February 28th, 2010
I got quoted last week in the Houston Chronicle’s Pearland blog Ultimate Pearland last week. We have had two guns on school grounds situation come up in the last year. In both cases there were adults involved and in both cases there were no charges filed by the authorities. I have had a lot of folks ask me what the law is on guns and schools. The main law is the Gun-Free School Zones Act implemented as part of the 1990 Crime Act. 18 U.S.C. § 922(q). It reads in part:
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B) Subparagraph (A) does not apply to the possession of a firearm—
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(iii) that is—
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; or
(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.
The way I read it, don’t bring a loaded gun on school property unless you are in law enforcement or crossing school grounds with permission to get to your deer lease or duck blind. (We don’t do a lot of hunting here in Pearland so this is probably not much an issue.) According to the first Ultimate Pearland article, police determined that it was a mistake on the part of the Dell employee and did not pursue the matter further. He did not “knowingly possess” the gun on school property.
>>>Tom is a law school buddy and gun rights activist. He is correct that the court did find the original law to be unconstitutional. It was amended and has stood for about 10 years. Still, unless you have the resources to be a test case all the way to the supreme court, I stand by my comments above. As to whether the gun was loaded, the Pearland Police were unable to determine at the time of the report so this element was also not met.
Posted in Uncategorized | 2 Comments »
January 31st, 2010
There has been a lot of fear mongering over the last year about end of life issues. To hear some politicos tell it there is a proposed change that would go something like:
-Granny, you have had a good life, but we ran a cost/benefit analysis and you are no long cost productive so the doctor is here to talk about transitioning you out….
To set the record straight, I know of no health care reform proposals that will kill your grandmother. All joking aside, I welcome the renewed focus that the legal issues surrounding end of life and critical care issues are receiving. Decisions as important as what care you receive at the end of your life should not be made in a place of anxiety or fear. The time to prepare is now before the need arises.
Most states, including Texas have an advance directive law. This Texas law was passed in 1999 with broad bipartisan support. I usually include living wills, also called advanced directives, in all of my estate planning packages. The advanced directive is an important part of any estate plan. When used in conjunction with other documents the advanced directive provides control over end of life issues.
In the standard advanced directive you decide what care you want if you are incapacitated and unable to speak for yourself. Do you want to be kept alive with respirators even if the doctor thinks there is no hope of recovery or do you want to be allowed to die as gently as possible? You decide and record your wishes now, before you need it. Most of us have never had this discussion with friends and family. It is hard to imaging slipping a discussion like this into casual conversation over Sunday lunch or a night out with friends.
“Mom, can you pass the hot sauce. Oh and by the way…if, in the judgment of my physician, I am suffering with a terminal condition from which I am expected to die within six months, even with available life-sustaining treatment provided in accordance with prevailing standards of medical care I want you to a) make sure that all treatments other than those needed to keep me comfortable be discontinued or withheld and my physician allow me to die as gently as possible; or b) make sure that I be kept alive in this terminal condition using available life-sustaining treatment. ”
We just don’t like to talk about these things. Unfortunately, if the need were to arise suddenly, as it often does, there would likely be conflicting ideas about what you wanted. I spoke to a young man at the Urban Harvest Farmers Market yesterday, who told me that he was sure his family would ignore his stated wishes if he were in a terminal condition. (This is of course what family does: They generally know better, or think they do, than we do.) By creating this document now, and having this conversation with friends and family now, you can ensure that you will receive the care you want.
Once you have executed this document, you will want to give copies to your healthcare providers and ensure that friends and family are aware of its contents. In the midst of a difficult time, this simple act can provide some peace and control for you and your family. Rosy and Lulu at the Farmer’s Market
Tags: advanced directive, death, death panel, end of life issues, health care reform, living will, shivo
Posted in Uncategorized, elder care, estate planning, living will, probate | No Comments »
January 14th, 2010
This last week I was talking with collegue in another industry about how technology has changed the legal landscape. I’m a serious convert to legal technology. In my practice I use VoIP, virtual IT for backup and electronic filing with the courts. Technology allows me to do more work and serve my clients as if I have a huge fulltime staff. A recent study found that the typical American has the equivalent of 100 full time servants because of all of the time saving technology.
