2009 Texas Legislative Update!

The 81^st Session of the Texas Legislature passed many laws this year, making many changes affecting Texans.  In an effort to give you some of the major highlights, I have combed through the most recently enacted bills and made the following summary to give you an idea of some of the changes affecting many of us, and in some cases all of us.   The following survey is by no means comprehensive, and my statements are not meant to be legal advice specifically for you. If you have questions about the new laws discussed here, or the ones not included, feel free to e-mail or call me and I’ll be happy, as always, to hear from you!

COMPUTERS & INTERNET FRAUD

New Civil Remedies for Victims of Computer Hacking!

Effective September 1, 2009, the law now prohibits a person who is not the owner or operator of a computer from knowingly causing the computer to become a “zombie” or part of a “botnet.”  This refers to the predatory practice of internet hackers who cause your computer to download small programs that make your computer an unknowing slave to the hacker’s scheme.  A “zombie” is a computer that has been enslaved by such a program.  A “botnet” is a network of two or more zombies.  It is illegal to knowingly create, use or offer to use a zombie or botnet to perform certain actions, and it is also illegal to purchase, rent or othewise gain control of a zombie or botnet created by another person.  A person who has incurred loss or disruption of his or her business activities can bring a civil action against the offender.  A proper plaintiff may seek an injunction against further violations, damages, and in certain cases the court may order treble damages for violations that constitute a pattern or practice.  The law also allows the plaintiff to recover reasonable costs of litigation.  If your computer repairman says your computer is corrupted by a zombie or a botnet, call The Law Office of Eric R. Little to discuss your rights.

CRIMINAL LAW

Close Family Members Can Expunge a Deceased Loved One’s Criminal Record

A new law passed in the last legislative session now makes it possible for a close family member to seek an expunction of criminal records of their deceased relative, if that relative would have qualified for an expunction while alive.  Aside from honoring the dead, this procedure might help some surviving family members who don’t want an expungible record to cloud their family tree. At times, law enforcement may look into an accused’s family members’ records when evaluating prosecutorial options. If your dead family member was acquitted of a charge, or arrested and never charged before the statute of limitations expired, or otherwise could have had their arrest record expunged, you may want to consider using this new law to clear their name.

Rape Victims Now Have the Right to Forensic Medical Examination Before They Talk to the Cops

A sexual assault victim now has the right to “rape test kit” and forensic medical examination at a health care facility, without first reporting the incident to law enforcement.  If a victim arrives at the health care facility within 96 hours of the assault, consents to the examination, and has not first reported the assault to law enforcement, the health care facility must provide diagnosis and treatment, including a forensic medical exam.  If the facility doe not offer those services, the facility must refer the victim to a health care facility that does.  DPS is required to reimburse the health care facility for the forensic portion of the exam, and the Attorney General’s office reimburses DPS.  Under the new laws, a victim cannot be required to assist police or prosecutors in an investigation as quid pro quo for receiving a medical examination. This law should make it easier for sexual assault victims to seek treatment for their injuries while preserving evidence, without first having to file a complaint with police, and should enable more sexual assault cases to be reported.

HIV Testing for Accused Sex Offenders Now Mandatory at the Victim’s Request

House Bill 1985 amends the Code of Criminal Procedure to require, rather than authorize, a court, at the request of the victim of an alleged sex offense, to order the defendant to undergo standard diagnostic tests for human immunodeficiency virus (HIV) infection and other sexually transmitted diseases not later than 48 hours after an indictment for the offense is presented against the defendant or the defendant waives the indictment.  Should a law enforcement agency be unable to locate the defendant during the 48-hour period allowed for the testing, the time period does not run until the law enforcement agency locates the defendant and the defendant is present in the jurisdiction.  The bill requires a court to order a defendant who tests positive for HIV to undergo any necessary additional testing.

