Beecher Law Firm Blog

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PREPARING FOR BATTLE IN YOUR TEXAS DIVORCE

Lenora, opened the door to find her friend Mike. Mike was visibly upset. After letting him in, the two began to talk.

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CHANGING A TEXAS CHILD CUSTODY ORDER

Tommy hung up the phone with his ex-girlfriend Charlene just as his mom Lucy walked in the restaurant to meet him for their weekly breakfast. Lucy could tell her son was upset when she sat at the table.

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Top Ten Excuses Given To Get Out of A Speeding Ticket And Why They Don't Work

10. “But I Am A Member Of The 100 Club”

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Texas Driver's License Suspension After An Auto Accident Civil Judgment

Sophia was excited.1 She was an avid hat pin collector and her new hat pin was scheduled to arrive today. Hat pins were how she remembered her grandmother Adassa. Her grandmother developed her interest in hat pins beauty and history. She wore her hat pins proudly on her work apron at the hardware store. It was one of the few things her boss allowed to be worn on her work hats or apron to express individuality. Sophia was as giddy as a child in anticipation of what was to arrive in her mail...

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YOU'RE TELLING ME MY 12 YEAR OLD CAN CHANGE MY TEXAS CUSTODY ORDER?

Allison was dropped off from her school bus. She opened the door to her home, walked in the kitchen, grabbed an orange to snack on and then headed to her bedroom to login to her laptop. She planned to login to her Facebook account to chat with friends about the days events at her middle school. She walked in her room and began screaming atop her lungs.

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Smile, You Are On Camera During That Traffic Stop

Ben jumped in his cobalt blue 2018 mustang convertible. His parents got him the car as a high school graduation gift. He picked up his date Charlotte. Ben was excited has he spent most of high school trying to get Charlotte's attention. After graduation and getting his new car, Charlotte took a new look at Ben and agreed to go out with him. Now, they were on the way to their first date at the movie theater on Westcreek and Westheimer. Ben planned for a romantic evening. They would eat dinner...

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No Agreement Needed To Get A Texas Divorce

Charlie: I am tired of this. We argue over money, our faith, the dog, even the silly thermometer. I am tired of living in strife. This situation is maddening and I can't take it anymore. This is not working Susan, I want a divorce.

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Waiting Periods to Divorce and Remarry in Texas

Things could not have been more different for Kelly. Exactly one year ago, she was on her own with no money, no place to stay and a broken heart. Her husband Pete took up with a new girlfriend 25 years his junior. He threw her belongings out on the lawn and locked her out of their home. Kelly suspected he was having yet another affair but did not think a break-up was in their future. During their fourteen years together, she looked the other way on Pete's infidelities because she did not have...

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The Texas Ticket For Failure to Drive In A Single Lane

Bert and Elise were visiting their granddaughter Josephine for her first Thanksgiving. They were driving from Austin but made it to the Houston city limits. Bert saw his exit on US 290 and took it. No less than two minutes after he exited the freeway, he saw flashing red and blue lights in his rearview mirror. Bert was surprised because he was careful to maintain his speed and was aware of committing no traffic violations. He pulled over to the side of the road. Elise looked just as surprised...

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Genetic Testing's Role in Texas Paternity Cases

There was always talk that Fred was the daddy. However, each time Fred asked to see his purported daughter Jillian, her Mom Patricia, would not allow it. There was always some excuse and Fred heard it all. “We have plans that weekend.” “Jillian would be at grandma's.” “Jillian does not know him and was too young to spend time with a stranger.” “Jillian and/or Patricia was ill.” “It was way too cold to carry a child that age out.” “It was way too hot to carry a child that age out.” The excuses...

PREPARING FOR BATTLE IN YOUR TEXAS DIVORCE

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Lenora, opened the door to find her friend Mike. Mike was visibly upset. After letting him in, the two began to talk.

Lenora: Oh my gosh, what happened now?

Mike: Michelle finally hit the jack pot. I am sick and tired of being sick and tired and I can't take her nonsense anymore.

Lenora: Well I'm glad you finally came to your senses. Where are your kids?  

Mike: I knew I was going to confront her about her mess and I didn't want our kids to witness what could happen, so I took them to my parents.

Lenora: So what happened?

Mike: Talking to Michelle is like walking through a mine field.  After I told her I was filing for divorce, our conversation got pretty heated.  When I saw she began throwing knifes and pots, I left.

Lenora: Wow, that chic there. Did she hit you again?

Mike: No, I dodged them this time.

Lenora: I have heard this before.  Are you sure you are ready for a divorce?

Mike:  Oh I'm sure. I'm going to tell the judge she is a bad mom who doesn't cook or clean and all around bad wife.

Lenora:  I think you are going to have show a little more than that.  Let the judge know she sent you to the hospital with a concussion because she threw a cast iron skillet at your head. Tell the judge about the nights she did not come home for weeks at a time with neery a call or explanation to you or the kids.   Oh, remember when you had the kids at the local Walmart, your shopping cart full with groceries and your debit card was declined during check-out because Michelle decided to take all the money out of your joint account to spend “quality time”  with her boyfriend.  The kids and you lived on rice and beans for two weeks because Michelle put her boyfriend ahead of her family. Don't forget to mention that little tidbit to the judge.

Mike:  Well I brought that up with the attorney my brother used in his divorce and he said expect she is going to insinuate you and I are a couple and I am a bad influence on our kids because I don't work and get my income as a result of disability pay from the military.

Lenora: Are you kidding me? She would be out her mind to try that defense before a court. Wait a second, Mike tell me you are not using your brother's attorney for the divorce.

Mike:  Well, he's cheap.

Lenora: Cheap is not going to cut it.  Are you forgettting, the times your brother called and could not reach his attorney? Don't forget the times your brother told you his attorney did not show up for scheduled court for hearings.  Your brother barely gets to see his daughter now because his so called attorney was not there for him during his divorce. Mike you need better than this.

Mike: Money is tight.

Lenora: Look, you're about to go to battle for your family and finances. Michelle and her money bags family are going to hit you with everything they have. You need someone who is going to fight hard for you. Let's see if we can find you another solution.

Preparing For Battle in Your Texas Divorce

Going through a contentious divorce is unlike any other life experience.  Spouses who previously shared life experiences and had shared dreams now face a new life experience where plans and goals will split.  Now the partner who no doubt knows the ins and outs of your life is your sworn adversary.  The experience is not only emotionally draining but the upcoming changes to life as it was previously known can be daunting. In the fictional conversation above, Lenora is correct to warn Mike to treat his impending divorce  as a battle. Knowing a battle is coming and preparing your mind for battle will go a long way in your fight to protect yourself, family and finances. Below are some key points to consider when preparing for battle in your Texas divorce.

Know Your Case

When presenting a case before the family court, details matter.  As Lenora pointed out to Mike, generalizations and opinions about your partner's parenting abilities or what kind of spouse they were during the marriage won't be enough.  Rather, point out the details regarding your spouse's past behavior. Be prepared to detail how that behavior impacted your family, the damage caused and/or any future negative impact to demonstrate why you should be granted the relief requested in your divorce. Be sure to let your counsel know the facts, no matter how sordid you think they may be. Equipping yourself and your counsel with all the facts allows you and your attorney to develop a game plan on how best to present those facts in a meaningful and impactful way.

