A woman wants to have my child but says she will never ask for money from me

If you believe this, then I have some magic seeds that I would like to sell you!!



If a child is born and the DNA test says that the child is yours, then you are going to pay child support. 



In fact, all of the Attorney General offices throughout the entire United States have agreed to work together in order to collect child support for minor children.  The Attorney General offices will only establish child support - they don't care about your visitation rights! 



Plus, in the State of Texas the court can go back 4 years and get retroactive child support.  It does not matter if you did not know that the child existed or if the mother "hid" the child from you. 



Plus, you get to pay 6% interest on all past-due child support.  Pretty soon you are paying interest on the interest you owe!  (The interest rate in Texas was 12% so be happy that the TX Legislature reduced it to 6%!)



Here are a few other depressing facts about child support:



Child support is not dischargeable in bankruptcy. 



If you ever inherit any money the Attorney General can intervene in the probate court & "grab" any money you owe in past-due child support.



The Attorney General  will "grab" any refund money due with the IRS if you owe past-due child support.



The Attorney General can auto-debt any bank account they find with your Social Security number attached to it - checking or savings accounts.  This includes even accounts in your children's names!  They do not notify you before they do this!  Then your checks bounce. 



All credit reporting agencies are notified of your debt & it ruins your credit rating -- you won't be able to purchase a home or automobile!



Your driver's license can be suspended -- bad news for professional truck drivers!



If you have a professional license -- lawyer, doctor, dentist, real estate agent, etc. -- it can be cancelled -- which puts your out of business!



Child support can be deducted from your Social Security check when you retire.



If you die, the money becomes due.  So if you have an estate to needs to be probated, your heirs have to "deal" with this debt! 



If you have re-married, your spouse has to "deal" with this outstanding debt. 



Child support is the obligation that does not go away!



I encourage you to think a long time before "sleeping" with that woman -- is she truly worth it?

Is one night of pleasure worth a lifetime of financial obligation?

Adults dating minors

If you are over 18, please don't date, hang out with, or befriend a minor child (anyone under the age of 18).



I don't care how mature the child seems or looks. 



The only thing that matters is the date they were born. 



I would check their driver's license.  If they are under 18 -- run, run, run. 



Why?



Well, the criminal charge of statutory rape comes to mind. 



You will have to register as a convicted sex offender for the rest of your life. 



Sex offenders usually don't do very well in prison!  Generally, fellow prisoners don't like sex offenders. 



I am not a criminal lawyer, but but here it is in a nutshell -- a minor child cannot consent to sex.  Therefore, if you have sex you can be arrested and charged with a crime.  You can go to jail.

If you watch the news, this goes for boys and girls. 



Even if one parent likes you, remember that there are probably two parents.  So the other parent can call the police, constable or sheriff and have you arrested.



Therefore, if you are an adult, don't hang around with kids (anyone under 18)!

Spanish Land Grant Heirs -- Jousting at Windmills?

A recent article in the San Antonio Express News about a gathering of alleged heirs of the grantees of land grants made by the Spanish crown and Mexican government hundreds of years ago really piqued my interest. My fascinations with Texas history, real estate law, and landowner rights prompted me to examine the claims of this group of descendants of families in South Texas, who assert that their long-dead ancestors never received royalty payments from oil producers operating on family property.

According to the group -- which appears to be largely represented by a single, very determined lawyer -- their ancestors died without leaving proper wills or other payment instructions for the oil companies. Thus, hundreds of millions of dollars in royalties are either unpaid by the oil producers, or have been paid, but are unclaimed and being held by the State of Texas (Comptroller) under the Texas Unclaimed Property Act. This mountain of money will remain "unclaimed," until its rightful owners can be validly identified and their entitlements to the funds proven in accordance with the Act. In order to establish their claims to the millions held by Texas, the heirs seek to have the Texas Legislature amend the Unclaimed Property Act in a way that eases a claimant's burden of proof.

My research reveals that a bill outlining the specific types of information that holders of unclaimed property must disclose was passed last Session (SB 1589), and has now been incoprorated into the Act. According to the Express News article, the families are proposing a new bill that "would set up a method by which the state can identify and qualify descendants of the original grantees using legal and historical documents as well as family genealogical research." I was unable to locate a filed bill as of this writing, but the 82nd Legislative Session is still in its early stages.

At first glance, these folks' chances of getting their hands on hundreds of millions of dollars being held by the State of Texas (who gets to keep all of the interest) seems like jousting at windmills, a la another Spaniard -- Don Quixote. I am quickly reminded of those dreamers who talk about suing Swiss banks to recover unclaimed funds, undoubtedly stolen, that Nazis deposited there and never retrieved.