Child Sexual Assault Victims Now Have the Right to Foreclose on a Predator’s Assets

A parent or guardian filing a lawsuit on behalf of a sexually abused child now has the ability to reach the sex offender’s assets to cover the victim’s counseling and medical treatments.  House Bill 3246 amends the Civil Practice and Remedies Code to provide that a writ of attachment is available to a plaintiff who has general grounds for issuance of the writ and who institutes a suit for personal injury arising as a result of conduct violating provisions of the Penal Code relating to sexual assault of a child, aggravated sexual assault of a child, continuous sexual abuse of a young child or children, or indecency with a child.  The bill authorizes a court to issue a writ of attachment in such a suit in an amount the court determines to be appropriate to provide for the counseling and medical needs of the plaintiff and requires a plaintiff or the plaintiff’s agent or attorney who applies for such writ of attachment to file with the court an affidavit stating the grounds for issuance and the amount of the demand.

New Criminal Penalties for Internet Stalking and Harassment

House Bill 2003 amends the Penal Code to create the third degree felony offense of online harassment for a person who uses the name or persona of another person to create a web page on or to post one or more messages on a commercial social networking site without obtaining the other person’s consent with the intent to harm, defraud, intimidate, or threaten any person.  The bill creates the Class A misdemeanor offense of online harassment for a person who sends an electronic mail, instant message, text message, or similar communication that references a name, domain address, phone number, or other item of identifying information belonging to any person without obtaining the other person’s consent, with the intent to cause a recipient of the communication to reasonably believe that the other person authorized or transmitted the communication, and with the intent to harm or defraud any person.  If the actor commits the Class A misdemeanor offense with the intent to solicit a response by emergency personnel, the penalty is enhanced to a third degree felony.  The bill establishes a defense to prosecution for an online harassment offense.

Those Nifty Knives at the Checkout Line Are Not “Switchblades”

In an effort to clarify the Texas Penal Code provisions that prohibit possession of certain dangerous weapons, the Legislature has now officially modified the definition of a “switchblade knife” to exclude a knife that has a spring, detent, or other mechanism making it easier to close than to open.  To qualify for this exclusion, a knife that otherwise would have been a switchblade under the former law must require exertion applied to the blade by hand, wrist or arm in order to open it.  I read this to clear up any confusion over whether those showy knives at the hardware store checkout counter are really legal.  But be careful … if your knife is long enough, it might still be illegal to carry it in public.

Smuggling a Cell Phone to an Inmate is Now a Third-Degree Felony

Apparently in response to the recent controversy over the widespread use (and abuse) of cell phones by TDC inmates, the Lege has now made it a Third-Degree Felony (2-10 years in TDC, fine up to $10,000) for a person to acquire a cell phone for an inmate to use, provide a cell phone to another for delivery to an inmate, or make a cell phone payment for an inmate.  The packet of bills passed on this topic also included provisions to beef up jail administrators’ and judges’ abilities to detect and intercept wireless communications at jail facilities.

Tip: Just to be on the safe side, if you have friends or family in TDC, you may want to leave your cell phones in the car before you check in for a jail visit!

Waiver of Filing Fees for Certain Expunctions

Effective September 1, 2009, a person acquitted of a criminal charge may petition for an expunction without having to pay a filing fee, if the petition is filed within 30 days after the date of the acquittal and the person is not subject to prosecution for any other offenses arising from the same episode upon which the acquittal was entered.

FAMILY LAW

Trying to Kill the Co-Parent Is Now Grounds to Lose Parental Rights

Senate Bill 1838 amends the Family Code to add to the convictions for which a court is authorized to order the involuntary termination of the parent-child relationship a parent’s conviction of criminal attempt to murder the other parent of the child or criminal solicitation for the murder of the other parent.

Divorcing Spouses Have New Rules Regarding Division of Property

Previously, the law allowed a spouse to assert a claim to part of the other spouse’s separate property by claiming “economic contribution.”  This meant that one spouse could claim partial ownership in the other spouse’s business or land based on a claim of time, effort, maintenance, repairs, and improvements contributed by the claimant spouse.  Now, under the new law, that type of claim is only relevant to a claim for reimbursement.  In other words, such claims now don’t speak to the parties vested interests in property of the marital estate, but are now relevant to claims for offset when asking the court to determine how much money a spouse should take.  Practically this means that, while prior to the new law your spouse might claim a share of your separate property business, her claims for contribution to that business will now be considered as a strict claim for money.