Gather Your Evidence

Once you know the facts of your case, be prepared to demonstrate those facts in a court of law.  The judge in your case has heard multiple cases.  They've seen and heard multiple versions of the cheating husband, the two-timing wife, the busy dad, inept mom and vice versa in the cases presented before them. The judge does not know you and may not simply believe your word over your spouse just because you say so.  Thus, the more evidence you have to prove your point the better it will be for you. For example, if you are alleging your spouse has used monies belonging to the marital estate to support their girlfriend or boyfriend, then you want to gather financial statements and records to show this.  Alternatively, if you are trying to show you have had care and custody of your child in child support or custody issue before the court, then school records demonstrating the child's residence may be a useful demonstrative tool to get your point across.  Likewise, where there are allegations of abuse, criminal records, medical records and pictures can put these allegations in a clearer perspective for the judge considering the evidence.

Dirt Will Be Thrown, Prepare Your Defense

So you recalled your facts.  You have physical evidence to support the facts you are making before the court.  Your case appears to be a slam dunk. However, neglecting to address the potential negatives your ex-could point out to the court could lead to disastrous results.  Look, no general goes to battle and expects victory without a fight and no boxer enters a boxing match and expects to win without their opponent throwing a punch.  It is no different in a contentious divorce case. Your soon to be ex wants their bite of the family finances, property and/or an upper hand with child custody as well.  Thus, it's reasonable to expect when facing a contentious divorce, your spouse is going to try to sway the courts with negative facts about you. It's best in this situation to lay out any negatives you are aware might be brought up with your counsel and address them before hand.

Get Your Money Together

When a person goes to a mechanic and repairs are needed to fix their car, they know money must be spent to fix the car. When a person is ill and they go to their doctor to get relief, they know money will be paid to a physician for their services. Likewise, when you are preparing to go after every last dime that rightfully belongs to you from your no good ex, or leave no stone unturned in demonstrating you are the better parent, be prepared to pay the person who will be your legal crusader and warrior in a three piece suit.  Yes, there are deals to be made when obtaining a legal counsel, but remember you also get what you pay for. Being penny wise and pound foolish when obtaining a divorce lawyer can be costly in the long run. Counsels offering free or next to nothing cost in obtaining them are also likely to dole out service  valued $0 or next to nothing. Affordability is important when hiring counsel but also consider you want your counsel to excel over the opposing forces that will come after your case. You don't want an underpaid counsel battling your lying ex, their well paid pit bull lawyer who has their investigators and counselors who are also willing to tear you to shreds before a judge because they were highly paid.  Rather, you want a highly motivated greater force speaking on your behalf and fighting for your interests and rights in the court room.  Thus, if you envision a divorce is likely, start saving up for good counsel.  If the divorce has taken you by surprise, then try to find counsel who will offer you payment plans or accept credit cards. Alternatively, seek the assistance of trusted family members and friends in gathering the funds you will need for a retainer.

 If you are in a similar situation as Mike, contact our firm for a consultation to discuss how to proceed in protecting your rights and interests during divorce.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Photo: Image by StockSnap from Pixabay

CHANGING A TEXAS CHILD CUSTODY ORDER

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Tommy hung up the phone with his ex-girlfriend Charlene just as his mom Lucy walked in the restaurant to meet him for their weekly breakfast.   Lucy could tell her son was upset when she sat at the table.

Lucy:  What's wrong my son?

Tommy:  Charlene is playing fast and loose again with my scheduled visit with our son Jr.

Lucy:  Again with her non-sense.

Tommy:  Every time she gets a new boyfriend, she puts my rights and access to Jr. on the back burner.  Its been two months now since I seen Jr.  I know he's not happy.

Lucy:  I don't know how a judge trusted that woman with a child.  What's going on with my grandson? Why is he unhappy?

Tommy: Charlene's new man and he have gotten in some confrontations.  

Lucy: Confrontation?

Tommy:  I know Jr is twelve and shouts off at the mouth at times but a grown man has no business threatening to knock his lights out. If that joker lays a hand on my son, he is gonna need more than the cops to get away from me.

Lucy: Violence is not the way to handle this Tommy.

Tommy:  Now Charlene and Jr. lives with this fool.  After she told me they lived together, I checked his record.  Typical Charlene, she fell hook line and sinker for a bad boy.  Her new guy has a rap sheet as long as the Rio Grande and this is who she feels our son should live with and learn from.

Lucy:   Son, I know the last time you and Charlene were in court was not easy but now her living situation is a danger to Jr.  In the last five years since the judge signed the custody orders, Charlene  tried multiple times to turn Jr. against you by keeping him away or outright trying to alienate him from you.  Thankfully her attempts were unsuccessful.  Jr. told me several times he wants to live with you because his mother is always drunk and never around.  Maybe its time to change the custody orders.

Tommy:  Mom, maybe you're right.

Grounds to Modify Custody

In the fictional narrative above, Tommy considers his grounds to modify a prior Texas custody order. A Texas Family Court may change a prior custody order if modification would be in the child's best interests and:

  1. The circumstances of a conservator, child or other party has materially and substantially changed since the earlier of

    a. rendition of the last order; or

    b. signing of a mediated settlement agreement or collaborative law settlement on which the order is based.

  2. A child at least twelve years of age or older in the court's chambers expresses their preference as to whom should have the exclusive right to designate the primary residence of the child; or

  3. The conservator with the exclusive right to designate the primary residence of a child voluntarily relinquishes primary care and possession of the child to another person for at least six months.1

A Child's Best Interests

The court's decision will focus on the child's best interests.  The best interests of a child shall always be the primary consideration of a court in determining conservatorship, possession of and access to a child.2 The court has a list of factors it will look at to determine the child's best interests. The court will examine:

  1. the desires of the child;

  2. the emotional and physical needs of the child now and in the future;

  3. the emotional and physical danger to the child now and in the future;

  4. the parental abilities of the individuals seeking custody;

  5. the programs available to assist these individuals to promote the best interest of the child;

  6. the plans for the child by these individuals or by the agency seeking custody;

  7. the stability of the home or proposed placement;

  8. the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and

  9. any excuse for the acts or omissions of the parent.3

These factors, known as the Holley factors, are used to examine a child's physical, emotional, social, mental, educational, moral, disciplinary welfare and development. The Holley factors are not exclusive.  Rather, the courts determination of a child's best interests will be fact driven.  

A Material and Substantial Change

A material and substantial change in circumstances is not defined. Prior Texas courts found a material and substantial change in circumstance occurred when the following occurred:

  1. a party's marriage;

  2. parental alienation;

  3. change in home surroundings;

  4. mistreatment of a child by a parent; or

  5. a parent becoming an inappropriate conservator for the child.

