Directives to Physicians and Family

by Carrie E. Campbell, J.D.

Among the ways to minimize the burden on your family and friends is the execution of a Directive to Physicians and Family which clearly identifies your wishes regarding medical treatments and artificial life support with regards to both terminal and irreversible conditions.

Once just a short statement, Directives now include definitions and explanations drafted by the state legislature which assist all those involved to understand the choices to be made. For example, an irreversible condition is defined as "a condition, injury, or illness: (1) that may be treated, but is never cured or eliminated; (2) that leaves a person unable to care for or make decisions for the person’s own self; and (3) that, without life-sustaining treatment provided in accordance with the prevailing standard of medical care, is fatal."  In contrast, a terminal condition is defined as "an incurable condition caused by injury, disease, or illness that according to reasonable medical judgment will produce death within six months, even with available life-sustaining treatment provided in accordance with the prevailing standard of medical care." As applied there are many illnesses such as cancer or Alzheimers which may be irreversible in early stages, but only become terminal much later once the disease is advanced. Another helpful term outlined by the Texas Congress is "life-sustaining treatment" which among other things specifically includes "both life sustaining medications and artificial life support such as mechanical breathing machines, kidney dialysis treatment, and artificial hydration and nutrition," but moreover does not include "the administration of pain management medication, the performance of a medical procedure necessary to provide comfort care, or any other medical care provided to alleviate a patient’s pain."

With these definitions as a foundation, you may select your choices for various scenarios, as well as any particular wishes you may have regarding a specific medical treatment. For more information or to have your Directive prepared, you should contact an attorney of your choice. 

If you would like to speak to one of the attorneys at Mounger and Campbell, LLC about this or any other legal topic, you may ask us to contact you or call 512-847-1308.

Children With Special Needs

by Carrie E. Campbell, J.D.

According to the Texas Family Code, a child with special needs is any child that requires "substantial care and personal supervision because of a mental or physical disability," and as such, will not be able to be self supporting. The Family Code contains provisions specifically applicable in cases with children with special needs, including paternity, divorce, or modifications. These provisions allow a judge to order additional child support beyond the legislative guideline amounts and beyond the age of 18. In addition, greater consideration will be given to issues of structure and consistency between homes in determining custody, possession, and visitation. Other important issues for consideration include respective authority between the parents in making educational and medical decisions.

A child with special needs may also be eligible for governmental benefits, depending upon the degree of disability and the family’s financial resources available to the child. Supplemental Security Income (SSI) provides a monthly payment to assist with living and medical expenses. Most often, the Social Security Administration will take several months to make a determination of "disability." However, benefits are immediately made available to financially eligible children who live with (1) HIV infection, (2) total blindness, (3) total deafness, (4) Cerebral Palsy, (5) Down’s Syndrome, (6) Muscular Dystrophy, (7) severe mental retardation, or (8) birth weight below two pounds, ten ounces. Additional services and assistance are available through the Department of Disability and Aging Services (DADS) and the Mental Retardation Authority, even if a child with special needs does not qualify for SSI or Medicaid.

For more information about legal issues affecting children with special needs, you should consult with an attorney of your choice. 

If you would like to speak to one of the attorneys at Mounger and Campbell, LLC about this or any other legal topic, you may ask us to contact you or call 512-847-1308.

Dealing With the IRS

by Don H. Campbell, J.D.

Notice of an audit or demand for payment from the Internal Revenue Service makes many people numb with fear. There are, however, options available with the help of an attorney for dealing with the IRS which may be well worth the effort and expense. The first option is filing bankruptcy. Upon filing, all collection efforts will stop by the IRS and any other creditors. In some instances, personal taxes can be discharged; but in the very least, you are given the time and opportunity to work out a practical payment plan with the IRS.

The second option involves making an "offer in compromise" of a specific amount less than that demanded by the IRS for payment. For the IRS to accept an offer in compromise, there must be (1) doubt as to whether the amount claimed by the IRS is 100% correct, (2) reasonable concern that there are sufficient financial resources available to pay the amount demanded by the IRS, or (3) a showing of extreme financial hardship resulting from illness or other personal circumstances. If you meet one or more of these requirements, a Form 656 must be submitted with various documents justifying why the IRS should accept less money. When successful, the reduction in the taxes, penalties and interest can be significant.

With a qualified professional to assist you, another option may be to file amended returns to correct previous errors and possibly wipe out interest or penalties claimed by the IRS. Even for those individuals who have failed to file tax returns, it is not too late to deal with the IRS in an effective manner, so long as you have competent representation.

