Electronic Filing to be Compulsory in Bexar County on January 1, 2014

Trey Wilson, Lawyer in San Antonio, Texas wrote:

On December 11, 2013, the Supreme Court of Texas rendered an Order compelling electronic or "E" filing in all Texas counties by July 1, 2016.  The Order applies to civil cases (including family cases) in the district courts, statutory county courts, constitutional county courts and statutory probate courts on a graduated schedule based on population.

As a County with a population of more than 500,000, E-filing will be mandatory in Bexar County on January 1, 2014. Once a county is subject to mandatory E-filing, attorneys must E-file all documents in civil cases through TexFile. Unrepresented persons are permitted, but not required to E-file.

TexFile is billed as following the " toll-road model, but drastically reduc[ing] the cost of e-filing and electronic service.

The transition should be interesting for attorneys and court clerks, alike.

Chief Justice of Texas Supreme Court transmits "Call to Arms" to Legislature

On March 6, 2013, Chief Justice Wallace Jefferson addressed the Texas Legislature in the annual "State of the Judiciary" presentation.  Although traditionally considered a "health and funding" check on our state's courts, Justice Wallace characterized his speech this year as a "Call to Arms."

In his heartfelt address, which can definitely be considered as a departure from tradition, Justice Jefferson focused on a few universally important questions:

Is our system of justice is working for the people it has promised to serve? 

Do we have liberty and justice for all? 

Or have we come to accept liberty and justice only for some? 

With brutal honesty, Jefferson admitted that in many areas, the Texas judiciary falls far short of the standards set by a justice and equality-loving populace:

For those who can afford legal services, we have a top-notch judicial system. Highly qualified lawyers help courts dispense justice fairly and efficiently. But that kind of representation is expensive. A larger swath of litigation exists in which the contestants lack wealth, insurance is absent, and public funding is not available. Some of our most essential rights – those involving families, homes, and livelihoods – are the least protected. Veterans languish for months before their disability, pension, and educational benefits arrive. As a result of the recent financial crisis, lower- and middle-income homeowners and tenants face foreclosure and eviction. Ever-increasing numbers of consumers and small businesses have filed for bankruptcy. And few can afford a lawyer to guide them through these crises. 

The full transcript of the speech can be found HERE. It is most definitely worth a read.

Proposed Law Would Mandate Education for Texas Notary Public Applicants

San Antonio Texas  Attorney Trey Wilson wrote:

**Disclosure: Lest this post be construed as a dig at notaries, I hereby disclose that, in addition to being a lawyer, I am a Texas Notary Public.**

As a Texas lawyer with an active real estate practice, I daily encounter deeds, powers of attorney and other documents that are notarized.  I have also handled several real estate lawsuits where it is alleged that conveyance instruments are improperly notarized, or are outright forgeries.  

Frequently, the Notary Public will become a central witness in the case, with his or her act of notarization being central to the validity of a disputed document.  I have been amazed at how clueless some Notaries have proven to be.  In addition to not sufficiently maintaining records, there seems to be a trend of notaries neither reading nor understanding what they have notarized. Unfortunately, this can be fertile ground for litigation, and can make or break a case.

Obviously, this problem is widesperead.  Thus, two companinon pieces of legislation have been introduced this legislative session. They are SB 1037 and HB 1954.  Their iedntical language provides for an addition to Section 406.005 of the Texas Government Code (which governs the qualifications for notary public qualifications in Texas) to read as follows:

(c)  The applicant shall provide satisfactory proof to the secretary of state that the applicant has completed a course of study of not less that three hours on notary laws, procedures, and ethics. 

Another section of the bills seeks to require the Texas Secretary of State to "establish the standards of, and procedures for approving" the required course of study. 

While this requirement is undeniably vague, I believe that the bills are a good idea, and will improve the quality and reliability of notarized documents.  But my opinion is not global. 

The American Association of Notaries (a group of which I am a member as a Texas Notary Public) has opposed the bills on grounds that they are "vague" and "leave too many unanswered questions about the requirements that notaries will have to fulfill to be commisioned."

In an email that was presumably sent to all members, the AAN  raises another concern, which I believe is valid, but easily solved:

What we do not want to happen is that notaries in rural Texas will be required to drive to a larger city to sit in a classroom for a course of study that costs them $100-$200. If education laws are passed, we want them to be the right ones!   We want the requirements to include courses that are affordable and accessible for all Texas notaries.

 It will be interesting to track the outcome of these bills, and the position of the various interests weighing-in on them.