However, a court will look at the specific facts involved to determine if a material and substantial change in circumstance occurred.4

A Twelve Year Old's Preference

The Texas Family Code gives children twelve years of age or older a say in expressing their preference as to which parent or conservator they wish to live with. It is a factor the court will consider. However, parties mistakenly believe that once a child expresses their preference on whom they desire to live with, that equals an automatic change in custody modification.  That belief is incorrect. Interviewing a child, will not diminish a court's discretion to determine the best interests of the child.5 A court will consider not only the child's preference, but will also look at the totality of the facts and circumstances to determine if custodial modification will serve the child's best interests. Examples of factors the court may consider are the child's maturity, life with either conservator, testimony from teachers, physicians, and/or therapists, and the impact other siblings.

Voluntary Relinquishment

If a parent or conservator gave up the primary care and custody of a child to another and the relinquishment is for six months or greater, then grounds for modification exist. However, if this is not applicable where a party does this due to military deployment or duty.

If you are interested in modifying a prior court order to change custody, possession, and or access you may find our attorney's information below to schedule a consultation.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Sources and Citations

1 Texas Family Code 156.101

2 Texas Family Code 153.002; see also Len v. Len, 79 S.W. 3D 10, 14 (Tex. 2002).

3 Holley v. Adams, 544 S.W. 2d  367 (Tex. 1976)

4 In Re A.L.E., 279 S.W. 3d 424, 428 (Tex. App. – Houston, [14th Dist.] 2009, no pet.)

5 Texas Family Code 153.009 (c)

6 Photo by Moshe Harosh from Pixabay








Top Ten Excuses Given To Get Out of A Speeding Ticket And Why They Don't Work

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10. “But I Am A Member Of The 100 Club”

Persons who give to the 100 Club do so to enable the charitable organization to raise funds to assist the dependents of law enforcement officers and firefighters who are killed or catastrophically injured in the line of duty in Houston and surrounding counties.   This excuse does not convince the officer to drop the ticket.  To do so would mean individuals who donate to the 100 club or similar charitable organizations would give the donor carte blanche rights to drive as they please and ignore the traffic laws. Furthermore, giving a threat to get a desired action is most likely to infuriate the threatened person.

9. “I Was Testing My Car”

This excuse relies on an unacceptable premise.  The excuse does not work because the underlying sentiment is one of guilt.  The driver in essence by stating “I was testing my car” implies he/she was speeding but the reason for the excessive speed was because he/she was testing the limits of what the vehicle was capable off. Another reason this excuse does not work is the statement gives the impression that the driver is using the public roadways as their private speedway to test the limits of their vehicle and is not considering the safety of others on the roadway.

8. “I am Generally A Good Driver Can You Give Me A Warning?”

The driver is telling the officer this one time I went over the speed limit but because they are generally a good driver they are asking for leniency and requesting a warning.  The excuse generally does not work because similar to the excuse “I was testing my  car” the underlying sentiment of this statement is guilt.

7. “Shouldn't You Be Going After Real Criminals”

The statement is classic deflection.  It does not say the driver is not guilty of the offense. Quite frankly the opposite is implied.  It's really thumbing the nose at the speed limit because what the driver is telling the officer is so what if I was speeding surely you must have bigger cases to catch criminals than this one little ticket.  It typically does not work, because it insults the officer in the job he/she is performing.  It makes it seem as though the enforcement of speed limits is a waste of time and the officer's time would be spent wisely going after some other form of crime.

6. “I Thought the Speed Limit Was More”

A mistaken speed limit is a relatable error.  No human being is immune from making a mistake. However, from the perspective of an officer tasked with enforcing the speed limit, this excuse implies the accused was not paying attention or was unaware of the speed limit.  The excuse does not work because mistake of law or fact is not an excuse or defense to a traffic ticket.  It is worthy to note that Texas class c misdemeanors such as speeding over a posted speed limit requires no mens rea (intention or knowledge of wrongdoing) to enable the State to prosecute. 

5. “I Am Sick and Just Want To Get Home”

Other alternatives to this is my child is sick or my family member (mother, father, brother, sister etc) is sick or in the hospital.  Unfortunately, officers are not able to decipher in most instances the veracity of this statement by just looking at an individual.  Some officers are willing to dismiss the ticket upon further verified proof in court. Others are of the opinion that when illness distracts a driver to the extent that traffic laws are ignored the driver, in that instance, should not operate a vehicle.

4. “I Have To Get To The Restroom”

The reason this excuse does not work is because a safer alternative exists. From the officer's perspective stopping somewhere before getting home and using a public restroom alleviates the problem.  It is safer than rushing on the public roadways, jeopardizing the driver's safety and the safety of other drivers just so the driver can get to the comfort of their home restroom.

3. “Someone Is Chasing Me”

With the rise of road rage, it is not impossible for a person to genuinely be in this situation. If a driver finds themselves in this situation, do not confront the other driver.  Take your safety seriously, find a crowded place to pull over and call the police.  The reason this excuse does not work well is because by the time someone is pulled over the alleged chaser is long gone.  Officers hear a variety of reasons each day as to why an accused should not get a citation.  It is also not uncommon for others to take this situation and lie to law enforcement to try and get out of a ticket. Unfortunately, this excuse without further backing sounds like any other excuse of someone trying to get out of a ticket.  

2. “I Sped Up To Get Away From The Crazy Driver Next To Me”

We have all been in this situation.  You find yourself near the driver who is weaving in and out of traffic, driving on the shoulder to avoid traffic and/or driving well above the posted speed limit.  The inclination is to find a safer spot on the roadway and you surely do not want to fall prey to their bad driving.  Thus, you do anything to get away from the Tasmanian Devil on wheels.  The reason the excuse does not work on law enforcement are safer alternatives exist in this situation as well.  A driver can slow down or pull over to get away from a bad driver. Engaging in unsafe driving practices to get away from a unsafe driver does not look well for the accused speeder.

1. “I Was Going With The Flow of Traffic”

The problem is the vague nature of the statement.  The statement does not deny guilt.  Rather it implies since the driver was going with the flow of traffic and going above the speed limit, then others on the roadway were violating the speed limit too. Thus, why weren't the other drivers stopped as well?  However, other persons breaking the law on the roadway will not deter the State from prosecuting those who are caught.

If you are the recipient of a speeding ticket and need assistance in keeping the offense off your record, contact our firm to find out how our representation in your case could be beneficial to your interests.

Author's Information: Attorney Tracey A. Beecher represents persons accused of class c misdemeanors and city code ordinance violations within the City of Houston Municipal Courts, Harris County Justice of the Peace Courts and Fort Bend County Justice of the Peace Courts.  

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Photo: Image by Gerd Altmann from Pixabay.