Therefore, whatever your tax dilemma, help is available. For more information, you should visit an attorney experienced in working with the IRS. For a referral, contact your local lawyer, the State Bar of Texas or your CPA.

If you would like to speak to one of the attorneys at Mounger and Campbell, LLC about this or any other legal topic, you may ask us to contact you or call 512-847-1308.

Default Judgments

by Carrie E. Campbell, J.D.

Under the Texas Constitution, a person has a right to formal notice when he or she is sued, most often by the personal delivery of such notice by a constable or sheriff. Attached to the front of most Petitions or Motions, is a "Citation." The purpose of the Citation is to inform the Defendant/Respondent that he or she has been sued and the exact time frame he or she has to respond by filing an "Answer." The filing of an Answer to the lawsuit (usually in the form of a "General Denial") lets the court and other parties know that the Defendant/Respondent will be an active participate in the litigation and offering a defense to the allegations.

The address of the clerk where the Answer is to be filed can be found on the face of the Citation. The deadline to file the Answer will depend on the type of case it is and in which court the case is filed. In most county and district courts, the deadline to file an Answer is 20 calendar days, plus the number of days to the following Monday at 10:00 a.m. (So if the 20th day after delivery of the citation falls on a Friday, the Defendant has until the next Monday after that Friday to file an Answer.) In Justice Court, the deadline is often 10 days, plus the dates to the next Monday. Because there are numerous exceptions to these general rules, it is VERY important to read the Citation carefully to figure out the time you have to act.

If a Defendant/Respondent is required to file an Answer and does not do so by the given deadline, then the person who filed the lawsuit can ask the court to grant him or her a "Default Judgment." If a person fails to file an Answer, then the court will have no way of notifying him or her when such a request is made and when a hearing on that request will be held. Therefore, a person sued who filed no Answer will not be given the opportunity to offer a defense or introduce evidence to deny or mitigate the damages/actions sought. The result is that a Default Judgment typically grants the person who filed the lawsuit exactly what he or she asked for in the Petition/Motion (whether it is money, custody of the kids, or orders to force a particular action.)

Because of the severe consequences for failing to file an Answer timely, any person who is served papers should consult immediately with an attorney of his or her choice.

If you would like to speak to one of the attorneys at Mounger and Campbell, LLC about this or any other legal topic, you may ask us to contact you or call 512-847-1308.

Court Records

By Carrie Campbell, J.D.

The general rule is that Texas court records are open to the public unless any given record has been "sealed." According to the Texas Rules of Civil Procedure, to "seal" a record requires that one of the party’s file a written motion with the court, and thereafter, a public hearing be held. The notice for the hearing must be posted in a public place and state the details of the time and date of the hearing, and specifics of the motion. After a consideration of the evidence presented at the hearing, a judge MAY seal a record IF it has been proven that: (1) "a specific, serious and substantial interest" exists that is more important that the public’s right to know, and (2) there are no other available, workable alternatives. At no time can a court order or judge’s opinion be sealed.

There are some further limitations, however, by the application of the Texas Rules of Civil Procedure’s definition of "court records." For these purposes, a court record is any document filed with the court, except cases arising out of the Family Code or files to which access is "otherwise restricted by law." Most often, restrictions imposed by legislation result from issues of general public health or safety. In addition to filed documents, "court records" also include settlement agreements or discovery that have a likely negative effect on (1) public health or safety, (2) the administration of a public office, or (3) the operation of government.

If a judge signs an Order to seal records, he or she must state in the written Order, which is itself open to the public, the case and the particular reasons why certain information is protected, and the time period for which the records will be sealed. To unseal records prior to the expiration of the time period requires additional litigation to demonstrate that the factors balanced in sealing the records have altered substantially. To learn more about sealing or unsealing court records, consult with an attorney of your choice.

Contracts

by Carrie E. Campbell, J.D.

The best insurance against a costly dispute is a well drafted contract. With the terms and provisions spelled out clearly in advance by the parties, the possibility of a misunderstanding (and litigation) is minimized.

There are primarily two types of contracts recognized under Texas law: (1) express contracts wherein the terms are agreed to either in writing or by handshake, or (2) implied contracts which can be inferred from the conduct of the parties. Whenever possible, contracts should be in writing to avoid unnecessary conflict. Furthermore, the more specific the contract, the better. To get the full benefit of a contract, agreements should identify the parties, clearly state the purpose of the contract, list the obligations of each of the parties, detail the deadlines and important logistics, and bear the signatures of the parties. It is also helpful to add language about what happens if one of the parties (or both) fail to meet his or her obligations.

Some contracts MUST be in writing in order to comply with Texas law. Contracts that are required to be in writing include those which relate to: land, leases, mortgages, guarantees of another person’s debt, agreements that cannot be performed within one year, or the sale of goods worth more than $500.

