Can I Designate a Different Summer Vacation Schedule in Texas?

As noted in a separate blog entry, under the Texas Standard Possession Schedule, the parent with whom the child does not primarily reside (called a “possessory conservator”), can have the child for up to 30 days if the parents live less than 100 miles apart.  If the parents reside over 100 miles apart, the possessory conservator can possess the child for up to 42 days.

The Texas statutes set up a “default period” for summer possession.  However, Texas Standard Possession Schedule allows the possessory conservator to designate the specific days for summer possession, provided he or she does so in writing by April 1st of that calendar year.  These extended summer vacation visits must not be over more than two separate periods and must be at least seven days in length.

These extended periods of summer vacation should be discussed and coordinated with the other parent.  Under the Texas Standard Possession Schedule, the managing conservator (the parent with whom the child primarily resides) can designate one or two specific weekends to have possession of the child during the extended summer periods of possession designated by the possessory conservator (depending on how far apart the parents live).  This designation must be given in writing on or before April 15th of that calendar year, and cannot interfere with the father’s right to possession of a child on Father’s Day.

By:  Cynthia W. Veidt, attorney and Erin Zeiss.

Texas Employment Law Basics for Employers: Avoiding Illegal Workers

You will be required to complete an I-9 form and other state-approved forms to report each new employee in Texas’ “new hire directory” (maintained by the Texas Workforce Commission) within twenty (20) days of that employee’s start date. This process will help ensure that your employees are eligible to work in the U.S., and is also used to track and collect social security, federal income taxes and other government-authorized deductions from that employee’s paychecks.

The confirmation process is usually pretty straightforward, but issues sometimes occur. For example, you’ve hired a new employee, but he or she refuses to disclose their social security number or claims not to have one. What should you, the new employer, do in this situation?

According to the U.S. Department of Homeland Security, you cannot legally require that the employee disclose their social security number (SSN). Although a social security card is the most common method of demonstrating that the employee is eligible to work in the United States, it is not the only method for proving eligibility.

This causes some problems for the new employer in Texas. You will be required to complete a “new hire” report form on which you must provide the employee’s SSN. Although there is little guidance from the various federal and state agencies, it appears that you may be able to avoid compliance issues by submitting an affidavit stating that the employee does not have an SSN or refuses to provide it.

You and the employee should each complete a Form P-1 (a privately-prepared form captioned the “Reasonable Cause Affidavit by Payor for Not Obtaining Payee’s Identifying Number”) which you can find via a quick internet search. Refusal by the employee to complete this form, in addition to his or her refusal to provide an SSN, may be grounds for termination. In addition, courts have stated that an employer is not required to hire someone who refuses to provide an SSN on his or her job application.

If this situation occurs, please consult with someone well versed in employment law to determine what rights and obligations/liabilities you may have as the new employer.

By: Cynthia W. Veidt, attorney

Las Vegas "HOA Hall of shame" president facing charges for egregious use of HOA funds

San Antonio HOA Lawyer Trey Wilson wrote:  From Las Vegas, here's perhaps the most egregious case of an HOA President abusing association funds.  According to the story at the link below, the HOA President obtained a credit card in the Association's named and used it for all kinds of personal expenditures, including online porn and singles sites.  Now he's in deep trouble with the Nevada  Real Estate Board.

HOA Hall of shame president facing state charges - www.ktnv.com

Austin HOA representatives seek ordinance preventing UT students from communal living

San Antonio HOA Lawyer Trey Wilson wrote:

Homeowners fight group housing near UT

Contract for Deed -- Penalties for Seller's Failure to Provide Annual Accounting

Buyers purchasing real property in Texas under a Contract for Deed are entitled to numerous statutory protections. Whether all of these protections are necessary to prevent Seller abuses is widely debated, and many of Property Code Chapter 5's provisions have been criticized for being designed to set Sellers up for failure.

