Crossroads Law

Question: Last year we contracted with a contractor to remodel our house in Mission Valley. After many delays, poor workmanship and incomplete work we fired them in October. At that point we had paid them 3/4 of the contracted amount and withheld the last 1/4. Today I received a letter from a local plumber that the contractor had hired to do some work. They stated that they had not been paid for the work they did in September. My question is, am I responsible for the plumbing bill since the contractor defaulted on it? The plumber was hired by the contractor and not by us. Thank you for any help you can offer me.

Answer: I believe you do have some responsibility to the plumber for work performed, assuming the work was done correctly. The general contractor would also have responsibility for the bill. The reason the plumber is probably sending you the bill is because he was also stiffed by the same contractor

Question: I have a Class A misdemeanor for assault in 2005. It is the only charge on my criminal record. How can I get an expungement?

Answer: The issues centers on whether your charge was dismissed, you pled to a differed adjudication, or received straight probation/pled guilty to the assault charge. The former two are eligible for expungement/non-disclosure the latter are not. I would consult with a criminal defense attorney in order to review your case and if eligible have your record expunged.

Question: My children has visitation with their dad 1st, 3rd and 5th Fridays, including Thursdays. But he recently went to work in Odessa and is gone when it’s his weekend. Their step mother is not the easiest to work with and has called me vulgar names the last time I met up to pick up my kids. My question is do I have to allow my children to go with their step mom when their father is out of town?

Answer: The Order in a Suit Affecting the Parent-Child Relationship controls when it comes to issues of possession and access to the child. Generally, there is a paragraph which states “Each conservator may designate a competent adult to pick up and return child, as applicable.” I do stress that the Court’s Order details the specifics for your custody arrangement and the rights and responsibilities of each party, therefore, it is extremely important that you consult the Order regarding issues of possession, access and custody. If a party fails to comply with the Order the Court has the discretion to hold the at fault party in contempt for failure to comply with the Court’s Order. Further, if you believe that current arrangement is not in the best interest of the child I would consult a family law attorney to address having the Order amended to address your concerns.

Question: I am a landlord with 8 apt units. One of my tenants is under a lease until June. He is a hoarder. This poses many health and safety issues. Is there grounds for eviction.

Answer by Rick Stafford:

The answer to your question is possibly. Your lease is controlled by your contract and the property code. The property code does give you the ability to evict based off of waste, but this is fact and case law specific. Your contract may also give you more broad rights to evict; however, your tenant also has protection under the property code and if you violate some of his rights he could have a claim against you. Best advice I can give is to contact a lawyer about your options on how best to proceed with an eviction. The money you spend up front just might save you more in the long term.

Question: I was in an accident, not my fault, my doctor told me to file under my personal injury protection on my insurance and I would not have to pay it back even if the other insurance company pays the bills. Is this true?

Answer by Luther Easley:

Robert, your Doctor is exactly right. Personal injury protection (PIP) generally covers medical bills and lost wages up to $2,500 related to car crashes, among other things. You should call your insurance company to see if you have (PIP) coverage and they will give you the details which your insurance company requires to release payments. If you are injured and believe that you are going to continue to suffer harms I would recommend consulting an attorney before making any agreement with the other persons insurance.

Question: : I was recently let go from a local sheriffs dept. the reason being because I was an “at will” employee. I don’t have a disciplinary history and I didn’t do anything wrong. No other reason was given besides that I was no longer needed. I feel that because I was about to blow the whistle on violations of jail standards and on fraudulent time keeping that I was fired. How do I fight this when no lawyer will take my case?

Answer by Luther Easley:

In Texas, as a general rule, employment is “at will.” This means that an employer can terminate an employee for any reason, no matter how arbitrary or irrational, or no reason at all. Unfortunately, unless you have proof that you were fired because of knowledge of some type of illegal activity being done by the Sheriff’s Office the likelihood of success of this case is low. You may also try to contract the Texas Ranger’s Office in Austin Texas (512) 424-2160 to report violations and seek help in reporting these issues.

Question: : I was rear ended at a traffic light. I was out of work for 6 weeks and have medical bills of $7000. What is a reasonable amount to accept for pain and suffering only? I understand that they will have to pay medical and lost wages, but am only unsure on the pain and suffering.

