Texas Child Support Guidelines: What are My “Net Resources?”

Texas applies a percentage formula to the “monthly net resources” of one parent or conservator (called the “obligor”) to determine the amount of child support under statutory guidelines. The percentage changes based on the number of children involved, as will be discussed in a future topic in this blog.

To begin, what are your “monthly net resources?”

“Net resources” include the sum of all sources of income or assets from which income could be derived in a given year. So, “net resources” will include your wages, salary, overtime pay, tips, commissions, bonuses or any other compensation received for your personal services (regardless of whether you are self-employed).

It will also include any severance pay, retirement pay, pension income, social security benefits (other than supplemental security income), unemployment benefits, disability or workers’ compensation benefits, alimony, spousal maintenance, rental income from real or personal property, interest income, stock dividends, royalty income, capital gains, trust distributions, annuity income, gifts and prizes.

This list is not all-inclusive – if you received money, it will most likely be included in your “net resources” unless it falls within a specific exception recognized by the Texas Family Code. Those exceptions include: the return of capital or the return of principal owed to you on a note; accounts receivable; certain welfare benefits (such as food stamps or WIC benefits), foster-care payments, and your spouse’s income. 

From your “monthly net resources,” you may subtract a limited number of items: (a) social security taxes; (b) federal income taxes based on the tax rate for a single person claiming one personal exemption and the standard deduction; (c) state income taxes, if any; (d) union dues; (e) expenses for health insurance coverage for your child; and (f) cash medical support for your child.  You cannot subtract any deductions for contributions to an individual retirement account or 401(k) plan, insurance coverage for persons other than your child, employee stock purchases or similar items. 

By: Cynthia W. Veidt

Firing / Terminating Employees in Texas – Creating a Paper Trail

Earlier in this blog, I mentioned documenting any employee disciplinary actions that you decide to take as an employer.

Documentation helps in a number of ways. First, it will help refresh your recollection of events if your decision is challenged at a later time. Next, it will provide a contemporaneous record to demonstrate that you are not simply “making stuff up” after the fact. And proper documentation can also demonstrate that you acted in a non-discriminatory and non-harassing manner.

When documenting your actions, consider including the following items:

• a copy of your employee policies, with the employee’s signed acknowledgment of those policies;
• a copy of any documents that you reviewed, tests that you performed, and interviews or statements that you obtained when you investigated the incident giving rise to termination;
• a copy of all prior warnings or disciplinary actions that you gave to the employee prior to making the decision to terminate employment;
• a copy of any response or explanation provided by the employee concerning his or her actions;
• a copy of any resignation letter or email from the employee;
• if termination is due to a reduction-in-force or “layoff,” documents reflecting the neutral business-related criteria that you used to select those employees who were terminated; and
• if possible, a signed acknowledgment that the employee has received his or her final pay with a full release of any future claims to overtime pay or other compensation.

When in doubt, particularly if you have had continuing problems with a particular employee, you may wish to consult with an outside legal professional or in-house counsel before taking firing an employee. 

By: Cynthia W. Veidt

 

Even Missing Documents Forming a Title Chain Can Have Serious Implications on Real Property Use

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

When considering the purchase of residential or commercial real estate in Texas, it is of the utmost importance for the Buyer to obtain a full abstract of title, and to obtain copies of all documents comprising a particular property's chain-of-title.

So important is having this information, that the laws pertaining to real estate agents in Texas mandates that real estate licensees include in all purchase offers a written notice to each buyer that he or she should (among other things) “have the abstract covering the real estate that is the subject of the contract examined by an attorney chosen by the buyer.” See Texas Occupations Code § 1101.555. 

A cursory examination of the law pertaining to the effect of chain of title documents reveals part of the reason having this information is essential to a Buyer and his plans for the property.