No More Child’s Affidavits for Primary Custody

Prior to this new law, a child over the age of twelve could file an affidavit in a custody suit saying with whom he or she preferred to live.  Many parents have used this procedure to gain custody after they lost the battle in the first round (divorce).  And, many have seen this as a problem, because a child may be promised something in exchange for his affidavit, and an affidavit can be given weight without cross examination.  Now, the new law takes away the affidavit procedure, and simply allows for the child to express his or her preference to the judge in chambers.  This may encourage a more truthful process, in allowing the judge to determine the credibility of the child’s expressed preference.

A Divorce May Now Be Accelerated In Certain Family Violence Cases

The Texas Family Code has been amended to create an exception to the 60-day waiting period before a divorce decree may be issued if the court finds that the respondent has been finally convicted of or received deferred adjudication for an offense involving family violence against the petitioner or a member of the petitioner’s household or if the petitioner has an active protective order or an active magistrate’s order for emergency protection based on a finding of family violence against the respondent because of family violence committed during the marriage.

Parents May Designate Extended Family Members to Make Decisions In the Child’s Best Interest

Senate Bill 1598 amends the Family Code to permit a parent or both parents of a child to enter into an agreement with the child’s grandparent, adult sibling, or adult aunt or uncle to authorize the relative to make certain decisions regarding the child relating to medical treatment, health and automobile insurance coverage, day-care or preschool enrollment, participation in extracurricular, civic, social, or recreational activities, obtaining a learner’s permit, driver’s license, or state-issued identification card, employment, and public benefits. The bill specifies elements required to be contained in such an agreement, establishes procedures for the execution and termination of an agreement, and sets out the duties of the parties to an agreement and the conditions under which an authorization is void or voidable.  Look for more updates regarding how this new law works in upcoming newsletters.

EMPLOYMENT LAW

Wage Claims Under the Texas Payday Law Must be Filed Within 180 Days

Senate Bill 741 amends the Labor Code to clarify that the 180-day deadline for an employee to file a wage claim with the Texas Workforce Commission is a matter of jurisdiction.  The bill requires a commission examiner to dismiss a wage claim for lack of jurisdiction if the wage claim is filed later than the 180th day after the date the wages claimed became due for payment.

REAL ESTATE LAW

Property Owners Now Have 60 Days to File In Court for Review of a Final Appraisal Decision

House Bill 986 amends the Tax Code to increase, from 45 to 60 days, the allowable time period that a party has to file a petition for judicial review of a final order of an appraisal review board, after the party has received notice of that order. It clarifies that the petition may be filed at any time after the hearing but before the 60-day deadline. The bill requires the comptroller of public accounts to prescribe the form necessary to allow a property owner to designate the person to whom a refund, following a property tax appeal to the courts, must be sent. The bill establishes required form contents and mailing options. The bill requires a taxing unit to send a refund to the property owner unless either the final judgment in an appeal designates to whom and where a refund is to be sent or the prescribed form is filed with a taxing unit before the 21st day after the final determination of an appeal and designates a person and address different from the property owner. It prohibits a taxing unit from sending a refund before the earlier of that 21st day or the date the form is filed. It includes additional clarifications regarding refunds and the form and includes associated transition provisions.

