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.