First, the Texas Property Code Section 13.002(1) expressly provides that “an instrument that is properly recorded in the proper county is notice to all persons of the existence of the instrument.” This means that failure to obtain a copy of the instrument, or to discover its contents has no bearing on the validity and enforcement of the instrument. Put simply: if a document is on file, you have imputed knowledge of its existence. 

However, proper recordation of an instrument is not the SINE QUA NON of its validity and enforceability. The Texas Supreme Court has recognized two rules relating to the purchase of real property, the second of which can produce harsh results:

1.      "A purchaser is charged with knowledge of the provisions and contents of recorded instruments;”  and

2.     “Purchasers are also charged with notice of the terms of deeds which form an essential link in their chain of ownership."  

See Cooksey v. Sinder,682 S.W.2d 252 (Tex.1984) (per curiam) see also Peters v. Clements,46 Tex. 114, 123 (1876).  

The second of these rules ("subsequent purchasers are bound by the recitals in the deeds through which they claim") applies regardless of whether the purchaser read the prior deeds or had any actual knowledge of their contents.

In some situations, a restriction prohibiting the use of a property for a particular purpose or in a particular manner (mobile home, retail gas business, sexually-oriented business, for multi-family residence, etc.) may not appear in the most recent deed by which the property was conveyed to (or “vested in”) a Seller.  However, if that restriction appears in an earlier deed affecting the property, the restriction will likely apply – sometimes even if that earlier deed is not recorded.  See generally City of Dallas v. Rutledge, 258 S.W. 534, 539 (Tex.Civ.App.-Dallas 1924, no writ)("The law of notice is that a purchaser of land must take notice of all instruments recorded or unrecorded in his chain of title or affecting title, and is bound by all recitals therein, although in fact ignorant of the contents."); Matthews v. Rains County, 206 S.W.2d 852, 854 (Tex.Civ.App.-Amarillo 1947, writ ref'd n.r.e.) ("[The purchaser] is bound by every matter contained in or fairly disclosed by any instrument which forms an essential link in the chain of title under which he claims ... even though he had never read these instruments or had any actual knowledge of their contents, and this would be true regardless of whether the instruments were recorded.").

In addition to restrictions, easements and other encumbrances (roadways and access licenses) upon real property are implicated by title chains, even if not readily apparent from the immediate transaction.  See Adams v. Rowles,228 S.W.2d 849, 853 (Tex. 1950) (respondent's chain of title showed dedication of roadway, and respondent was charged with knowledge of its existence and "took his land burdened with the roadway"); McDaniel v. Calvert,875 S.W.2d 482, 484 (Tex. App.-Fort Worth 1994, no writ) (transfer of dominant estate "automatically includes the [appurtenant] easement across the servient tenement's land" regardless of whether easements are referenced in deed or not).

The foregoing demonstrates the serious implications of documents comprising a property’s chain-of-title.   Obtaining copies and qualified review of those documents is an essential component of a Buyer’s due diligence analysis of the feasibility of purchasing real estate in Texas.  Failure to learn and understand all instruments forming the chain of title can be costly and disasterous.

When is a Texas Deed Valid? The answer is NOT on the day it was Recorded

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

In many real estate disputes, the date upon which title or ownership to real property is transferred is of great significance. Far more often than one would expect, a deed or other conveyance is signed and delivered by the parties, but never recorded, or not recorded until much later (sometimes several years later). In those instances, a question arises as to the date of transfer of ownership. Fortunately, Texas law speaks directly to this issue.

Texas Property Code Section 13.001 provides (in relevant part):

               Sec. 13.001. VALIDITY OF UNRECORDED INSTRUMENT. 

   (a) A conveyance of real property or an interest in real property or a mortgage or deed of trust is void as to a creditor or to a subsequent purchaser for a valuable consideration without notice unless the instrument has been acknowledged, sworn to, or proved and filed for record as required by law.

   (b) The unrecorded instrument is binding on a party to the instrument, on the party's heirs, and on a subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument. 

