Montgomery County Law Blog

Focusing on Houston area law issues

North Carolina to consider the “Healthy Marriage Act”

Apr 8

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Undoubtedly it will receive far less attention than the controversy over same-sex marriage, but considering that the proposed change will actually affect more people this North Carolina proposed law is worth following.

As reported by ABC’s Raleigh-Durham affiliate WTVD, the proposed legislation would “extend[] a mandatory waiting period from one year to two years, [and] require[] couples to take courses in hopes of changing their minds and allows them to live together instead of separating.”

Is this the sign of a new direction in national divorce policy? After many decades of relaxing access to divorce, we may be on the cusp of a pendulum swing led by policy makers seeking to strengthen the family unit. Whatever the motivations of the proponents of these types of laws, and no matter how efficacious these policies may be, it is certain that such changes will not occur without a fight.

From the 14th Court of Appeals – Issues in DNA Testing and Reopening Convictions

Oct 24

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Harlon Ray Buckner, II v. The State of Texas – Link to Opinion  - Affirmed

DNA testing of old evidence has become almost routine, however, procedural issues can easily stand in the way of allowing a convicted person getting a new trial. Buckner v. State shows how careful an attorney must be to preserve rights of appeal when an inmate requests DNA testing after conviction.

Harlon Ray Buckner was convicted by a jury of aggravated kidnapping and sexual assault and sentenced to 20 years in TDC in 1997. In 2008, Buckner made a motion for post-conviction DNA testing under Article 64.03.   The state indicated that the Harris County Clerks Office was in possession of a few pieces of evidence that could be DNA tested including a rape kit and some microscope slides containing hairs.  The Trial Court ordered the testing done.  Based upon the results of the testing the Trial Court concluded that the DNA testing was not favorable to Buckner.  Buckner did not appeal this 2008 motion.

In 2009 the Trial Court appointed Tom Martin to represent Buckner in another motion for post-conviction DNA testing.  Buckner claimed that a motion was filed in his brief, but the record has no mention of any motion being filed by Buckner or anybody else.

In September 2011 Buckner again requested DNA testing, and the trial court responded by looking to the DNA testing from 2008 and concluding that the results still were not favorable to Buckner and still would not have helped him avoid prosecution.  Buckner appealed this decision on the grounds that the record was insufficient to determine if the previous testing was unfavorable to Buckner.  The 14th Court of Appeals abated the appeal and directed the Trial Court to have a hearing to determine what happened in 2008 and to figure out if there were any later motions for DNA testing.   During the Trial Court hearing, all parties agreed that there were no transcribed records about the 2008 hearing, and that Martin testified that he did not file a DNA motion in 2009, because he didn’t see any need.  They did agree that the 2008 lab report was in existence and that was what everybody had relied upon in the 2011 hearing.

The 14th Court of Appeals affirmed the trial court’s 2011 order because the record indicated that there was no 2009 motion, and that Buckner did not appeal the 2008 denial.  Additionally, Buckner did not argue that the 2008 report did not support the conclusions of the Trial Court that the results were unfavorable.

Foster Parent Rights in Texas

Oct 19

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In September of 2009, the Texas Legislature enacted the Foster Parent Bill of Rights (Texas Family Code Chapter 263, Subchapter A, Section 1) a 23 point outline of what Child Protective Services is expected to do and what a foster parent is expected to do when a child enters a foster home as a result of abuse or neglect.

Has it been effective?  To answer that question, the requirements of the new law must be put in context of the realities of how CPS operates and the amount of work heaped on its case workers. CPS is required by this new Bill of Rights to inform a foster parent of the plans for the child’s placement, mental and physical health concerns with the children, Court Dates, planning meetings, and other appointments where the foster parent can obtain valuable information.  These new requirements aim to be helpful, and in a more perfect world, would be.