R L Wilson, P.C. Law Firm Now Accepts Credit Cards and Paypal

As part of the re-vamp and update of our flagship website R L Wilson, P.C. Law Firm now accepts credit card and Paypal payments online, over the phone, or as an added payment option for monthly invoices. The service is made available through a merchant account procured from the San Antonio Bar Association.

Our law firm merchant account is compliant with ABA and State Bar guidelines for credit acceptance. Unlike a standard merchant account, the Law Firm Merchant Account is designed specifically for the client-attorney transaction, and safeguards and separates client funds.

We hope that this new feature provides convenience to our existing and prospective clients, reduces our costs associated with billing and collections, and encourages prompt payment promptly by providing additional payment options.

Of course, we will continue to accept checks.

San Antonio Residents Fire Back At Homeowners Association and Builder

A group of residents of the West Oaks Estates subdivision in San Antonio, Texas are fighting back against what they believe is an unmeritorious attack by their homeowners association, and the builder/developer who controls the HOA. In a counter-suit filed in Bexar County District Court in San Antonio, Texas, the residents have accused the West Oak Estates HOA, Inc., and McMillin Development of breach of contract, real estate fruad, violations of the covenants, and conversion.

The counter-suit, which was filed in response to a series of suits initiated by the builder and HOA against 19 families who purchased their properties in the subdivision PRIOR TO the time that the builder recorded the covenants/restrictions. In the original suit the HOA and builder seek a judicial declaration that the properties are subject to the declaration of covenants and restrictions("CCRs") and to mandatory membership, despite the fact that the builder dropped the ball in timely filing the CCRs with respect to the residents' particular unit of the subdivision.

In the counter-suit, the residents deny the applicability of the restrictive covenants to their properties. In addition, they have alleged that membership in the HOA is not mandatory for them. In support of that argument, the residents have argued that the law in Texas, and even before Texas or the United States were established, provides that a covenant does not run with the land unless it "touches and concerns the land." It is clear from records recorded with the Bexar County Clerk that the restrictive covenants applicable to the West Oaks Estates HOA were not filed until AFTER each of the Counter-Plaintiffs purchased their properties.

The residents are represented by San Antonio attorney Trey Wilson, who has handled HOA litigation before both on behalf of and against homeowners associations. Wilson maintains that the West Oaks Estates HOA is not a proper Plaintiff in the lawsuit because there is no membership in the HOA by his clients. "Restrictive Covenants are treated by Courts as contracts, and since it is undisputed that my clients are not members of the HOA, there is no contractual privity between them and the HOA which would allow the HOA to bring this suit," said Wilson.

There is currently no trial date in the case.

Good Lawyer Needed...and Free Legal Forms Won't Cut It!

For grins and giggles, I did a Google search for "free legal forms" this evening. I was amazed to see 6,610,000 results returned in 0.13 seconds. Yes, six and one-half million hits! Heck, with that type of mass availability of documents for every conceivable transaction, who needs a lawyer?

There are literally millions of links to millions of sites offering everything from Wind Leases to Partnership Agreements, to complex Mortgage Loan Agreements...and they're all "free" for the taking. As a lawyer who routinely drafts Leases, deeds, powers of attorney, purchase and sale contracts, by-laws and other legal documents, I was more than a little disconcerted. Am I being obsolesced by the Internet -- just like travel agents and newspapers? What will I do? Is it finally time to pursue my lifelong dream of working as a Texas Game Warden? Do I need to trade in the ties for sunscreen and ballcaps?

Alas, after just a few minutes of following those links, I breathed a sigh of relief -- and maybe even slight disappointment. Turns out that those prophetic lyrics from Jimmy Buffett's "A Pirate Looks at 40" ("My occupational hazard being my occupation's just not around") weren't quite appropriate for me. In fact, I was instantly assured that the Free, EZ, Lawyer-in-a-box, Do-it-yourself, file it yourself, skip-law-school-and-the-bar- exam, forms are hardly any competition at all. Guess my time as a guardian of Texas' wildlife and natural resources will have to wait....

The internet has been called the "information superhighway." Its appeal has largely been the vast amount of information made available on it. All just a click away (better than being a "heartbeat away" I suppose). These days, you can find anything and everything on-line, much of which is yours with a simple click on the "download" button. But what are you really getting when you obtain free legal forms for use in your business, investments, and affairs? Far too often the truth is that you are getting exactly what you're paying for on a free site!

Legal forms have far reaching implications. They are significant and important. Lawyers do not give them out for free because they are powerful, and like Spiderman taught us all ..."great power requires great responsibility." Pre-packaged, and particularly free legal forms will often hurt you in the long run. Many times, they will end up costing much more than what you save by not hiring a lawyer to draft your legal documents based upon a thorough understanding of the particulars of your circumstances.

