows through the property for over 13 miles and the Hacienda is 10,832-square feet with swimming pool and tennis courts. The headquarters includes a general manager residence, lake house, ranch offices, stables, barns, garage, and storage facilities. Cowboy camps are located throughout the property, as well as thousands of untouched acres and an airfield with storage for 100LL avgas and a large hangar.

The Bell Ranch supports blue quail, mule, whitetail deer, dove and Barbary sheep. The adjacent 9,600-acre Conchas Lake provides a warm-water fishery for bass, walleye, bluegill and crappie, in addition to canoeing, sailing and water skiing.

For those of you interested in putting in a bid ...the current asking price is $103 million ($103,000,000.00) - $99 million for the land and $4 million for the livestock and equipment. This comes out to $341 per acre.

Also, our law firm represents ranches throughout Texas, but if you buy the Bell, give me a call, and I'll get licensed in New Mexico too!

R L Wilson to Represent Uvalde Rancher in Probate Estate Battle

On May 21, 2009, R L Wilson Law Firm filed an appearance as attorneys for Rochele Hargrave, owner of the 1400 acre Cline Mountain Ranch in Uvalde County, and surviving spouse of Harvey Hargrave. Mr. Hargrave died on March 11, as the result of burn inuuries he sustained when his tractor fell into a fire pit when burning brush on the ranch.

Mr. Hargrave was the founder of H & H Well Service, Inc., and had retired with Rochele to Uvalde and Texas to ranch. His untimely death has set-off of dispute between his grown children -- all of whom work for H & H in Louisiana-- and his surviving wife.

Immediately after Mr. Hargrave's death, the surviving children moved to cut Rochele off from H & H, and began making demands for the return of various items and demanding access to her home on the ranch. One of the surviving children hired an attorney and has filed an application to be the administrator of Mr. Hargrave's Estate. Another has already moved to have the Estate probated in Louisiana, with Louisiana law to apply.

Our firm filed a counter-application in the Uvalde County Court at Law, wherein we seek to have Rochele appointed as Independent Administrator in accordance with the Texas Probate Code. This case will be complex as it implicates coice-of-law provisions, property division, and significant emotion. It is also a sad reminder of the importance of making a will -- especially when significant assets have been accumulated.

R L Wilson Law Firm files suit against Dallas-based real estate investment operation

Suit was filed in the Bexar County District Court by R L Wilson Law Firm client Roland Rodriguez against Dallas-based Yorkstreet Properties, and its affiliate Yorkstreet Homes. In his suit, Mr. Rodriguez is alleging that the Yorkstreet companies have engaged in illgeal practices relating to the management of several investment properties he purchased through the company.

After the closing upon the sale of each of these properties our client entered into a verbal management agreement whereunder Yorkstreet agreed to locate tenants, to collect all rents as they become due, to tender to our client a monthly accounting of rents received and expenses paid, and to remit to the various mortgage lenders all rental income (if any), less any sums paid out. For a period of time after the closings, Yorksteet abided by the obligations of the management agreement. In exchange for their services, Yorkstreet retained a portion of the rents they collected as a “management fee.”

Eventually, Yorkstreet stopped remitting payment to the investor's mortgage lenders, even though rents were being collected. Despite the fact that they never maintained any claim to right, title or interest in the real properties, or the rental proceeds they had collected, Yorkstreet kept the rental proceeds.

As the result of Yorkstreet's refusal to remit the rental proceeds they had collected, each of the properties was foreclosed in accordance with the applicable Deeds of Trust. Mr. Rodriguez' interest in the properties, including future interest in rental proceeds, re-sale value, and tax deductions was forever lost.

In the suit, Rodriguez claims that Yorkstreet and its princiapl breached the management agreement, breached a fiduciary duty, converted the rental payments and committed fraud. In addition, Rodriguez alleges that Yorkstreet violated the texas Deceptive Trade Practices Act.

There is not yet a trial date in the case.