For example, I have recently aquired a portable scanner that runs off USB power. It is small enough to tuck in a laptop case. I recently had a will signing at a client’s home and was able to make copies and pdfs of the documents while we discussed her upcoming travel and cancer treatment plans. Instead of the week or so turnaround on returning executed documents by mail, I was able to hand a package of legal documents, including a CD containing copies of the powers of attorney, to my client at the close of the meeting.
My collegue, who works in the office supply industry, seemed impressed with my use of technology. (I don’t think he was just looking to sell me more stuff). He said that lawyers are some of the least tech saavy people he deals with. In my own legal career I have seen the same. Lawyers over a certain age were taught that “Lawyers don’t type.” He pointed out that as lawyers become more tech saavy, the industry will adapt and tech skills will become part of the job.
I was recently at lunch when my phone rang. It was a client who needed a particular document that afternoon. She had called the office looking for me and thanks to technology her call had rolled until it found me, in Dallas 276 miles away from my office. I was able to get her what she needed from my phone without leaving my Dallas lunch. The client never really knew that I was away from my desk.
So the good news is that I can work anytime from anywhere. The bad news is that I can work anytime from anywhere.
As a lawyer who once got paid in organic sweet potatoes and who once scared off a sales person because I annouced I had a sick chicken in the law office bathroom, I’m pretty amazed by the state of technology. By as my friend pointed out technology is now just part of the job.
Tags: blawg, cloud computing, lawtech, locavore, technology
Posted in Uncategorized | No Comments »
August 17th, 2009
These are my top five I have seen in doing probate and estate planning.
1. I don’t have enough money for it to matter/Can’t I avoid probate?
There are provisions where you can get sometimes get by without opening an administration but why risk it? If you have debts an administration will be needed. If there is real estate there will need to be an administration. Texas probate is not as bad as you have been told. As much as I enjoyed Bleak House by Dickens where the entire estate was consumed by legal costs, Probate in Texas is much easier. With a properly executed will the duties of the executor are generally simple and not costly.
2. I can do it all myself with stuff off the internet or a form book. You may be able to. However, there are pitfalls in the probate code that flumox even experienced attorneys. Every estate has a different set of needs. An attorney familiar with the process can more effectively draft a plan to accomplish your goals.
3. Failure to account for the entire estate. It’s important to account for everything and understand where it will go under your will. I often draw flow charts to help clients visualize where everything will go. Often, clients will forget collections and personal items that they want to pass on to specific heirs. Do you have jewelry, collections or family heirlooms that you want to pass on? Are there mineral rights or royalties you have forgotten? You should talk to your attorney about these items and plan who will received these assets.
4. Failure to plan for incapacity. This is not a fun area to discuss, but there is a real chance that you or someone in your family may face long term incapacity. There is a court proceeding called guardianship, covered in a previous post, which appoints someone to make decisions for you. A court appointed guardian can handle financial matters, make health decisions and generally take care of the daily decisions that an incapacitated person needs. A good estate plan, however, will include documents appointing persons to handle these duties without the need for court intervention. You can decide who will care for you in the event of incapacity. More important in some families, you can decide who you do not want to make these decisions for you.
5. Failure to have an advanced directive or Living wills. The nation saw what a worst case advanced directive or living will scenario could be like in 2005 with the Terry Shiavo case. End of life decisions that should be personal and private, were debated by the entire nation. In Texas, one can complete a simple form that makes your end of life wishes clear. Had Terry Shiavo had this simple form the controversy surrounding her case would have been avoided. Because of the attention that end of life issues are getting as part of the health care reform agenda, I’ll be covering the advanced directive in greater detail in a later post.
So those are my top 5. I recommend talking about your plan with your attorney and your family prior to needing it. No one likes to think about these matters but planning ahead makes these transitions easier for all involved.
