Monday, April 19, 2010
Redirecting to New Site
I am going to consolidate my two blawgs, Everyday Texas Law and Texas Children's Lawyer. Please join me at http://texaschildrenslawyer.blogspot.com/ for the latest blawg entries until futher notice.Thank you.
Tuesday, March 9, 2010
Opportunity for Your Voice
What do Texas veterinarians, race track owners, perfusionists, marriage counselors, irrigators, attorneys, and sanitarians have in common? These professionals all have public member seats on the State Committees or Commissions that govern them. There are hundreds of committees, subcommittees, commissions, boards, etc. that have designated seats for members of the general public. By providing a seat to the general public, the committees may provide a better balance of input from professionals and consumers.
Being appointed to the committees grants wonderful benefits. While some of the positions will receive stipends, one of the greatest benefits is that committee members have their voice heard on issues that may impact the entire state. This is important for the “little guy” to have someone who is not directly or financially biased toward one outcome.
But how can the “little guy” expect to be selected? Most of the appointments are made by officials like the Governor or the Attorney General. Unless someone brings you to the official’s attention, you will have to self-promote. Apply for the desired position. Increase the competition for the position. If the pool of applicants is composed of a select few, then a true representation of Texas is negated.
The Governor alone will make about 3,000 appointments, some of which are designed for public members. See http://governor.state.tx.us/appointments/ . Therein you will find a link for available opportunities and how to apply for the positions. Good luck and let me know which committees you apply!
Being appointed to the committees grants wonderful benefits. While some of the positions will receive stipends, one of the greatest benefits is that committee members have their voice heard on issues that may impact the entire state. This is important for the “little guy” to have someone who is not directly or financially biased toward one outcome.
But how can the “little guy” expect to be selected? Most of the appointments are made by officials like the Governor or the Attorney General. Unless someone brings you to the official’s attention, you will have to self-promote. Apply for the desired position. Increase the competition for the position. If the pool of applicants is composed of a select few, then a true representation of Texas is negated.
The Governor alone will make about 3,000 appointments, some of which are designed for public members. See http://governor.state.tx.us/appointments/ . Therein you will find a link for available opportunities and how to apply for the positions. Good luck and let me know which committees you apply!
Monday, March 8, 2010
Citation and Notice
The terms “Notice” and “Citation” are used quite frequently in legal proceedings. Often people use the terms interchangeably. What exactly is a “Notice” or a “Citation?”
In basic terms, a “Notice” is what is given, verbally or written, to inform parties of the legal proceedings in a case. Our judicial system makes efforts to be fair. Providing notice to parties prevents someone from sneaking into court to sue another person without ever formally alerting the person of the lawsuit.
A “Citation” is a notice for a party to take an action. Thus, a “notice” informs, but a “citation” compels a person to do something. Most commonly the required action is to appear in court for a particular purpose.
In Texas, a judgment cannot be rendered without proof that parties received proper notice of the lawsuit and had enough time to respond. A Petitioner seeking a judgment cannot just tell the Defendant that there is a lawsuit on file with the court. There are specific procedures to demonstrate that the defendant received adequate notice.
The contents of notices and citations are driven by the type of lawsuit (ex., insurance suit, personal injury, divorce, etc.). Each governing Texas Code may provide directives for the notices and citation. Otherwise, the Texas Rules of Civil Procedure prevails. They can be found at http://www.supreme.courts.state.tx.us/rules/trcphome.asp.
In basic terms, a “Notice” is what is given, verbally or written, to inform parties of the legal proceedings in a case. Our judicial system makes efforts to be fair. Providing notice to parties prevents someone from sneaking into court to sue another person without ever formally alerting the person of the lawsuit.
A “Citation” is a notice for a party to take an action. Thus, a “notice” informs, but a “citation” compels a person to do something. Most commonly the required action is to appear in court for a particular purpose.
In Texas, a judgment cannot be rendered without proof that parties received proper notice of the lawsuit and had enough time to respond. A Petitioner seeking a judgment cannot just tell the Defendant that there is a lawsuit on file with the court. There are specific procedures to demonstrate that the defendant received adequate notice.
The contents of notices and citations are driven by the type of lawsuit (ex., insurance suit, personal injury, divorce, etc.). Each governing Texas Code may provide directives for the notices and citation. Otherwise, the Texas Rules of Civil Procedure prevails. They can be found at http://www.supreme.courts.state.tx.us/rules/trcphome.asp.
New Blawg: Texas Children's Law
I've decided to break out information dealing with children into a separate blawg, Texas Children's Law. Please join me there to discuss Texas laws affecting children.
Sunday, March 7, 2010
I Know What the Computer Says, But I Was Innocent
The falsely accused of crimes and allegations of abuse or neglect of children are eligible to have most references to the false allegations and proceeding records removed from government files. This process is called an expunction process.
In criminal and civil matters, the right to have your slate wiped clean is not an automatic right. You must request that all responsible parties remove the negative information from your history. Once approved, follow up to ensure that your records are accurate and as clean as possible.