Answer by Luther Easley:

Your question of what is a reasonable amount for pain and suffering is not a question that can be answered as simply as we both may like. The firm generally does not come to a decision on that number till we have had a chance to review all the medical, police reports, speak with our client about the injury, and evaluate the potential for future P & S, among other factors. Pain and Suffering is unique to each individual, a broken arm for a mother of three who has to type all day may cause more pain and suffering than a broken arm for a college student with no children. To come up with that reasonable number you have to ask yourself what do you feel would be reasonable and could I convince 12 other people in this community that the number is fair. Further, word to the wise with insurance companies, they do not have to pay anything, they may fight you on coverage for your medical bills and lost wages and may not come with an offer on pain and suffering at all. I cannot put a number on your pain and suffering but you must ask yourself what is the amount over $7000 that would make me feel whole.

Question: I was hit by a vehicle while in a meeting at work. To date the police have yet to charge the driver with anything at all,what are my options?

Answer by Will Sciba:

If the goal is to have the person prosecuted, then the only thing you can do is continue to bring it to the attention of law enforcement. Individuals cannot prosecute criminal cases. If you were injured or have other damages, then you can talk to an attorney that handles civil litigation and try to recoup those losses.

Question: I was in a divorce several years ago. During the marriage we had purchased a home together, and the mortgage was set up in both of our names. After the divorce, we agreed she would keep the house and she took up making the payments herself. We looked into removing me from the mortgage, but we aren’t sure if anything short of a refinance will give her full ownership without still leaving me on the loan. I just want to make sure that I am protected in case something happens years down the line. What would be the best course of action?

Answer by Jim Cole:

The issue of the ownership of the home should have been addressed in the divorce decree. If it was not a deed would need to be prepared that transfers your interest to her. The mortgage is another question. The bank is going to be reluctant to let either of you off the mortgage. The only way that is likely to happen is if your ex can qualify in her own right. The only course of action for you to be fully protected is to find a mortgage company that is willing to finance the house in you ex’s name only.

Question: How far can my employer “encourage” me to donate to United Way?

Answer by Will Sciba:

I am not aware of any restrictions on an employer encouraging employees to donate money to the United Way. The United Way is a good organization that does good work. It would probably be different if they were strongly encouraging you to donate to a religious organization. Employers are, with some exceptions, not allowed to discriminate on the basis of religion. It may also cross the line if they require a donation to a charity, but I am not aware of a particular law that would prohibit such a requirement.

Question: Our neighbor owns horses that come in to our yard and eat our grass every day. What can we do about this?

Answer by Will Sciba:

Victoria county has adopted stock laws that make it illegal for owners of livestock to allow their animals to run at large. If a livestock owner knowingly allows livestock to run at large, they can be held liable for damages. The law prohibits a person from doing anything to maim, kill or injure a horse. (Texas Agriculture Code section 143.033). The law also proves that it is a Class C misdemeanor for a person to knowingly allow “an animal to trespass on the land of another in an area or county in which the animal is prohibited from running at large.” (Texas Agriculture Code section 143.034). In an area where stock laws have not been adopted it is the responsibility of the land owner to fence livestock out of their property. The first thing you need to do is determine if the area you live in has adopted stock laws. If stock laws have been adopted in your area, then I would recommend talking to your neighbor and explaining the situation to them. If they do not keep their horses on their property , you can report them to the police. Of course only you can decide if keeping horses out of your yard is worth upsetting you neighbor.

Question: My ex-husband got a new job. He was only paying $400 per month for 3 kids while he was on unemployment. What can I do to make him start paying more child support?

You need to contact the Attorney General’s Office and request that your current child support order be modified because your ex-husband has gained new employment. They should send your ex-husband a request for his new income information and send you a notice setting up a meeting to review the new information and modify your support order if it is warranted.

Question: My child’s mother has supervised visitation every other Saturday to get reacquainted with our 2 year old son. When he turns three she is going to be able to keep him for the weekend. She has failed to keep up with her visitations therefor. What can I do in the best interest for my son?

Does the order setting up the supervised visitation indicate that overnights start at the age of 3, or does it indicate that a certain number of visits must take place before overnight visitation is allowed? Most orders of this sort will require a certain number of visits that CAN be accomplished by the time the child turns three, but only if the non-custodial parent stays on track. If this is not the case, you may need to get an attorney to motion the court to modify the current orders because overnight and unsupervised visits are not in the best interest of the child.

Question: My son rents a house and now the property is in foreclosure. How long do they have to move? (The landlord is going to court in the next few days.)

