Amidst the late-night political wrangling, the 2013 Texas Legislature did manage to get some serious business done.

The Kemp’s Ridley Sea Turtle was designated as the office State Sea Turtle of Texas.

Pecan Pie is the official State Pie of Texas.

The first week of May is Texas Bison Week.

Shamrock St. Patrick’s Day Celebration is the official St. Patrick’s Day Celebration of Texas.

The Small Town Christmas celebration of the City of Bellville is the Official Small Town Christmas Event of Texas.

February 16 is Texas Homemade Pie Day.

The Pumpkin is the office State Squash of Texas.

Peach Cobbler is the official Cobbler of Texas.

Several cities and towns were officially named as capitals -

Nacogdoches – the Garden Capital of Texas

Jewett – The Sculpture Capital of Texas

Floydada – the Pumpkin Capital of Texas

Garland – the Cowboy Hat Capital of Texas

Mansfield – the Pickle Capital of Texas

Does the mere thought of July 4 bring tears of joy?   If you have a box full of Beasts of Artillery, Jumbo Ground Bloom Flowers and Morning Glories, then you know what I’m talking about:  your very own fireworks celebration.

It’s probably a good time to review the law.

Fireworks are considered a public nuisance.  Towns and cities have the power to regulate nuisances within their boundaries.  Those municipalities that are classified as “home-rule” can actually regulate up to 5000 feet outside the city limits.

A municipality can ban possession of the firework within its limits, but not the transportation of fireworks.  You can buy the fireworks and drive them through any municipality, even one with the most stringent of ordinances.  Caveat:  sometimes cities get confused about this particular constitutional right and issue tickets.

If your municipality has a fireworks ban, what exactly does that include? Interesting that you should ask.

There are consumer fireworks, and there are explosives.  The National Fire Protection Association sets out guidelines for explosives that are low-grade, such as those that are used in public displays.  The ATF and Consumer Safety Products Commission set out the types of fireworks that are considered consumer fireworks.

The NFPA guidelines are just that – definitions that can be adopted by a state or municipality.  The ATF and CSPC set out national minimums for fireworks that are binding on states.  Each state can adopt more stringent laws.

Thus, in California you can legally shoot off fountains.  In Illinois, you are lucky to get snakes.

Texas sets its definitions and laws based upon the Federal laws.  “Fireworks”  means a composition or device designed for entertainment to produce a visible or audible effect by combustion, explosion, deflagration or detonation.  It’s ok to sell a 1.4 G (this references a federal code provision) device for personal entertainment.  Roadside fireworks stands are full of 1.4 G devices.  It’s not ok to sell 1.3 G devices to the general public.

Within Texas, you can legally buy and transport sky rockets, roman candles, firecrackers, sparklers, smoke and punk, fountains, missiles, novelties, crackle and strobe, parachutes, wheels and spinners, sky flyers, display shells and aerial items (cakes).

You’ll have to check local ordinances to find out if you are prohibited from storing or shooting them off.  Or you could just light the fuse and see if you attract your own glowing red lights.

Happy 4^th.

If a parent is accused of abusing only one child, can that parent’s rights to another child be terminated?  Today, the Texas Supreme Court decided the answer to that question was “yes.”

The Texas Supreme Court issued its opinion in the case In The Interest of E.C.R., arising from a lawsuit in Houston.  The mother’s parental rights had been terminated regarding a child after his mother was accused of abusing his older sister.  The mother appealed that there not sufficient grounds to support her removal as parent of that child, since she had not been accused of abusing him.  The Supreme Court held that the standards for removing a child for abuse or neglect encompass the risks or threats in the child’s environment, which includes harm suffered or danger faced by other children under the parent’s care.  The Court noted that the statutory standard found repeatedly throughout Family Code chapter 262 is “danger to the physical health or safety of the child.”   The court decided that phrase is also centered on risk, rather than just a history of actual abuse or neglect.

Dogs, cats, horses, iguanas, parrots.   What will happen to your pets when you die?

This is a big issue.  Even the  Texas Supreme Court has recognized the strong ties between owners and pets.  Justice Willett, writing for the Court in  Strickland v. Medlen, said  “Over 50% of pet owners say they would rather be stranded on a deserted island with a dog or cat than with a human…… American pets now outnumber American children by more than four to one…. many animal owners view their pets not as mere personal property but as full-fledged family members, and treat them as such…”

So how do you provide for care of your pet?  Well, you can’t leave money directly to a pet.  You shouldn’t leave money outright to an individual to take care of a pet.  What’s left?  A pet trust, of course.