Taking the time to make the initial expunction request, getting approval, compelling responsible agencies to act upon the information, and periodically following up can be time consuming. However, to preserve your history, you should strongly consider investing in yourself to have your record reflect accurate information. Even though your record may show that you were found not guilty, charges dropped, or a host of other results in your favor, the effect of having a record in the first place has consequences.
Consider how your record would look to a potential future employer. Imagine that an employer is deciding between two candidates. After pulling a background check on the two candidates, a report is prepared explaining the following:
Candidate 1 – There are three independent records for this candidate. Candidate was charged with child abuse, accused of molesting a minor, and arrested for criminal assault. The assault charges were dismissed. The investigation into the molestation case was dropped when the case worker concluded that there was no reason to believe the charges. A jury found that the candidate did not commit child abuse.
Candidate 2 – No criminal or civil records found.
If you were the employer and all other things being equal, whom would you choose just on this information alone? Which candidate would you want to be?
In addition, when there are marks on your record, CPS investigators may be more likely to remove children from your care in future investigations. This has occurred in situations when grandparents are seeking custody of their grandchildren involved in CPS matters. If the grandparents were accused of abuse in the past, this “involvement” although simply an allegation may count against the grandparents years later despite being exonerated.
An expunction can help take away costly hesitation and loss of confidence. The mere presence of a record may plant a thought or impression about you – right or wrong.
Sec. 261.315. REMOVAL OF CERTAIN INVESTIGATION INFORMATION FROM RECORDS.
(a) At the conclusion of an investigation in which the department determines that the person alleged to have abused or neglected a child did not commit abuse or neglect, the department shall notify the person of the person's right to request the department to remove information about the person's alleged role in the abuse or neglect report from the department's records.
(b) On request under Subsection (a) by a person whom the department has determined did not commit abuse or neglect, the department shall remove information from the department's records concerning the person's alleged role in the abuse or neglect report.
(c) The board shall adopt rules necessary to administer this section.
In criminal and civil matters, the right to have your slate wiped clean is not an automatic right. You must request that all responsible parties remove the negative information from your history. Once approved, follow up to ensure that your records are accurate and as clean as possible.
Taking the time to make the initial expunction request, getting approval, compelling responsible agencies to act upon the information, and periodically following up can be time consuming. However, to preserve your history, you should strongly consider investing in yourself to have your record reflect accurate information. Even though your record may show that you were found not guilty, charges dropped, or a host of other results in your favor, the effect of having a record in the first place has consequences.
Consider how your record would look to a potential future employer. Imagine that an employer is deciding between two candidates. After pulling a background check on the two candidates, a report is prepared explaining the following:
Candidate 1 – There are three independent records for this candidate. Candidate was charged with child abuse, accused of molesting a minor, and arrested for criminal assault. The assault charges were dismissed. The investigation into the molestation case was dropped when the case worker concluded that there was no reason to believe the charges. A jury found that the candidate did not commit child abuse.
Candidate 2 – No criminal or civil records found.
If you were the employer and all other things being equal, whom would you choose just on this information alone? Which candidate would you want to be?
In addition, when there are marks on your record, CPS investigators may be more likely to remove children from your care in future investigations. This has occurred in situations when grandparents are seeking custody of their grandchildren involved in CPS matters. If the grandparents were accused of abuse in the past, this “involvement” although simply an allegation may count against the grandparents years later despite being exonerated.
An expunction can help take away costly hesitation and loss of confidence. The mere presence of a record may plant a thought or impression about you – right or wrong.
Sec. 261.315. REMOVAL OF CERTAIN INVESTIGATION INFORMATION FROM RECORDS.
(a) At the conclusion of an investigation in which the department determines that the person alleged to have abused or neglected a child did not commit abuse or neglect, the department shall notify the person of the person's right to request the department to remove information about the person's alleged role in the abuse or neglect report from the department's records.
(b) On request under Subsection (a) by a person whom the department has determined did not commit abuse or neglect, the department shall remove information from the department's records concerning the person's alleged role in the abuse or neglect report.
(c) The board shall adopt rules necessary to administer this section.
Wednesday, February 17, 2010
Termination Consequences: Is She Still My Sister?
When a parent loses his or her rights to a child through a Child Protective Service court proceeding (CPS), there are many consequences beyond the terminated rights of custody for that parent. The court ordered termination affects other individuals who may have had relationships with the child. For example, the child will no longer have a legal connection to any biological grandparents, siblings, aunts, uncles, cousins, or others. The biological family will no longer be able to inherit from or through heirship proceedings. The child would be treated as if she were never born to that biological family because she would no longer legally be a part of the family - a legal orphan.
Although a parent may be embarrassed that his or her parental rights were terminated, it is important that the parent quickly notify other family members with whom the child has a relationship. After the parent’s rights are terminated, certain adult family members only have 90 days to ask the court to provide them with a managing conservatorship role or some form of relative contact. Better, parents should contact family members as soon as CPS becomes involved. If qualified, other family members may take in the child before the termination occurs. Relative placement would help keep the child in familiar surroundings instead of being placed in a foreign foster home or group house. Whenever CPS is involved, please take them seriously.
