2009 Texas Legislative Session and the Conflict and Communication Skills Course

Representative Warren Chisum of Pampa, Texas has introduced a bill (HB 480) that would require the taking of a ten (10) hour course on “conflict management, communication skills and foregiveness skills,” to all parents seeking a divorce. The purpose of the course is to facilitate “marriage restoration.” Thus, the requirement only applies when the divorce is upon the “no fault” or “irreconcilable differences” portion of the statute, and not (for example) adultery or other grounds for divorce. Also, significantly, there is a provision which exempts alleged victims of domestic violence.

As I understand the bill, the person filing the divorce action (or “Petitioner”) would be required to show evidence of having completed the course at the time the Petition is filed (with a certificate attached to the Petition). If the course was not taken, then the divorce case would be dismissed. The non-filing spouse (or “Respondent”) would then have up to sixty (60) days within which to take the course. If the Respondent did not take the course, the Judge could then use this as a factor when awarding property, when ordering spousal maintenance (essentially alimony), when ordering child support payments, and/or when making orders with respect to child custody.

The obvious purpose of this bill is to make it a little more difficult to obtain a divorce, and to ensure that all reasonable avenues for reconciliation are encouraged. Although I don’t necessary think that this bill is a bad idea, I also think that in most of the divorce cases I have handled, the parties have already attended counseling and have tried many of these same strategies to no avail. As a result, I’m not sure that I’m in favor of the “foregiveness” skills portion of the course.
However, because of my opinion that most parents contemplating or going through a divorce do not adequately consider and deal with the very real emotional impact that the legal wrangling, divorce proceedings, and aftermath of the divorce have on the children. As a result, I think that the portions of the course that deal with the children are a good idea. In my opinion, parents who are going through a divorce should be required to learn strategies on how to minimize stress and disruption upon their children during and after the divorce.

Senator Royce West Files Multiple HOA Bills in the Texas Legislature

On February 18, 2009, Senator Royce West (D - Dallas) filed a flurry of bills that would impact the way HOAs transact business. The following is a brief summary of the Bills. I will post updates as the bills work their way through the 81st Regular Session of the Texas Legislature.

SB 234 by West
HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their association. Disputes between HOA boards and individual homeowners can generate considerable acrimony and expense. This bill attempts to restore balance to the relationship between homeowner's association (HOA) boards and individual homeowners.

As proposed, S.B. 234 requires a court to allow the prevailing party in an action on a breach of a restrictive covenant reasonable attorney's fees and cost and claims. S.B. 234 requires the seller of residential property that is subject to membership in a property owner's association to provide certain information and notice to a buyer, including a resale certificate. S.B. 236 sets forth certain requirements relating to the content of and fees for such resale certificates.

SB 235 by West

HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. Developers often retain control over most aspects of an HOA while construction and sale of houses within the development is still ongoing.

As proposed, S.B. 235 strikes a balance between the developer's interest in the ultimate completion of a development and the need to prevent discriminatory housing practices. The bill provides that a restrictive covenant providing a right of first refusal for the sale or lease of a residential unit or residential lot in favor of the HOA or its members is void.

SB 236 by West

HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, individual homeowners have become frustrated with what they perceive as unduly restrictive HOA board policies regarding the installation of solar energy devices.

S.B. 236 strikes a balance between the community's interest in maintaining consistent aesthetics, and the freedom of individual homeowners to make sensible investments in clean energy.

As proposed, S.B. 236 prohibits a property owners' association from imposing or enforcing a restriction against solar energy devices, except under certain listed circumstances. S.B. 236 provides that restrictions that violate the provisions of this Act are void.

SB 237 by West

HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their associations. Many homeowners lack confidence in the conduct of board elections. Additionally, some HOAs operate under extremely cumbersome provisions for the amendment of their declarations. S.B. 237 attempts to restore confidence in the HOA election process and to provide a uniform standard for amending a declaration.

As proposed, S.B. 237 provides that a declaration may be amended on a vote of 67 percent of the total votes allocated to owners of property in the subdivision, unless the declaration creating the subdivision specified a lower percentage. It also establishes that the right to vote in board elections cannot be limited and states the conditions under which a person is disqualified from serving on the board. The bill requires the use of a neutral third party to count election ballots under certain circumstances and sets forth the requirements for the conduct of elections. S.B. 237 sets forth certain property owners' associations to which certain provisions of this Act do not apply. S.B. 237 prohibits a person from serving on the board of an HOA if the person has been convicted of certain offenses and requires an HOA to obtain criminal history information on candidates for HOA boards. Finally, S.B. 237 provides for the use and content of an association's bylaws.

SB 238 by West

HOAs are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their associations. Often, they feel frustrated in attempts to challenge an HOA board decision due to a lack of information. S.B. 238 attempts to restore balance to the relationship between HOA boards and individual homeowners.

