Texas Rangers Investigating Another Case of Police Brutality and Excessive Force

The news started trickling out over the Labor Day Weekend that the Texas Rangers had been contacted by the family of a South Texas man who was comatose in a Corpus Christi hospital, another victim of excessive force by law enforcement.  Sure enough, the Rangers are on the job, investigating the family's belief that their loved one, Martin Garcia Ortiz, had sustained his injuries in a vicious beating by a Texas law enforcement officer.

That's right:  another case of police brutality in Texas.  And another instance where either the FBI or the Texas Rangers has had to come into the area to find out the truth of things.  It's something that happens far too often here in Texas: law enforcement using excessive force against people - something that we report about regularly. 

What happened in this case of alleged police brutality?  

According to news reports, 48 year old Martin Ortiz had been at a local bar in Aransas Pass.  No worries about a DWI arrest here:  Mr. Ortiz left the bar on his bicycle, to ride his way home.  It wasn't far.  He had no weapon, unless you are afraid of bicycles. 

Things took a bad turn around midnight on August 10th.  Seems Mr. Ortiz, there on the roadside on his bicycle, was stopped by an Aransas Pass police officer  -- and according to family members, the cop pushed Ortiz off the bike only to then beat Ortiz after the man was laying on the ground beside (some reports say underneath) the bicycle.

The Texas Rangers have reported that their investigation reveals three police cars zipped to the scene (that must have been a very scary bicycle) and that some of these officers are now witnesses to the incident.  They also report that Ortiz was purportedly stopped because he was weaving as he rode the bike, and his bike didn't have a headlight. 

Guess what?  All this may be on video.  Seems that Aransas Pass police cars are equipped with dash cams, so sooner or later, some member of the press is going to get ahold of those videos and we'll all see what happened.

Right now, we know that Martin Ortiz lies, seriously injured, in Corpus Christi's Christus Spohn Hospital where he spent ten days on life support in a coma before starting to come out of it.  It's not known at this time whether or not he will suffer permanent harm from this attack -- like traumatic brain injuries or spinal injuries.

The Texas Rangers are asking anyone who may have information about what happened to Martin Ortiz to come forward, and if you have any information about the Martin Ortiz case, you can call the Texas Rangers directly at 361-364-6239 or 512- 424-2160. 

Hiring a mediator does not mean you don't need to hire an attorney!!

I keep receiving phone calls from people that think that if they hire a mediator that they do NOT need to hire an attorney.



Obviously many people do NOT understand the role of a mediator!



They think that if they hire an attorney/mediator that they do not need to hire an attorney to assist them.  They are wrong, wrong, wrong.



If I assume the role of a mediator then I must take off my "hat" as an attorney.  I cannot function as an attorney.  I cannot provide legal advice.  I cannot prepare legal paperwork.  I cannot do the legal paperwork necessary to finalize a divorce.  After practicing law for 20 years I have avoided greviences against me.  I intend to continue my clean record!  I also as a "credentialed" mediator in the State of Texas.  I am held to a high standard of conduct as a mediator.  Therefore, I don't intend to start letting my ethics start slipping as an attorney or as a mediator!



If I assist a couple if coming to terms with the the final outcome of their divorce I am unable to assist them with preparing the paperwork to be submitted to the judge to sign the final paperwork! 



Therefore, the couple must still retain the service of a Texas attorney to assist them in preparing the final paperwork.



So what can a couple do to avoid hiring an attorney? 

The answer is not much.



They cannot use the services of a paralegal to do the final paperwork -- it is illegal for a paralegal to do so in the State of Texas.  In fact, it is a felony for a paralegal to do so!  The District Attorney's office as prosecuted paralegal's for doing paperwork for people.  Why?  Because often a paralegal has been known to do the final paperwork WRONG!  FYI:  There is one Harris County family cout associate judge that has personally called the District Attorney's office and given the DA's office the name of a paralegal and their contact information in order to aide in the prosecution of paralegals that do bad paperwork! 



Also, please don't waste your money with the kits advertised on radio, television and the internet.  If you listen carefully to their ads they state that they are not prepared by attorneys!  That is how they State Bar of Texas has avoided suing them for the unlawful practice of law in the State of Texas!  Also, their "guarantee" is worthless!  I believe their guarantee is for 60 days and a divorce in Texas takes over 61 days -- so you don't get your money back.  Plus, they don't give you the REQUIRED forms that the judge will want in order the finalize your divorce in Harris County and in the State of Texas.  Plus, they don't sell you the required Employer Wage Withholding Order and other necessary forms that you will need if you have minor children.



