criminal defense lawyer

A criminal defense lawyer is a lawyer specializing in the defense of individuals and companies charged with criminal conduct.

In the United States, criminal defense lawyers deal with the issues surrounding the apprehension, searches of client or property, and arrest of his or her client (Fourth Amendment), as well as any statements the client may have made (Fifth Amendment). Criminal defense lawyers also deal with the substantive issues of the crimes with which his or her clients are charged. In the United States criminal defendants are entitled to the presumption of innocence until prosecutors prove each essential element of a crime beyond a reasonable doubt. Serious crimes (e.g. felonies) in the United States are tried to juries of twelve people and the jury must be unanimous in its verdict to either convict or acquit the defendant. A split in the jury is often called a "hung jury" and may result in a retrial of the defendant. Criminal defense lawyers actively pursue their client's cause through all stages of a criminal prosecution.

Criminal defense lawyers in the United States who are employed by governmental entities such as counties, states, and the federal government are often referred to as public defenders. These are often fresh law school graduates seeking to gain quick courtroom experience, but there are many older, extremely well experienced lawyers who have made public defending a lifetime vocation. There are also private defense lawyers who are retained by individual clients on a case by case basis.

Criminal defense work can be intimidating to some lawyers as the specter of a client going to jail for long periods of time or even being subjected to capital punishment looms over some defendants.

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Texas House Speaker Releases Interim Charges Affecting Land and Real Estate

This week Texas House Speaker Joe Straus released the 81st Legislature's Interim Committee Charges pertaining to Texas House of Representatives Committees. The charges are varied, and few are unexpected. Interim charges represent the "task assignments" delegated by the Speaker to various House committees which are to be completed during the period between Legislative Sessions.

Of particular importance to real estate interests and real estate attorneys in Texas are the Charges made to the House Committee on Land and Resource Management. That Committee is chaired by Rep. Dennis Bonnen.

The folllowing assignments are contained within Speaker Straus' charges:

1. Evaluate the appropriateness of creating pedestrian-only areas on the public
beaches of the state.
2. Examine unresolved issues relating to eminent domain legislation introduced
during the 81st Legislative Session. Monitor any pending litigation.
3. Examine the granting of easements on state-owned lands, including lands
managed by institutions of higher education and the General Land Office.
4. Study the causes of coastal erosion along the Texas coast. Evaluate current and
alternate funding sources. Review federal programs and their relationship to the
state program.
5. Monitor the agencies and programs under the committee's jurisdiction.

Finding an Experienced DWI Lawyer in Austin

When selecting legal representation, realize that the experience of your Austin DWI Attorney in Texas is very important. The way your DWI defense case is handled will have an influence on the outcome and thus your future. Having Texas Board Certified Criminal Law Specialists* on your side can mean the difference between obtaining a good result and a bad result. At the Dunham Law Firm, many of our criminal defense attorneys have previously been Assistant District Attorneys, spending years perfecting their courtroom skills.

* Driver's Legal Rights
* Pulled Over for DWI?
* Arrested for DWI?
* Blood Search Warrants
* BWI - Boating While Intoxicated
* Standardized Field Sobriety Tests (SFSTs)
* The Breath Test/Intoxilyzer 5000
* 10 Common Mistakes by the DWI Cops
* The DWI Fight
* THE PROCESS
* DWI Attorney Warning
* DWI Resources
* Blood Alchohol Level (BAC) Calculator
* Unusual DWI Videos
* Cops Gone Bad
* Community
* FAQ
* DWI News
* Prosecutor Tricks

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Changes in DWI Law in Texas:

Two new laws go into force that deal with DWIs in Texas. Section 724.017 of the Transportation Code is now expended to allow more situations where police can do a forced blood draw without a warrant. Mandatory warrantless blood draws are now allowed if a person is arrested for DWI, or BWI, the person refuses to submit to the taking of a specimen volutarily, and: 1) an individual other than the person arrested has suffered bodily injury and was transported to a hospital or other medical facility for medical treatment; 2) the person is arrested for DWI with a child passenger under 15; 3) the officer has reliable information that the person has been previously convicted of DWI two or more times; or 4) the officer has reliable information that the person has been previously convicted of DWI with a child passenger under 15, intoxication assault, or intoxication manslaughter.