Competent legal assistance is strongly recommended in the drafting of any contracts to make sure that provisions are in accordance with current law. It is also significant to request legal advice before signing any contract drafted by another party to confirm you understand all your rights and duties under the agreement, especially since there are often severe financial consequences for noncompliance. For more information, contact an attorney of your choice.

Community vs. Separate Property

by Carrie E. Campbell, J.D.

Texas has the legacy and distinction of being a "community property" state. All property acquired or earned during the years of a marriage in Texas are presumed to be equally owned by both spouses. Only upon the ending of a marriage, either by death or divorce, is the property divided. The assumption is that a division of community property will be 50/50, although the court is charged with the duty of splitting the assets in a way that is "just and right, having due regard for the rights of each party and any children of the marriage." The application of this analysis can, but not often, result in something other than an equal split. For this reason, the outcome could differ depending on the judge assigned to the case. It should also be noted that any debts incurred during the course of a marriage are "community debts," and accordingly, the liabilities are shared/divided just as assets are.

"Separate property" refers to assets obtained before the marriage and/or assets acquired by gift or inheritance during a marriage IF those assets are kept separate from all community property and accounts. The means to prove the existence of separate property is frequently demonstrated by proving when title was acquired. The fact that only one name is on the title is not adequate. Furthermore, a claim can be made by a spouse for a reimbursement to the community accounts (before they are divided) for any expenses the community paid towards the mortgage, loan, maintenance, and/or improvements to separate property. For example, if a wife makes a down payment and buys a home one year before a twenty year marriage, and the mortgage during those 20 years is paid out of her wages (which are community property), then the wife is likely to be awarded the home as her separate property, but would owe the husband either cash or an offset against other properties to compensate him for ∏ of all the mortgage payments made during the marriage.

The calculations can quickly become very complicated when assets and debts are being divided, especially when the property and liabilities result during a long marriage. Add to the mathematics all the emotional intensity that accompanies the majority of deaths and divorces, and the need for objective assistance is obvious. The advice, guidance, and representation of an attorney is extremely important to protect your interests.

Conveying Property in Texas

by Carrie E. Campbell, J.D.

One of the most common tools for transferring title in Texas is through the general warranty deed. A general warranty deed or just "warranty deed" is a deed in which the seller / grantor warrants good and clear title to the property in question against all others. This is what you should demand as a buyer unless you are very familiar with the seller or know how to conduct a comprehensive title search at the County’s Real Property Records.

A quicker and less thorough means to transfer title is through a special warranty deed or quitclaim deed. A special warranty deed is a promise that the seller will defend the title against claims and demands by the seller and his agents, i.e. he or she makes no promises that there is not a mechanic’s or tax lien on the property or other defect.

When you are transferring title to land, less is not always more. Most courts will only look at what is written or contained within the "four corners" of the deed itself. When in doubt, be sure to purchase or require title insurance for the property in question and hire an attorney to conduct a review of your closing documents. A few hours of review by an attorney can save you months and possibly years of trouble.

Documents must be filed with the real property records office in the county where the property is located! Filing fees are cheap insurance. Better to be safe than sorry before your liens, loans, and deeds get misplaced or lost. Having your documents on file with the Clerk will create a permanent record of the transaction and put all other persons on notice that you are or were the legal owner of a piece of land.

Choice of Business Entity

by Carrie E. Campbell, J.D.

The basic business structures recognized in Texas include sole proprietorships, general partnerships, limited partnerships, professional partnerships or associations, limited liability companies, closely held corporations, and C Corporations. In electing the business entity best for your business enterprise, there are six factors you should consider.

(1) The first consideration is "start up" costs. Filing fees with the Secretary of State vary from zero to $750 depending on the structure. Attorneys fees and consultations with your accountant should also be included in the calculations. Flat fees are available and range from a few hundred to $2000 for attorneys fees, again depending on the structure selected. (2) The second consideration is the management structure and the degree of formality required to maintain the business. Flexibility will be sacrificed for liability protection. (3) Which brings us to the third consideration - liability concerns. The greater the exposure to liability, the more insulation is needed to protect the personal assets of the owners/investors. (4) The fourth consideration is taxes. The business structure will determine whether self-employment, franchise or corporate taxes will apply to income. It can also provide the option of wages versus dividend income for minimizing taxes owed. (5) The fifth consideration is the potential for raising capital, whether debt and/or equity financing are available to grow the business. (6) The sixth and final consideration is cost and complication of terminating the business if things don’t work out as hoped. An attorney experienced in business formation can assist you in weighing these various factors and make a recommendation for the entity best suited to address your particular situation.