San Antonio Builders

Last night I had the pleasure of attending the Greater San Antonio Builders Association Membership Mixer. The event was hosted by Morrison Supply Company at their wonderful facility located near the San Antonio airport.

The event was attended by a variety of builders, suppliers and vendors affiliated with the construction industry. I was impressed with the camaraderie between "competitors" who vie for a limited number of customers in today's tight economy. The GSABA group seemed dominated by fairly small-sized custom home builders, but the big builders were represented too. All told, the attendees came-off as hardworking small business owners operating in a very specialized industry.

Just like lawyers and virtually any other group, builders come in all shapes, sizes, personality types, and ethical standards. There are many good builders out there who are also great people. But there are also bad apples. Be very careful when choosing a builder or a lawyer! Do your homework, check references, and talk to past cusomers/clients. Ask lots of questions. The construction industry and construction law are very technical. Do not enter into naive relationships in either field.

I look forward to the next GSABA event, and am even considering putting together a team for their upcoming fishing tournament.

Had a vehicle accident, come see us.

The Báez Law Firm ,P.C. has been helping auto accident victims in Bexar County and surrounding counties. We provide free consultation for our clients and our personal injury clients do not pay unless we win the case.

But, what are some of the symptoms that you may feel if you are injured on an auto accident. headaches, back pain, neck pain, dizziness, blurred vision, whip lash and many more. Even if you do not feel pain on the day of the accident, many of these symptoms will manifest few days after the impact.

Insurance companies will try to minimize and downplay the impact and severity of the accident, in order to keep you from any substantial amounts of money. Their sole role in life is not to keep you in good hands, its to put the boxing gloves on and fight you. They have experienced attorneys on their sides, who is on yours? The Báez Law Firm, P.C. will fight for your rights.

Our attorney take cases to trial when the insurance companies are not willing to pay for the medicals. We have successfully litigated cases and won settlements for our clients. Come see us.

R L Wilson Law Firm takes on Regency Park HOA

In October 2007, our clients commenced construction of a swimming pool in their back yard. However, this pool wasn't designed just for enjoying lazy days and working on their tans. Instead, it was an integral part of a flood control plan engineered to mitigate the effects of rushing water experienced each time it rained. The pool was recommended by an engineer, and even by the City of San Antonio -- each of whom had investigated the tendency of the property to flood as the result of run-off from a parking lot constructed directly behind the home.

Prior to commencing construction, our clients submitted plans to the Architectural Control Committee of the Regency Park Owners Association. Much to their surprise, they recived no response. Despite additional approval requests, the HOA's silence continued for months. Frustrated by the lack of response, and after reviewing the ACC's deadline for approving plans, our clients decided to proceed with construction.

Almost immediately, they and their contractor were accosted by a member of the Regency Park HOA Board, who verbally demanded that they cease with construction. So they did. Two days later, the contractor returned to the home to retrieve his tools and equipment. That same day, the HOA scrambled its legal team, and obtained a Temporary Restraining Order preventing the construction -- which by that time had already been voluntarily abated. The other portion of the HOA's suit sought a declaration that the pool was not permitted without ACC approval.

After various meetings, the plans were ultimately approved, and our clients were allowed to complete the pool with the blessing of the HOA. They did, and many of the flooding issues have been resolved.

Case closed...or so they thought.

Several months later, the Association came calling. This time they wanted their attorneys' fees, and lots of them. When the homeowners balked, the Association set the case for trial.

On the day before the trial, the homeowners realized that they need the help of an attorney with experince litigating HOA issues. So they called me.

After reviewing the CCRs, I noticed a provision requiring that disputes between the HOA and property owners within the Regency Park subdivision be referred to arbitration. Based upon this requirement, I filed a Motion seeking to compel arbitration, instead of trial in the Bexar County District Court. Judge Andy Mireles considered the Motion, and sided with our clients. Thus, the dispute has been referred to arbitration, where an arbitrator will determine whether the HOA is entitled to its fees, even though it never obtained a Judgment in the suit it filed. We are confident in the property owners' position, and disappointed that the HOA has decided to expend costs and attorneys' fees solely in pursuit of attorneys' fees.