Among the oft' criticized provisions is Texas Property Code Section 5.077, which requires a Seller under a Contract for Deed to provide the Buyer with an annual statement by January 31 of each year during the contract. The statute requires that the state include at least the following information:

(1)  the amount paid under the contract;

(2)  the remaining amount owed under the contract;

(3)  the number of payments remaining under the contract; 

(4)  the amounts paid to taxing authorities on the purchaser's behalf if collected by the seller;

(5)  the amounts paid to insure the property on the purchaser's behalf if collected by the seller;

(6)  if the property has been damaged and the seller has received insurance proceeds, an accounting of the proceeds applied to the property;  and

(7)  if the seller has changed insurance coverage, a legible copy of the current policy, binder, or other evidence that satisfies the requirements of Section 5.070(a)(2).

While few would debate that the statement is a good idea, the penalties for failure to furnish one can be harsh. Those penalties are largely dependent on the number of Contracts for Deed (also referred to as executory contracts) that a Seller enters in a given year.

A seller who conducts less than two transactions in a 12-month period who fails to timely furnish the annual accounting is liable to the purchaser for liquidated damages in the amount of $100 for each annual statement the seller fails to provide and reasonable attorney's fees.

 A seller who conducts two or moretransactions in a 12-month period and fails to provide the annual accounting is liable to the purchaser for liquidated damages of $250 per dayplus the buyer's reasonable attorneys' fees.

Parental Alienation

I just left 2012 Advanced Family Law seminar in Houston. 



The book by Dr. Richard Warshak from Dallas Texas is in its 25th printing is apparently the world's best selling book on parental alientation.  It's entitled DIVORCE POISON: HOW TO PROTECT OUR FAMILY FROM BAD-MOUTHING AND BRAINWASHING.  HarperColins, 2002/2010.  It's been published in 6 languages. 



Dr. Warshak has appeared on many television shows in the US and around the world on this topic. 



Advanced Family Law Seminar paper paper on Managing Severe Cases of Parental Alienation covered a new treatment area I was unfamiliar with regarding parental alienation --  Family Bridges: A Workshiop for Troubled and Alienated Parent-Child Relationships.  It's a 4 day educational and experimental program that assists families in making a safe transition and adjustment to court orders that bring the children and their rejected parent together and suspend contact with the favored parent for an extended period.  The workshop usually takes place in a resort setting.  The goal is a successful reunification with the alienated parent and the child with the help of Family Bridges staff. 



There is also a PBS documentary titled, WELCOME BACK PLUTO: UNDERSTANDING, PREVENTING, AND OVERCOMING PARENTAL ALIENATION, that is now on DVD. One college professor shows this 80 minute DVD to her class.  It produced profound reactions to her students from divorced families.  The professor reported that many students had noticed for the first time some form of parental alienation and that many of these students felt empowered to contact their alienated parent.

What Do Texas Courts Consider When Determining “Primary Custody”?

As noted in a previous blog, the term “primary custody” is misleading in Texas.  The closest standard in our state is to determine which parent has the exclusive right to designate the child’s primary residence, since parents are presumed to have joint/equal parental rights and the standard possession order gives each parent an almost equal amount of possession/custodial time. 

When determining whether a parent will be appointed as a joint managing conservator (“JMC”), Texas courts look to see if there has been a history of family violence by one parent toward other members of the household.  If the court finds one parent has committed family violence, or has a history or pattern of child abuse/neglect, physical or sexual abuse, or sexual assault, that parent may not be appointed as a JMC, and the court may also limit or restrict that parent’s periods of possession/custodial time.  See Tex. Family Code § 153.004. 

Other factors include:

- The parent’s ability to give first priority to the child’s welfare;

- The parent’s ability to reach shared decisions in the child’s best interest;

- The parent’s ability to encourage and accept a positive relationship between the child and the other parent;

- The parent’s role/participation in the child’s rearing;

 - Whether appointment of the parent as JMC will benefit the child’s physical, psychological and emotional needs and development; and

- Where the parents live in relation to one another.

See Tex. Family Code § 153.134.

If one parent has clearly been uninvolved in caring for the child’s basic needs and upbringing, has not been active in the child’s daily activities and schooling, disparages the other parent or actively discourages the child from a relationship with the other parent, or abuses alcohol or other substances (legal or illegal), has frequent emotional outbursts or a demonstrated lack of self-control, or otherwise shows an inability to exercise good parental judgment, the court is less likely to appoint that parent as a JMC, and will instead consider granting “primary custody” to the other parent.