The federal Helping Families Save Their Homes Act of 2009 became effective May 20, 2009, and will expire at the end of 2012. The law gives tenants the right to stay in the rental home for 90 days after foreclosure or through the term of their lease unless the property is sold to someone who will occupy the home. If the new owner will live in the home, leases can be terminated with 90 days written notice. The bill provides similar protections to housing voucher holders.

Question: How can I go about filing an order for neither parent to pay child support? The Attorney General stated that one parent has to pay child support until child is grown up. They said only a lawyer can setup an order.

You didn’t indicate if there is a current order for custody and child support in place. If so, you would need to file a Motion to Modify the current order. These orders can be complicated and, because they deal with the rights and duties you have to your children, should ideally be handled by an attorney. Remember that visitation rights and support rights are not dependent upon one another. I encourage you to seek legal counsel before agreeing to give up any rights, including the right to receive child support of behalf of your child.

Question: What is the difference in a Class A Misdemeanor Assault Causing Bodily Injury and a Felony Assault Causing Bodily Injury. What is the normal punishment phase for each?

The difference lies in the grievous nature of the offense, and the available range of punishment. A Class A misdemeanor is punishable by up to 2 years in county jail, and a fine not to exceed $2000. A felony, dependent on the class (first, second, or third degree), can be punishable by commitment to the Texas Department of Criminal Justice for a period of time anywhere from 2-99 years, and a fine anywhere from $2000-$10,000.

Question: I have a home warranty policy and the company is refusing to pay for fixing the compressor on the heat pump. They say that I have to have paperwork proving that I was having the unit serviced on a regular basis. The home is in South Carolina and I do have a company that services the unit on a yearly bases. I fax the warranty people a copy of all the services dates that the people who service the unit sent me. They are not taking that, and are still refusing to pay the claim. What are my rights and what can I do?

Answer by Chuck Cole:

This is the case with many companies that provide homeowner warranties. Many unscrupulous companies will take your money under the guise that they are insuring you against losses related to unexpected home repair only to decline to pay when you want to collect on a claim. You will need to look at your contract to determine your right. Unfortunately, however the only remedy that you likely have, is to file a small claim in South Carolina against the warranty company. They are likely betting you want go through the trouble. You should talk to an attorney in South Carolina to find out if there is law that address this issue. Also, you could do some internet research to see if the company has a class action suit against it or has a history of this type of activity that might interest a class action attorney.

Question: Who is responsible for unpaid credit card bills upon a son’s death?

Answer by David Coffey:

For a single person, only that person’s estate can be held responsible for debts. For a married couple, the surviving spouse may also be responsible. Additionally, if the deceased person owns property that his or her heirs wish to keep, they may have to satisfy the indebtedness in order to keep the property. Otherwise the property will be sold to satisfy the debt.

Question: What do I need to know when looking at an oil and gas lease?

Answer by Robert McKay:

The most important questions to ask when negotiating a lease are the following: How much is being offered for the lease (bonus). How much royalty is offered (1/6th, 3/16ths, 1/5th, 1/4th). What is the primary term. What pooling is requested. Surface protections When negotiating the lease keep in mind that if there is production under the terms of the lease, you may have to live with it for a very long time. You should always have an attorney review the prepared lease.

Question: My son has joint child custody. My son pays child support out of a weekly draw (so she gets her money). My son and family are not allowed to see the kids. She will not allow any visitations or phone calls; she has even remarried and moved. My son took his orders with him and called the Nueces County Police but they said it was a civil matter and wouldn’t help out. We’ve wasted more money and time doing our part and don’t get to see the kids. What if any suggestions can you offer?

Answer by Will Sciba:

Child support and visitation are not necessarily tied together. The child’s support payment is to pay for your son’s share of raising the child. Visitation has to do with access to the child. Your son will likely have to pay child support unless his parental rights are terminated. Whether he can see or have access to the child is another matter that is usually the subject of a court order. If a court has ordered that he has the right to see the child, then he can petition the court to enforce the order. If there is not a current order that addresses the issue, then he can petition the court for the right to see his child. From your question, it appears that he needs to ask the court to enforce the order. This is difficult to do without the help of an attorney that handles family law cases.

Question: My brother died in Lady Lakes, Florida and left all his 401k to my sister, who died a few months ahead of him. Does the money go to his kids or to her siblings since she had no children?