Courts have interpreted this statute to mean that under Texas law, a deed becomes valid and enforceable as to the grantor and grantee upon delivery(and not recordation) of the deed. Tex. Prop. Code Ann. § 5.021 (Vernon 2004); Noell v. Crow-Billingsley Air Park Ltd. P'ship, 233 S.W.3d 408, 415 (Tex. App.-Dallas 2007, pet. denied); Hidalgo County Appraisal Dist. v. HIC Texas I, L.L.C., No. 13-07-083-CV, 2009 WL 620468, at *2 (Tex. App.-Corpus Christi Mar. 12, 2009, no pet.) (mem. op.); Watson v. Tipton,274 S.W.3d 791, 799 (Tex. App.-Fort Worth 2008, pet. denied).

Delivery of a deed has two elements: (1) the grantor must place the deed within the control of the grantee (2) with the intention that the instrument become operative as a conveyance. Noell, 233 S.W.3d at 415. The question of delivery of the deed is controlled by the intent of the grantor, and it is determined by examining all the facts and circumstances preceding, attending, and following the execution of the instrument. Id. Thus, recording a deed is not necessary to pass title; an unrecorded deed is binding on the parties to the conveyance. Id. at 416-17 (citing Tex. Prop. Code Ann. 13.001(b)). 

With regard to third parties, the law is different depending upon the terms of the purchase of property subject to an unrecorded deed: An unrecorded conveyance of an interest in real property is void as to a subsequent purchaser who purchases the property for valuable consideration and without notice. Tex. Prop. Code § 13.001(a). However, the unrecorded instrument is binding on a subsequent purchaser who does not pay a valuable consideration or who has notice of the instrument. Id. § 13.001(b). Thus, to receive the bona fide purchaser protection, a party must acquire the property in good faith, for value, and without notice (actual, constructive or imputed) of any third-party claim or interest. Madison v. Gordon,39 S.W.3d 604, 606 (Tex.2001) (per curiam); Pierson v. McClintock, 34 Tex.Civ.App. 360, 78 S.W. 706, 707-08 (1904, no writ).

Seemingly minor distinctions can be determinative with regard to the validity, enforceability and timing of unrecorded deeds. If a question arises as to the enforceability of an unrecorded deed, you should contact an experienced real estate attorney for guidance. 

Requirements for a Valid and Recordable Deed in Texas

San Antonio Texas Real Estate Attorney Trey Wilson wrote:

Having litigated numerous disputes over title to land and/or real estate purchase contracts, I have encountered all variety of "deeds" purporting to convey some interest in real property in Texas.

Some of the more interesting of these "deeds" are hand-written or obvious 'cut and paste' jobs taken from the Internet.  Some were recorded, others not. Many failed because they lacked sufficient information to meet even the minimum standards for deeds under Texas law.

In Texas, Deeds for the conveyance of real estate are not required to take any particular format.* However, in order for a deed to be legally valid and recordable in Texas, it must meet several basic criteria:

• be in writing (TPC 5.021, Tex Bus & Comm Code 26.01)
• be signed by the grantor (TPC 5.021, 12.001)
• be acknowledged or sworn to by the grantor before two credible witnesses, or a notary public, who also sign the document (TPC 12.001
• be in English  (TPC 11.002)
• contain all grantees' addresses (TPC 11.003)
• include within itself or by reference to another existing writing, the means or data to identify the particular property with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945). See also Kmiec v. Reagan, 556 S.W.2d 567 (Tex. 1977); Pick v. Bartel, 659 S.W.2d 636, 637 (Tex. 1983); Morrow v. Shotwell, 477 S.W.2d 538, 539 (Tex. 1972).
• be delivered to and accepted by grantee (the grantee need not sign the deed)

* There is a statutorily-suggested format for a general warranty deed in Section 5.022 of the Texas Property Code.