Many times HOAs and their Board Members use the judicial system to advance personal grudges or to "flex their muscle." The laws relating to HOA litigation and restrictive covenants are complex and often favor the HOAs. If you believe that you are the victim of HOA abuses, you should immediately contact an attorney experienced with HOA litigation, and the Texas Property Code. The HOAs are represented by experienced and knowledgable attorneys. You should be too.

Part 3: Public Works Contracts & Subcontractors: Prime Contracts Over $25,000

In reality, most public works projects are over $25,000.00 in value. When projects exceed $25,000.00 in value, the general contractor must post a payment bond in the amount of the prime contract for the protection of subcontractors and sub-subcontractors. Tex. Gov’t Code § 2253.021. If subcontractors are not paid by the general contractor, they can file a lawsuit to collect on the payment bond; however, before they can file suit, subcontractors must ensure that they have complied with strict notice requirements. If the notice requirements, including deadlines and content, are not properly met, the subcontractor will not be able to successfully sue to collect on the payment bond.



Subcontractors (those having a contract directly with the general contractor) must give written notice to the prime contractor and surety not later than the fifteenth day of the third month following each month in which the labor or material was provided for which the claimant has not been paid (often called the “Third Month Notice”). Tex. Gov’t Code § 2253.041(b). If this deadline is not properly met, the subcontractor will have lost its ability to prevail in a lawsuit. Furthermore, the notice must identify specific details such as: the labor or materials provided; who they were provided to; and when they were provided; in addition to other required information. Additionally, a sworn statement must be included verifying the amount due. Tex. Gov’t Code § 2253.041(c). The notices must be mailed by the proper method and to the proper addresses. Tex. Gov’t Code § 2253.044.



Sending the required notices on time is crucial for subcontractors but is often overlooked until it is too late or sent incorrectly due to a misunderstanding of the applicable laws. Subcontractors often wait too long believing that they will work something out with the general contractor. When they eventually do seek help from an attorney, the deadline has already passed. Subcontractors should pay careful attention to their past due invoices and ensure they seek an attorney’s advice far enough in advance so that all deadlines can be met and the subcontractor’s rights protected.



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.



Please visit our blog again in a few days for Part 4: Public Works Construction Projects & Subcontractors: Prime Contracts Over $25,000.00 & Retainage.



Posted by Sarah F. Berry.

I need a power of attorney over my elderly parent who lives in another state. What should I do?

In Texas we have a statutory power of attorney.

However, many banks and other places require that you use their form.

I need a lot more information in order to adequately answer your question. Where are the assets? Do you have siblings? Is your parent married? What is your parent's mental and physical state?

If the assets are in another state, you need a poa from that state.

You definately need to retain the services of an elder law attorney or a probate/wills & estates attorney that specializes in this area of the law.

In Texas we have 2 kinds of poa -- medical and financial. They are very different.

An elder law attorney might be able to help you and offer solutions that you have not considered.

Even if your parent signs the document, the parent can revoke it later. Also, you will be held to a very high standard regarding spending their money.

If you have family members, I highly recommend that you talk to them and try to get them on your side.
Otherwise, you could end up in court litigating your parent's life and spending all their money.

I've seen people spend over $100,000 when 2 adult siblings can't agree what was right for their mother. She eventually died and the problem was solved. Neither sibling inherited anything -- but the attorneys were very happy!

Please talk to an attorney immediately. You could save thousands of dollars!

R L Wilson, P.C. Law Firm is now a member of the TSCRA

R L Wilson, P.C. Law Firm and Trey Wilson are now proud Allied Members of the Texas and Southwestern Cattleraisers Association. The organization is a trade group that has long stood for one of Texas' most historic -- and important -- industries.