Article by Cynthia W. Veidt, Attorney

Texas Employment Law Basics for Employers: Hiring – Employees or Independent Contractors?

Many employers would prefer to consider their workers to be “independent contractors” rather than “employees.” Using independent contractors reduces payroll taxes and tax reporting requirements, provides some measure of insulation from potential liability, and eliminates the need to provide employee benefits. However, you should be very careful; simply calling someone an “independent contractor” will not protect you from potential liability. 

With increasing frequency, employers have found themselves on the wrong end of an investigation by state or federal agencies which determined that their workers do not meet the legal test to be considered independent contractors. Those employers must pay back taxes, penalties, and interest related to their newly-designated employees.

There is a test with about twenty (20) factors used by the government and Texas courts when determining whether someone is an independent contractor. It’s a very fact-specific analysis, in other words – it depends on each individual situation. But in general, a true “independent contractor” works independently of the employer’s control, and is usually able to work for more than one employer at any given time. If you dictate when, where and how the work is to be performed, you set the hours of work, you require full-time devotion to your business, and the worker has no ability to work for others in the same field of competition, you probably have an “employee.” 

By: Cynthia W. Veidt, Attorney

Texas Crime Labs Are Not Trustworthy And Texas Crime Lab Evidence Still Needs To Be Questioned

Back in January 2010, we published a post that still ranks very high in Google results which discussed some of the reasons why Texas criminal defense attorneys cannot trust the test results that come out of Texas crime labs to be presented as forensic evidence against defendants in Texas criminal cases.  You can read that post here.

Here it is, 18 months later, and Texas crime labs are still a hot spot of controversy and national news media are still finding news stories in the testing being done in crime labs across our state.  It's only those who aren't following these stories and those who aren't involved in criminal justice or criminal defense across the state of Texas that assume laboratory work in Texas crime labs are scientifically accurate and as trustworthy as the work being done in TV labs like those on CSI, Rizzoli & Isles, or Law & Order (pick a version).

Massive 2012 Federal Investigation Into Crime Lab Errors in Hair Samples

This month, the Department of Justice and the FBI issued a joint statement that their offices will be reviewing "thousands" of cases where people have already been convicted of crimes based upon forensic evidence because the federal government now has reason to believe that the crime lab testing of hair samples was flawed.   The National Association of Criminal Defense Lawyers and the Innocence Project are working with the feds here, with the Innocence Project double-checking the FBI's findings when they arrive.

 Tarrant County Crime Lab Turns Itself Into Authorities

Yesterday, it was reported that the Tarrant County Crime Lab got a pat on the back from the Texas Forensic Science Commission because the Tarrant County Crime Lab turned itself into the oversight commission (filed a "self-complaint") after one of the lab supervisors found that two rape kit tests that had been tagged as tested ("screened") never, ever had their seals broken.  No one had opened up the packaging in order to test a darn thing.

You would think that a lab would rarely have something fall through the cracks as being tested while it hadn't been opened, right?  You'd be wrong. It is such a commonplace occurrence that it has a nickname: they call it "dry labbing."

Fort Worth Crime Lab Back at Work After Doors Shut for 10 Years 

Meanwhile, the Fort Worth Police Department Crime Lab just got the okay to start up its DNA testing once again, after the police crime lab had been sending out its DNA testing since October 2002 (that's right, almost 10 years ago) because there were concerns that the Fort Worth Crime Lab wasn't releasing accurate and valid DNA test results.  

Austin Crime Lab Okayed After Complaints From Lab Employee and Dallas-area Lab

And, down in Austin, the Austin Police Department Crime Lab just got the go-ahead from the Texas Forensic Science Commission to ramp up its testing again, after the commission cleared the lab of any errors after two separate complaints were filed against it: one, by a Dallas-area lab that tested the same stuff and found different results and two, by a former employee at the Austin Crime Lab who reported that the Austin lab was cutting corners in its testing.

Bottom line:  criminal defense attorneys still have to be skeptical of any evidence that is coming out of a government crime lab these days because this stuff just isn't trustworthy and reliable simply because a "lab" has reported they've tested the stuff.  Crime lab results in Texas criminal defense cases still have to be questioned.