But, this case might be very different. The families are represented by the same "land grant attorney" who represented some of the descendants of Padre Nicholas Balli -- a priest who held the original Spanish Land Grant to Padre island. The heirs of the good father -- who sold the island to a New York lawyer in 1938 -- won mineral rights to the island after a lengthy jury trial in 2005. The jury's verdict was upheld on appeal, but reversed by the Texas Supreme Court in 2008.

Thus, the stage is set for a very exciting effort that involves real estate, and lots of money derived from it. In the words of Quixote, "Paciencia y barajar" (Patience, and shuffle the cards). We'll be watching this one from the front row.

T.V. Series - Fairly Legal -- what a novel & fabulous idea -- a show about mediaiton!

I've seen 2 episodes of the new television series, Fairly Legal. 



I've talked to a few mediators about this new tv series.  One gentleman refused to watch it! However, I was really excited when I heard that there was going to be a tv show about a mediator.  What a novel idea! I want to personally thank the creator of this t.v. series for coming up with this great idea!  What a great way to let the general public get to learn more about mediation.  It's going to create some unrealistic expectations from the general public about what a mediator can actually do in a case -- but what the heck!  This tv series could actually educate the public about mediation better than anything else out there.  It could be the best advertisement for alternative dispute resolution.  I suspect I'll soon be referencing FAIRLY LEGAL in my mediation introduction! 



The best thing about the television series, Fairly Legal, is that it is getting the word out about mediation.  If nothing else, that is the very best thing about this TVseries.  The general public will get an idea about what mediation is and about what it can do for them when they have a problem. 



Unfortunately, it is going to give the public a false idea about mediation.  It reminds me of the television series, LA Law.  Everyone wanted to go to law school because of LA Law.  It made lawyers sexy.  Sure they were scummy sharks that wanted to win at all costs, but they sure were sexy! 



I believe the series takes a lot of liberties to build the drama in the show, such as having the character not be a lawyer any more.  In Texas, a mediator can be an attorney and a mediator.  A lawyer does not have to turn in their bar card in order to be a mediator.



Also, in the initial episode the judge appeared to dislike the mediator.  The judges that I know appreciate and respect mediators because they know that some cases, especially cases involving family disputes, are better resolved between the parties than at the courthouse.  I think FAIRLY LEGAL  will give a false impression about the relationship between judges and mediators. 



Additionally, the primary character's ability to mediate is somewhat unorthodox.  She is able to resolve the nastiest cases in less than a minute.  She reminds me of how Perry Mason was able to get guilty people to confess by just looking at them!  Perry Mason gave the person that stare and the person just had to confess -- they could not help themselves. 



Plus I really like how she is able to be at the right place at the right time. 



And, her assistant is a miracle worker! 



She does show that a mediator's job is to think outside the box - to look at the issues and try to make mediation a win-win for everyone involved. 



I do like her passion for her mediations.  It will be interesting to see if each episode continues to feel like she is on a "mission from God". 



I like this character because she is able to say just the right thing and people that we about to choke each other 60 seconds ago suddenly are able to hug each other and resolve all issues!  Damn I'm jealous!  I wish I had such great script writters when I am doing a mediation! 



I've often commented to my clients in litigated cases that the courtroom is just not like television because we don't have commercials and we don't have script writters that can resolve all issues in less than 50 minutes. 



The characters in Fairly Legal seem really messed up and barely functioning.  This show might be a success just because they all seem to human.



I hope that this show lasts long enough to develop a following. 

I am planning to marry someone in the military & move away with my minor child -- can I?

I would immediately take a certified copy of your current court order to an experienced family law attorney in your county. 



You need to talk to an attorney and see if you are restricted to the county that you currently live in.



Technically only the child can be restricted to a specific county and/or counties.



You, as the primary parent, are free to live anywhere. 



Only the child is restricted where the child can live.



If the child is thriving then why should the child's life be disrupted because you are getting married?  If the child has friends, family and is established in this area, then why should the child's life be turned "upside down" and be moved?  Why should the child's life be totally changed because you want to get married?  If the child is in school, then why should the child be moved away from the life that the child knows?



If the other parent is very active in the child's life, the other parent can object to you moving the child. 



In the State of Texas, many judges will not allow the child to be moved away from the other parent just because one of the parents is re-marrying. 



The other parent can ask the court to allow that parent to become the primary parent and then you would be ordered to pay child support and you would then visit the child.



If the other parent is an absentee parent, the the judge would probably allow you and the child to move.  You need to talk to an attorney about the defination of an absentee parent.  


So before you set a wedding date, I would set an appointment with an experienced family law attorney in your county!



Often the other parent will allow you to move away if you are willing to negotiate -- such as (1) reduce child support to a token amount (2) you pay all costs of transportation for the additional costs of visitation  (3) you give the other parent expanded visitation to make up for moving so far away -  such as every Spring break, all summer and every Christmas (4) buying the child and the other parent high-tech computers so that they can keep in touch via the internet.  