Texas Driver's License Suspension After An Auto Accident Civil Judgment

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Sophia was excited.1 She was an avid hat pin collector and her new hat pin was scheduled to arrive today.  Hat pins were how she remembered her grandmother Adassa.  Her grandmother developed her interest in hat pins beauty and history.  She wore her hat pins proudly on her work apron at the hardware store.  It was one of the few things her boss allowed to be worn on her work hats or apron to express individuality.  Sophia was as giddy as a child in anticipation of what was to arrive in her mail box today.  When she arrived home, she parked her car and scurried almost in a skip to her mailbox.  She gathered her mail but the box with the smiley face, the sure sign of her package's arrival, was not in her mailbox.  She was not pleased but looked through the rest of her mail. One letter did spark her interest.  It was from the Texas Department of Public Safety. Sophia opened the letter to read.  The letter detailed that DPS would suspend her Texas driver's license because she failed to pay a judgment finding her at fault for an auto accident.  The $23,000 civil judgment against Sophia was rendered eighteen months ago and remained unpaid.  Sophia's heart skipped a beat.  Without a driver's license she could not get to work or to her classes at the University of Houston. She wondered how could this be? What did a civil judgment have to do with her driving license, anyway?

License Suspension Can Result From An Unpaid Civil Judgment In An Auto Accident Case

Our fictional character Sophia was wrong.  An unpaid civil judgment from an auto accident can wreak havoc on a person's privilege to drive. Once the Texas Department of Public Safety (DPS) receives notice of an unpaid judgment due to an auto accident that resulted in

a. death

b. injury; and/or

c.  property damages greater than $10002

the driver found at fault, may receive a license suspension.3 Persons in Sophia's situation are not without hope in fighting a license suspension or regaining their privilege to drive once a license suspension occurs.

Defense To Texas Driver's License Suspension Resulting From An Unpaid Judgment

A person has a defense to a license suspension, if proof of insurance is provided to DPS showing that driver had:

a. liability insurance covering the vehicle involved at the time the accident occurred;

b. an affidavit stating that the judgment debtor was insured by auto insurance at the time of the accident, the insurance company is liable to pay the judgment and the reason if known, why the judgment was not paid;

c. the original policy or if available, a certified copy of the auto insurance policy; and

d. any other document required by DPS to show the loss was covered by insurance at the time of the accident.4

Once DPS receives satisfactory proof that the judgment debtor had motor vehicle liability insurance at the time of the accident, the insurance company was authorized to issue insurance policies in the State of Texas at the time of the accident, and the insurer is liable to pay the judgment to the extent and amount required by law, the judgment debtor's license may not be suspended.  If already suspended, then DPS must reinstate the person's driving license.5

If not already suspended, DPS may not suspend a person's driver's license if the person submits proof that they have financial responsibility (SR-22)6 and the person obtained an order to pay the judgment in installments.7 A judgment debtor, after giving notice to the judgment creditor, may apply to the court to pay the judgment in installments.  The court may order installment payments and detail the amount and time of payment.8 However, failure to comply with the installment payments as established with the court could result in DPS suspension of driving privileges until the judgment is satisfied.9

Excuse From License Suspension Resulting From An Unsatisfied Judgment

If a judgment debtor receives consent from a judgment creditor, then they may be allowed to continue their driving privileges. To receive a continuation of driving privileges, DPS will need written consent from the judgment creditor consenting to a continuation of the driving privileges submitted in form SR-8410 and proof that the judgment debtor now has proof of financial responsibility, a SR-22.11

Regaining Your Driving License After Suspension

Once DPS suspends a license because of an unsatisfied judgment, the judgment creditor may regain their license if they provide proof the judgment was paid in full or satisfied.  To show this, DPS requires submission of a SR-11.12 Alternatively, if the judgment creditor works out a payment arrangement with the judgment creditor, DPS will want a SR-1913 as proof of the payment arrangement before lifting the suspension.

If ten years elapsed since the rendition of the liability judgment and a writ of execution was not issued to renew the judgment, then the judgment is now dormant. A dormant judgment may not be enforced unless revived.14 To obtain a license renewal after a judgment becomes dormant, DPS requires submission of form SR-88.15 DPS will require the payment of all reinstatement fees before a license is reinstated.  

If you are in a situation similar to Sophia, contact our firm to see how we may assist you in keeping or regaining your Texas driver's license.

Author's Information: Attorney Tracey A. Beecher represents persons accused of class c misdemeanors and city code ordinance violations within the City of Houston Municipal Courts, Harris County Justice of the Peace Courts and Fort Bend County Justice of the Peace Courts.  

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

 Citations and Resources

1 Image by Karolina Grabowska on Pixabay at https://pixabay.com/images/search/user:kaboompics%20key/     

2 Crash Suspension at https://www.dps.texas.gov/DriverLicense/CrashSuspension.htm  

3 Texas Transportation Code 601.332 (a) 

4 Texas Transportation Code 601.333 (a)

 5 Texas Transportation Code 601.333 (b)

6 A SR-22 must be provided by the insurance provider.  It is certified proof that a person maintains liability insurance.  See  https://www.dps.texas.gov/DriverLicense/SR22InsuranceCertificate.htm  

 7 Texas Transportation Code 601.336(a)

 8 Texas Transportation Code 601.335

 9 Texas Transportation Code 601.336 (c) 

10 Form SR-84 https://www.dps.texas.gov/InternetForms/Forms/SR-84.pdf   

11 Texas Transportation Code 601.334 (a) 

12 Form SR-11 https://www.dps.texas.gov/InternetForms/Forms/SR-11.pdf   

13 Form SR-19 https://www.dps.texas.gov/InternetForms/Forms/SR-19.pdf   

14 Texas Civil Practice  and Remedies Code 34.001(b) 

15 Form SR-88 https://www.dps.texas.gov/internetforms/Forms/SR-88.pdf  

YOU'RE TELLING ME MY 12 YEAR OLD CAN CHANGE MY TEXAS CUSTODY ORDER?

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Allison was dropped off from her school bus.  She opened the door to her home, walked in the kitchen, grabbed an orange to snack on and then headed to her bedroom to login to her laptop.  She planned to login to her Facebook account to chat with friends about the days events at her middle school.  She walked in her room and began screaming atop her lungs.

Allison: Mom we've been robbed! All of my things are gone.  Where is my laptop?  My phone and X-Box are gone!

Allison's mom Chaundra answered her.

Chaundra: We were not robbed Allison.

Allison walked out of her room and noticed nothing else in her home was out of place.  She walked back to her room and noticed her jewelry and books were still in the room.  Her posters remained on the wall. The only thing missing were her phone, X-Box and laptop. She walked back out her room and into her mom's home office to find her mom.

Allison: Mom where is my stuff?

Chaundra: Your history teacher called me today to discuss your behavior in his class. I was surprised to learn that he sent notices home about your behavior in his class several times in the past few months.  Those notices were for me to sign and acknowledge I received his notice of your behavior.  Even more interesting though, was he got signatures from me on notices I never saw or knew existed. He was kind enough to email those signed notices to me. Well lo and behold, the signature that was purportedly mine, was in your handwriting. When you learn to stop lying and playing around in class Allison, you will get your things back. 

Allison: But they're not yours!  Dad bought them for me. You have no right to take them.

Chaundra: Excuse me little girl! You're skating a thin ice.  You live under my roof and you will abide by my rules. You are cutting up in class. I told you before if your school contacted me about your behavior again you would be grounded.  So you took it up on yourself to lie when they contacted me by hiding their notices and forging my name on them to avoid trouble with me.  Lying is not a behavior I will tolerate Allison.  When you change your behavior, you will get your things back.