The Legislature also tried to give some assurance to the health care providers that actually draw the blood persuant to a blood warrant, or mandatory blood draw. Section 724.017 of the Transportation code was amended to provide protection to those who take blood specimens according to "recognized medical procedures." However, this change in the law DOES NOT relieve a person from lability for negligence in the taking of a blood specimen. And there lies the danger to anyone that takes blood under these intrusive warrant/warrantless blood draws.

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Criminal Defense Attorney - Austin Texas (DWI) Drunk Driving Trial Defense Attorney

When you have been investigated or arrested for any criminal offense such as Driving While Intoxicated (DWI), or any Felony Charge, you have an absolute right to be concerned. Facing criminal charges may be one of the most frightening things you have encountered. Some of the possible consequences that can result from a Driving While Intoxicated (DWI) conviction include the restriction or loss of a driver’s license, an increase in insurance costs, fines, court costs, a Driver’s License Surcharge of between $3,000.00 and $6,000.00, and even the possibility of jail. As you can see, Driving While Intoxicated (DWI) can be a very serious charge.

The law says that the County Attorney needs only to prove that after drinking you were not able to drive your car in a “normal” capacity. That sounds pretty cut and dried, but it is not quite as simple as that.

You see, if challenged, the County Attorney must also show all of the following:
DWI Criminal Defense Attorney - Immediate Jail Release That the arresting officer made the arrest properly,
DWI Criminal Defense Attorney - Immediate Jail Release That you were properly advised of your rights,
DWI Criminal Defense Attorney - Immediate Jail Release That the equipment the officer used to test you was working accurately,
and
DWI Criminal Defense Attorney - Immediate Jail Release Even that the person operating the equipment was certified to operate
the equipment.

Further, the officer that administers the “standard field sobriety tests” should have successfully completed the National Highway Traffic Safety Administration Standardized Field Sobriety Testing student class before administering these tests. I have successfully completed training for the National Highway Traffic Safety Administration Standardized Field Sobriety Testing. What does that mean to you? It means that in addition to grading you on your performance of the tests, I will also grade the officer to ensure that he or she conducted the tests properly. If the tests were not conducted properly, this can be disclosed to the County Attorney or the jury to show that the tests results were unreliable and should not be believed.

When you retain me I’ll insist that the County Attorney provide us with the names and address of anyone he plans to call as a witness as well as copies of every written or recorded statements of their testimony. This will allow us to prepare our questions of them.

I’ll insist that the County Attorney provide us with any information or material he has which could show that you are not guilty of the charges against you, or which may help you get a lighter sentence.

I’ll insist on receiving copies of any videos that show your sobriety tests, whether in the field or at the station.

I’ll insist on receiving copies of records showing that the equipment used for tests was functioning properly and that the person giving the tests was properly certified.

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Possession of Marijuana

Some people think marijuana charges are not that serious or silly. After all, you only got a ticket, right? A ticket means it’s not serious, doesn’t it? You’ve been tricked. Texas law allows those “arrested” for having marijuana to be given tickets if the police departments chooses to. But, being charged with possession of marijuana–even in a ticket–is still serious.

Most people who are arrested or ticketed for marijuana have a small amount, just for their own use, which should be charged as a Class B or A Misdemeanor. The important thing to remember is you can be punished for up to one year in jail for a Class A Misdemeanor.

Many of our younger clients are charged with Possession of Marijuana (POM), and it is for these clients that the consequences can be the greatest. Drug charges have a way of following you for far longer than people expect them to. So, whether you are established in a career and looking to protect your hard work or you are just beginning your journey in life, it is important to take these charges seriously.

Our office is experienced at dealing with these cases–as well as those unexpected consequences that can come up from marijuana or other drug cases. Depending on the amount of marijuana you are charged with having and the disposition of the case, POM cases can affect everything from federal financial aid, to your immigration status, to the jobs you can hold now or in the future.

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Assault

Assault occurs when someone perceives a threat of imminent personal danger. What many people are surprised to find out is that it is not necessary for the alleged victim to have sustained physical harm. Merely the threat of such harm is enough to constitute assault under the law.

“Simple assault” ranges from class C to class A offenses and has a variety of colors and flavors. The biggest concern for most people is that assault at any level of offense if often considered a crime of moral turpitude, which is way of saying it reflect something about your character. Many employers examine assault charges very carefully and some choose not to hirer people with assault on their records believing they may be violent.