Tags: advanced directive, death panel, end of life, estate planning, guardianship, living will, power of attorney, probate
Posted in Uncategorized, elder care, estate planning, guardianship, probate, wills | 1 Comment »
June 16th, 2009
A few weeks ago, I spent a Monday afternoon in Galveston Probate court. The island is really coming back and doing great though it has a long way to go. I am consistently amazed by the folks in the Galveston Courts. Judge Burwell lost her house to Ike. Her clerk had to swim out of her house because of flooding from the storm surge. But the Monday after Ike (which hit on a Friday night) they were back in court working hard. It’s been eight months and we’re all starting to get back to some semblence of normalcy. The hearing was a contested guardianship matter. Often it is hard to find anyone willing to serve as guardian of a proposed ward. Care of an incapacitated adult can be rewarding but it is also a hard job. It was great to see two qualified applicants.
It occured to me that there is a need to explain the answer two key questions in discussing guardianship with clients: what is it and why is it needed.
What is a Guardianship? A guardianship is a legal proceeding to appoint an caretaker for an incapcitated individual. There are two kinds of guardianship: Guardianship of the person, with the authority to make decisions regarding where the ward lives and medical care and Guardianship of the Estate which has power over financial decisions. These powers can be split or all vested in a single person. The Guardian must post bond, take an oath and file annual reports. The court will issue Letters of Guardianship which give the Guardian the power to act on the ward’s behalf.
The applicant files an application with the appropriate court. The court then appoints an Attorney ad Litem to represent the proposed ward. The Ad Litem meets with the proposed ward, reviews financial and medical records and generally represents the proposed ward. After a hearing, if there is sufficient evidence, the court may find the proposed ward is incapcitated, that a need for guardianship exists, and that the applicant is qualified to serve as guardian.
When does a guardianship become necessary? Sometimes a person, because of mental or physical condition, is unable to provide food, clothing or shelter for himself or herself; care for his or her own physical health; or manage his or her own financial affairs. After a court proceeding with a finding of a need of guardianship, the applicant is appointed as guardian of the proposed ward with the authority to make decisions for the ward regarding financial and personal matters.
There a couple of ways that a guardianship of an adult can come about. Often the family of an individual realizes that there is a need for help. With the U.S. population aging we are seeing more cases of dementia, Alzheimers and other forms of incapacity. In other cases, Adult Protective Services gets a referral from emergency services such as hospitals or police that an individual needs assistance.
As a family member can’t I make these decisions? No. You cannot walk in to your mother’s bank this afternoon and close her accounts if she does not have dementia, so why would you be able to if she does? There has to be some legal authority for you to handle matters. You can plan ahead by getting a Financial Power of Attorney and Medical Power of Attorney that becomes effective upon incapcity, but often people do not think of this until it is too late. At that point, there is a need for a court proceeding as described above. In a coming post I’ll discuss avoiding guardianship and alternatives to guardianship.
A good resource for guardianship information is the Texas Guardianship Association:
http://www.texasguardianship.org/
Kevin Murphy Law Guardianship Page
Tags: , elder care, elder law, guardianship
Posted in elder care, estate planning, guardianship, probate, wills | 1 Comment »
May 25th, 2009
Possible reprieve from the ever expanding indemnity clause…
Have you ever had a construction contract with an indemnity clause like this:
“Subcontractor shall indemnify, defend and hold harmless the Contractor, and its officers…from and against all liability, loss, cost or expense (including attorney’s fees) by reason of liability imposed upon the Contractor, arising out of or related to Subcontractor’s work or, whether caused by or contributed to by the Contractor, any third parties, or any other party indemnified herein.”
You can find yourself liable for property damage caused by others, OSHA fines caused by others environmental fines or damage. You are on the hook for everyone. All my construction clients are proud folks who will stand behind their work. A clause like this makes you assume the risk of parties beyond your control. Worse, the “arising out of the work” moves the standard from negligence to perfection. So if anything goes wrong (and in construction something will) and it arises out of or is related to your work you get to indemnify and defend.
Owners and developers often approach these clauses with a take it or leave it attitude. Let’s be honest these clauses are cooked up by bowtie wearing lawyers who want to reduce or eliminate their client’s liability. That’s why you get a lawyer to draft your contracts. But on the other side subcontractors are caught between signing the contract and hoping that insurance will cover anything or fighting the clause and probably losing the job.
Well in the midst of all the hoopla in Austin there is a bill pending that we hope will pass. SB555 makes these clauses void as against public policy.