Although a parent may be embarrassed that his or her parental rights were terminated, it is important that the parent quickly notify other family members with whom the child has a relationship. After the parent’s rights are terminated, certain adult family members only have 90 days to ask the court to provide them with a managing conservatorship role or some form of relative contact. Better, parents should contact family members as soon as CPS becomes involved. If qualified, other family members may take in the child before the termination occurs. Relative placement would help keep the child in familiar surroundings instead of being placed in a foreign foster home or group house. Whenever CPS is involved, please take them seriously.
Saturday, February 13, 2010
With Limited Liberty & Restraints For All
The new transportation and criminal code statutes enacted by the 81st Legislative Session are in effect now. Are you up to speed? Here are a few of the common changes from last year.
1. No Phones Allowed. Unless you are parked, using a hands free device, or in an emergency, you can no longer use a cell phone while in a school zone. This includes calls, texting, games, etc. If you are under the age of 17, you cannot use any wireless device while driving anywhere.
2. Everyone Must Wear Seat Belts. Regardless of where you are in a vehicle, everyone must wear a seat belt or an appropriate restraint. It is a criminal offense for occupants 15 years of age or older. In addition, the driver will be held accountable for allowing passengers under the age of 17 years of age ride without wearing their seat belts.
a. Failure to Buckle Up Criminal Level: Misdemeanor
b. Failure to Self Buckle: $25-$50
c. Failure to Buckle Minor Passengers: $100-$200
3. Appropriate Seating for Children. Previously, once children reached the age of 4, they “graduated” from car seats. Now, Texas is addressing the gap in legislation to protect an even greater number of children. It is now a crime to transport children younger than eight years of age who are not properly secured in a child passenger safety seat system. No offense is committed if the child is taller than 4 feet, 9 inches.
Why the change? Keep in mind that the automobile industry designs vehicles with adults in mind (typically the 170 lbs adult male). Consequently the manufacturers direct occupants to use the appropriate child safety or booster seats per the owner’s manual.
The Tracy Firm provides an excellent magazine each year discussing “How safe are our children in our vehicles.” Please refer to their website for videos, charts, and other valuable information on what the Center on Disease Control has declared the greatest public health problem facing children, motor vehicle injuries.
Regardless of the child’s age, consider the following when determining whether or not a child is ready to use only the vehicle’s seat belt.
1. No Phones Allowed. Unless you are parked, using a hands free device, or in an emergency, you can no longer use a cell phone while in a school zone. This includes calls, texting, games, etc. If you are under the age of 17, you cannot use any wireless device while driving anywhere.
2. Everyone Must Wear Seat Belts. Regardless of where you are in a vehicle, everyone must wear a seat belt or an appropriate restraint. It is a criminal offense for occupants 15 years of age or older. In addition, the driver will be held accountable for allowing passengers under the age of 17 years of age ride without wearing their seat belts.
a. Failure to Buckle Up Criminal Level: Misdemeanor
b. Failure to Self Buckle: $25-$50
c. Failure to Buckle Minor Passengers: $100-$200
3. Appropriate Seating for Children. Previously, once children reached the age of 4, they “graduated” from car seats. Now, Texas is addressing the gap in legislation to protect an even greater number of children. It is now a crime to transport children younger than eight years of age who are not properly secured in a child passenger safety seat system. No offense is committed if the child is taller than 4 feet, 9 inches.
Why the change? Keep in mind that the automobile industry designs vehicles with adults in mind (typically the 170 lbs adult male). Consequently the manufacturers direct occupants to use the appropriate child safety or booster seats per the owner’s manual.
The Tracy Firm provides an excellent magazine each year discussing “How safe are our children in our vehicles.” Please refer to their website for videos, charts, and other valuable information on what the Center on Disease Control has declared the greatest public health problem facing children, motor vehicle injuries.
Regardless of the child’s age, consider the following when determining whether or not a child is ready to use only the vehicle’s seat belt.
- Can the child naturally bend his legs at the knees over the edge of the seat when sitting completely back?
- Does the lap portion of the seat belt fit low on his hips just over the bony structure and top of his thighs?
- Does the shoulder portion of the belt fit across the center of his chest and cross the center of his shoulder?
- Is the child mature enough to remain properly seated without slouching or moving the seat belt into an improper position?
- Is the latch plate as far as possible from his center line?
If you answered “no” to any of the above questions, you should keep using a child safety restraint system to minimize potentially fatal car injuries to the child.
a. Failure to Use Child Safety System Criminal Level: Misdemeanor
b. First Offense Penalty: $25, plus other fees and a $0.15 court cost
c. Subsequent Penalty: $250, plus other fees and a $0.15 court costs
4. Open-Bed Truck Rides a Thing of the Past. Just because we are in Texas, I’ll include this last criminal code change.
Drivers will be held accountable for operating an open-bed pickup truck or an open flatbed truck or trailer when a child younger than 18 years of age is in the bed of the truck or trailer.
a. Criminal Level: Misdemeanor
b. Penalty: $25-$200
Now because it’s weekend of Valentine’s Day, I’ll end with this, slightly modified children’s poem.
First comes love,
Then comes marriage,
Then comes baby in a properly-installed-child restraint system-until-age 8-baby carriage.
Happy Valentine’s Day
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