In this world, however, CPS is plagued with overworked and ill-prepared social workers, a fact that is of its own doing.  Case workers are overworked. They are required to speak with the parents, several sets of attorneys, the courts, their supervisors, service providers, and potential family placements of these meetings and court dates as well.  Many case workers are not equipped to do their jobs. They are not required to hold a degree in Social Work and they are given nominal training prior to taking serious cases.

Given the often overwhelming amount of work heaped on undertrained case workers, a new set of rights does little to make sure the foster parent receives all the information they need.  The Foster Parent Bill of Rights does not even allow the foster parent, the very person who has been taking care of the abused children for the duration of the court case, to have a voice in the court case.

These new rules purport to make for a more informed foster parent. However, the new requirements actually obscure an important right of action by a foster parent, through silence as to that right. A foster parent can intervene in a CPS case after the child has been placed in their home for one year. Only through this avenue can the foster parent ensure his or her voice will be heard in court. When a foster parent intervenes, department is no longer able to summarily remove the child from a foster home, place the child in another foster home, or return the children to the home where the abuse occurred. Plainly, this is the strongest of rights available to the foster parent, yet this grandly titled new collection of rights is silent on that front.

Perhaps most distressing of all, the Foster Parent Bill of Rights does nothing to answer the one question that many foster to adoptive parents ask: is this child eligible for adoption?  To be eligible, the child must first be removed from the home under investigation, after that the adopting parent must follow certain rules set down by CPS itself, in addition to the state’s requirements for adoption. The department’s case workers often have limited information on what the biological parent will need to do to get their child back, so informing foster parents on whether removal is indicated is nigh impossible.  On top of that, the department’s often changing guidelines, policies, and procedures make fostering a child with the hope of adoption a murky and uneasy time for the foster families.

The Foster Parent’s Bill of Rights is well-intentioned, and if effective, would be a step in the right direction. But the law provides little in the way of consequences, doesn’t address (in fact complicates further) the problems with CPS itself, and leaves out important areas of disclosure. The end result is a law that does little to assist a foster family in protecting the children in their care.  Furthermore, it does not address the most important of all questions:  is this child that I love so much going to be part of my family?

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Future Directives Concerning Driving for The Elderly or Disabled

Oct 11

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With age will come certain dignities and indignities. You can turn moments of undignified realization into points at which your plans come to fruition and chances for exhibit wisdom. By making solid plans now, and appointing people to care for and aid you in the future, you can ensure a dignified retirement and maximize the time you spend passing your life lessons on to younger generations.

Devices like Directives to Doctors or Physicians are commonplace in planning for retirement or preparing for a possible disability; an oft overlooked issue is when a senior should not longer drive. After the age of 65, accident rates improve significantly. After the age of 75, an accident is more likely to end in a fatality. No one wants to surrender the keys to their car – a source and symbol of freedom and independence.  However, there may come a time when vision, memory or reflexes are such that driving a car, even a short distance, can be lethal to not only yourself, but also to the beloved members of another family.

When the time comes you may need some help to surrender that two-ton freedom machine, and that’s what a Future Directive Concerning Driving will assist you in doing. This document appoints a trusted family member to evaluate your driving and determine whether you are safe to operate a motor vehicle. If you choose to execute this instrument you will create a plan that not only ensures your continued involvement in your family’s life, but also prevents you from inadvertently injuring someone.

Read more at: When Should Seniors Hang Up the Car Keys

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DWI and Punishment Before Conviction

Oct 6

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In case you missed it, Casey Pachall, the starting quarterback for the TCU Horned Frogs, was arrested this week. As the article notes, and as any college football fan already knows, Pachall was suspended indefinitely from the team. Even a cursory scan of internet message boards will show that this is considered a “good thing,” impressing readers of such snap reactions that the conventional wisdom remains that an allegation of DWI should result in significant consequences.

The purpose of this post isn’t to argue with the conventional wisdom, rather it is to disaffect the reader of the notion that the legal requirement of considering defendants innocent before conviction does not, in reality, have great effect. The truth of the matter is those accused of DWI can potentially be punished long before conviction, even by the court. The example of TCU’s QB is not isolated, as you no doubt know of one or more people accused of DWI who lose their jobs outright, are suspended, or simply lose privileges at their place of employment. However, even the court system can mete out punishment before a determination of guilt is made.