Additionally, these charges can easily escalate to a felony depending on who the alleged victim is or how the assault occurred. Only a knowledgeable attorney can help you understand the complexities of this law.It is essential to speak with a knowledgeable criminal defense lawyer in order to fully understand your rights and responsibilities in this matter.

There are many ways an experienced lawyer can help you when you are facing a Assault charge:

· Get the charges dismissed

· Obtain a not-guilty verdict

· Dismiss the Assault and plead to a lesser offense

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Driving while Intoxicated

Driving while intoxicated (DWI) cases usually start unexpectedly and happen to people who never thought they would be arrested and charged with a crime. It begins with a minor traffic violation and before you know what’s going on, you are sitting in the back of a police cruiser in handcuffs.

The truth about DWI is that the accuracy of field sobriety tests are questionable under the best
circumstances, and quickly become unreliable when not administered properly or under the correct conditions. Despite the questions surrounding their accuracy, there is incredible pressure on the county and district attorneys to prosecute the cases that utilize these field sobriety tests. We find that many of our clients are not aware of the consequences involved in a DWI case. DWI cases are serious matters, which can result in thousands of dollars in fees and suspension of your driver’s license, in addition to your criminal case.

The waters surrounding DWI are difficult to navigate and you need experienced DWI attorneys to guide and protect you through this process. Many people don’t realize how little time they have to react in these cases. Did you know you only have 15 days to act if you want to protect your right to drive? Failure to do so results in the automatic suspension of your driver’s license.
It is essential to speak with an experienced drunk driving defense lawyer early in this process.

We have over 30 years of combined experience in DWI cases. And, we have the knowledge and
familiarity with the process to protect and guide you through this difficult period.
At our office, you will find attorneys who are certified by the National Highway Traffic Safety
Administration as Standardized Field Sobriety Testing Practitioners just like the officer that
arrested you. We have tried many DWI trials and almost always have faced the officer that arrested you. We possess the experience and knowledge to know if the tests were even administered properly, and how they may affect your case.

Whether you blew, didn’t blow, or even if they took your blood, it is important that you speak with an attorney to understand the next steps in your case, and how best to move forward. We are there for you whether you are looking for a quick resolution or want to fight your arrest all the way through a jury trial. Most importantly, we have the skills and experience to help.
There are many ways an experienced lawyer can help you when you are facing a DWI charge:

· Get the charges dismissed

· Obtain a not-guilty verdict

· Dismiss the DWI and plead to a lesser offense

· Keep you out of jail

· Save your driver's license

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Texas DWI First Offense:

Have you recently been charged with drinking and driving in Austin, TX?If so, you are probably
worried about what will happen to you. Will you spend time in jail? Will you lose your license?
What will your friends and family think if you are convicted of driving while intoxicated?
The most important thing you should do right now is to find an attorney who is experienced with DWI law. This is a complicated field of law, and it is crucial that your attorney is up to date on the
newest laws and the best defense strategies.

In Texas, you may be charged with “per se” intoxication if you are operating a motor vehicle, be it a car, motorcycle, or boat, with a BAC (blood alcohol content) of 0.08 percent or higher. Drivers under the age of 21 may be charged with a DWI with any alcohol in their system.
The penalties for DWI are severe, even if this is your first DWI offense. A first offense is a
Class B misdemeanor in Texas. You will be sentenced to a minimum of 72 hours in jail, or 6 days if there was an open container of alcohol in your vehicle.

The fines associated with a first DWI offense are costly. While the fines may not exceed $2,000,
additional administrative and evaluation fees will be assessed. There is a $1,000 per year
surcharge on all DWIs in addition to the regular fines. This surcharge must be paid for three
years. If your BAC was twice the legal limit (0.16), the surcharge is $2,000.

If you are convicted of DWI, your driver’s license will be suspended for one year, though you may be granted an occupational license. Issuance of this license is based on “essential need” and will allow you to drive to and from work. You must also complete a 12-hour DWI Education Program within 180 days of receiving probation or your license will be revoked.You will be sentenced to at least 24 hours of community service but no more than 100 hours.