As proposed, S.B. 238 sets forth remedies available to a homeowner if an HOA board fails to comply with its statutory duty to make its books and records, including financial records, reasonably available to a homeowner.

SB 239 by West

(HOAs) are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their HOAs. Disputes between HOA boards and individual homeowners often begin with the imposition of relatively small fines by the board for violations of deed restrictions. The manner in which the board notifies the individual homeowner is at times the subject of some disagreement.

As proposed, S.B. 239 sets forth the required content and manner of delivery of a notice of enforcement action by a property owners' association . The bill also requires that the homeowner be given a date certain by which a violation must be cured.

SB 240 by West

(HOAs) are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their associations. Disputes between HOA boards and individual homeowners often begin with the imposition of relatively small fines by the board for violations of deed restrictions. The actions of some HOA boards can cause such fines to become insurmountable burdens for the homeowner. Additionally, because foreclosure is a remedy available to an HOA board for delinquent assessments, the order of application by the HOA board of payments received from a homeowner is a critical issue.

As proposed, S.B. 240 sets forth certain requirements and restrictions regarding a fine imposed by a property owners' association. The bill also requires a property owners' association to adopt reasonable guidelines for an alternative payment schedule, sets forth provisions relating to the priority of application of payments by a homeowner, and sets forth time limitations relating to collection actions against a homeowner. S.B. 240 repeals Section 202.004(c), Property Code, relating to an assessment of civil damages by a court for the violation of a restrictive covenant.

SB 241 by West

HOAs) are intended to maintain common areas in residential neighborhoods and to protect homeowners' investments in their property by enforcing certain aesthetic guidelines. In recent years, however, many homeowners have become dissatisfied with the operation of their associations. Disputes between HOA boards and individual homeowners often begin with the imposition of relatively small fines by the HOA board for violations of deed restrictions. Such fines, when combined with assessments and legal fees, can quickly become insurmountable for a homeowner, ultimately resulting in foreclosure. Currently, a homeowner is not guaranteed access to the courts in a proceeding for the foreclosure of an assessment lien.

As proposed, S.B. 241 requires a property owners' association to obtain a court judgment foreclosing an assessment lien and providing for issuance of an order of sale before the foreclosure of the lien, unless judicial foreclosure is waived in writing by the homeowner.

Recovery of Attorneys Fees in Texas Cases Alleging Breaches of Restrictive Covenants

Did you know that the Texas Property Code provides that the "prevailing party" who brings a legal action or lawsuit "based on" breach of a restrictive covenant, sometimes referred to as a "CCR," may recover their costs and attorneys' fees?

More particularly, Section 5.006 of the Texas Property Code provides as follows:

ATTORNEY'S FEES IN BREACH OF RESTRICTIVE COVENANT ACTION. (a) In an action based on breach of a restrictive covenant pertaining to real property, the court shall allow to a prevailing party who asserted the action reasonable attorney's fees in addition to the party's costs and claim.

(b) To determine reasonable attorney's fees, the court shall consider:

(1) the time and labor required;

(2) the novelty and difficulty of the questions;

(3) the expertise, reputation, and ability of the attorney; and

(4) any other factor.

It should be noted that recovery of fees is not limited to a Homeowners Association. In that regard, a party who successfully challenges an HOA's enforcement of a particular covenant, and even an individual homeowner seeking to enforce the CCRs could recover the fees and expenses. This statute, which is often overlooked, has tremendous "loser pays" implications.

Often times, however, a particular set of CCRs will precribe that the HOA for a given development can recover its fees from a homeowner against whom enforcement is sought. Frequently, there is no reciprocal clause. Thus, it is important to check the language of your particlaur HOA's restrictive covenants and By-laws to consider whether such documents conflict with Section 5.006.

In any event, litigation concerning the enforcement of CCRs is complex and frequently turns on minute legal nuances. Accordingly, any person or entity should seek experienced legal counsel when contemplating litigation based on breach of a restrictive covenant related to real estate.

Favorite Quotes About Neighbors

Health consists of having the same diseases as one's neighbors.
Quentin Crisp

A nation is a society united by delusions about its ancestry and by common hatred of its neighbors.
William Ralph Inge (1860 - 1954)

There are many who dare not kill themselves for fear of what the neighbors will say.
Cyril Connolly (1903 - 1974)

The Bible tells us to love our neighbors, and also to love our enemies; probably because they are generally the same people.
G. K. Chesterton (1874 - 1936)

This is the best kind of voyeurism, hearing joy from your neighbors.
Chuck Sigars

Nothing makes you more tolerant of a neighbor's noisy party than being there.
Franklin P. Jones

Love thy neighbor, yet pull not down thy hedge.
English Proverb quotes

R L Wilson Law Firm takes On Case for Coach Randy Palmer -- Pro Bono

In a renewed effort to prevent injustices throughout Texas, R L Wilson, P.C. Law Firm has undertaken the representation of Randy Palmer -- Athletic Director and Head Football Coach for the Poteet ISD. Coach Palmer is a man of stellar character, humility and impeccable credentials. He is a Pleasanton native who rose to the ranks of the NFL, and decided to return to South Central Texas to give back to his community. Unfortunately, South Texas School Board politics has consumed Coach Palmer's job, and he is fighting for his position at Poteet.