An accused person can have his or her driver’s license suspended before conviction, can be ordered not to drink, can be ordered to pay for various costs of pre-trial release, can be ordered to pay for and use an ignition interlock, and in extreme cases can be required to wear a device which monitors whether alcohol is consumed at all. If the accused is unable to make a bond, in some counties he or she may also lose their freedom while awaiting trial. Even those able to make bond can be confined to house arrest, or simply given a curfew. Another possible condition of bond is mandatory enrollment and attendance of AA classes or other similar alcohol awareness/abuse programs. Many of these conditions of bond are rare, however, they are not difficult for the judge to impose, when he or she feels they are warranted.

What should you take away from all of this? Quite simply, and now more than ever, it is just not a good idea to grab even a drink or two out on the town without a plan on how to get home safely. The best advice from any DWI lawyer will not help you avoid the often nasty pre-trial consequences both inside and outside the legal system. Whether it is by getting a designated driver, utilizing access to public transit, or by sleeping it off on a friend’s couch, there’s no better way to prevent punishment for DWI than staying out of the driver’s seat.

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From the Court of Appeals for the First District of Texas

Oct 1

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Johnny Louis Torres Jr. v. State of Texas – PDF of Opinion – Modified and Affirmed

The court’s opinion here deals with an appeal of a conviction for possession of a less than one ounce of cocaine, a state jail felony which was enhanced to a second degree felony by prior state jail convictions.   Mr. Torres pled guilty to the charge, and he was sentenced to twelve years confinement in TDC.

Torres appealed his conviction on two grounds.Firstly that that the trial court did not order a substance abuse evaluation as required by statute.  Secondly that he was given a sentence that was impermissibly long because the trial court did not make express oral or written findings on the enhancement paragraphs.

The appellate court overruled Torres’s first point of error because Torres did not raise that particular issue at trial.  Citing Alberto v. State, the court found that while a substance abuse evaluation is mandatory, a defendant must assert that right at trial or the claim is waived, and the claim may not be addressed on appeal. 100 S.W.3d 528, 529 (Tex. App.—Texarkana 2003, no pet.).

Torres’s second issue, that his sentence was unlawfully enhanced, was also overruled by the court.   Without enhancement, a state jail felony conviction prison sentence is a maximum of two years, however, with enhancement the maximum is increased to twenty years.

Torres argues that he never pled true to any of the enhancement paragraphs making the enhancements invalid, however, the court found that Torres was properly admonished of the punishment range when he signed the plea agreement paperwork.  Torres also pled guilty to the indictment which contained the same enhancement paragraphs, which the court found also constituted a plea of “true” to the enhancement allegations.

The court found that even though the trial court made no express findings about the enhancement paragraphs, the trial court impliedly found them true.  A trial court can make an implied finding of true to enhancement allegations when the record establishes the truth of the allegation.  Appellate courts will find that such an implied finding was made if the punishment range is outside the range of the underlying offense, but was in the range for the enhanced offense.  The court found that Torres acknowledged the enhancements in the documents he signed and that the punishment was inside the range for the enhanced offense.  The court then found that the implied findings were supported by the record because Torres pled true to the offense which is considered to be enough evidence to support the enhancement allegation.  The court then modified the record to indicate that Torres pled true to the enhancement paragraphs.

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HUI: Horseback Riding Under the Influence

Sep 30

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You may have missed this, unless you scour the internet for the somewhat bizarre, but a man in Kentucky was charged with being a tipsy equestrian.

Kentucky Man Charged with Riding Under the Influence
Lexington, KY.  September 19, 2012 – A Kentucky man was arrested for driving under the influence in what deputies have called unusual circumstances. The man was riding a horse.

Danny Reynolds was riding his horse on a rural road near his house about 8 miles south of Nicholasville in Jessamine County.