I always suggest mediation rather than litigation.



True Story:  One mother remarried and moved the 3 teen-age kids to Hawaii.  A judge in Harris County made the children move back to Houston to live with their Dad. 

I own a home & am about to marry. How can I keep it my separate property?

If you do things right you can make sure to keep it your separate property. 



I highly recommend that you talk to an real estate attorney in order to make sure that it remains your separate property.

Otherwise, you could "accidentally" do the wrong thing and create a "mess"!

I might not cover every possible way that you could "slip up" so do not rely on this blog to cover every possible way in which to convert separate property into community property!



It could cost you a lot of money and heart-ache later down the road!



Spend a little now & save a lot later!



If you put your spouse's name on the title, it becomes community property.



If you use community funds to pay the taxes or make improvements, then you are asking for trouble!



If you re-finance  or take out a loan on the property, it becomes community property.



You might want to have an attorney prepare a pre-nup. (and a post nup.) agreement for both of you to sign.  These legal documents must be done absolutely properly and both of you must make full disclosure or they are not valid. 



I do not recommend using the "do it yourself" kits that are sold on t.v. and on the radio!  (I would definately avoid the kits sold at office supply stores - they clearly state on the back of the box that they do not include the state  appropriate forms -- so they are a complete waste of money.)



Please talk to a real estate attorney and make sure to do it right!

Do I have to give the other parent my phone numbers?

Reasonable people share contact information so that the other parent will be able to communicate with their children.

Reasonable people work together to raise their children.

Reasonable people keep their children out of their "adult" conflicts.

Reasonable people co-parent together and raise healthy, happy children.



Reasonable people recognize that they will be co-grandparenting.



Reasonable people put aside their anger & eventually find a way to be civil to one another.



If your children were in an accident or there was some sort of emergency, I'm sure you would want to be called.

A few suggestions if you marry a person that pays child support

You are a wise person to be thinking about possible problems BEFORE you get married!

You need to make sure that you both have wills in place in order to protect yourselves. 



Please talk to an attorney that handles wills and probate. 



For example, if your spouse does not have a will in the State of Texas and you purchase a home together, you could end up owning a home with his minor children from his prior marriage.  I'm sure that this is not something that you would enjoy doing since you would then have to interact with their mother!



Also, if your spouse dies, then his/her child support becomes an obligation of his/her estate.  Yes, that means that his ex-spouse would intervene in the probate of the estate.  You and any children that you have with your deceased spouse would be "punished" since the older children would probably have a superior interest in the assets of his estate.



You should also talk to an attorney that handles family law matters about possible problems if the parent ever gets behind in his or her child support obligations in the future. He or she might be current in his (or her) child support NOW but if he/she  ever falls behind it could definately impact any property (or bank accounts) that you might purchase together in the future.



What would I do?

Here are just a few things that come to mind...



You probably don't want to keep all of your finances separate.



So no joint bank accounts.





File your taxes separate.



Consider signing prenup (and post nup.) legal paperwork that had been prepared by a family law attorney.



Review your wills every 5 years.

Review your finances every 5 years.

Put assets in your name only.



Run your credit and your spouse's credit annually.



In summary, you might want to just together and not marry.



Remember, if you have any children with this person, they take a "back seat" to the children that are already alive.  The Courts will always "favor" the older children.  Why? Because you knew that these children were alive and their parent had a legal obligation to support them.  The judicial system will have no sympathy for you or the younger children. 

The Legality of Transfer Fees in Texas

Imagine owning a property, then selling it, but retaining the right to collect a percentage of the sales price each time the property is sold in the future. Sound too good to be true? It isn't. The concept -- formally called a "fee for future conveyance of property," but commonly referred to as charging a "transfer fee" -- is becoming increasingly popular in Texas real estate.

Transfer fees are essentially deed restrictions placed upon a property by an owner (who is later a seller), which make a percentage of the sales pice payable back to the original seller EVERY TIME the property is sold in the future. That is, the person who places the restriction on the property earns a fee (some percentage of the sales price) each time ownership of the property is transferred, no matter who owns the property at the time of the subsequent sale, or when it is sold. This is the case because restrictions are covenants that "run with the land," irrespective of ownership at any given time.

Transfer Fees were addressed by the Texas Legislature, when it added Section 5.017 to the Texas Property Code in 2007. Contrary to popular belief, however, this statute -- which became effective on September 1, 2008 -- does not bar transfer fees, but only prohibits restrictions which would require the BUYER ("transferee") to pay the such fees. There is no prohibition against restrictions which would require the SELLER (transferor) to pay a transfer fee. Additionally, this prohibition applies only to residential property, and there are no limitations on transfer fees which might be charged upon the sale of commercial or rural properties.