TSCRA was formed in 1877, when 40 Texas cattlemen joined together out of their common interest to end unbridled livestock theft. Today's association is a grass roots organization composed of cattle producers and operators of all sizes located primarily in Texas and Oklahoma.

TSCRA provides a strong, unified voice for producers and others concerned with legislation and regulation. Texas and Southwestern Cattle Raisers Association is made up of many different people and organizations from different backgrounds, ages, businesses and incomes.

TSCRA offers representation on legislative and regulatory issues by effective, articulate, volunteer leaders sensitive to the grass roots concerns of cattle producers. TSCRA leaders take on key policy- and decision-making roles with other national and state industry organizations. TSCRA monitors all of the issues and can act as a knowledgeable advocate for the cattle producer.

The association also offers support and assistance in the election of conservative, pro-agriculture policy makers. All of these efforts result in members receiving action reports and timely fact sheets on legislative and regulatory issues at the state and national levels.

The association between our San Antonio law firm and the TSCRA is a natural one. As an firm of attorneys dedicated to the protection of private property rights (especially water and land), and to the preservation of Texas' ranching heritage, R L Wilson, P.C. Law Firm has long admired the TSCRA's mission. Today we joined that mission, and look forward to becoming an active member of TSCRA.

Eminent domain reform approved

A bill that would implement a second stage of reforms to Texas’ controversial eminent domain laws was approved by the Texas Senate this afternoon, including a provision to prohibit government land speculation.

The reforms were a key part of GOP leaders’ legislative strategy this session, to complete initial changes made two years ago on the politically sensitive issue — especially among staunch Republicans voters.

In 2007, the issue of eminent domain was a top issue, amid complaints by landowner groups, ranchers, business owners and others that some governmental entities were engaging in land speculation and that they were taking land at the behest of developers and other private interests.

The first stage of reforms designed to stop those practices took effect later that year.

Senate Bill 18 by state Sen. Craig Estes, R-Wichita Falls, would limit eminent domain takings of land for a public use only, require bona fide officers before land could be condemned and require fair compensation to property owners who lose a direct access to their remaining property.

The bill prohibits condemnation of land for private use, and changes procedures to initiate eminent domain proceedings by requiring any actions by governmental entities to be done in public and by a record vote.

In addition, the bill requires a bona fide offer by the condemning entity. If no bona fide offer is made, the entity seeking the condemnation would have to pay all fees incurred by the property owner, according to the bill.

The bill also requires all entities with eminent domain powers to register with the Comptroller of Public Accounts by Dec. 31, 2010 or risk losing their condemnation authority.

“Private property and the right to own it, and profit from it, is fundamental to not only our economic liberty, but also our personal liberty,” Estes said. “Senate bill 18 provides meaningful eminent domain reform and strengthens the rights of property owners against the use of eminent domain by government and other condeming authorities.”

The bill was approved 31-0. It now goes to the House for consideration.

One of the groups involved in earlier calls to change the eminent domain laws applauded the vote.

“Property owners know that Texas is growing and that our land and water will be needed to accommodate future growth, but that accommodation shouldn’t be at the expense of property owners,” Dave Scott, president of the Texas and Southwestern Cattle Raisers Association, said.

“Members of the Texas and Southwestern Cattle Raisers strongly believe that Texas property owners do not have enough protections under the current eminent domain law. Senate Bill 18 levels the playing field for property owners.

By Mike Ward - Austin American Statesman

JUDGE WATCH: Justice Sharon Keller Amends Her Financial Report, It's Up $2.4 Million

Justice Sharon Keller has submitted her amended financial statements, and boy have things changed.

She has added over $2,400,000 in property and income from the last financial statement that she filed. And, as the presiding chief justice of the Texas Court of Criminal Appeals, she is required by law to reveal in writing all her assets.

Why didn't she just include all this stuff before now?

Her daddy didn't tell her.

That's right. Yes, this is the explanation that the Chief Justice gave the Texas Ethics Commission for this huge, glaring omission.