Sheriff’s deputies told the 55-year-old to get down from his horse. They said he staggered while dismounting the animal. Reynolds said he staggered because he was severely diabetic and feeling light-headed.

Officials said tests showed Reynolds’ blood-alcohol level was two time over the legal limit. The arresting officer also found rolling papers and marijuana in his pockets.

Reynolds told CBS affiliate WKYT he drank a couple beers to celebrate his son’s birthday, but did not think he was drunk. He said he normally doesn’t drink.

According to the arrest report, “(Reynolds) had several beers in his saddle bag and a mason jar which he identified as moonshine.”

Chief Deputy Allen Peel admitted it was a unique case, but the deputies were concerned about Reynolds’ safety.

“He could have swerved into a car, causing danger to himself and others,” said Peel.

Reynolds was charged with operating a non-motor vehicle under the influence, possession of marijuana and drug possession.

“I really didn’t mean to cause any harm,” Reynolds said. “I definitely learned my lesson and I hope other riders pay attention.”

Similar cases have happened in Tennessee. A woman was arrested in 2009 while riding a horse in the Shelbyville Christmas parade. She was charged with public intoxication.

As the article notes, this is not an isolated event. Fortunately, it appears no animals were harmed in the making of this weird news event.

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Texas is No Partner to the Dual Exhaust on Your Truck.

Sep 25

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The State of Texas has a proud history of racing; such greats as Shelby and Bondurant have graced this state’s register of residents. However, our racing prowess will not stop the Texas Commission on Environmental Quality’s (TCEQ) from interpreting their automotive emission rules quite strictly. So strictly in fact, that your custom, mandrel bent, stainless steel, 3″ diameter, chrome tipped, all out, dual cat, dual exhaust system (or any aftermarket system…really) may very well be violating the rules and regulations of Texas.

So, when can you have a dual exhaust system you ask? Well, you can have a dual exhaust on your car when “the vehicle’s manufacturer certified an identical engine-chassis configuration for that model year of vehicle or newer that includes such an exhaust configuration.” Wait, what?

Here’s an example. Let’s say you purchased a 2003 truck with a V6, and for that year the manufacturer only made that truck with a single exhaust. If, over the coming model years for that generation truck, the manufacturer never put a dual exhaust on that vehicle, you can’t either. However, if the manufacturer put a dual exhaust on the 2004 truck with a V6, then you are free to bifurcate the exhaust on your 2003 truck. However, no matter what exhaust you put on your vehicle, all the components – including the catalytic converter, must meet with EPA and TCEQs requirements. So why all the bother?

Well, the TCEQ blames backpressure. Backpressure is the amount of pressure the exhaust gas exerts within the exhaust pipe. In other words, you have higher backpressure when you have a restrictive exhaust. A restrictive exhaust allows exhaust gas to flow less quickly. This means that the exhaust gas spends longer in contact with the catalytic converter components; thereby being more, well, converted. A dual exhaust with dual catalytic converters could have really low backpressure, thereby allowing the exhaust gas to zoom past and not maintain enough contact with the catalytic converter.

That’s all fine in theory, but given all of our modern technology, are we at all concerned? Well, the TCEQ is officially still concerned, but we have yet to hear of any case in which an inspection sticker was denied because a certain vehicle did not originally have dual exhaust. If you know of one, let us know!  To learn more about ‘tampering’ with vehicle exhaust, read what the TCEQ has to say about it.

 

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Does Sole Managing Conservatorship mean Sole Custody?

Sep 20

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In a word: no. Despite the sound of the term, the court did not grant one parent sole or exclusive custody of the child when it ordered one parent as the sole managing conservator. In fact, when the court made this order, it was not specifically addressing what most people think of when the word “custody” is used, namely possession. So, what did the court just say?

Conservatorship is ordered in two ways, sole/possessory and joint managing. The purpose of different types of conservatorship is to parcel out a series of rights concerning the rearing of the children. The rights include such rights as making decisions about schooling, moral and religious training and non-emergent medical decisions. The typical situation is encapsulated in the joint managing conservatorship arrangement. Usually the rights listed above, as well as several others, are granted to both conservators, and each conservator can exercise those rights without any interference from the other parent.