Texas is one of several states that officially authorizes pet trusts.  The trust can be contained in your will  or set up through a separate document.   There is an advantage to having a separate document because it can provide that the care for your pet starts on your disability, not upon your death.

You then fund the trust directly or through your estate.  The amount of money should take into account your pet’s current standard of care – food, treats, daycare, veterinary care, grooming, boarding, travel expenses.  The trustee has a duty to pay for the care of the pet. You can provide detailed requirements in the trust as to how the caregiver must care for your pet.

It’s a good idea to appoint someone other than the trustee as the pet caregiver, to make sure there are checks and balances in place.   Other safeguards to put in place –  micro-chip or have DNA samples of your pet preserved, let your friends and neighbors know about the trust, and have a door or window sign at your residence for emergency workers.

Here are some interesting tidbits of law that probably won’t come up in casual conversation, but could someday be VERY important to you.

Texas courts and lawmakers like Texas law.    Contracts for construction or repair of  buildings, homes and other improvements located on property in Texas are interpreted under Texas law.  Any provision in the contract that makes the contract subject to another state’s law or arbitration in another state is voidable.

Certain consumer contracts can be cancelled by a consumer within 3 business days after the contract is signed.  The merchant has to provide the consumer with a copy of the contract, and notice of the right to cancel.  This covers contracts for goods and services exceeding $25 or purchase of real property for more than $100, where the merchant personally solicited the sale and the consumer signed the contract at a place other than the merchant’s place of business.

Making a transfer (like a gift or a sale for less than fair market value) to defraud or hinder a creditor is illegal under the Texas Uniform Fraudulent Transfer Act.

Statute of Frauds makes unenforceable any oral agreement that promises to pay the debt of another person, contracts for the sale of real estate, or is not to be performed within one year from the date of making the agreement.

A person cannot refuse to sell or rent a dwelling to another because of race, color, religion, sex, familial status or national origin.  “Familial status” includes someone who is pregnant, living with someone younger than 18 years of age, or in the process of obtaining legal custody of someone younger than 18 years of age.   A person can discriminate against someone who has been convicted of the illegal manufacture or distribution of a controlled substance.

Rules for trustees and trusts are determined by the trust instrument.  If the trust instrument is silent, and the Trust is subject to Texas law, then the default rules are found in the Texas Property Code.

Lots used for the burial of the dead are exempt from seizure for the claims of creditors.

Texas has an entire section for Residential Construction Liability that requires a homeowner has to jump through complex and lengthy  procedures before bringing a claim against the contractor.

A person has one year to register with the Secretary of State  the right to use the name of a deceased individual’s name, voice, signature, photograph or likeness.  If the ownership of the right wasn’t transferred at or before the death of the individual, then the right vests in the surviving spouse and children.

Hidden deep in the bowels of the Texas Family Code is an innocuous little statute that can bankrupt both spouses of a marriage.

The statute provides that each spouse has a duty to support the other one.  If someone provides a “necessary” to a spouse and hasn’t been paid, then it is the duty of the other spouse to pay for it.

How does this work?  Suppose the wife has to go into the hospital.   The hospital will look first to her for payment.   If she doesn’t pay the bill, then the hospital will look to her husband.    In legal parlance, they are both jointly and severally liable to the hospital for payment.

That seems logical, especially since we are in a community property state.  Most people assume, however, that only their community property is on the line,  and that their separate property (inheritance, gift, prize money) is safe from a spouse’s debt.   As a general rule, a spouse’s separate property is not subject to the debts of the other spouse.

Not so fast.  ALL of a person’s non-exempt property, even separate property,  is subject to the statute.  A post-nuptial agreement that divides property between the spouses won’t protect it from a creditor for “necessaries.”   Some legal commentators even  think that a pre-nuptial agreement won’t provide any protection.

That’s very concerning for an aging population, where the costs of caring for an elderly spouse can be overwhelming.

Which brings up the question  – what is a necessary?   Medical and dental,  certainly.   Groceries and airline tickets, possibly.   Clothing, maybe.  A 2011 Fort Worth case held that one spouse’s  legal bills incurred during a divorce were a necessary, and her  now-ex-husband had to pay them.

There is one absolute  loophole – if the ailing spouse has qualified for Medicaid nursing care, then the other spouse is no longer liable for that cost.

The law is referred to as the Doctrine of Necessaries.