There also exist exceptions to the "buyer can't pay" Rule, including in those instances where the restricted residential property is situated within a platted subdivision, and the fee is payable to a Property Owners Association, a 501(c)(3) charity, or a governmental entity.

Moreover, in those instances where transfer fees are permissible, the statute does not limit the number of such fees (multiple restrictions) which can be placed on any particular tract, or the amount of the fees (as a percentage of the sales price) that can be assessed. For this reason, and many others which are beyond the scope of this post, transfer fees are controversial.

However, transfer fees are a valuable tool, and could provide an enterprising property owner with a passive income stream, or serve as a pitfall to an un-suspecting owner/purchaser of land to which such fees are attached.

When considering placing any restrictions on property, or determining the legal effect of existing restrictions, Texans would be wise to contact an experienced real estate lawyer.

Should Texas Judges Be Elected or Appointed?

Senator Jeff Wentworth has, once again, proposed legislation that would change the way Texas judges take office. The proposed legislation would require Texas state court judges to be appointed by the Governor and confirmed by the Texas Senate.

Under the current system, Texas joins only six other states that select judges in partisan political elections, where the judicial candidates routinely accept campaign contributions from lawyers and businesses that appear in their courts. This system, undoubtedly, has many convinced that the influence of campaign money destroys "blind justice" and corrupts the judges who administer it.

The debate about the manner of judicial selection is well-developed, and hotly-contested. There have been many past attempts to restructure the Texas judicial election system.

Critics of the current system argue that lawyers often face a "contribute or suffer the consequences" mentality from elected judges, and the jurists, themselves, are frequently uncomfortable soliciting campaign funds from the very people whose disputes must be decided in an impartial, unprejudiced fashion. Another criticism is that the people elected to the bench are often the most popular lawyers in a community, as opposed to the brightest or those possessing the best judicial temperments.

As a lawyer practicing in San Antonio, Bexar County, I have witnessed great judges being tossed out (and replaced with far less-qualified individuals) because of party line line voting. This occurred with the 2008 Democratic wave that was brought about by frustration with the GW Bush Republican administration, and last year's "shellac" of the Democrats reflecting backlash against the Obama administration. In both elections the best candidate often lost because they were affiliated with the "wrong" party.

The flip-side of the argument has merit, too. Texas is a staunchly Republican state. Democrats wince at the idea of allowing Texas' Republican (and pro-business) governors so many judicial appointments. Further, gubernatorial appointment has long been chided as a "good ol' boy" spoils system benefitting wealthy contributors and the politically-connected.

There could be a compromise, though. Past ideas have included a proposal to appoint judges, and then require them to stand for retention election periodically so voters can decide whether they deserve to keep the robe. No party affiliation would appear on the retention ballot, and judges who lose election would be replaced by appointment. But this system has holes, too, including the fact that retention elections will require fundraising.

I expect that there is little chance that the system will change any time soon. Too much doubt about reform generally promotes business as usual at the Texas Legislature.

Changing the way Texans elect judges would require a constitutional amendment approved by two-thirds of the Senate and the House, and then approved by a majority of Texas voters.

Frequently Asked Questions About the Eagle Ford Shale

What is the Eagle Ford Shale?

The Eagle Ford Shale is a hydrocarbon producing formation of significant importance due to its capability of producing both gas and more oil than other traditional shale plays. It contains a much higher carbonate shale percentage, upwards to 70% in south Texas, and becomes shallower and the shale content increases as it moves to the northwest. The high percentage of carbonate makes it more brittle and “fracable”. The shale play trends across Texas from the Mexican border up into East Texas, roughly 50 miles wide and 400 miles long with an average thickness of 250 feet. It is Cretaceous in age resting between the Austin Chalk and the Buda Lime at a depth of approximately 4,000 to 12,000 feet. It is the source rock for the Austin Chalk and the giant East Texas Field. The name has often been misspelled as “Eagleford”.

Where is the Eagle Ford Located?

The Eagle Ford Shale is located in the following South Texas counties:

Atascosa County TX
Bee County TX
Dewitt County TX
Dimmitt County TX
Frio County TX
Gonzales County TX
Karnes County TX
LaSalle County TX
Lavaca County TX
Live Oak County TX
Maverick County TX
McMullen County TX
Webb County TX
Wilson County TX

The more active part of the region is mainly in McMullen, Maverick, Dimmit, La Salle, Karnes, Live Oak, and Atascosa counties. The formation produces both natural gas and oil, but it is the oil-producing and gas condensate areas that are hottest right now.

Who are the Players?