If a couple is broke, busted, and on a limited income then there are pro bono (free) legal services available.  Houston Volunteer Lawyers Program at 713-228-0732 comes to mind.  I worked there many years ago.  There is also Lone Star Legal.  The 3 law schools in town also have services.  You can go to the State Bar of Texas website and look for their pro bono list of programs in the State of Texas.  Be prepared to wait since the free programs are overwhelmed and understaffed.  Their funding has been drying up.  The demand for free services is swelling & there just are not enough people to handle the demand.



Many attorneys offer payment plans. 



Patricia Bushman at 713-807-9405 offers payment plans.



You can look for a recent law school graduate.  However, I would suggest that you find someone that has a couple of years experience.  A recent graduate does not know what they are doing and you don't need to be their first case!  Many times someone with 5-10 years experience can do the job much quicker and right the first time -- for less money since they know what they are doing!



You can always go to the Family Court house -- there are now courts at 2 courthouses -- the Family Courthouse at 1115 Congress & the Civil Courthouse -- both are downtown just a couple of blocks away from each other -- and you can look around and try to find an attorney that looks like they are "hungry" but smart.  I'd go down in the morning -- usually on a Monday morning when there is docket call.  I'd pick someone with a few wrinkles in their face.  Pick someone that is nice.  It's your money -- so don't pick someone that treats your rudely! 



You can check the Greensheet.  I advertised in there for years approx. 15 years ago but I quit.  There is just too much competition these days & too many shoppers.  Plus now everyone has the internet.  I found that most people use the internet to find an attorney.  The Greensheet was not as popular for hiring a family law attorney. 



You can look on http://www.lawguru.com/ and http://www.avvo.com/ for many family law attorneys.Both sites allow you to post free questions.  Read the attorney answers & find someone that sounds nice. 



There are many, many free websites for attorneys to advertise on these days.  I used to pay to advertise but now there are literally probably 25 free attorney sites that I appear on.  I've had a website over 15 years so I'm a really old, old internet presence. 

Legal Separation in Texas

There is no such thing as “legal separation” in Texas. The only legal proceeding for separation is divorce. Once a divorce is filed, the court can make temporary orders concerning the parties, their property, and their children. However, some couples fee they need to be “separated” for a time to determine if their relationship is reconcilable or if divorce is truly necessary. This can cause problems because property and finances may remain joint between the spouses while married.

While there is no such thing as legal separation in Texas, it is possible for spouses desiring a period of separation with separate finances and property to enter into various property agreements, changing the ownership of property from community to separate. However, the consequences of should be carefully considered.

Legally, the spouses would still be married, and may not be completely protected from financial decisions made by their spouse, no matter how careful their planning and detailed their property agreements. Additionally, once the nature of property is changed from community property to separate property, the change in property ownership will remain effective if the separation does in fact lead to a divorce, which may not have been the intent of one or both spouses. The same is also true if the parties do not get divorced, which may have an unintended effect on property distribution upon the death of one of the spouses.

Article by Sarah F. Berry.

How is a Promissory Note Different from a Forbearance Agreement?

Under Texas law, a promissory note “is a written unconditional promise to pay another a certain sum of money at a certain time.” (Edlund v. Bounds, 842 S.W.2d 719, 724 (Tex.App. —Dallas 1992, no writ). The time need not be a specific date, but it must be a time that will certainly arrive. For instance, a note payable on demand or “on or before” a specified date may constitute a promissory note. A promissory note is also a contract subject to the rules applicable to interpreting contracts. DeClaire v. G & B Mcintosh Family Ltd. P’ship., 260 S.W.3d 34, 44 (Tex.App.—Houston [1 Dist.] 2008, no pet.).

The difference between a promissory note and a forbearance agreement is that a forbearance agreement is an agreement not to enforce rights you already have.

A forbearance agreement is an agreement typically between a creditor and a debtor whereby the creditor agrees to forgo some legal right in return for concessions from a debtor who is in default. Swilley v. City Inv. Co., 288 S.W. 485, 486 (Tex.Civ.App.—Galveston 1926, writ ref’d) (explaining that forbearance of a legal right is sufficient consideration for a promise of guaranty). A forbearance agreement is a powerful tool for creditors who face debtors in or near default on their obligations, and often should be used in lieu of entering into a promissory note.

In a typical forbearance agreement, a creditor will agree not to sue on a balance due in exchange for certain concessions by the debtor, such as an increased interest rate, as well as various admissions that can prove invaluable to a creditor should the debtor fail to fulfill the terms of the agreement.

It may also contain the remaining balance on the indebtedness, and an admission that the debtor is in default. A creditor might also receive an increased interest rate and a waiver of various notice requirements in the event of a future default. The agreement typically will also contain a provision that allows the creditor to reassert the rights that have been forgone under the agreement should the borrower fail to make a payment, or fail to fulfill any obligation of the agreement by a certain date. If this occurs, the debtor’s signed admissions concerning the original note could prove invaluable in a lawsuit.