“Know Your Rights Before You Get Stopped For Driving While Intoxicated”

During the holidays, many law enforcement agencies increase their patrols in an effort to stop citizens who may be operating a motor vehicle while impaired.  While you may be driving lawfully after drinking responsibly, that does not mean that a police officer cannot investigate you for possibly driving while intoxicated.  As a result, you should know your rights before you get stopped, because the police officer is not likely to inform you of several important rights that you have.

A police officer can stop a vehicle any time the officer has a “reasonable suspicion” that the driver is engaged in some criminal activity, including a traffic violation such as speeding, weaving or failing to properly signal a lane change.  Even if the police officer ultimately determines that a driver has not committed a traffic violation, the reasonable suspicion for the stop may suffice for the officer to stop your vehicle and ask you a few questions.  If that investigation causes the officer to believe that you have been drinking prior to operating your vehicle, he also may have sufficient reason to conduct a further investigation into whether you are legally impaired.  Therefore, if you are driving after having a drink or two, it is imperative that you make sure you follow all traffic laws to minimize the chance that the police will stop you for a traffic violation, which could lead to a DWI investigation.

Once a police officer has stopped you for an alleged traffic violation, the officer  typically will approach your window and ask for your driver’s license and proof of insurance.  If the officer smells the odor of an alcoholic beverage, he may begin asking you several questions, such as whether you have had anything to drink that evening, how much and when was your last drink.  The officer also is making a mental note of your demeanor and your appearance – whether your clothing appears to be disheveled, whether your speech is slurred or your eyes are red or watery, and whether you fumble with your license and proof of insurance.  Depending on what he observes, the officer may ask you to exit your vehicle and move to the back, between your car and the officer’s car, and perform several field sobriety tests.

Be aware that the officer is filming you from a camera inside his car.  In fact, the officer also has been recording your voice from the moment he approached your vehicle, so it is best not to offer the officer any long explanation of where you have been or what you have been doing.  Although you do not have to perform any field sobriety tests for the officer, you will not be provided with your “Miranda” warning, a statement from the police that anything you say may be used against you, or that you have a right to an attorney.  Texas courts have ruled that such “Miranda” warnings are not necessary at this stage of an investigation.

In fact, the police officer may tell you that you do not have the right to refuse to perform any field sobriety tests because they are not part of any custodial interrogation.  While that is true, you still do not have to perform the standard field sobriety tests (typically known as the HGN or “eye” test, the walk & turn test and the one-legged stand test), and the police officer cannot force you to perform them.  Many drivers will attempt the field sobriety tests, believing that if they pass them, the officer will let them go home.  However, the tests are difficult to perform even if you are not impaired, and by performing them, you may be providing the State with sufficient evidence to convict you of Driving While Intoxicated.  Therefore, a driver who is uncertain of how they will perform on the field sobriety tests could politely decline to perform any field sobriety tests and state that he would like to speak with an attorney before proceeding any further.   Again, the officer may attempt to convince you that you do not have a right to an attorney at this stage of the investigation, but you are certainly entitled to disagree with the officer and refuse to proceed any further without first consulting an attorney.

At this point, the officer will make one of two decisions: he will either release you or he will arrest you for suspicion of driving while intoxicated.  If he releases you, consider yourself very lucky.  If he arrests you, he will transport you to either the city jail or the county jail, where he will ask you to provide a breath or blood sample in order to determine what the alcohol content is in your body.  If the alcohol content exceeds a measurement of .08, then you will be deemed to be intoxicated.  As a result, the decision of whether you will provide a breath or blood sample is very important to you.

If you are already on probation, your probation terms may require that you submit to any lawful request to provide a breath or blood sample, so refusing to provide such a sample could result in a violation of the terms of your probation.  If you refuse to provide a breath or blood sample in response to a lawful request, you may have your Texas driver’s license suspended for up to 180 days.  However, if you provide a sample and your test result is .08 or greater, your license will be suspended for up to 90 days, and you will have given the State powerful evidence with which to convict you of a DWI.  If you refuse to provide a sample, you may still obtain an occupational license, so the consequences of refusing a breath or blood test may not be as severe as consenting to the test if the result is .08 or greater, but you will not have the opportunity to know the result until it is too late.

Even if you refuse to provide a breath or blood sample, some police agencies will obtain a subpoena and require you to submit to a blood draw if they have probable cause to believe that you were operating a motor vehicle while intoxicated.  Faced with such a subpoena, you must allow the police (or someone such as a nurse or paramedic) to draw your blood.  However, while you cannot forcibly resist the blood draw, that does not mean you should verbally consent to the blood draw; the State may have made an error along the way, but providing consent to the blood draw could correct the State’s error.  Rather, you should not forcibly resist having your blood drawn, but you should contact an attorney to determine if the State failed to follow the proper procedural guidelines before obtaining the subpoena and before drawing your blood.