Houston-based Apache Corp. and EOG Resources are two of the largest lease-holders in the Eagle Ford. Other major players include Petrohawk, Swift Energy, ExxonMobil, ConocoPhillips, Murphy Oil, Chesapeake, Cabot Oil & Gas, and Pioneer Natural Resources.
History of the Eagle Ford

It is named for the town of Eagle Ford, Texas where it can be seen on the surface as clay soil. Eagle Ford, Texas is approximately 6 miles west of Dallas, Texas. An outcrop of the Eagle Ford Shale can be seen in the Dallas-Fort Worth Metroplex. Petrohawk drilled the first of the Eagle Ford wells in 2008, discovering in the process the Hawkville (Eagle Ford) Field in La Salle County (District 1). The discovery well flowed at a rate of 7.6 million cubic feet of gas per day from a 3,200-foot lateral (first perforation 11,141 feet total vertical depth) with 10 frac stages. There are currently 36 fields covering 24 counties. The wells in the deeper part of the play deliver a dry gas, but moving northeastward out of District 1 and updip, the wells produce more liquids. One of the fields discovered in District 2 is actually an oil field (Eagleville (Eagle Ford)). The major operators joining Petrohawk in drilling the Eagle Ford Shale Play are Anadarko, Apache, Atlas, EOG, Lewis Petro, Geo Southern, Pioneer, SM Energy and XTO.

All told, the Eagle Ford Shale play brings with it a capital infusion into the economies of many South Texas communities. Undoubtedly, royalties and bonus money will come rolling in. With this infusion and influx of people and equipment, come myriad legal issues. Landowners and others whose rights, property and interests are affected by the producers and related industries would benefit from an experienced real estate lawyer who is familiar with the Eagle Ford Shale Counties.

Understanding the Foreclosure Time Line in Texas

As a real estate lawyer, one frequesntly-asked question I receive from both lenders and homeowners is "How Fast Can a Residential Property Be Foreclosed?"

The answer to this question is generally set out in 2 sources: (i) the documents a borrower signs at closing, including the "promissory note" and "deed of trust;" and (ii) Chapter 51 of the Texas Property Code.

Though often ignored or rushed-through in the excitement of buying a new home, the documents signed at closing are legal instrucments with very serious implications. These documents evidence the buyer's personal promise to pay the mortgage lender, and serve as a legal grant to the lender (called the "mortgagee") of a security/collateral interest in the property being purchased. They also empower the lender to sell the collateral throgh a foreclosure sale when a default occurs. This power is the basis for foreclosure sales following a homeowner's default in his promise to pay the mortgage lender.

Chapter 51 of the Texas Property Code, and Section 51.002 in particular, is the State's way of regulating how the process authorized by the clsoing documents occurs.

Section 51.002(a) provides that a sale of real property pursuant to a deed of trust or other contract lien must be a public sale at auction held between 10 a.m. and 4 p.m. of the first Tuesday of a month. The sale must take place at the county courthouse in the county in which the land is located at a designated area at the courthouse.

In practical terms, Section 51.002(a) means that there is only ONE DAY EACH MONTH upon which foreclosure sales, as known as "Trustee's Sales" take place. The remaining deadlines prescribed by Chapter 51 are triggered by the sale date.

For 2011, Trustee's Sale / Foreclosure Sale Dates are as follows:

January 4, 2011
February 1, 2011
March 1, 2011
April 5, 2011
May 3, 2011
June 7, 2011
July 5, 2011
August 2, 2011
September 6, 2011
October 4, 2011
November 1, 2011; and
December 6, 2011.

Section 51.002(b)requires the foreclosing lender to provide at least 21 days written "Notice of Sale" by: (1) posting notice at the courthouse door of each county in which the property is located; (2) filing a copy of the notice with the county clerk; and (3) serving written notice of the sale by certified mail on each debtor who is obligated to pay the debt. NOTE: Service by of certified mail is complete when the notice is deposited in the United States mail, postage prepaid and addressed to the debtor at the debtor's last known address. Failure or refusal of the borrower to accept the letter has no bearing on the timeline.

However, Section 51.002(b) is not the beginning of the notice period. Instead, Section 51.002(d) requires a mortgage lender or its servicer to FIRST serve a debtor in default under a deed of trust with written notice by certified mail stating that the debtor is in default under the deed of trust and giving the debtor at least 20 days to cure the default. This notice, often referred to as a "notice of Default and Acceleration" must be given at least 20 days before the "Notice of Sale" is given under Subsection (b). This notice must be sent by certified mail, return receipt requested, and the right to receive such notice cannot be waived.

Thus, the timeline may be calculated as follows:

1.date that a debtor in default is sent a Notice to Cure/Notice of Acceleration under Setion 51.002(d).

ADD MINIMUM 20 DAYS.

2. lender to send "Notice of Sale" under Section 51.002(b).