Answer by David Coffey:

When a beneficiary dies first, the proceeds from a 401(k) (or any account with a beneficiary designation) will pass to any named contingent beneficiaries. If there are none, then the property will pass in accordance with the terms of the agreement creating the account. Many times the agreement provides that when there are no living beneficiaries, the property passes to the estate of the person who created the account. However, that is not always the case so you will need to contact the plan provider in order to determine who receives the 401(k) proceeds.

Question: How long does my former landlord have to either return my deposit or tell me he will return nothing?

Answer by Will Sciba:

The rules related to security deposits in Texas are found in the Texas Property Code, §92.101 – §92.109. Texas landlords have 30 days after the you vacates the premises to return the security deposit. If the landlord is keeping all or a portion of the deposit, he is required to provide a written description and itemized list of all deductions.

Question: My aunt & uncle from Colorado deeded their interest in their parents home to my Dad, who is their younger brother. My dad held on to the deeds and never had them filed. The paperwork was drawn up by my aunt’s attorney in Colorado in 2006. My dad passed away in 2007 and recently we came across the deeds. My aunt contacted her attorney and he told her the deeds were still good and we can have them filed with the original paperwork as it is. Do you know if we can do this, knowing my dad would have 3/4 interest in the home that would then be equally split between his children now, or do we have to have new deeds drawn up by an attorney since so much time has passed?

Answer by Will Sciba:

Your aunt’s attorney is correct. New deeds are not necessary. The prior deeds do need to be recorded in Colorado so I would take care of that as soon as you possibly can.

Question: Can a payroll clerk change your time sheet after you signed it and not tell you about it?

Answer by Will Sciba:

Your employer has an obligation to pay you for the hours you work. If the time sheet is accurate, it probably does not matter that it was changed. If the time sheet is inaccurate, then you may be entitled to compensation for the time that was not paid. Cases like this are often over looked because the unpaid wages do not justify the expense of a lawsuit, but they can add up over time especially if a large number of people are affected. You may also try contacting the Department of Labor.

Question: My husband of 33 years has a daughter from a previous relationship. He was ordered to pay some back child support due to him quitting his job at the Post Office. He has never seen the child/adult and doesn’t even know where she lives or if she even finished high school (one of many of the court order conditions the mother has violated). My question is how long is my husband required to pay for back child support that he could not pay for 1.5 years after leaving his previous employer?

Answer by Will Sciba:

Generally, the back child support has to be paid. The worst situation I ever heard involve a man who had to pay 14 years back child support for a child he did not even know about. The premise is that we have a responsibility to support our children. This obligation is not dependent on the actions of the other parent. If the other parent is not complying with other terms ordered by the court, then your husband may be able to ask the court to enforce those terms. There are also provisions that may allow the court to modify the amount of child support based on a change in income and other circumstances. I recommend that you and your husband contact an attorney that specializes in family law. The best way to select an attorney is to talk to someone you trust who has used a family law attorney or look in the phone book for attorneys who are board certified in family law or advertise that they handle family law. Then find an attorney you are comfortable with.

Question: I have a Life Insurance policy with a beneficiary. Does my Will over ride this beneficiary or do I have to change the beneficiary on my life insurance policy?

Answer by David Coffey:

A will does not override the beneficiary designation on your insurance policy. Insurance policies, retirement accounts, bank accounts, brokerage accounts, etc. which have beneficiary designations pass according to the designation regardless of the terms of your will. The same is true for assets held as joint tenants with rights of survivorship or with a pay on death designation.

Question: I was hired by a company and then was told that they would need a letter from my doctor in order to put me on the schedule. I got the letter and then was told I am no longer employed. What actions could I take against them?

Answer by Will Sciba:

Texas is what is considered a “right to work” state. The phrase “right to work” is a little counter-intuitive. It basically means that you can be fired at any time for any reason. It also means that an employee can quit at any time for any reason. There are some exceptions to this general rule. The most common exceptions are racial discrimination, sexual harassment, discrimination based on sex, age discrimination, and discrimination based on a disability. There are other laws that may apply depending on the circumstances. There are also laws that protect employees from retaliation for complaining of illegal discrimination.

Question: My Ex-husband passed away, we have 2 kids and we were living together since the divorce. Could I ask for all government benefits as a widow and mother of his children? In Texas when are you consider legal married?