Conversely, when one parent is named the sole managing conservator, that parent will have many of the rights of child-rearing exclusively, whereas the other parent will have a restricted, and more limited, set of rights. What does that mean for what concerns most parents, namely custody?

The general outline of a possession arrangement is usually granted by way of the right to designate the primary residence of the children. This right is given to one of the joint managing conservators or the sole managing conservator. At this point the confusion often sets in. Sole managing conservatorship means the children will live with that parent, right? So, you may ask your divorce lawyer, why is that not “sole custody?”

The answer is that a possessory conservator, even with his or her limited set of rights, will still be granted rights of visitation and access. In fact, the possession order in a sole/possessory conservatorship can be the same one put in place in a joint managing conservatorship.

What should you take away from this? Maybe that using the word “custody” will only continue to confuse you and keep you and your Texas divorce lawyer from being on the same page. Maybe you should strike that word from your pending divorce lexicon. It might be better to think in terms of conservatorship, and in terms of possession and access. Those are the terms courts and divorce lawyers in Texas use, and if you use the same terms as them, there will be a lessened chance of confusion about exactly what is going on.

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Importing the Perfect Car, Part I

Jan 5

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Policy and Introduction to the 25 Year Exemption

This commentary is the first in a series of articles which will discuss legal issues with the titling and importation of foreign cars into the United States of America as part of our growing focus on the legal issues affecting the automotive enthusiast community. In this article I flesh out some of the policy issues behind the importation rules. This commentary won’t have much relevance to most of our readers, not because of missing legal content or inapplicability to Montgomery County, Texas. No, its lack of relevance comes from the small number of people who actually care about this article. Like any aspiring, slightly masochistic expert of arcane knowledge, I’ll soldier on nonetheless.

There is a little provision of federal law that allows for one to import a foreign (and non-Canadian) vehicle into the United States and register it as a road-going car without having to complete any emissions or safety testing as long as it is at least 25 years old, with exceptions (more on those another time, wouldn’t want to lose my reader just yet).

Recently, someone with a bizarre enthusiasm for this topic similar to my own, but far less lazy (or just out of unread comic books), started an internet petition to change this rule from 25 years to 15 years. It begged the simple question: “Why Not?” For the average automotive enthusiast this would be a wonderful bit of lawmaking, allowing a slew of interesting cars from the nineties to be immediately imported from countries like Japan and Germany (and not just those we’ve bombed). The enthusiast, or one acquainted with the often greasy affliction that is automotive passion, would see a benefit. The automotive aftermarket, a surprisingly large corner of consumer spending, would see a boon. Further, the automotive hobbyist would have access to more materials on which to apply their productive craft (and more small cars on which to put gigantic but completely sensible spoilers). Really, why even bother setting the original date at 25 years? It’s not like the average Malibu shopper is going to purchase a 1995 Nissan Skyline directly from a Japanese dealer.

That said, it turns out there is good reason for the waiting period. The federal laws on emissions and safety are different than the laws of other countries. U.S. laws are variously more, less or just as stringent as those of other countries such as Japan or Germany. However, by waiting 25 years, these Federal rules are no longer relevant (which is how I like my Federal rules). The safety and emissions standards have changed significantly in that time period. Anyone interested in purchasing and driving a 25-year-old car is in a deep minority and is likely not looking for a daily driver. While that tiny group of car enthusiasts may complain, the government will always be able to counter with a strong argument.

Keeping the minimum age for a hands-off import at 25 years is a simple solution to an ever-evolving market. No one in the government has to think about this issue again, so when it comes time for certain Chinese-made cars that gloriously failed Western-standard crash tests to be imported, only the car-insane would be interested. As far as the government is concerned, that’s OK. The rule affects so few voters, and the government has such control over the auto companies, that there is simply no momentum or impetus for change.

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