ADD MINIMUM 21 DAYS

3. Trustee's Sale/Foreclosure Sale to take place (MUST BE FIRST TUESDAY OF A CALENDAR MONTH).

It is important to realize that the trustee must strictly comply with Chapter 51 and any other requirements set forth both in the deed of trust and the promissory note to ensure a valid foreclosure.

If insufficient notice of either the Acceleration or the Sale is provided, the sale may be halted by issuance of a Temporary Restraining Order. Also, if the sale does not occur on the date for which notice is provided, the entire process of sending, posting and filing notices must be repeated.

Given the fact that there is only one FORECLOSURE DAY each month, this can significantly delay the sale of the property.

Who Owns The Groundwater Beneath Your Property?

Ownership of groundwater is a hot issue these days. As cities and other populated areas look further afield for thirst quenching supplies, rural lamdowners and their communities have become increasingly proective of their turf, and the water beneath it. This "rural vs. urban" clash is not only the subject of intense litigation and permit-wrangling, but it has now spilled over to the Texas Legislature.

Just last week, State Senator Troy Fraser filed Senate Bill 332, which seeks to amend Chater 36 of the Texas Water Code to prevent groundwater conservation districts from enacting Rules which would divest landowners of their "ownership interest in," or "right to produce" groundwater.

The Bill further provides that a groundwater discrict is prohibited from creating Rules that " discriminate between an owner of land...whose land is irrigated for production" and "an owner of land... whose land was previously irrigated for production and is now enrolled in a conservation program."

Senator Fraser, a Republican from Horseshoe Bay, clearly wrote the short bill for the purpose of making groundwater a "vested property right," which is a departure from the "Rule of Capture," which operates under the principle that ownership of groundwater occurs "at the well head," or when the groundwater is reduced to possession.

We will be watching SB 332 closely, as it will have significant implications on private property rights both from a real estate/surface ownership persepctive, and from the perspective of landowenrs' rights to sell and lease the groundwater beneath their properties.

For more information about groundwater, please see my water law website and water law blog.

Individual State Tax Liabilty for Corporate Officers

The reason that most corporations are formed are to provide limited liability to its shareholders, and to shield officers and directors of small businesses from many liabilities of those companies. However, there are some distinct areas where shareholders may have liability for the actions of the company.

One of the most common "veil piercing" comes up in situations where a company collects sales taxes as part of its operations. Many officers and directors of companies do not realize that they can be held individually liable for taxes collected and not paid to the state. An example of this, and a good discussion related thereto, can be found in the case State of Texas v. Crawford, a recent case out of the 3rd Court of Appeals in Texas.

The statute dealing with individual liability for tax collection is found in the Texas Tax Code Section 111.016 (emphasis added):

§ 111.016. PAYMENT TO THE STATE OF TAX COLLECTIONS.
(a) Any person who receives or collects a tax or any money represented to be a tax from another person holds the amount so collected in trust for the benefit of the state and is liable to the state for the full amount collected plus any accrued penalties and interest on the amount collected.

(b) With respect to tax or other money subject to the provisions of
Subsection (a), an individual who controls or supervises the collection of tax or money from another person, or an individual who controls or supervises the accounting for and paying over of the tax or money, and who wilfully fails to pay or cause to be paid the tax or money is liable as a responsible individual for an amount equal to the tax or money not paid or caused to be paid. The liability imposed by this subsection is in addition to any other penalty provided by law. The dissolution of a corporation, association, limited liability company, or partnership does not affect a responsible individual's liability under this subsection.

(c) The district courts of Travis County have exclusive,
original jurisdiction of a suit arising under this section.

The Crawford facts are probably not that uncommon; that is, a party fails to property designate a contract as taxable in the accounting, but taxes are invoiced and collected. After a tax audit shows the error, the state seeks collection against a company that cannot pay the liability, and bank accounts get frozen. The twist here is that the State tried to claim that the officers wilfully failed to pay the tax, therefore they sought payment from the officers responsible for the taxes not getting paid. Although here the court found that the business owners did not wilfully withold payment, but they do state that knowledge of the failure to pay is not required to find wilfullness.

But if you are an officer of a company, be aware that you may be held liable by the state for failure to pay state taxes (which would include payroll and sales tax collections) should the company fail to remit.

How Do We Divide the House in Divorce?

One of the most troublesome problems facing divorcing couples in a “down” real estate market involves division of the marital residence (or other real property they may own together). Often, couples have little or no equity in the marital residence and neither spouse will be able to re-finance the debt into their name alone.

When both spouses are joint debtors under the mortgage, a divorce decree by itself will not limit their individual liability for payment of that mortgage, and in these economic times, many mortgage lenders will not agree to release one spouse from individual liability under the mortgage.