Allison: You are so mean! I am tired of living here! I want to move in with Dad.  

Chaundra: You're Dad will say and do anything right now to appear as the good guy.  I know one thing for sure, I am not raising a liar.  Until you change your behavior Allison, you are not getting those things back.

Allison: Ugh! You are so unfair. Dad said, since I am now 12, all I have to do is tell a judge I want to live with him and I can move in with him. I am tired of living under the gestapo!

Chaundra: Well, I am happy to hear between passing notes with friends and being the class clown, you actually picked up something from history class.

Allison stormed off and slammed the door to her now barren bedroom.  Chaundra played it cool in front of Allison but she was worried her twelve year old daughter could tell a judge she wanted to live with her ex-husband and change the current custody order.  Chaundra wondered, how could this be real?  How could a twelve year old have that much power in a custody case?

A Twelve Year Old's Preference Can Be Grounds To Modify A Texas Custody Order

The fictional conversation between Chaundra and Allison is meant to show a dynamic that can play out between a parent and a child. A child who is at least 12 years of age can tell a court in chambers their preference on who should have the exclusive right to designate their primary residence and can change a prior custody order.1 The in chambers interview can occur upon application of a party, amicus attorney, attorney ad litem for the child or on the court's own motion.2 The interview may occur for a non-jury trial or hearing only.3 The court may not interview a child in chambers regarding an issue on which a party is entitled to a jury verdict.4

Preference Is Not Limited To Custody Modification and Can Be From Kids Younger Than Twelve

While a court shall consider the in chamber interview of children twelve or older if properly requested, a court may consider the preference of a child younger than the age of twelve.5 The court may also interview a child in chambers to determine the child's wishes as to possession, access or any other issue in a suit affecting parent-child relationship.6

The Child's Best Interests Must Be Considered As Well

Modification of a current custody order because of the preference of a child twelve years or older is subject to limitations.  Sometimes children desire a change which would not serve their best interests. As such, while a court must consider the preferences of a child twelve or older, a court may only modify a order if it would be in the best interests of the child.7 Interviewing a child does not diminish the court's discretion in determining the child's best interest.8 In determining best interests, the court will consider a child's physical, emotional, social, mental, educational, moral, disciplinary welfare and development.  The court will consider the applicable non-exhaustive list of factors established in Holley v. Adams to determine the child's best interests.  The factors include but are not limited to:

  1. the desires of the child;

  2. the emotional and physical needs of the child now and in the future;

  3. the emotional and physical danger to the child now and in the future;

  4. the parental abilities of the individuals seeking custody;

  5. the programs available to assist these individuals to promote the best interest of the child;

  6. the plans for the child by these individuals or by the agency seeking custody;

  7. the stability of the home or proposed placement;

  8. the acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one; and

  9. any excuse for the acts or omissions of the parent.9

Modification of a custody order because of a child's preference will involve many factors. Presenting such a case before a court is seldom an easy task. Whether initiating this type of case or defending it, use of a skilled lawyer to bring all points of consideration to the court's attention would be best.  If you need legal assistance because your child expresses a desire to modify a current custody order, contact our firm to find out how we can assist you.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Sources

1 See Texas Family Code 156.101 (a)(2)

2 Texas Family Code 153.009(a)

3 Id.

4 Id. at (c)

5 Texas Family Code 153.009 (a)

6 Id. at (b)

7 Texas Family Code 156.101(a)

8 Texas Family Code 153.009 (c)

9 Holley v. Adams, 544 S.W. 2d  367 (Tex. 1976)

10 Image by MoteOo on Pixabay  

Smile, You Are On Camera During That Traffic Stop

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Ben jumped in his cobalt blue 2018 mustang convertible. His parents got him the car as a high school graduation gift.  He picked up his date Charlotte.  Ben was excited has he spent most of high school trying to get Charlotte's attention.  After graduation and getting his new car, Charlotte took a new look at Ben and agreed to go out with him. Now, they were on the way to their first date at the movie theater on Westcreek and Westheimer.  Ben planned for a romantic evening.  They would eat dinner at the restaurant in the movie theater and then go see a romantic comedy which Charlotte picked out.  The movie started at 8p.  Ben purchased their tickets online before arriving to ensure reserving their seats to the movie.  However, Charlotte took more time than expected in preparing for their date and they left her parents downtown home at 7:45 pm.  Ben's GPS showed it would take 25 minutes to arrive at their destination.  In an effort to make his date with Charlotte perfect Ben rushed off to their destination.  He and Charlotte made great time, shaving some five minutes of his trip.  However,  by the time he exited IH 610 and San Felipe, he noticed red and blue lights flashing behind him.  Ben, upset that his date with Charlotte was going awry, pulled over and awaited the officer's approach.  

Officer: Good evening, do you know why I pulled you over.

Ben: No I don't read minds.

Officer: I clocked you going 87 in 60 back there on the freeway.  

Ben: Yeah I may have sped up a little back there but whatever man, just issue me your ticket and lets get moving.  We are running late for our movie and you're taking too much time.

Officer: Are you aware your tail light is out?

Ben: Nope, I was not.  Dude how much longer is this gonna take?

Officer: Your registration is also expired.

Ben: Look officer, you obviously have your quota to make for the month. Write me up for what you're gonna write me up for and lets get this moving.

The police officer after obtaining Ben's license and insurance, thoroughly checked Ben's license for outstanding warrants but found nothing.  After running the warrant check, he returned to Ben's vehicle and issued him citations for speeding, expired registration and a defective taillight. Ben and Charlotte did not make their movie.  Furthermore, Charlotte, the grand-daughter of a cop, was not impressed with Ben's interaction with the officer and decided she would never date Ben again. Ben, however, believed Charlotte's decision to stop seeing him was the officer's fault and vowed he would fight his case in court.  

Ben hired a traffic ticket lawyer to fight his cases.  He was confident since the case rested on his word verses the officer's word of what happened, he could convince a jury to find him not guilty. On his first trial date, he told his lawyer money and time were not an issue, he wanted to fight his case before a jury.  His lawyer agreed but told him she did not wish to try his case by ambush.  Ben asked for an explanation.  His lawyer explained she wanted to view all evidence material to Ben's case prior to trial. If she did not, the prosecutor could bring it up in trial and it could pose problems for Ben's defense. As a result, she would request any and all video recordings of his traffic stop to avoid any surprises during trial.  Ben looked at his lawyer inquiringly, then asked “Wait, there's a video?”

Cameras Are The Unseen Witnesses In Traffic Ticket Cases

The city of Houston Police department began using body cameras as early as 2013 and began implementing use on a wide scale throughout the department in April 2016.1 As of today, it is not uncommon for other surrounding counties and municipalities to have their law enforcement equipped with body worn cameras and/or dash cameras.  Interactions between citizens and law enforcement during a traffic stop are recorded and kept as evidence.2 Thus, now its not merely the officers words against an accused in a traffic stop but the recorded interactions of the scene and what was said at the scene are kept as evidence for trial.  Depending on the positioning of the camera, it can capture the alleged offense, though this is difficult to do in speeding offenses or offenses where the officer is on view while driving.  The cameras leave no wiggle room to dispute the recorded statements between officer and ticket recipient at the scene of a traffic stop.  However, this dichotomy is advantageous to the officer as they are more aware the camera is on.3 Motorists, however, are unaware or not thinking about the camera's presence when stopped for a traffic violation. Persons like Ben who make statements admitting violations or contrary to their interests at the scene are likely to face a rude awakening when faced with the video of their traffic stop.