Once you have been arrested and booked into jail, the police officer may ask you additional questions regarding how much you have had to drink, how much you have had to eat and when, and so forth.  These questions are all designed to elicit additional evidence to use against you.  As before, you may want to decline to provide the police with such evidence and, instead, ask to speak with an attorney.

Getting arrested for Driving While Intoxicated can be a confusing and embarrassing situation.  While you have to provide the police officer with basic identifying information, such as your driver’s license and proof of insurance, you do not have to provide the police with any additional information that could assist the State in prosecuting you for DWI.  As a result, if you believe that providing a police officer with additional information, such as your performance on various field sobriety tests and any breath test or blood test, you may want to politely decline such a request and, instead, ask the officer if you could consult with an attorney before you do anything further.  When the officer states that you are not entitled to an attorney or to refuse to perform such field sobriety tests, you may lawfully stand your ground and refuse to participate further, knowing that you are not required to provide the State with evidence to use against you in a prosecution for Driving While Intoxicated.

Q: What is the legal definition of marriage?

A: Most states define marriage as a civil contract between a man and a woman to become husband and wife. The standard way to marry is to get a marriage license from a state-authorized official and participate in a formal civil or religious wedding ceremony. While most states will not issue marriage licenses to same-sex couples, the laws regarding same-sex marriage continue to evolve. Contact an attorney at our firm to learn more about the marriage laws in our state.

Q: What are the legal effects of marriage?

A: There are several federal and state laws that benefit married couples. Some examples include the right to file joint income tax returns, create a family limited partnership (FLP) under federal tax laws, create a marital life estate trust, receive survivor benefits, receive a share of your deceased spouse’s estate under intestate succession laws, and claim the estate tax marital deduction.

More than 67% of newlyweds believe the most serious conflict in their first year of marriage is over money.

At the law offices of Hammerle Finley, we are a comprehensive Denton, Lewisville, McKinney and custody law firm that serves individuals and families with their needs in family law. Our Texas divorce lawyers can guide you through the process of a divorce and all the related issues of marital property division, spousal support and alimony, post-divorce modifications, and more. We also handle all issues of child custody and visitation, as well as domestic abuse.

We provide the following information to provide a general overview of family law processes and procedures. We encourage you to read more about family law, and contact us for specific guidance in your situation. Our family law attorneys represent clients throughout Texas, including the Frisco, Plano, Collin County, Denton County, Tarrant County.

Family Law – An Overview

Family law is the term applied to the laws and rules developed regarding family relationships. Family law rules define not only the relationships between members of a family but also between a family and society as a whole. More than any other area of the law, family law reflects the values society shares regarding how people who are related should treat each other. When you are faced with an important life decision regarding a key family relationship, the advice and assistance of a family law attorney often proves crucial to your understanding of the issues involved and your satisfaction with the ultimate outcome of your family law matter.

Typically, family law attorneys assist people in making and breaking family relationships. Specific areas of representation include marriage and relationship planning, divorce, paternity, child custody, and child support. Some family law attorneys also provide assistance in the area of adoption.

Child Support

There are millions of divorced parents who pay or receive child support. Federal legislation and uniform state laws exist to make enforcement and collection of child support easier for America’s single parents. Because every state uses its own guidelines for establishing child support and each has various methods to set support amounts and recover support when it is overdue, it is often important to consult with a family law attorney who is familiar with the child support guidelines and child support enforcement laws in your state. If you have questions about the child support laws in your state, the rules for child support collection and enforcement that apply to your particular situation, or the process to establish paternity, contact a family law attorney at our firm to schedule a consultation.

Divorce

Deciding to pursue divorce is one of the most difficult and emotional decisions you will ever make, particularly if you have children. Divorce also involves financial matters that must be resolved and legal issues that must be addressed. A family law attorney at our firm can help you to understand the basic issues involved in divorce and to use a rational approach to the divorce process.

Custody and Visitation

When parents divorce, it is important to learn about the child custody and visitation options that are available and the legal standards that apply. In many cases, divorcing couples can ultimately agree on custody and visitation issues without the need for a court order. When an agreement cannot be reached, knowledgeable advice and representation from a family law attorney can often make the difference.

Marriage

Marriage is a voluntary, private contract between two adults. While it is a personal and emotional commitment, it is also a legal relationship that changes the legal status of both parties. A family law attorney at our firm can help you to understand the legal technicalities of marriage.