Traditionally, one spouse agrees to be responsible for the mortgage payments (becoming essentially the property “owner”) and to indemnify the other spouse from any claims by their mortgage company until the house is sold or the mortgage is paid off; this agreement is usually secured by a lien against the marital residence (so that the other spouse is now placed in the role of a “lienholder” although behind the mortgage lender and perhaps other creditors). In other words, the “lienholder” spouse giving up the marital residence has to hope that the “owner” spouse will be able to continue making mortgage payments after the divorce and – if he or she can’t – must be ready to step in and pay the mortgage to avoid foreclosure of the property and being sued individually for any deficiency between the sales price and the accelerated amount of the mortgage.

If the marital residence has “equity” – in other words, if the value of the property is substantially more than the full amount required to pay off the mortgage – this is generally not a problem. But if the marital residence has little to no equity, or is “underwater” because the property is now worth less than the amount of the mortgage, divorcing spouses have to make some very tough decisions concerning future liability and financial risk.

Even when a divorce is “agreed” and there are essentially no disputes between the spouses about dividing marital assets, in situations where the marital residence or other real property carries substantial debt and little equity, it is best to consult with a family/divorce lawyer to advise you on potential methods for handling the marital residence in a way that will help limit exposure to potentially large and unexpected expenses after the divorce has become final.

Blog by Cynthia W. Veidt

Can a minor child come live with my family?

Can a minor kid come live with my family?



I'd call your local policing agencies and see if they care.



I'd also talk to both parents and/or the person who has legal custody of them.



I would not want someone banging on my door in the middle of the night wanting to arrest me for interfering with custody or making some sort of false criminal charges!

















This is a true horror story:



I know of a school teacher that lost her job because she took in a teen-ager boy, CPS got an anonymous called and "sexual" allegations were made.



The next thing she knew the school district terminated her contract due to the "allegations".



The allegations were later "dismissed" but she lost her job and could not find any other employment in her field! Her career was ruined.



She had to hire an attorney and incurred thousands in legal fees.



She eventually lost her home because she could not make her mortgage payments.



Her credit is ruined, she can no longer find a teaching job, she has a "file" with CPS.



Eventually, her husband filed for divorce and got primary custody of their minor children.



Was her good deed worth it? 



I don't think so.

I'm 17 and I want to leave home questions

It seems that almost every 17 yr. old wants to leave their home and go live somewhere else!



Here is the bottom line:



1.  Call your local police, sheriff and constable. See the policy of your local policing agencies.

Their policies vary.  They are free to change their policy on a daily basis.  Most are under-staffed and over-worked.  Most don't have time to chase 17 yr. old kids. 



2.  For criminal purposes you are an adult in the State of Texas.



3.  For civil purposes (signing a lease  or buying a car - for exmaple) you are still a minor.

No one will lease to you or sell you a car on credit.



4.  Emancipation in the State of Texas.  This is called "removed of disabilities" in the TX Family Code.  It is available on-line.  You can read it. 



It costs money to be emancipated - the filing fee is approximately $300.  If you can't afford to pay the filing fee and the associated costs then most judges won't even consider emancipating the minor . 



Will a judge sign it?  Depends on the judge.  Also, usually takes a couple of months to get in front of a judge. 



I suggest that you hire an experienced family law attorney to assist in the process since it's a complicated process and requires a lot of paperwork.  In Texas, you must do the paperwork exactly as required by the judge so don't waste your money with the kits sold on t.v., radio or at office supply store -- total waste of money!



Usually the only teenages emancipated are athletes and musicians so that they can sign legal contracts.



5.  Can a minor kid come live with my family?  Again, I'd call your local policing agencies and see if they care.  I'd also talk to both parents and/or the person who has legal custody of them.  I would not talk someone banging on my door in the middle of the night wanting to arrest me for interfering with custody or making some sort of false criminal charges! 



For example, I know of a school teacher that lost her job because she took in a teen-ager boy, CPS got an anonymous called and "sexual" allegations were made.  The next thing she knew the school district terminated her contract due to the "allegations".  The allegations were later "dismissed" but she lost her job and could not find any other employment in her field!  Her career was ruined.  She had to hire an attorney and incurred thousands in legal fees.  Now she's lost her home because she could not make her mortgage payment.  Was it worth it?  Her credit is ruined, she can no longer find a teaching job, she has a "file" with CPS.  Eventually, her husband filed for divorce and got primary custody of their minor children. 

Post termination of parental rights questions

I've been getting several questions from people that have either (1) had their parental rights terminated years ago or (2) want to pursue back child support against the parent who had their rights terminated.



Here is the bottom line -- once a person's parental rights are terminated that person's rights are permanetly severed.  That person is no longer has any sort of legal relationship to that child.  That person is "dead" to the child.  That person has no more right to that child than any stranger. 



People need to take termination very seriously before they sign the paperwork.  They need to understand what they are doing.