Requirements For The Body-Worn Camera In A Traffic Stop

Each Houston police officer is required to turn their body worn camera on in stand by mode when on duty and performing any routine activity. If engaged in law enforcement activity, the body-worn camera shall be turned on to the activate mode to enable recording.  Law enforcement activity is any event where an officer uses his/her police authority or performs any investigation, regardless if the investigation is consensual.  Any officer engaged in the traffic stop of a vehicle or a pedestrian, whether by car pursuit or after flagging the person to stop, shall activate their body-worn camera. The device will record the police activity has it occurs and will also save up to two minutes of video prior to the device's activation from standby mode. The device must be activated until police activity ceases or until there is a permitted reason to deactivate the camera. Even if a citizen requests the camera to be turned off, officers are not required to stop recording.  Persons who come into contact with law enforcement will be able to see the camera as it is worn on the front of the officer's uniform above the horizontal mid-line of the torso.4

Dash-Cameras Place in Your Traffic Stop

In addition to the body worn cameras, some of the cars within the department's fleet are equipped with dash-cameras.  The dash-cameras are positioned on the dash board of the officer's vehicle.  It is designed to record the view from the officer's car while a traffic stop is ongoing. Typically, it will show the officer's approach to the vehicle in a traffic stop, the surrounding scene and any movement between the parked vehicles while the traffic stop is ongoing.  

Motorists Have A Right to Review the Video 

A defendant to a traffic case is entitled to review and may request a review or copy of the dash-camera's and/or body worn camera's recording. Any recordings of a defendant or a witness material to a defendant's case must be made available upon defendant's request pursuant to the Morton Act.5 Upon a defendant's request, the prosecutor's office must make any recording of a defendant or recordings of witnesses to a defendant's case available for inspection and/or copying.  HPD's policy is to keep their traffic cases' recordings for two years after the traffic stop.6

Protect Your Traffic Case

While no person is required to be polite or courteous to another, do keep in mind that the interaction between motorist and officer is likely recorded.  As such, not only are the statements recorded and preserved, but each gesture, attitude of officer and motorist are also recorded for court consumption.  During trial, the judge and/or jury shall see and hear from the camera's recording.  Hashing it out with the officer at the scene could cause more harm than good.  

If you are in a situation similar to Ben, contact our firm to see how we may assist you in your traffic ticket case.

Author's Information: Attorney Tracey A. Beecher represents persons accused of class c misdemeanors and city code ordinance violations within the City of Houston Municipal Courts, Harris County Justice of the Peace Courts and Fort Bend County Justice of the Peace Courts.  

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Sources 

Photo by Arvin Febry on Unsplash 

1 See HPD Starts To Arm Officers with Body Cameras by Emma Hinchliffe on web page https://www.houstontx.gov/police/nr/2016/apr/nr041416-1.htm  

 2  See https://www.houstonchronicle.com/news/houston-texas/houston/article/HPD-starts-to-arm-officers-with-body-cameras-7249824.php  

 3 Any officer issued a body worn camera shall be trained in its operation prior to its use.  See Houston Police Department General Order 400-28, Body Worn Cameras on web page https://www.houstontx.gov/police/pdfs/Body-Worn-Cameras.pdf  

 4 See id. at pages 1-4.

 5 Texas Code of Crim. Proc.,  Art. 39.14.  See  also The Dawn of New Discovery Rules by Randall Simms on web page https://www.tdcaa.com/journal/dawn-new-discovery-rules  

6 Houston Police Department General Order 400-28 Body Worn Cameras on web page https://www.houstontx.gov/police/pdfs/Body-Worn-Cameras.pdf , pages 8-9.

No Agreement Needed To Get A Texas Divorce

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Charlie:  I am tired of this.  We argue over money, our faith, the dog, even the silly thermometer.  I am tired of living in strife.   This situation is maddening and I can't take it anymore. This is not working Susan, I want a divorce.

Susan:  Charlie, get over yourself. Married people argue!  That's just like you,  things get hard, you want to bail. You're such a quitter.   Plus I'm the one who looks the other way on your stupidity.  If anyone has the right to get a divorce its me.

Charlie:  Then get it!  What are you waiting on? Susan we are always at each others throats. Literally, we wake up and we argue until the sun goes down.  This is no way to live.  I want out.

Susan:  You may want out Charlie but I am not giving it to you.  I'm not letting your failures mess up my faith. You are going to have to figure out how to make this work because I am not agreeing to divorce you. Good luck getting a divorce without my agreement.

In the fictional conversation above, Susan is wrong to assume spouses must agree to get a Texas divorce.  A court may grant a no fault divorce on the petition of either party to a marriage.1 Furthermore, a spouse is not required to show who caused the disagreements between the parties.  They are only required to show that discord exists and it makes the marriage relationship insupportable.2 A party who tries to prevent a divorce on basis that a divorce would interfere with the exercise of their faith is also in for a disappointment.  Regardless if a couple views their marital union as religious or secular, the State of Texas governs all aspects of their union.3The courts have found the rights, duties and obligations given at the beginning of a marriage are created through the laws of the state of Texas. As such, the state of Texas shall govern the termination of those rights, duties and obligations once a marriage ends.4

Regardless of agreement to divorce, a court may also grant a divorce to a party upon the grounds of:

  1. adultery;

  2. conviction of a felony;

  3. cruel treatment by one spouse to the other;

  4. confinement to a mental hospital; and/or

  5. spouses living apart for three years or greater5

If you are in a similar situation as Charlie, you do not need the other parties agreement to obtain a divorce. Contact our firm for a consultation to discuss how to proceed in protecting your rights and interests during divorce.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

 Bibliography

1 Texas Family Code § 6.001

 2 Phillips v. Phillips, 75 S.W. 3d 564, 571 (Tex. App. – Beaumont 2002, no pet.)

3 Waite v. Waite, 150 S.W. 3d 797, 802 (Tex. App. – Houston [14th Dist.] 2004, pet. denied.)

 4 See Id. (quoting Maynard v. Hill, 125 U.S. 90 197, 211-12 (1888)).

 5 Texas Family Code §§ 6.002 -6.007

Waiting Periods to Divorce and Remarry in Texas

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Things could not have been more different for Kelly.  Exactly one year ago, she was on her own with no money, no place to stay and a broken heart.  Her husband Pete took up with a new girlfriend 25 years his junior.  He threw her belongings out on the lawn and locked her out of their home. Kelly suspected he was having yet another affair but did not think a break-up was in their future.  During their fourteen years together, she looked the other way on Pete's infidelities because she did not have to work and Pete always took care of her.  Unlike a prior relationship Kelly endured while she was 16, Pete never laid a hand on Kelly.  More importantly to Kelly, he always came home to her and they otherwise had a good relationship.   Pete proposed and married Kelly eight years ago.  She agreed to move into Pete's house so they could save up, sell his current home and get a new home together.  However, that day never came.  While she thought, the cheating would stop after they were married, it did not. She knew Pete liked younger women.  After all, she started dating Pete when she was 18 and he was 36. But there it was, 14 years after her first date with Pete, her stuff was on the lawn for the entire neighborhood to see.  