Attorney Bob Schaezler of R L Wilson, P.C. Law Firm has been Coach Palmer's public face during this trying ordeal. The media storm has been overwhelming, and Bob has appeared on KENS 5 TV, and on KTSA's Trey Ware radio show.

Watch the Video here.


By Zeke MacCormack - Express-News

POTEET — The school board’s latest spin of its revolving door for athletic directors unleashed a flood of tears and questions — and a walkout by angry students the morning after.

Trustees voted to not extend the contract of first-year athletic director Randy Palmer despite testimonials and demonstrations of support from many in a crowd of about 200 at Monday’s board meeting.

The vote means a fifth new coach in five years will lead the Aggie football squad. Under Palmer, the team went to the playoffs with a 6-5 season — which included beating archrival Pleasanton for the first time in at least 40 years, according to Express-News archives.

Trustee Dicki Lee Sparks, who backed Palmer, said many in the emotional crowd surrounded the board after the vote and wouldn’t disband for an hour.

“We had 15- and 16-year-old boys bawling and demanding to know why, asking ... ‘Why, why are you doing this to us?’” Sparks said. “They wanted answers.”

About 100 students left the Poteet High School campus in protest starting at midmorning Tuesday, Principal Andy Castillo said.

The students will be counted as absent, but whether the absence is excused will vary because “we evidently have some parents who were aware of where their kids were,” he said.

Two other coaches who are already with the district and have family links to trustees voting to oust Palmer have been mentioned as likely successors.

The high turnover among athletic directors is unhealthy for students, parent Irma Estrada told trustees.

“It’s not too late to do the right thing here and do what’s best for our kids, and that is to keep Coach Palmer,” she said.

Morgan Wagner, a senior on the Aggies offensive line, told trustees that Palmer was “liked and beloved” by most students.

But the board’s resolve against Palmer was even stronger than on Feb. 23, when trustees voted 4-3 to recommend termination of his contract, despite support for extending his $57,000-a-year contract by interim Superintendent Tim Coyle.

Trustees didn’t cite any specifics Monday before voting 5-2 for a motion that said terminating Palmer was “in the best interest” of the district.

“I still don’t understand why, what the reasoning is,” Palmer, 33, said early Tuesday. “There was a lot of people in support of me, and there were a select few against me.”

Trustee Barbara Reyes, who changed her stance to favor dismissing Palmer, could not be reached for comment.

School board President Mike McIntyre denied Palmer was dismissed so that a relative of a trustee could get the job, and he said Palmer will soon receive written notification of the basis for the board’s action.

“Once that happens, if he wants to disclose it, he can do it,” McIntyre said. “There are legitimate concerns, and if people were more aware of them there wouldn’t be such a big deal, but that’s sort of the nature of the beast. We’re given access to information that not everybody else gets to see.”

He said he respects the students’ right to express their displeasure but said of the walkout that the weeks before the Texas Assessment of Knowledge and Skills testing “is not the time to have this kind of distraction.”

Sparks said she waited to hear a valid reason for firing Palmer but that none was provided.

Fellow trustees cited “piddly little things, but nothing to me that would warrant someone losing their job,” Sparks said.

Superintendent Coyle said Palmer had no blemishes on his record.

“I can’t believe we couldn’t come to some kind of different solution,” Coyle said Tuesday, calling the mood on campus “disappointed and frustrated.”

R L Wilson, P.C. Law Firm Now Accepts Credit Cards and Paypal

As part of the re-vamp and update of our flagship website R L Wilson, P.C. Law Firm now accepts credit card and Paypal payments online, over the phone, or as an added payment option for monthly invoices. The service is made available through a merchant account procured from the San Antonio Bar Association.

Our law firm merchant account is compliant with ABA and State Bar guidelines for credit acceptance. Unlike a standard merchant account, the Law Firm Merchant Account is designed specifically for the client-attorney transaction, and safeguards and separates client funds.

We hope that this new feature provides convenience to our existing and prospective clients, reduces our costs associated with billing and collections, and encourages prompt payment promptly by providing additional payment options.

Of course, we will continue to accept checks.

Houston Holistic Attorneys Happy Hour

I would like for Houston attorneys that are interested in meeting each other for fun (and absolutely no purpose) to contact me. I'm going to try to put together an evening within the next 3 months. I did one in 2008. Unfortunately, the weather did not cooperate.

If you are interested in meeting for an evening of fun and encouragement, send me an email at fran @familylaw4u.com