Sec. 502.002. AGREEMENT VOID AND UNENFORCEABLE. A provision in a construction contract is void and unenforceable as against public policy if it requires an indemnitor to indemnify, hold harmless, or defend another party to the construction contract, or a third party, against a claim to the extent that the claim is caused by the negligence, fault, breach or violation of a statute, ordinance, or governmental regulation or rule, or contractual breach of the indemnitee, its agent or employee, or any third party under the control or supervision of the indemnitee, other than the indemnitor, its agent, employee, or subcontractor of any tier, and the claim arises from:
(1) bodily injury or death, except for the bodily injury or death of an employee of the indemnitor, its agent, or subcontractor of any tier;
(2) damage to property;
(3) any other type of damage; or
(4) a fine, penalty, administrative action, or other action assessed by a governmental entity directly against the indemnitee.
Each party would be liable for its own negligence and could not transfer liability by contract or other means. Good news for my construction clients and I hope it passes. You can follow the bill’s progress here: http://www.capitol.state.tx.us/BillLookup/BillStages.aspx?LegSess=81R&Bill=SB555
[*UPDATE: This bill did not make it out of the House. Call your senators and representatives.*]
Kevin M. Murphy provides a full range of legal services to the construction industry, from assisting with code compliance, contract drafting and review, lien and debt collection, and court appearances.
Tags: construction law, defend, hold harmless, indemnification, indemnify, legislative news, SB555
Posted in Government | 1 Comment »
May 5th, 2009
I do a lot of wills and other “planning” documents in my practice. Usually, the clients are young couples with children who want to make sure that everything is taken care of. I have had a couple of cases where the client is a person who has recently been given bad news by the doctor. We usually don’t think of wills as something that will be used within the next year but it does happen.
So do you need a will? Most people I deal with are not “rich” by any measure. The typical estate consists of a house with a mortgage, a couple of cars, some bank accounts and retirement. PeopleI often find that clients do much to avoid probate. Bank accounts can be set up as payable on death (POD) or joint tenants with rights of survivorship (JTWROS). Retirement and investment accounts can be set up with a named beneficiary. The question these clients often ask is, “Why do I need a will? If I can transfer all of these assets with a simple administrative form (and NO LAWYERS) why should I go throught the hassle and expense of hiring a lawyer?”
There are a couple of real advantanges to having a lawyer prepare a will and other estate planning documents for you. In Texas, a properly executed will makes the process of transfering assets at death easy and fairly inexpensive. All that is required in a typical probate after the filing of the will is a short prove up hearing, notice to creditors and a return of an inventory, appraisement and list of claims. If you have minor children, a will can include provisions determining who will care for the children in the event of you and your spouse both dying.
If you die without a will there is a long process of administration in which there is an attorney for the estate and at least one attorney for the heirs. You also need to have a proceeding to determine who the heirs are. In a dependant administration of the estate, your attorney must file a motion for court approval of every transfer, sale and expense of the estate. If you have minor children a dispute over guardianship of the children could leave them in limbo for months.
Call today to set up an appointment to discuss getting these important documents prepared for you.
Tags: , estate planning, guardianship, lawyer, wills and probate
Posted in Uncategorized | No Comments »
April 4th, 2009
I went to get my haircut yesterday. I go to Jim’s down the street here in Pearland. He is in the strip center between the Big Humphrey’s and the locksmith. It’s a proper men’s barber shop with two chairs, clipper cuts and animal heads on the wall. I’m usually the youngest customer. The cuts are good, quick and cheap. I always think about Garrison Keillor’s put down “$100 haircut riding around on a nickle head.” I hate to run the risk.
So yesterday while I was waiting he was cutting the hair of a white haired older gentleman. I chatted with the waitresses from Big Humphrey’s who were waiting at Jim’s for their boss to arrive. We talked about the TV Judge dealing with a messy/crazy divorce and I assured him and the other patrons that this was nothing compared to some of my current cases.
When it came to my turn, I noticed that Jim had apparently not cleaned the clippers very well. You see, there, mixed in with my dark brown hair, was a lot of the white hair that must have come from the previous customer. Jim’s has had a rough time of it lately with some family problems but I was really shocked. I was also shocked at how well the white hair was mixed in with my dark brown hair. Poor Jim. I hope he gets things straightened out or I’ll need to get a new barber. My younger brother said I should report him to the TDLR, or just look in the mirror…not sure what he means.