Above all, a written understanding either in the form of a partnership agreement, regulations or by-laws, will greatly reduce the likelihood of disputes. Many friendships and/or business relationships could be saved by simply clarifying expectations before the money is invested

Burdens of Proof

by Carrie E. Campbell, J.D.

"Beyond a reasonable doubt" is the criminal standard with which Americans are most familiar. It is directly linked with our presumption of innocence, and consequently, our notions of a fair trial. Its application requires that prosecutors prove each and every element of the crime charged to a high degree of certainty. It is important, however, to note that the standard is not "beyond any doubt." It is common to have doubts; the question is whether existing doubts can be overcome by reason. For example, you are awakened during the night by a noise. You listen carefully. You recall locking all the doors and windows, and the noise you heard was not loud enough for someone to have broken a window or door. You have a cat in the house that frequently knocks items off the coffee table, and you are comforted by the purring in the next room. If you roll over and go back to sleep without checking, you have reasoned through your doubts in a comparative manner to that which we expect of jurors deciding guilt or innocence.

"Beyond a reasonable doubt" is not the only standard which is applied in our courts, although it is the level of proof required in all criminal cases. Civil cases are disputes between two citizens involving breaches of agreement or duties imposed by our common law. In civil cases, a person can be required to pay money, stop an activity, or take a particular action. A person cannot be sentenced to jail in civil court. Therefore, the court/jury, which is asked to resolve the dispute, has greater discretion and requires a less stringent burden of proof. The most commonly applied burden of proof in civil cases is "by a preponderance of the evidence" which could be accurately described as "more likely than not." In either instance, the initial burden is placed upon the Plaintiff, the person who initiates the lawsuit. In some circumstances, the burden shifts to the Defendant if counter-claims are made or the Defendant asserts an affirmative defense requiring proof. Should you have any questions regarding this topic, contact an attorney of your choice.

Employment Issues

by Carrie E. Campbell, J.D.

Texas is an "employment at will" state, which means that employers can hire and fire at will any employee for almost any reason. The only restrictions on the employer’s discretion is federal law imposed on the state by the U.S. Constitution that prohibits discrimination based upon sex, age, religion and race. The State of Texas has also carved out a couple of limitations, as well, in that employer’s cannot fire an employee for reporting criminal activity or because the employee has filed for workers compensation. Outside these very limited situations, an employer can fire an employee for the color of his hair, her weight, facial expressions or other non-job related concerns.

Although they can be fired, if employees are terminated for non-job performance issues (such as weight), then employees will likely qualify and receive Unemployment Compensation if an application is filed by an employee with the Texas Workforce Commission (TWC). The TWC is also the entity to contact if an employee believes he or she is not getting paid promptly or properly.

For injuries on the job, employees should call the Texas Worker’s Compensation Commission. The Occupational Safety and Health Administration (OSHA) regulates safety on the job and is the proper entity to call if safety is at risk. If an employee or potential employee considers himself or herself a victim of illegal discrimination, then he or she should file a complaint with the Equal Employment Opportunity Commission and/or the Texas Commission on Human Rights.

For purposes of pursuing what claims may be available to employees, it is a good idea to keep copies of any employee handbooks, pay-stubs, letters of discipline and/or praise. A paper trail is always a good idea. An attorney can be of assistance if any is required.

Evaluating Non-Profits

by Carrie Campbell, J.D.

In our practice we represent clients that are both non-profit corporations and individuals that want to give money to non-profit corporations. The people that want to give money often ask us how they can be sure the money they are giving will actually be applied for charitable purposes. The non-profit corporations likewise ask how they can let people know that their donations are being managed and applied wisely, and not supporting inflated administrative salaries and other wasteful spending.

Recent scandals involving charities combined with greater internet access has led to the development of several watchdog organizations who monitor the activities of charities. We encourage our non-profit corporations to register with these organizations to obtain their seals of approval. We also direct everyone who is thinking about giving to research their selected charities online.

Charity Navigator is perhaps the most thorough and independent organization for evaluating charities (www.charitynavigator.org ). Another popular site is www.guidestar.org , which actively monitors the IRS filings of thousands of charities. The Better Business Bureau (BBB) also sponsors a non-profit site at www.give.org.   At all of these sites you can search the records and ratings to see which charities are worthy of your donations. Likewise, charities can register at these sites to obtain their certifications after an evaluation.

It is important to know that these site only offer information. They do not investigate or prosecute charities which abuse their finances. Any suspected fraud by charities should be reported to the Texas Attorney General’s office (www.oag.state.tx.us ) for investigation.