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Texas DWI Breath Test Refusal

If you have recently been pulled over for driving while intoxicated and refused to take a breath
test, you should contact an experienced DWI attorney as soon as possible.A Texas breath test
refusal will lead to your driver’s license being suspended for at least 180 days.
Why will your license be suspended for so long just for refusing to take a breath test? Because of
Texas’s Implied Consent laws which say that if a driver is arrested for an offense that occurs when operating a motor vehicle, he or she must automatically consent to taking a breath or blood test to determine his or her BAC (blood alcohol content). You give your consent for these tests when you sign up for your driver’s license.

When you are arrested for drunk driving and refuse to take a breath or blood test, you face an
administrative penalty. The penalties for refusing to take a BAC test are in addition to the normal penalties for DWI. Even if you are not convicted of DWI, you are still subject to the
administrative penalties.

For a first-time breath test refusal, your driver’s license will be suspended for 180 days. For a
second offense within 10 years, your driver’s license will be suspended for 2 years.
It is important to know that even if your license is administratively suspended for a breath test
refusal, you are eligible to apply for an occupational license. This limited license allows you to
drive to and from work and other necessary locations.

Choosing whether or not to take a BAC test is a tough choice. If you refuse to take a breath test,
you will face tough penalties. There are many DWI lawyers who recommend that you refuse to take the breath test unless you are certain that your BAC is below the legal limit (0.08 percent in Texas).

In some cases, you may be able to avoid a DWI conviction since the prosecution has no evidence of your BAC. The penalties for a refusal are also less than for a DWI conviction, especially since you may be granted an occupational license. However, if you are found guilty of DWI, you will face your breath test refusal penalties in addition to the DWI conviction penalties.

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Texas DWI Breath Test Refusal | Administrative License Suspension | Travis County Jail
Release | Austin DWI | ATTORNEY FEES

Texas Alcohol Laws

There are many laws in Texas regarding the sale, possession, and consumption of alcoholic
beverages. The following information is intended to give you an overview of all of the Texas
alcohol laws, though the laws may differ from jurisdiction to jurisdiction.

The legal age to consume alcohol in Texas, as in all 50 states, is 21 years old. However, the legal
age to work in an environment where alcohol is sold or handled is 18 years old. This includes
serving alcohol in a restaurant.

The laws regarding alcohol sales are strictly enforced by local ordinances. In general, only
private retail stores are allowed to sell liquor, while convenience stores and supermarkets are
permitted to sell beer and wine. Alcohol sales are prohibited on Sundays, with the exception of
restaurants that serve alcohol in conjunction with food sales from 10 a.m. until noon. Bars and
restaurants are permitted to sell alcohol from 10 a.m. to 2 a.m., Monday through Saturday.
Texas’s Open Container laws state that all opened containers of alcohol must be transported in the trunk of a vehicle so that the driver and passengers do not have access to it.

In Texas, you may be charged with “per se” intoxication if you are caught operating a motor vehicle with a BAC (blood alcohol content) of 0.08 percent. Even if your driving was not impaired due to alcohol, having a BAC over this limit is enough evidence to secure a DWI conviction.
If your BAC is 0.15 percent or higher, you may face more penalties for having an enhanced BAC.
Drivers under the age of 21 can be charged with DWI for having any alcohol in their system.
Texas also has Implied Consent laws. This means that if a driver is pulled over on suspicion of
DWI, he or she must take a breath, blood, or urine test if asked as a condition of receiving his or
her driver’s license. Failure to do so will result in a one-year driver’s license suspension.

The Texas Department of Motor Vehicles will revoke a driver’s license for 90 days for the first DWI offense and 180 days for the second and third offense.

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austin dwi attorney,A determined Austin DWI attorney in Texas

Are you facing a DWI (driving while intoxicated) charge in Austin, TX? If so, you are probably
worried about what will happen to you next. Jail time, probation, community service, and a driver’s
license suspension are all very real possibilities if you are convicted.

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Tenants Enjoy Protections When Landlord/Homeowner Loses Property to Foreclosure

These days, foreclosures are commonplace. Our natinal economy is experiencing the hangover following years of a credit party reminiscient of a fraternity blow-out. A recent magazine article quoted the CEO of mega-homebuilder Toll Brothers spreading the blame:

“What cracked the market was not just our greed but the greed of our buyers.”