Posted in Uncategorized | No Comments »
December 31st, 2008
In my first year as an attorney I was not happy working for someone else, so I decided to go to work for the only lawyer I could really respect…me. I read everything the state bar, the American Bar Association and the library had about opening a law firm. [One of the things I know is that there is always another book to read. For example, when we found out we were pregnant with our first child, D'Arcy and I compiled an annotated bibliography on the topic.] I ran the numbers and talked it over with my wife. There was no way it would work. There is just too much to do and the money is hard to come by. Also, I had already committed to run for the vacant Texas House seat. Too much to do in not enough time. The secret is to jump off the cliff and keep flapping your arms til you learn how to fly.
Of course, I jumped off the cliff and I have had a great year but also an eventful year to say the least.
The election was bigger than any of us thought it would be. While I was not successful in my bid for election (this time) it was a great honor to be on the ballot as history was being made. I met so many great people. Also, I spent a great deal of time briefing issues that I was unaware of just a year ago-aquaculture, public school finance and ground water conservation districts to name a few.
In July I had a burglary and lost a laptop and a prized telecaster. That still hurts. (The tele more than the laptop).
In September we had some weather–IKE. I lost power for nearly two weeks in the office. I learned how to practice law without the convenience of a electricity. I learned to use a car battery to run my modem so that I could e-file and meet deadlines. I worked as a volunteer lawyer for the Houston Bar Association Legallines hotline, gave free legal advice to clients, cleared trees and made coffee on a campfire. I enjoyed the vacation but there were constant reminders that I had been very fortunate. I was in court in Galveston County shortly after Ike. All of the other attorneys, including the judge, had suffered some loss to their homes. One attorney, who had been in the same office for forty years, had two feet of mud in his office.
October and November were dedicated to the election. I did not sleep much during this time. There is always one more thing to do. I will do this again and would encourage everyone to think about running. I’m excited to see what this new year holds on the political front.
As the year ends, things are quieting down. However, I work through the holidays. There are two areas of my practice that are extremely busy this time of year: Estate Planning-People want to wrap things up before the end of the year. Divorce-People want to make a change in the new year.
So, one year on I’m still enjoying working for myself. It has been a crazy year and I am looking forward to continuing to serve my community. I’ve become the “Lawyer you know” for a lot people. I enjoy the service aspect of this job. People often call me on the worst day of their lives and, in my small way, I am able to help.
Posted in Uncategorized | No Comments »
December 24th, 2008
My office has prepared this motion and made it available to clients for pro se filing. No representation as to recipient’s actual status, Naughty or nice, is made by this firm, its agents or assigns.
No. ____________
IN RE __________________________ § IN THE SANTA COURT
§
A PERSON ON THE §
§
NAUGHTY LIST § TEXAS DIVISION
MOTION FOR REMOVAL FROM THE NAUGHTY LIST
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes _________________________, Person on the Naughty List in the above entitled and numbered cause, and makes this Motion for Removal from the Naughty List maintained by the clerk of this court, and for good cause shows the following:
1. ______________ has engaged in numerous Good Deeds in the past year.
2. ______________ has made consistent use of Good Manners in the past year.
3. ______________ has been respectful of others.
4. ______________ has remembered to flush and wash his/her hands.
5. ______________ has turned over a new leaf and engaged in a consistent pattern of NICE behavior in the past year.
6. The price of coal and the negative effects of coal on the environment both weigh against its inclusion in ____________ ‘s stocking.
7. Local Rule 3.000 states, “There’s room for everyone on the Nice List.”
WHEREFORE, PREMISES CONSIDERED, _________________prays that this Court grants the Motion for Removal from the Naughty List maintained by the clerk of this court and place the name of __________________________ on the NICE list.
Respectfully submitted,
x________________________
[eds. I got an e-mail back from one of my clients concerned that this was real and that she needed to file it. I'm pretty sure that she had not really read the motion prior to responding. I hope you have had a Nice List year. Merry Christmas]
Tags: Christmas, Motion Practice, Naughty List, Santa
Posted in Christmas | 1 Comment »