Kelly moved back in with her parents in Spring Branch. Her Dad was good friends with the station manager at a local TV station and he got her a job as a make up artist for the morning anchors.  Kelly was always good with applying makeup and in her new job she excelled.  Her position during the year went from part-time, to full-time and she even received a raise.  With her raise she was able to move out of her parents home and closer to the TV station in her own condo.  Kelly meet Dave three months after her breakup with Pete.  She had fun with Dave, felt safe, and he gave her room to be herself. The two fell madly in love and discussed marriage.  Unlike Pete, Kelly's family loved Dave. During new years eve at Kelly's parents home, Kelly and Dave were outside watching the fireworks. Dave dropped on one knee and proposed to Kelly. Kelly was ecstatic to get married to Dave and could not wait to start their new lives together as husband and wife.  However, she was still married to Pete.  She and Dave wanted to get married on their joint birthdays on February 12th .  January 3rd, they met with a divorce attorney so they could start the process of getting Pete and Kelly divorced.  Kelly really wanted a clean break and she would do anything to close the book on that relationship and start her life with Dave.  The most important thing to her is she could marry Dave on February 12th.  Dave and Kelly told the attorney their plans, to their surprise they found out their would be a snag.

Waiting Period to Divorce

Parties who have filed for divorce must wait at least 60 days before a court will grant a divorce.1

Thus, a person must let 60 days elapse after the divorce is filed, and on the 61st day can request the court to grant their divorce.   In the fictional scenario above, Dave and Kelly want to get married on February 12th. Even if the divorce attorney files a petition for divorce on January 3rd, by February 12th, the divorce would only be on file for 40 days and the requisite sixty day waiting period would not have elapsed for the court to grant the divorce.  This sixty day waiting period is not required if a party seeks to annul a marriage or declare a marriage void.2 A court may grant a divorce earlier than sixty days after filing if

a.  The respondent in a divorce was convicted of or received deferred adjudication for an offense of family violence against the petitioner or a member of petitioner's household; or

b.  Petitioner has a protective order or a magistrate's emergency order, against the respondent because of a finding of family violence committed during the marriage.3

However, in the fictional depiction, Pete did not engage in domestic violence against Kelly.  So Kelly's divorce from Pete would not fall into one of those exceptions.

Waiting Period to Remarry

Parties once divorced must wait thirty days before they can remarry another person unless they obtain a waiver from the court.4 Once Kelly divorces Pete, she must also wait for 30 days to elapse and on or after the 31st day after her divorce she may marry Dave. Her only way to avoid the 30 day wait after her divorce is to obtain a waiver from the court.

If you are in a similar situation as Kelly, Pete and Dave and wish to discuss obtaining a divorce in the most efficient manner, contact our offices to schedule a consultation with our attorney.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

Photo: Taken by Pete Smithies on https://pixabay.com/en/users/petesmithies-825377/ 

Bibliography & Sources 

1 Texas Family Code § 6.702(a)

 2 Id. at (b)

 3 Id.  at (c)

 4 Texas Family Code 6.801 and 6.802


The Texas Ticket For Failure to Drive In A Single Lane

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Bert and Elise were visiting their granddaughter Josephine for her first Thanksgiving. They were driving from Austin but made it to the Houston city limits. Bert saw his exit on US 290 and took it.  No less than two minutes after he exited the freeway, he saw flashing red and blue lights in his rearview mirror.  Bert was surprised because he was careful to maintain his speed and was aware of committing no traffic violations.  He pulled over to the side of the road.  Elise looked just as surprised because she thought her husband did nothing wrong.  The officer walked to the vehicle.  He asked Bert for his license and insurance.  Bert complied and the officer went to his vehicle.  The officer returned and told Bert he was writing him a ticket for failing to drive in a single lane.  Bert did not understand why he was getting the ticket and asked the officer why he was pulled over. The officer explained that Bert's tires crossed the marked lines of the lane and thats why he was receiving the ticket.  Once  the officer left, Bert and Elise discussed the ticket.  They were both furious because they did not think Bert violated the law.  However, they did not live in Houston.  Bert told Elise he disagreed with the ticket but given the time constraints he would just mail in a payment.  Elise indicated to Bert, if he paid the ticket he may mess up his driving record.  Bert was now even more confused how to proceed.

Fail to Drive in a Single Lane

Each driver must maintain a single lane when using Texas roadways.  A driver could receive a ticket for failure to drive in a a single lane when that driver is

a. on a roadway with two or more clearly marked lanes;

b. fails to drive as nearly as practical in a single lane; and

c. moves from that lane when movement cannot be made safely.1

 A Texas Driver may also receive a failure to drive in a single lane ticket where they move to the center of a roadway with three lanes that provides for two-way movement of traffic and no legal exception applies.2

How It Impacts Your Driving Record

A conviction for a failure to drive in a single lane will incur points under the Texas Driver Responsibilty Program.  A person who receives this ticket and pays it at the courthouse window, online or through the mail will receive a conviction and points assessed to their driving record. Any person who is convicted of this offense in a judge or jury trial will also receive a conviction and incur points on their driving record. However, if a court finds an accident resulted from the violation, then three points will be added to the driver's driving record.3 The points will remain on the record for a period of three years.4

In the fictional characterization above, Bert would be wise to listen to his wife.  If he mails in a payment for his ticket, it will result in two points on his driving record.  Those points will remain on Bert's driving record for a period of three years.  

Fine Range

Excluding court costs, the fine range for failure to maintain a single lane is between $1 to $ 200.

Defense

A failure to maintain single lane charge is uniquely based on the perception of the officer.  As such, there are ways individuals like Bert can attack the bases of such a ticket.  Since paying the fine can damage a person's Texas driving record, seeking the advice of counsel on the best course of action would be wise.  If you are in need of a defense attorney to protect your driving record after receiving a failure to drive in single lane ticket, reach out to us on our contact page to find out how our attorney can assist you.

Author's Information: Attorney Tracey A. Beecher represents persons accused of  class c misdemeanors and city code ordinance violations within the City of Houston Municipal Courts, Harris County Justice of the Peace Courts and Fort Bend County Justice of the Peace Courts.  