Irrespective of the cause, thousands of tenants have received a nasty and unexpected surprise -- news that the home they are occupying has been foreclosed. Even worse is that in most instances the new owner -- often the mortgage lender -- has plans for the property that don't include continuing the lease. Frequently, the tenant has been faithfully paying rent to the landlord, and wasn't even aware that the property was subject to foreclosure. Imagine the financial disaster that can accompany being suddenly and unexpectedly displaced from a comfortable rental home...

Fortunately, Texas law provides some relief for an unwitting tenant of a foreclosed property.

First, the notice period required before a landlord may file an eviction suit is extended from 72 hours to 30 days (provided the tenant was in compliance with the lease at or near the time of foreclosure). See Texas Proeprty Code Section 24.005.

Second, if the previous owner's interest in the premises is terminated by sale, assignment, death, appointment of a receiver, bankruptcy, or otherwise, the new owner (other than the foreclosing bank, itself) is liable for the return of security deposits. See Texas Property Code Section Sec. 92.105.

I have heard of instances where new owners of properties acquired through foreclosure or trustee's sale have actually offered to pay a pre-existing tenant to vacate the property promptly and peaceably. Such a payment can make sense for both the new and reluctant owner/landlord and the innocent tenant. The new owner obtains certainty and finality concerning possession of the property -- all without incurring attorneys' fees associated with an eviction proceeding. Meanwhile, the tenant receives a quick infusion of cash to help offset moving and related expenses.

If you are either the new owner of a tenant-occupied property, or a tenant in a rental property whose ownership has changed through foreclosure, you should consider consulting an experienced real estate attorney who can explain your rights and responsibilities.

In Texas, persons repairing vehicles and equipment may place workers' liens and even repossess

As a San Antonio lawyer with active real estate and construction law practices, liens are a daily part of my business. When representing landowners or buyers/sellers of real estate, ensuring clear title -- free of liens and encumberances -- is of the utmost concern. Likewise, my general contractor and sub-contractor clients regularly trust me to place or remove mechanics' liens to secure payment for work performed or materials supplied on contruction projects.

Every so often, hoewever, I get a call from an equipment repair facility, automotive mechanic or other service provider inquiring about their lien rights when customers refuse to pay for their services.

In Texas, liens are available to a variety of persons rendering goods and services, including those who perform repairs on vehicles, motorboats, vessels and/or outboard motors. Persons performing such repairs are referred to as "workers," and their lien rights are set-forth in Section 70.001 of the Texas Property Code.

That section not only entitles the repair person to place a lien on the article that was repaired, but also entitles such "worker" to retain POSSESSION of the article until payment is received. Here's the text of the statutue:

Sec. 70.001. WORKER'S LIEN. (a) A worker in this state who by labor repairs an article, including a vehicle, motorboat, vessel, or outboard motor, may retain possession of the article until:
(1) the amount due under the contract for the repairs is paid; or
(2) if no amount is specified by contract, the reasonable and usual compensation is paid.

Many times, people pay for repairs through check or credit card transactions. In these instances, the article that was repaired is released to the owner prior to the repair person actually receiving the funds associated with a purported payment. Nefarious customers might then stop payment, close their account, or simply have their check returned for NSF. In such instances, the statute, again, seeks to protect the rights of the repair person, and even authorizes repossession in certain circumstances:

(b) If a worker relinquishes possession of a motor vehicle, motorboat, vessel, or outboard motor in return for a check, money order, or a credit card transaction on which payment is stopped, has been dishonored because of insufficient funds, no funds or because the drawer or maker of the order or the credit card holder has no account or the account upon which it was drawn or the credit card account has been closed, the lien provided by this section continues to exist and the worker is entitled to possession of the vehicle, motorboat, vessel, or outboard motor until the amount due is paid, unless the vehicle, motorboat, vessel, or outboard motor is possessed by a person who became a bona fide purchaser of the vehicle after a stop payment order was made. A person entitled to possession of property under this subsection is entitled to take possession thereof in accordance with the provisions of Section 9.609, Business & Commerce Code.