Here are a few basic and very serious concerns about pre-packaged Legal Forms.

1. The pre-packaged legal forms are designed very generally so that they enjoy broad applicability to large group of persons (the public, generally). They are not crafted to apply to your situation and facts. I call this "shotgun blast" law because the people pushing the generic forms get lots of "bang" from the bucks they spent posting the form documents. However, your important legal matters need a skilled rifle sniper who has intimate familiarity with your circumstances. Casting a bait net rarely yields a prize fish, and mass-appeal legal documents may very well miss important nuances of your situation!

2. Not all states or jurisdictions apply the same laws. For example, certain lease, contract and interest provisions which are perfectly legal and quite common in Pennsylvania may be frowned upon or perhaps even illegal in Texas. With free legal forms, you have no way of verifying which State the forms were drafted in, or which State's laws they track. The vast majority of disputes and transactions affected by legal forms are governed by state law. What is legal in New York or Louisiana may be illegal in Texas, and could void a contract that you need need to be valid. Without a lawyer's input, you have no way of verifying the applicability or legality of the provisions of a pre-packaged legal form.

3. The source of the free legal documents is often unknown. Anybody can upload to the internet a "form" or document they have crafted. I wouldn't be any less comfortable having an anonymous person draft my legal documents than I would having my mechanic review my X-Rays. What are the qualifications of the people posting the free documents? How do they make their money? Are there really 6.6 million benevolent souls who are also knowledgable in the law and capable of posting free databases to Google? I think not....but neither of us will ever know.

In sum, free, downloadable legal forms are simply not trustworthy or reliable. They are generally not worth the paper they are printed on, or the pixels they consume on your computer monitor. The money you save by not paying a lawyer to draft and review your legal documents could be spent several times over if your flimsy legal document ends up causing you to get sued...or worse. I know you'd rather pay anything than legal fees. I understand that many people think lawyers charge too much. Please understand, we lawyers generally charge a rate for the value of our services. Our time is our stock in trade. At my law firm, we spend that time in an effort to give you confidence and peace of mind. Surely that's worth a few hundred dollars an hour? In the end, it may save the several thousand we will be forced to charge to defend an invalid legal document.

Trey Wilson is a real estate, construction, water and general litigation attorney in San Antonio, with a Texas-wide law practice. He routinely drafts real estate and other legal documents including deeds, partnership agreements, Leases, Purcase and Sale Contracts, Powers of Attorney, Mortgage Agreements, and Promissory Notes. Though he dreams of being a Texas Game Warden, he has determined that the internet has not obsolesced his line of work, and that he continues to provide a very valuable service to his clients (apologies to Mr. Jimmy Buffett). For that reason, he'll buy more ties, and hold-off on memorizing the Texas Parks & Wildlife Code...for now. Trey Wilson may be reached at 210/223-4100 or www.sa-law.com

TRCC Bites Back to Sunset Slam -- Beleagured Construction Commission Issues Response and "News Release" to Abolition Recommendation

In a somewhat telling attempt to salvage an agency's very existence and preserve the jobs of professional bureaucrats, the TRCC published a "News Release" in Response to the Texas Sunset Advisory Committee's recommendation that TRCC be dismantled. The News Release contains only a portion of TRCC "management's response" to the Sunset Report issued in late August, but purports to "offer solutions" to "issues identified but not addressed" in that report. Recall, if you will, that the Sunsetters determined that TRCC was essentially dysfunctional and needs to be abolished. (See earlier blog posts). My favorite portion of the management response is a quote by the regulatory agency's Chairman, Paulo Flores:

“The Texas Residential Construction Commission adamantly disagrees with the Sunset Commission staff recommendation to eliminate builder oversight in Texas. Just because the Commission does not fit that staff’s standard and somewhat restricted view of what a regulatory agency should look like does not mean that the regulatory structure is fundamentally flawed.”

Chairman Flores' statement seems to dance around the fact that, ever since its creation by the Legislature in 1977, the statutory purpose of the Sunset Advisory Commission is to "identify and eliminate waste, duplication, and inefficiency in government agencies." In order to perform that function, the Sunsetters "question the need for each agency, look for potential duplication of other public services or programs, and consider new and innovative changes to improve each agency's operations and activities." In what I consider to be an insightful conclusion, Sunset Review of the TRCC has made the "sun shine" on that agency's flawed existence.

As an attorney who regularly represents Texas homeowners who suffer from construction defects or have been cheated, defrauded and sometimes plain robbed by unscrupulous builders, my experience has been that the Texas Residential Construction Commission is biased in favor of builders and against owners. In my opinion, this bias has been played out by the TRCC through blatant adoption of cumbersome Rules, expensive processes, and ineffectual communications. Though I deal with legal issues relating to residential construction on a daily basis, I have experience virtually nothing positive about the TRCC scheme.