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

 Bibliography

Photo by Michael Gaida, https://pixabay.com/en/users/michaelgaida-652234/ 

1 Texas Transportation Code 545.060 (a)

2 Id. at (b).

3 https://www.dps.texas.gov/internetforms/Forms/DL-103.pdf  

4 37 Texas  Admin. Code § 15.89(b); see also http://texreg.sos.state.tx.us/fids/201403910-1.html  

Genetic Testing's Role in Texas Paternity Cases

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There was always talk that Fred was the daddy.  However, each time Fred asked to see his purported daughter Jillian, her Mom Patricia, would not allow it. There was always some excuse and Fred heard it all.  “We have plans that weekend.”  “Jillian would be at grandma's.” “Jillian does not know him and was too young to spend time with a stranger.” “Jillian and/or Patricia was ill.”  “It was way too cold to carry a child that age out.”  “It was way too hot to carry a child that age out.”  The excuses ran the gambit.  However, the excuses at least meant he could speak to Patricia about the matter. There were stretches of time, sometimes weeks, sometimes months, when Fred attempted to reach out to Patricia and she was non-responsive or simply no-where to be found.    The longest stretch lasted 18 months where Fred reached out but had no knowledge of Patricia and Jillian's whereabouts.  Mutual friends of Fred and Patricia indicated she and her husband left Texas.  They eventually resumed communicating again when Patricia and Jillian moved to Fresno, TX.  However, the situation did not change.  He never saw Jillian.  Oddly enough, each time Fred asked for a DNA test between he and Jillian, Patricia became defensive.  She would accuse Fred of insinuating she was a slut and then the arguments and name calling between each would begin. She often told Fred no test was needed because you could look at Jillian and see the resemblance. Fred eventually became frustrated with the situation and gave up communicating with Patricia.  That was until the day, four and half years after Jillian's birth, he opened his mail to find a letter from his local child support office.  The letter requested a sit down meeting between he and Patricia to negotiate an agreement for child support of Jillian.  Fred blew his top he was so mad.  Who did this woman think she was.  He certainly was not going to pay to support a child he could not see or who he even knew was his or not.   He thought about just ignoring the letter but he also could not stand the limbo of the situation.  His mind flashed back to the basketball games he played in high school and the hurt he would feel seeing his teammates' Dads at the game and not knowing who his Dad was much less where he was. That same feeling of hurt and lost was felt each birthday and Christmas he spent with just he and his Mom.  While he was not sure if Jillian was his daughter, in the event she was, he did not want any child of his to know the hurt of having an absent father.  Fred knew he had to do DNA testing to make sure Jillian was his.  However, that would take time and the meeting at the child support office was in a few days.  He was sure that would not be enough time.  Fred questioned what steps to take next.

The Parent-Child Relationship

An established parent-child relationship confers on a person,  the obligation to pay or receive support, the rights to access and possession of a child, the right to access records and exercise decision making authority on the behalf of a child and inheritance rights between parent and child.  The significant rights and obligations created in a parent-child relationship warrants the need for certainty as in the fictional situation of Fred, Patricia and Jillian.  Genetic testing can provide the answers when paternity is unclear.

Genetic Testing

A party in the establishment of a parent-child relationship has the right to request genetic testing.  Quite frankly, should a party in a suit to determine parentage request it, a court shall order a child and designated individuals to submit to genetic testing.1 A report of a genetic testing expert is admissible as evidence as the truth of facts asserted in the report. 2 The only time a genetic testing report will be inadmissible in a paternity proceeding is where a child has a presumed, acknowledged or adjudicated father and mother and said father has not given consent for genetic testing or a court has not ordered genetic testing.3 A man whose test results show he is the genetic father to a child shall be adjudicated the father of the child.  A man whose test results show he is excluded as the genetic father to a child shall be adjudicated as not being the father of the child. 4

Time Limits to Request Genetic Testing

Fred's request for genetic testing could be denied if Jillian has a presumed or acknowledged father.  If another man was adjudicated as dad or signed an acknowledgment of paternity, then a non-signatory or non-party to the paternity proceeding will have up to four years after the acknowledgment or adjudication to challenge it.5 As stated above, Patricia and Jillian disappeared for a few months out of Fred's life because she moved with her husband.  If Jillian was born during Patricia's marriage to her husband, he is Jillian's presumed father.  A suit to adjudicate paternity must be brought no later than the fourth anniversary of the child's birth.6  Jillian is four and a half. Thus, if there is a presumed father in the picture, a suit to adjudicate Fred as the father could be barred due to the time it is brought.  However, a paternity suit to adjudicate Fred as Jillian's dad could still proceed even if Jillian has a presumed father and other conditions exist.  For example, if a court determines the child's mother, Patricia, and the presumed father did not live together or engage in sexual intercourse during the probable time of conception, than a paternity suit may be maintained at any time. 7 Another situation where Fred would be allowed to seek genetic testing to adjudicate himself as Jillian's father would be if the presumed father in the picture was precluded from contesting his paternity of Jillian before her fourth birthday because he mistakenly believed he was the father due to misrepresentations from Jillian's mother Patricia.8

If a child does not have any other presumed, acknowledged, or adjudicated father, then a proceeding to adjudicate paternity may be brought at anytime.9 Thus, if Jillian has no presumed, acknowledged, or adjudicated father, nothing precludes Fred from seeking genetic testing to determine his paternity to her.

Court's Authority to Deny Genetic Testing

A court could deny a motion for genetic testing if it determines the mother's conduct or the presumed father's conduct estops them now from denying paternity. A court could also deny a motion for genetic testing if it would be inequitable to disprove the father-child relationship between the presumed father and a child.10

Who Pays for Genetic Testing

The cost for initial genetic testing must be advanced by a support enforcement agency if the agency is providing services in the proceeding.11 However, if an individual is rebuttably proved to be the father in genetic testing, the enforcement agency may seek reimbursement for the costs of genetic testing.12 Thus, in the fictional situation above, because the office of attorney general is providing services in the proceeding, the OAG office will bear the initial responsibility to bear the costs. However, if Fred is rebuttably proven through genetic testing to be Jillian's father, the OAG's office could seek reimbursement from Fred for the initial costs.  A party must also pay the initial costs for genetic testing where they request genetic testing, as per agreement between the parties or as otherwise ordered by a court.13

If you are in a similar situation as Fred, Jillian and Patricia and would like legal advice or  assistance in seeking genetic testing to prove or disprove a parental relationship, visit our contact page to find out how you may schedule a consultation.

Author's Information: Attorney Tracey A. Beecher is a family law practitioner. She represents clients with divorce, child support, child custody, property division in relation to divorce proceedings, and child protective services cases. She appears in courts within Brazoria, Fort Bend, Galveston, Harris, Liberty, Montgomery, and Waller counties.

Legal Disclaimer: Each person's situation and circumstances are unique. As such, this article is given to provide general information only. It is not legal advice nor is it intended as a substitute for legal counsel. Should the reader need legal advice or counsel, it is appropriate to seek the assistance of a licensed attorney.

 Bibliography

1 Texas Family Code § 160.502 (a)

 2 Texas Family Code § 160.621 (a)

 3 Id. at  (c)

 4 Texas Family Code §160.631 (c-d)

 5 Texas Family Code § 160.609 (b)

 6 Texas Family Code § 160.607 (a)

 7 Texas Family Code § 160.607 (b)(1)

 8 Id. at (b)(2)

 9 Texas Family Code § 160.606

 10 Texas Family Code § 160.608

 11 Texas Family Code § 160.506 (a)(1)

 12 Id. at (b)

 13 Id. at (a)