But a repair person should be very careful before asserting any right of repossession. This is because repossession is only available under a limited set of circumstanes:

(c) A worker may take possession of an article under Subsection (b) only if the person obligated under the repair contract has signed a notice stating that the article may be subject to repossession under this section. A notice under this subsection must be:
(1) separate from the written repair contract; or
(2) printed on the written repair contract, credit agreement, or other document in type that is boldfaced, capitalized, underlined, or otherwise set out from surrounding written material so as to be conspicuous with a separate signature line.

A repair person who properly asserts a right to repossession may require the owner of the repossessed article to pay for repossession costs, including towing:

(d) A worker who takes possession of an article under Subsection (b) may require a person obligated under the repair contract to pay the costs of repossession as a condition of reclaiming the article only to the extent of the reasonable fair market value of the services required to take possession of the article. For the purpose of this subsection, charges represent the fair market value of the services required to take possession of an article if the charges represent the actual cost incurred by the worker in taking possession of the article.

Again, repossession is available only in limited circumstances. Under certain conditions -- such as when a worker transfers to the repo company a returned check -- the worker may find himself in trouble for attempting repossession.

For that reason, all repair facilities and persons should consult with an experienced attorney PRIOR TO attempting a repossession upon a workers' lien. In addition, the prudent garage or mechanic should have a lawyer who is familiar with liens review their service contract or agreement to ensure that the repair document properly provides notice and authorization for repossession of the article to be repaired.

New Constitutional Amendment Provides for Uniform Assessment of Property Texas Throughout Texas

Last Tuesday, November 3, 2009, Texas voters passed 11 constituional amendments, many of which serve to preserve private property rights, and to equalize the manner in which ad valorem taxes are assessed against real estate in Texas.

Of particular importance to Texans paying property taxes was proposition 3, whose purposes was to remove the constitutional requirement that administrative and judicial enforcement of uniform standards and procedures for property appraisal originate in the county where the tax is imposed. Instead, the amendment sought to remove the requirement of local procedures for tax appraisals, and to give the Texas Legislature full discretion to prescribe the manner of the enforcement of uniform appraisal standards and procedures throughout the State.

The exact language of the proposed amendment was somewhat benign:

Amendment No. 3 (H.J.R. 36, Article 3) The constitutional amendment providing for uniform standards and procedures for the appraisal of property for ad valorem tax purposes.

Prior to adoption of this Amendment,Section 23(b), Article VIII, Texas Constitution, required that administrative and judicial enforcement of uniform standards and procedures for the appraisal of property for property tax purposes, as prescribed by general law, originate in the county where the tax is imposed. This provision has been interpreted to mean that the state has little meaningful supervisory or administrative power over the standards and methods that local appraisal districts use to value property.

While the Texas property tax system has always been administered on the local level, it is undeniable that the state retains an interest in property tax appraisal professionalism and competence. The state also has an interest in the consistent determination of property tax appraised values from one locality to the next, through the application of uniform appraisal practices, because the state allocates funding to public schools based on the per-student aggregate taxable property value in each school district.

As do most things legal, property tax appraisal practices and procedures vary widely across Texas. A property located in one county is sometimes appraised much differently than a similar property located elsewhere in the state -- even in an adjoining County.

Prior to adoption of proposition 3, there was no legal basis for direct oversight of appraisal districts by the state. Thus, inequities in assessing and collecting taxes were local functions, and the state was powerless to directly require an appraisal district to follow state law or apply a standard appraisal method. This resulted in a hodge-podge of practices and non-standard procedures, which failed to ensure appropriate and accurate appraisals that determine the value of property for taxation purposes.

As a Texas attorney actively engaged in a real estate practice, I fervently believe that some degree of statewide uniformity and equity of appraisal processes is necessary. In my opinion, real property located in one Texas county should be appraised in the same manner and according to the same rules as similar property located in another Texas county. This is not to say that a "one size fits all" approach is best, but certainly amending the Texas Constitution to allow direct state enforcement authority and oversight of local appraisals was a positive step. With the recent passage of proposition 3, the state is allowed to oversee the appraisal system directly and take the necessary action to address inequities and inconsistencies in property appraisal.

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Real Estate Commission Agreements MUST be in Writing to be Enforceable

Real Estate commissions paid to brokers and realtors are often the subject of legal disputes in Texas. Participants in real estate sales and purchases often squabble over who, if anybody, is entitled to a commission arising from that sale.