Prepared by Chris Patterson. Reviewed and revised by Marc L. Lippincott.

What is Spousal Maintenance and when is it available?

Texas has very limited laws regarding the availability of spousal maintenance. Spousal maintenance is defined under the Texas Family Code as “an award… of periodic payments from the future income of one spouse for the support of the other spouse.” (Tex. Fam. Code § 8.001) In other words, “spousal maintenance” is something of a misnomer – it is actually paid by a former spouse after the divorce is granted and the two persons are no longer married.

Under Texas law, a person is only eligible to receive spousal maintenance if:

1) the other spouse was convicted of an act of family violence that occurred during the two years immediately before the date on which the petition for divorce was filed, or

2) the marriage lasted longer than ten years and the spouse to receive maintenance cannot support himself or herself.

In general, a Texas court may not order spousal maintenance for longer than three years after the divorce is final, and the court will limit the duration of payments to the shortest period of time possible. However, a person may be entitled to receive spousal maintenance for a longer period of time if he or she has an incapacitating physical or mental disability, or is caring for a child with such disability.

Factors in determining whether to award spousal maintenance include:

* the relative financial resources of both spouses,

* the duration of the marriage,

* the age and earning ability of the spouse seeking maintenance,

* the contribution of the spouse as a homemaker,

* infidelity or fraud during the marriage,

* the spouses’ respective education and employment skills, and

* one spouse’s contribution to the other’s earning power.

These factors are not exclusive. In Texas, there is a presumption against spousal maintenance, and it is not available unless the person requesting spousal maintenance has been diligent in seeking employment and improving his or her job skills and employability.

Lastly, the amount of spousal maintenance cannot exceed the smaller of $2,500 per month or twenty percent of average gross income per month of the spouse who is ordered to make payments.

In summary, spousal maintenance is not available unless the party requesting such payments can overcome the presumption against an award of spousal maintenance by providing evidence supporting the various factors, and – even when awarded – the payments are for a limited amount and only for a limited time.

This blog was prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

What is Spousal Support and when is it available?

In contrast to “spousal maintenance” (see related blog topic), Spousal Support in Texas is awarded on a temporary basis while a divorce suit is still pending. This temporary spousal support is meant to provide a financially dependent spouse with income during the divorce while the parties are working on a resolution to their financial situation.

Temporary spousal support is based on the common law duty to support one’s spouse during the marriage, by providing “necessaries” such as food, clothing, shelter and medical care. As a result, an award of temporary spousal support can be taken into account when the court divides the spouses’ community property, since the spouse who is providing such spousal support is entitled to reimbursement from their community estate.

To be entitled to receive temporary spousal support, the requesting spouse must demonstrate that: (1) the parties have a valid marriage, (2) he or she is unable to pay for necessary expenses, and (3) the other spouse can afford to pay the amount of spousal support sought.

If the spouse receiving temporary spousal support remains unable to pay for necessary expenses at the time of the final hearing/trial, he or she should consider requesting spousal maintenance for a period of time after the divorce is granted.



Blog prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

Dallas Cop Busted on Domestic Violence Charges, "Not Sober" When Arrested

Here in Dallas, it's very hot and staying that way as we endure a record-breaking heat wave.  Day after day of 100+ degree weather.  So, it's understandable that tempers are rising and that domestic violence calls are high.  It's not as easy to understand when one of those domestic violence events involves the cops: not the cops coming to the scene, but a cop smack dab in the middle of it. 

Seems that this weekend Dallas police officer Rafael Mendoza, on the force to protect and serve since December 2008, was arrested by his fellow law enforcement officers on charges of domestic violence.  Specifically, Mendoza has been charged with (1) domestic assault and (2) unlawful restraint, two Class A misdemeanors under the Texas Penal Code. 

Mendoza's also on administrative leave pending an Internal Affairs investigation (as well as the criminal investigation).  He won't face jail time, maybe he will be looking for another type of employment.  Have to wait and see on that one.

What happened for a Dallas Cop to get busted for Domestic Assault and Unlawful Restraint?

This past Sunday, according to media and police reports, Officer Mendoza was setting in a car parked near an apartment complex on San Jacinto.  It was a hot day, and apparently Mendoza was getting hot under the collar, arguing with a woman about an ex-girlfriend as they sat in the car.

It's reported that Mendoza and the woman stepped out of the vehicle - and that Mendoza then shoved the woman onto the ground, slammed plastic handcuffs on her, and telling her she was about to go to prison for 10 or 15 years. 

Scary stuff, right? 

After about an hour setting there in the parking lot, in the heat of that Dallas Sunday afternoon, Mendoza escorted the woman up to her apartment.  He un-cuffed her. 

Around 2 hours later, Officer Mendoza was busted by his colleagues.  It's reported that he was "not sober" at the time.