If you are a party to a real estate transaction in which the deed fails to meet these criteria, or may otherwise be invalid or fraudulent, you should seek the assistance of an experienced real estate lawyer. Texas law provides stiff civil (and possibly even criminal) penalties for real estate fraud. In other instances, failed conveyances can be corrected.

Forensic Evidence From Crime Labs Is Not Scientifically Sound: Will Texas Judges Take Note of Latest Warning From Experts?

Forensic evidence isn't scientifically sound and this is a truth that has been heralded for years by criminal defense attorneys - but maybe this cruel reality will get more attention in 2013 after a major editorial was published in the newspaper serving the state capitol this past weekend.  In the Sunday edition of the Austin American Statesman, a former forensic guru with the Federal Bureau of Investigation and a professor at Texas A&M joined together in an editorial entitled, "Make forensic evidence meet standards of science."


What is forensic evidence? 

Forensic evidence is essentially the stuff that comes out of a crime lab and is used by prosecutors to put people behind bars as they argue that the forensics are reliable and sound evidence in their case.  It's what makes up television shows like the CSI series and it's what has convicted many men and women who were unwavering in their protests that they were innocent. 

Forensic evidence includes things like:

• fingerprint evidence
• glove print analysis
• ballistics
• bloodstain pattern analysis
• footprint evidence
• facial reconstruction
• video analysis 
• trace evidence
• profiling.

Forensic evidence is not trustworthy nor is it scientifically sound

Scientists have already warned that DNA evidence can be fabricated. Fingerprints are not reliable either as evidence in a criminal case seeking conviction with jail time or worse.

Crime labs across the country are notorious for being "seriously deficient," to quote a study performed by the National Association of Criminal Defense Lawyers in 2009.  The American Bar Association has joined in the concern that bad evidence is being used by prosecutors to convict people and that American crime labs are not to be trusted. 

The Innocence Project has delved into the failure of forensic science as it has exonerated innocent victims of bad evidence and finds that in:

"...90-95% of crimes, DNA testing is not an option - so the criminal justice system relies on other kinds of evidence, including forensic disciplines that may not be scientifically sound or properly conducted....[M]any forensic testing methods have been applied with little or not scientific validation and with inadequate assessments of their robustness or reliability.  Furthermore, they lacked scientifically acceptable standards for quality assurance and quality control before their implimentation in cases. ...." 

The 2013 Warning to Texas Judges and Texas Courts

This week's editorial comes from Professor Cliff Spiegelman and FBI veteran forensic scientist William A. Tobin. These two men are well known for their expertise in forensic circles and their joint effort is slowly spreading over the web (Grits for Breakfast picked it up  already, so has Charles Smith).

What are Professor Spiegelman and FBI scientist Tobin warning?  From their editorial:

For decades, largely unrealized by judges, many of the forensic practices admitted into judicial proceedings have been without scientific foundation or any other logically acceptable basis other than observational (inductive) study by experimenters untrained in experimental process.

Most troubling are the declarations of certainty associated with proffered expert opinions in those unfounded practices as expressed by examiners in criminal proceedings, such as in firearm/toolmark identification....

When examiners confidently declare individualizations (specific source attributions) between crime scene evidence and evidence seized from an eventual defendant without adequate foundational statistical studies, the testimony constitutes nothing more than intuited opinion or speculation, even if an educated guess, rather than evidence-based testimony.

Let's hope that some judges read the newspaper or surfed the web this week.  And perhaps the public at large will gain more insight into the dangers of forensic evidence that criminal defense attorneys know all too well:  those TV shows aren't reality, and stuff coming out of crime laboratories here in Texas isn't beyond suspicion.

New Year Brings New Judges

Today is the swearing in for a slate of new judges swept into office in last November's election.

Bexar County will get 5 new district court judges, a new justice of the peace in precinct 3, and 3 new justices in the Fourth Court of Appeals. The majority of these new judges are Democrats, and many are new to the bench.

Congratulations to the new judges, as we raise a prayer for wisdom and fairness for each of them.