Answer by David Coffey:

If your children are either under 18 or are under 19 and still in high school, they are entitled to survivor benefits. If you were married more than ten years to your ex-husband, you will be eligible to receive survivor benefits at retirement regardless of whether you were married at the time of death. A common law marriage exists when a man and woman a) are living together, b) hold themselves out as being married, and c) both intended to be married. You have two years from his date of death to establish that you were married.

Question: While in a pet store a customer reaches to pat my dog without me knowing, (back turned talking to store rep),and my dog snapped at the customer ‘s hand before I could snatch her away, and breaks the skin (1″ scrape and draws blood) am I liable for that?

Answer by Will Sciba:

Typically a minor injury such as a scratch will not result in a lawsuit because the cost of pursuing the claim will be more than the claim is worth. If a claim is made you should turn it over to your home owners or renters insurance if you have it. In order for an injured person to recover from a dog bite, the injured person will typically have to prove that the owner had reason to know that his/her dog posed a danger to others. This can be shown through prior instances where to dog has bitten or shown aggression towards people in the past.

Question: How do I make sure I am being paid the right amount of royalty by the oil company?

Answer by Robert McKay:

The check stub will contain a decimal interest attributable to your royalty. This decimal interest should equal the interest you own in the royalty.

Question: If the wife owns the house before the marriage or (common —law marriage) and her name is the only one on the deed, can the husband be granted any claim to the property?

You can contact an attorney that specializes on workers comp to make sure you are being paid the right amount. Typically you will be limited to the benefits you are awarded through the comp system; however, you may have a third party claim if someone other than your employer caused your injury. If you collect from a third party, you will have to reimburse the comp carrier before you can put any money in your pocket.

There may be a claim for reimbursement if improvements were made or mortgage payments were made during the marriage.

Question: I was hurt at work and I am receiving comp benefits. I am having trouble making ends meet can I do anything to make up for the money I am losing?

Answer by Jim Cole:

You can contact an attorney that specializes on workers comp to make sure you are being paid the right amount. Typically you will be limited to the benefits you are awarded through the comp system; however, you may have a third party claim if someone other than your employer caused your injury. If you collect from a third party, you will have to reimburse the comp carrier before you can put any money in your pocket.

Question: I fell at a store. Do they have to pay my medical bills?

Answer by Will Sciba:

You should ask whether the store has no fault medical payments coverage. If it does, then it should cover medical expenses up to a certain amount. The limit of medical payments coverage is typically between $1,000.00 to $5,000.00. If there is no medical payments coverage, or if your injury is more severe; you will have to prove that the store is at fault. To prove the store is at fault, you must present evidence that (1) there was an unreasonably dangerous condition on the premises (2) the store employers know or should have know of the condition, and (3) the store employees failed to act reasonably to warn of the condition or make the condition safe.

Question: My husband of 10 years was previously married for 20 years. She signed the deed away to my husband; however both of their names are still on the mortgage loan. If he passed away can she come back and claim the house?

Answer by David Coffey:

No, she assigned all right to the house by signing the deed.

Question: My neighbors have an oil well on the property next door that is producing. My property is leased but no well has been drilled. Is there anything I can do?

Answer by Robert McKay:

Yes. If the well is causing drainage of oil or gas from your property, you can insist that the company which has your land leased drill a well on your land to prevent drainage.

Question: How can I make sure my family does not fight over my stuff when I die?

Answer by David Coffey:

There is no way to guarantee that your family will not fight over their inheritance but I would recommend having a will and sharing with them your desires regarding the division of your estate.

Question: I have a loved one that just passed away. What do I need to do now?

Answer by David Coffey:

First, take time to celebrate the life of your loved one and take time to let the grieving process occur. Then contact an attorney to assist you with the next steps. He or she will need a copy of the death certificate and the original will. If there is no will, gather all information regarding your loved one’s next of kin before meeting with your lawyer.

Disclaimer: This site is published by Crossroads today and sponsored by Cole,Easley,Sciba & Williams, P.C. It is intended to provide a forum to discuss general legal concepts. Cases are always very fact specific and the application of the law will vary from case to case. The information you obtain at this site is not, nor is it intended to be, legal advice from Crossroads Today, Cole,Easley,Sciba & Williams, P.C. or any of the contributing authors. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us or Cole,Easley,Sciba & Williams, P.C.does not create an attorney-client relationship. Please do not send any confidential information to us or Cole,Easley,Sciba & Williams, P.C. until such time as an attorney-client relationship has been established.