Often people sign the paperwork because they want their ex-spouse to go away.  The person wants the harrassment from their ex-spouse to stop.  They are tired of their ex-spouse from telling them they are a "bad parent".  So they sign the paperwork.  The parent does not understand the full implication of what they are signing.



Several years later, the terminated parent remarries and has more children.  Then the parent wants the new children to get to know their older half-siblings.  This is never going to happen.  Why?  Because the parent has no legal relationship with the older half-sibilings.  The younger children ask about the older children and they don't understand why their older half-siblings are not visiting.  Now the parent feels guilty.  What are the options?  Wait until the older children are 18 and hope that the older children want to come back into their lives. 



I urge people to think a long time before signing termination paperwork.  This is not something that can be revoked later. 



Remember that any verbal promises are not enforceable.  Also, often verbal promises are made to entice you to sign the paperwork and these promises will be forgotten as soon as the judge signs the final paperwork! 



On the other side of the coin, the other parent needs to understand that once the paperwork is signed terminating the parental rights then you can never go back and ask for more money!  So if the parent wins the lottery or inherits money -- you won't see a penny!  In the future, if you need money, this biological parent is under no moral or legal obligation to give you a penny! 



Again, I urge parents to think about the future before signing these termination papers. 



Fast forward into the future.  People lose good jobs and money gets tight.  The healthy kids gets sick and has mega medical bills.  Suddenly, the former deadbeat has a great job and has accumulated a nice nest-egg and lots of adult "toys".  Now he is living high!  Now the terminated parent gets threatened with child support!  Sorry!  Too late!  The terminated parent has NO obligation to provide any money to his former child.  No judge can order this guy to give one penny!  It does not matter if this terminated parent hit the lottery and is now worth billions!  There is no legal obligation.  You cannot go back into court and ask a judge to order the terminated parent to pay child support.  This person is no longer obligated to pay any money.  This man is a "stranger' to this child. 



So be careful what you wish for!  Think long and hard.  Once the papers are signed by the Judge they are final.  They are written in stone.  They cannot be changed.  It does not matter if circumstances change - for good or bad. 



Plus, once the step-dad adopts the kid -- he is the NEW DADDY for all purposes!  If the couple later divorces, this is the "father" that will visit the kids and pay child support!  He is the legal father of the children!  In this case, blood is NOT thicker than water!  (In a later divorce, the terminated father's rights, do not matter at all!)

Cornelius Dupree Freed as Innocent Man after 30 Years in Texas Jail: The Unreliability of Eyewitness Testimony

This week, a fifty-one (51) year old man walked out of a Texas courtroom a free man, after serving over 30 years behind bars for a crime he did not commit. Cornelius Dupree was officially exonerated on Tuesday by Dallas County Judge Don Adams with the simple sentence from the bench, "you're free to go."

What Got Dupree Behind Bars

Mr. Dupree was arrested in 1979 on rape and abduction charges for a sexual assault involving two men that happened on IH30 near Dolphin Road, where a man and woman were forcibly taken from a liquor store and the woman later raped. Dupree and his pal, Anthony Massingill, 49, were going to a party when the cops stopped them because the police thought these two guys matched the description given in another rape case.

Both victims would later give eyewitness testimony that Dupree and his friend were the perpetrators of the crime. And yes, Mr. Dupree is African American.

What Got Dupree Released

DNA cleared Mr. Dupree. Through the efforts of the Innocence Project and with the support of local D.A. Craig Watkins, DNA testing was done on old evidence in the case, which resulted in scientific proof that Dupree was not guilty.

According to the Innocence Project, Mr. Dupree is third in line for the dubious record of having spent time behind bars before being exonerated: only 2 men in the United States spent more time in jail than he did before being proven innocent via DNA testing. In Texas, Dupree is the 41st individual to be freed based on DNA evidence since 2001.

Lesson Learned, Again: Eyewitness Testimony Isn't Reliable

Once again, we have another example of how eyewitness testimony should not be considered as quality evidence in any case -- but particular the key evidence used to put an individual behind bars.

Photo lineups and the like are not good tools toward finding the truth, regardless of how they appear on Law And Order (pick your version). People just don't remember things accurately. Emotions get in the way. Victims want to catch the perpetrator and are understandably influenced to a rush to judgment. Police officers, however innocently, can suggest who to pick in a lineup and many victims are scewed to pleasing the police, however unconcious that predisposition may be.

When are we going to learn in this country that eyewitness testimony isn't trustworthy?

One last thing: As for Mr. Dupree's friend that day back in 1979, Mr. Massingill has already been cleared in the present case via DNA testing; however, he is not free today. Massingill is still incarcerated, and serving a life sentence, based on another crime.  Let's hope that this conviction was based on more than finger-pointing.