In her sworn statement, which was filed along with these amended financials, Justice Keller points the finger at her dad - seems he acts as business manager for his four kids, and he's placed properties in all their names. Guess this never, ever got talked about at family gatherings, or that daddy's daughter never thought to ask anything like "what are you using my name for?"

Lawyers never think of things like that.

Still no answer on what she thought she was signing periodically, and one would assume that with $2.4 million in assets floating around, that there were times when Daddy would need Daughter's signature on something.

What are these assets?

According to the financial statement, and the reporting of the Dallas Morning News, these newly revealed assets include:

1. two fast-food restaurants
2. a bank
3. a home on Garland Road
4. another home on Garland Road
5. a commercial tract in Euless, Texas (1.5 acres)
6. 22 Certificates of Deposit (CDs) in four different banks
7. $110,000 investment income.

Must've Been A Nice Surprise

Boy howdy. Wouldn't that be great -- to discover that you own a bank, a couple of restaurants, two houses on Garland Road, some land, some CDs, and you're gonna get over $100K each year in investment income?!! Wow.

Sources:

Dallas Morning News
http://www.dallasnews.com/sharedcontent/dws/news/localnews/stories/DN-keller_02pro.ART.State.Edition2.4aa5bed.html

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Visit our websites

The Baez Law Firm, P.C. has several websites available for our clients. These websites were created to help our client understand legal issues, get the latest legal news, and for the benefit of our community. Our staff search and keep track of the latest information for our clients.

As a service to our community, we provide free legal advise to people all over the nation. See us at AVVO, Law Guru, LinkedIn, Twitter, Blogg#1, Blogg#2. We talk about issues that other are not willing to tackle. And we always keep our clients informed about their cases.

We are a general practice law firm capable of handling any legal matter. Our lawyers, will handle your case with dignity and respect. Come see us, and you will know the difference from the moment you walk into our doors, your initial consultation is always free.

Part 2: Public Works Projects & Subcontractors ("First Tier Claimants"): Prime Contracts Less Than $25,000.00

As noted in Part 1 of the series, in most cases, subcontractors ("First Tier Claimants") 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. However, when the general contractor’s contract with the public entity is less than $25,000.00, the general contractor is not required to post a payment bond. Consequently, when the contract is less than $25,000.00, subcontractors have limited lien rights. The lien attaches to money due to the general contractor. (Tex. Prop. Code § 53.231).

To assert a lien, the subcontractor must give notice to both the general contractor and the appropriate public official. (Tex. Prop. Code § 53.232). Subcontractors must ensure that they strictly comply with notice deadlines and content requirements or they risk not perfecting their lien. The subcontractor must give the notice before any payment is made to the general contractor and not later than the 15th day of the 2nd month following the month in which the work was performed or the material furnished. (Tex. Prop. Code § 53.234). The notice must contain specific information relating to the labor performed or materials delivered. The notice must include (1) the amount claimed; (2) the name of the party to whom the materials were delivered or for whom the labor was performed; (3) the dates and place of delivery or performance; (4) a description reasonably sufficient to identify the materials delivered or labor performed and the amount due; (5) a description reasonably sufficient to identify the project for which the material was delivered or the labor performed; and (6) the claimant's business address. (Tex. Prop. Code § 53.233). The notice must also be accompanied by a sworn statement that the amount claimed is just and correct and that all payments, lawful offsets, and credits known to the affiant have been allowed. (Tex. Prop. Code § 53.233). Failure to comply with any of the notice requirements may result in loss of the lien.

When the public official receives notice, he should retain from the money due to the general contractor enough to pay the claim for which the notice was given. (Tex. Prop. Code § 53.233).

A general contractor may file a bond with the public entity to release the lien and obtain the money withheld. (Tex. Prop. Code § 53.236). The subcontractor must sue on the bond within 6 months after the bond is filed. (Tex. Prop. Code § 53.239).

Please visit our blog again in a few days for Part 3: Public Works Construction Projects & Subcontractors: Prime Contracts Over $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.