Disagreements frequently arise between brokers over who was the "procuring cause" of a certain sale. Likewise, sellers sometimes dispute that their listing agent or salesperson has adequately represented his or her interests. Real estate professionals, on the other hand, must be wary of clients who benefit from their services, but do not wish to compensate them.

No broker or agent should be required to freely provide services, advice or expertise. But -- at the same time -- brokers must disclose to their customers the method and amount of compensation they intend to realize from a given transaction.

This dilemna has a simple solution -- PUT IT IN WRITING!

The Texas Real Estate Commission, and local Boards of Realtors, frequently publish materials encouraging that commission and representation agreements be in writing so as to avoid disputes over commissions.

Texas law does NOT require that agreements for the engagement of Realtors as either "Listing Agents" (Seller's Representatives)or "Buyer's Representatives" be in writing. However, a broker/agent MAY NOT file a suit to enforce any commission claim, unless theagreement to pay a commission is in writing and signed by the customer.

Section 1101.806(c) of the Texas Occupations Code (the Texas Real Estate License Act) expressly provides as follows:

A person may not maintain an action in this state to recover a commission for the sale or purchase of real estate unless the promise or agreement on which the action is based, or a memorandum, is in writing and signed by the party against whom the action is brought or by a person authorized by that party to sign the document.

A prudent broker, seller and/or buyer will not enter into a real estate transaction without a written agreement concerning payment of commissions. This arrangement protects all participants in real estate purchases and sales.

Further, Buyers or Sellers from whom a broker/agent/salesperson seeks a commission, based upon anything other than a written agreement might be spared the expense of paying that commission.

Shedding the Homestead Designation and Family Transfers

Texas Homesteads -- Bars to Keep Strangers Out, or to Keep Owners In?

Many times, family members desire to sell properties to one-another. The reasons for these transfers are innumerable -- advance pre-death gifts, planning for the aging process, and maintaining the integrity of family properties are just a few. A common scenario is when a mother desires to sell her home to her son, but to remain living in the home until her death. This transaction -- simplistic as it seems -- could encounter difficulties and even be rejected by a title company because of the tremendous power of Texas homestead laws.

The homestead laws are contained in the Texas Constitution and in Chapter 41 of the Texas Property Code. Our courts have liberally construed the homestead protections, indulging every opportunity to exempt real property from forced sale by general creditors.

In Texas, exercising homestead rights in property does not require any formalized legal process, or the filing of a specific document. The general criteria for creating a homestead are (i) overt acts of usage, and (ii) an intent to claim the land as a permanent residence.

Every Texan family and every single adult person is entitled to a homestead exempt from seizure for claims of creditors Homestead exemptions in Texas were enacted to protect Texans' homes from creditors. However, once a homestead is designated, removing that designation will often require physical abandonment of the property. This can present problems under the scenario described above, since mom (the seller) will be required to abandon the homestead exemption before she can sell the property to her son (the buyer). This very likely could mean that mom won't be permitted to reside in the home for some period of time after the transfer.

Courts have been fairly consistent on this issue: Where a homestead claimant moves from property that has been previously impressed with homestead character, the question of whether such property continues as a homestead is dependent primarily upon the intention of the claimant. West v. Austin Nat’l Bank, 427 S.W.2d 906, 911-12 (Tex. Civ. App.–San Antonio 1968, writ ref’d n.r.e.) (citing McMillan v. Warner, 38 Tex. 410, 411 (1873)). “One does not necessarily abandon a homestead merely by changing residence.” Chesson, 149 S.W.3d at 808 (citing Rancho Oil Co. v. Powell, 142 Tex. 63, [69,] 175 S.W.2d 960, 963 (1943)). “To be an abandonment that would subject such property to seizure and sale, there must be a voluntary leaving or quitting of the residence with a then present intent to occupy it no more as a home . . . .” King v. Harter, 70 Tex. 579, 581, 8 S.W. 308, 309 (1888). “[O]ur courts have held that ‘it must be undeniably clear and beyond almost the shadow, at least [of] all reasonable ground of dispute, that there has been a total abandonment with an intention not to return and claim the exemption.’” Burkhardt v. Lieberman, 138 Tex. 409, 416, 159 S.W.2d 847, 852 (1942) (quoting Gouhenant v. Cockrell, 20 Tex. 96, 98 (1857))."