Like TRCC Chairman Flores, I believe that Texas' 28,000 builders need regulatory oversight. I also believe that Texas homeowners need strict consumer protections against unethical builders. However, I disagree that the TRCC is the best agency to provide that oversight -- especially given its cozy relationship with builders, and the absence of any enforcement teeth.

In the end, the next Legislature will decide how best to handle TRCC. Though the agency has some friends in the Lege, it is worth noting that, in most cases, agencies under Sunset review are automatically abolished unless legislation is enacted to continue them.

Read the Sunset Advisory Commission's Staff Report on the TRCC here. The entire TRCC Response is available here.

WRONGFUL EVICTION ACTIONS AND INSURANCE COVERAGE

In certain circumstances, a landlord may become liable to a tenant for "wrongful eviction". A case for damages for wrongful eviction may include any of a number of different claims that arise under Texas law, and liability for wrongful eviction may be based upon intentional misconduct, or even accidental or innocent failure to comply with complicated eviction procedures set-forth in the Texas Property Code. Such liability may be premised upon the mere service upon the tenant of a Notice to Vacate which does not comply with applicable law. It some instances, liability for multiple and punitive damages may even be based upon an oral threat or statement made by the landlord to the tenant. For this reason, it is recommended that landlords seek advice from competent and experienced legal counsel before communicating with their tenants in any way that may be construed as an eviction threat.

Some landlords maintain wrongful eviction insurance coverage to insure agsinst such claims. This type of coverage is often available under commercial rental property insurance policies, but not under a typical Texas homeowner's policy. However, there are some limitations to wrongful eviction insurance coverages.

In the recent New York case of Mamaroneck Avenue Corp. v. Hartford Fire Ins. Co. (N.Y.App., 2nd Dept., April 22, 2008), a New York Appellate court held that invasion of an organization’s leasehold interest is not a covered risk under the “personal and advertising injury” provisions of a Commercial General Liability policy. The underlying complaint against the insured landlord alleged that such landlord “embarked on a plan of harassment and coercion with the intention of causing [claimant] to terminate its leasehold,” which included allegations of “[t]respassing upon [claimant's] premises and interfering with [claimant’s] business by appearing, unannounced, accompanied by Fire Department personnel and the City Building Inspector . . . to solicit or elicit non-existent fire code violations.” The liability policy’s definition of “personal and advertising injury” included “wrongful eviction from, wrongful entry into, or invasion of the right of private occupancy of a room, dwelling or premises that a person occupies, committed by or on behalf of its owner, landlord or lessor.” Noting that other "personal and advertising injury" offenses distinguish between "persons" and "organizations," the court held that wrongful eviction claims apply only to natural "persons." In reaching its conclusion, the court relied on cases from other jurisdictions, including Stonelight Tile v. California Ins. Guar. Assn., 150 Cal App 4th 19; Mirpad, LLC v. California Ins. Guar. Assn., 132 Cal App 4th 1058; and Supreme Laundry Servs. v. Hartford Cas. Ins. Co., 2007 US Dist LEXIS 18134 (ND Ill. 2007).

TENANT's PERSONAL PROPERTY -- ADEQUATE COLLATERAL FOR UNPAID RENTS?

Is the landlord ever justified in seizing a Tenant's property?

Yes, but only if the Tenant is delinquent on the rent and the lease gives the landlord a lien on the Tenant's property. Such a provision must be underlined or in bold print in the lease.

In seizing the property under a landlord's lien, the landlord may not take exempt property, but may remove non-essential items (TVs, stereos, VCRs, CD players), provided s/he can enter the apartment peacefully. But s/he must do the following:

The landlord must leave a notice of entry along with a written inventory of the items removed.
The notice must state the name, address, telephone number of the person whom the tenant may contact about the amount owed.
The notice must show the amount of delinquent rent and state that the items will be promptly returned when the full amount of delinquent rent is paid.
The landlord cannot collect or charge for parking, removing, or storing items unless authorized previously in a written lease.
In addition, a landlord may remove property if a tenant abandons the unit. If a landlord obtains a court order of eviction, the landlord may also remove the tenant's property, but this must be done under the supervision of a law officer.

Can the landlord sell a Tenant's possessions in order to recover back rent?

Unless otherwise permitted in the written lease, any property seized by a landlord under a landlord's lien cannot be sold or disposed of. If the lease permits such a sale, the landlord must give the tenant 30 days written notice before the date of the sale. This notice must be sent to the tenant by both first class and certified mail, or Return Receipt Requested at the tenant's last known address.