Family Law Resource Links

American Bar Association – Family Law Section
The ABA’s Section of Family Law’s Web site is designed for general use by the public. The Web site contains tables and summaries addressing differences in state laws and requirements for divorce, child support, and other important family law issues.

The Legal Information Institute – Family Law
The Legal Information Institute (LII) is known internationally as a leading provider of public legal information. The LII’s Family Law section contains statutes, case law, and articles covering a variety of family law topics.

Office of Child Support Enforcement
The Office of Child Support Enforcement (OCSE) is the division of the Administration for Children and Families (ACF) responsible for administering the Child Support Enforcement Program (CSE). The CSE is a federal/state/local partnership to help families by promoting family self-sufficiency and child well-being. The CSE offers services related to locating non-custodial parents, establishing paternity, establishing support orders, and collecting support payments. The CSE also offers services for non-custodial parents.

Child Welfare Information Gateway
Formerly the National Clearinghouse on Child Abuse and Neglect Information and the National Adoption Information Clearinghouse (NAIC), the Child Welfare Information Gateway provides access to information and resources to help protect children and strengthen families.

Children’s Rights Council
A nonprofit devoted to helping kids experience the frequent, meaningful, and continuing contact with two parents and extended family that a child would normally have during a marriage.

Many believe that estate planning is only for the extremely wealthy. This unfortunate misconception leads many to put off estate planning. However, there are several estate planning documents that serve a practical purpose for most individuals in Texas. These should be prepared by an attorney who can tailor them to your specific needs. Failure to tie up your “loose ends” can result in confusion, squabbling, and drawn out litigation between family members. Hammerle Finley offers a competitively priced customized estate planning package.

The Texas Probate Code provides guidelines for probate and estate planning matters. It is important to note that estate planning is generally state-specific, so be sure to obtain a Texas attorney to handle this matter for you. Probably the most well known estate planning document in Texas is the Last Will and Testament, or will. The person who is the subject of the will is called a testator (male) or testatrix (female). A will takes effect upon the death of the testator, and expresses the testator’s intent for distribution of property and even funeral arrangements. If the testator has minor children, a will is critical designating guardianship of the testator’s children in the event that there are no living parents to care for the children.

While the will takes effect upon one’s death, there are other documents that can be prepared to handle one’s affairs in the event that he or she becomes incapacitated. Another living will, also known as a directive to physician, can be prepared to designate whether to remain on or be taken off of life support. These documents provide peace of mind, not only for the individual executing them, but for their family. It ensures that your wishes are respected and it takes the burden off of your family members.

Estate planning documents are often complex and have strict statutory requirements that must be upheld in order to enforce them. I’d like to offer a word of caution regarding online legal forms. Some individuals prepare estate planning documents from online templates. These templates are not always current, and many are unenforceable under Texas law. They may contain provisions that are not applicable to you, or that confuse the intended purpose of the document. It is important to have an experienced attorney prepare these documents based on your specific needs.

When setting up a new business  determining the type of business structure to use can be confusing and overwhelming. In addition, the consequence of choosing the wrong business structure can subject you to liabilities you never intended when setting up your business.

As a potential business owner, you have the option of setting your business up as a sole proprietorship, a general partnership, or as a corporation. There are also several variations of each of these business structures that will change your potential liabilities as the owner of your business. An attorney can help you determine which business structure is best suited to fit your needs as a business owner.

Forming a Texas sole proprietorship  is simple. As a sole proprietor, you have the ease of conducting your business any way you wish. You do not have to answer to any partners nor do you have to meet any corporate formalities. However, you can be subject to potentially devastating liabilities.

It is much more difficult to form the more extensively complex business structures, such as Texas partnerships or corporations. They both generally require you to file documents and pay additional fees. These complex business structures can potentially protect you from being personally liable for any obligations of the business. If the business is not properly formed, however, you may be personally liable for the debts and obligations of the business. An attorney can help insure that your business has been properly formed, so you may be adequately protected.

Choosing which business structure is extremely difficult as each structure has its own advantages as well as its own disadvantages. Failing to choose the correct business structure could be the difference between a successful business and one that ends in failure. The attorneys at our firm have the knowledge and experience to help you decide which business structure will make your business one that succeeds and meets all of your expectations. Call and set up an appointment with Thad Finley or Virginia Hammerle today. They would be happy to meet with you in our Lewisville office, or at one of our other locations. And we can also come to your place of business!

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