As with most legal problems, there are solutions to problems presented by the homestead exemption. Family transfers can be accomplished without changing mom's place of residence. One should seek experienced legal counsel when presnted with problems selling real estate that arise from the homestead exemption.

RLWPC Retained by Knollcreek HOA in Dispute with City

Knollcreek HOA, Inc. has hired RLWPC Law Firm to represent its intersts in a dispute with the City of San Antonio over what the City alleges is blockage of a drainage easement. According to City officials, a parking lot owned by the homeowners association encroaches on an existing easement, and improperly results in drainage to a particular lot within the community. The City has demanded that the HOA remove the lot. However, the lot pre-existed the Citry's annexation of the subdivision.

Trey Wilson is poised to engage in immediate negotiations with the City and, if necessary, to protect the Association's rights in court. The Knollcreek subdivision is located inside of 1604 on the City's northeast side.

Trey Wilson Completes Arbitration Against Regency Park HOA

Our firm recently completed an evidentiary arbitration proceeding wherein we defended residents of San Antonio's Regency Park subdivision against claims made by that community's Homeowners Association. The dispute began in 2006 when our clients first request permission from the RPHOA's Architectural Committee to construct a swimming pool. The RPHOA and its ACC failed to respond for several months, but later engaged in a course of majing absurd demands of our clients.

By October 2007, the HOA still had not made a final decision, despite our clients submitting multiple applications, hiring a landscape designer and a professional enginerr-- all at the HOA's request. When the HOA failed to respond to our clients' final submission, they obtained "presumed approval" according to the terms of the applicable restrictions. Thereafter, our clients commenced construction of their pool. The HOA then filed suit and obtained a TRO preventing further construction.

Shortly after the TRO was issued, the HOA approved the swimming pool design, and construction was completed. The Association, however, sought to collect its attorneys fees associated with the TRO. The homeowners hired RLWPC on the eve opf trial over the attorneys' fees issues, and successfully had the lawsuit abataed and referred to arbitration as provided in the restrictive covenants.

A lengthy arbitration session was conducted by the Honorable Juan Gallardo -- a former district judge. Judge Gallardo's arbitration award is expected in the very near future.

Cop Watch: Dallas County Constable's Computers Taken Over, What About Our Privacy Rights?

First, there were rumors that employees of a Dallas County Constable were forced to work for free on the job as well as on the constable's re-election campaigns. Then, some of these employees told their stories to FBI agent Danny Defenbaugh and that's when You-Know-What hit the fan.

Right now, Dallas County Constable Jaime Cortes has his lawyers filing arguments with the court that the Dallas County Commissioners don't have the legal right to investigate Cortes or his fellow law enforcer, Constable Derick Evans. (There are rumors that Craig Watkins is behind the scenes with his own investigation, but the District Attorney's Office isn't confirming that they're doing anything here.)

Right before Thanksgiving, a retired district judge is going to have a hearing and sort out this mess -- but there's already a lot of mud that's been slung and probably lots more will get thrown before that November 23rd court date.

Why should we care?

Well, regardless of all this employment hooplah, the bottom line is that the computers used by the constables were taken by the investigators, and presumably they've been through all those stored files. In fact, we've got no idea who all has been combing through those computer files.

Plus, we don't know what all those law enforcement files contained on the Constable's databases, but any Average Joe citizen out there probably had a right to privacy expectation that their personal information wouldn't be tossed around like this.

Today, the Dallas County Constables do lots of police-type work -- long gone are the olden days, where their primary job was serving subpoenas and the like. Now, Cortes and his brethren are involved in things like (1) finding dads who aren't paying their child support and forcing the deadbeat dads to pay up; (2) searching out and closing down crack houses and other drug sales shops in their area; (3) watching schools for dealers trying to sell drugs like heroin to the kids there; (4) impounding cars and other vehicles for various law violations, etc.

There's nothing to shield totally innocent folk from the stigma of being revealed as someone once considered as a druggie, etc. by the free for all use of the Constable's computer files here.

Let's hope the Judge on the November 23rd hearing puts a stop to this -- although, it's probably like shutting the barn door after the horse is gone by now ... right? How many copies of those hard drives have been made? Who got sent what as email attachments?