Debt Collection Abuse

 by Carrie E. Campbell, J.D.

In 1978 Congress implemented the Fair Debt Collection Practices Act (FDCPA) in an attempt to restrict abusive collection practices and to provide specific rights for consumers. Most debt collectors comply, but more than 25 years after the law has passed, many debt collectors still flagrantly violate the law.

The FDCPA only regulates "debt collectors." Debt collectors include collection agencies and attorneys attempting to collect debts. Debt collectors do not include companies - such as credit card issuing banks - attempting to collect money for their own business.

Consumers who are victims of debt collection harassment have important legal rights which can be resolved in local justice of the peace courts. The FDCPA allows for successful consumers to recover from thecollection agencies their actual damages, attorney fees, costs of court and up to $1,000 for statutory damages. Many attorneys will assist consumers with these cases on a contingency fee so that the consumers, who many times are without financial resources, can protect their rights.

The prohibited acts are many, but generally the debt collectors are not allowed to (1) threaten criminal action, (2) use abusive language, (3) repeat telephone calls in an effort to harass, (4) contact neighbors or fellow workers, (5) contact consumers who have asked not to be contacted, (6) threaten to foreclose on a Texan’s house, repossess a Texan’s car, or garnish a Texan’s wages, (7) pretend they are affiliated with a governmental agency, (8) misrepresent the legal status or amount of a debt, and/or (9) threaten a law suit is imminent or has been filed when they do not intend to file a suit.

There are many other prohibited acts under the law. Consumers must bring their claims within one year of the collection abuse. If you have any questions regarding consumer rights under this law, contact an attorney.

Consequences of DWI

 by Carrie E. Campbell, J.D.

In order to curb the number of people driving while intoxicated, the state continues to increase the penalties so as to finally make DWI unaffordable. In addition to jail time, fines, alcohol programs and probation, the government is now also using the privileges it extends with a Texas drivers license to modify behavior, and hopefully, save lives.

The Driver Responsibility Program passed in 2003 specifically addresses habitual traffic law offenders, including persons convicted of driving under the influence of alcohol and/or drugs. As applied, the Texas Department of Public Safety (DPS) must assess a fee against those convicted of DWI in Texas OR out-of-state interested in keeping their Texas license. For first time offenders, the fee is $1000 per year for a maximum of 3 years. If convicted of DWI a second time in a 36 month period, the annual fee increases to $1500 per year. The amount raises further to $2000 per year if a suspect elects a trial and the state is successful in proving that the Defendant had a blood alcohol concentration of 0.16 or higher at the time of the offense. Failure to pay the assessed fee(s) will result in the immediate suspension of an individual’s drivers license. A drivers license will also be suspended if a suspect refuses to take a breath and/or blood test to establish blood alcohol content.

Since driving is a privilege, and not a right, the state may apply conditions to the privilege. The immediate consequence of a revoked or suspend license is later reinforced by the court during the criminal prosecution. If you have any questions regarding the applicability of this statute in a DWI defense or if you know someone who has been injured by a person driving under the influence of alcohol or drugs, you should consult an attorney of choice.

Enforcement of Child Support and/or Visitation Rights

by Carrie E. Campbell, J.D.

If a parent or custodian of a child is unable to gain the other parent's voluntary compliance with a judge's orders regarding child support and/or visitation rights, the primary recourse is to seek assistance from the courts to enforce its order. The process requires the filing of a Motion for Enforcement to re-open the court's file, then the court will issue and Order to Appear requiring the offending party to be in court on a given date and time to explain why he or she has not complied with the judge's instructions.

If a parent is found to have wrongly interfered with another's rights of visitation, then the judge may sentence the parent to jail, fine the parent and/or modify right of possession to avoid the problem reoccurring. The judge may use similar techniques of persuasion to enforce child support orders.

Moreover, in child support cases, the Office of the Attorney General may also become involved. The methods available to the state to enforce child support orders without going to court include: 
(1) withholding support from the non-custodial parent's paycheck
(2) intercepting and applying tax refund checks, lottery winnings or other money due from governmental agencies
(3) filing liens 
(4) suspending driver's professional, hunting and fishing licenses. The Attorney General may also file its own Motion for Enforcement to initiate court proceedings.

For the Attorney General's office to act, the child support must be past-due more than three months, and it will respond to any requests for enforcement when its caseloads permit it to do so. In all visitation enforcement and/or child support cases which require more immediate attention, it is necessary for persons to hire a private attorney. Often the prevailing party in an enforcement action will be able to obtain a judgment for attorneys fees if attorneys fees are incurred. 

For more information, you should contact the Child Support Division of the Attorney General's office or an attorney of your choice.