Deployed Military Personnel Can Ask the Court to Hold Off the Foreclosure

House Bill 3857 amends the Property Code to authorize a court to temporarily stay a foreclosure proceeding or adjust the obligations of the contract secured by the lien if the action is filed during a servicemember’s period of active duty military service or during the nine months after the conclusion of active duty and requires the court to do this on the application by a servicemember whose ability to comply with the obligations is materially affected by the member’s service. The bill prohibits a sale, foreclosure, or seizure of property under a mortgage, deed of trust, or other contract lien from being conducted during the servicemember’s period of active duty or during the nine months after that service concludes unless the sale, foreclosure, or seizure is conducted under a previous court order, or under an agreement in which the servicemember waives such rights. The bill creates a Class A misdemeanor offense for a person who knowingly makes or causes to be made a sale, foreclosure, or seizure of property during a military servicemember’s period of active duty military service or during the nine months after the date on which that service period concludes. The bill entitles a dependent of a military servicemember to these protections if certain conditions are met.

VEHICLES AND TRAFFIC LAWS

Meet the New Texas “Department of Motor Vehicles”

Beginning on October 1, 2009, the new Texas Department of Motor Vehicles will be responsible for enforcing the laws regarding motor vehicle sales and leases, vehicle title and registration, and motor carrier registration.  TxDOT will be transferring its powers to the new DMV between October and December 2009, and the governor will appoint a nine-member board to oversee the new agency.  Check with your local DPS branch office or county annex to find out if the new DMV will involve new locations for vehicle title and registration processing.

The Child Safety Seat Industry Just Got a Boost!

Up until recently, any child under 4 years old had to be safe and snug in a child safety seat while riding in a motor vehicle.  The new law, passed in Senate Bill 61, amended the Transportation Code to require kids under the age of 8 to strap into a safety seat, unless the child is taller than 4′ 9″.  The bill makes failure to use the safety seat an offense punishable by a fine of not more than $25 for the first offense and not more than $250 for a second or subsequent offense, rather than not less than $100 or more than $200. The bill adds a 15-cent court cost on conviction of an offense of failing to secure a child passenger in a motor vehicle and sets forth provisions relating to the collection, deposit, and uses of the court cost.

Enhanced Penalties for Driving With an Invalid License and No Insurance

House Bill 2012 amends the Transportation Code to enhance the penalty for the offense of operating a motor vehicle without a valid driver’s license from a Class C misdemeanor to a Class B misdemeanor if it is shown at trial that the person was operating the motor vehicle in violation of the motor vehicle liability insurance requirement, and to a Class A misdemeanor if it is shown at trial that the person was operating the motor vehicle in violation of that requirement and caused or was at fault in a motor vehicle accident that resulted in serious bodily injury to or the death of another person.

Stiffer Penalties for Parking in Handicapped Spaces!

House Bill 3095 has enhanced the penalty for an offense relating to misuse of parking spaces or placards for persons with disabilities as follows:

• first offense — a fine of not less than $500 or more than $750

• second offense — a fine of not less than $550 or more than $800 and 10 hours of community service
• third offense — a fine of not less than $550 or more than $800 and not less than 20 or more than 30 hours of community service
• fourth offense — a fine of not less than $800 or more than $1,100 and 50 hours of community service

• fifth offense — a fine of $1,250 and 50 hours of community service

Changes to the Auto Window Tinting Laws

Senate Bill 589 amends the Transportation Code to require a “sunscreening device” (window tinting)  that is placed on or attached to the windshield or a side or rear window of a motor vehicle to have a label that states that the light transmission of the device is consistent with requirements exempting a windshield or other window with a sunscreening device from a misdemeanor offense relating to restrictions on windows of a motor vehicle.  The bill specifies that the exemption for a wing vent or window with a sunscreening device is for a wing vent or window that is to the left or right of the vehicle operator and adds an exemption for a side window that is to the rear of the vehicle operator.  The bill makes it a misdemeanor punishable by a fine not to exceed $1,000 if a person in the business of placing or attaching transparent material that alters the color or reduces the light transmission to a windshield or side or rear window fails to install the required label between the transparent material and the windshield or window of the vehicle.

Tip: If you have window tinting that lacks the required label, you may find yourself having to explain this to a police officer.  The new law only applies as a criminal penalty to tinting installed after September 1, 2009.  Law enforcement should be aware of this fact and should be understanding if you tell them that you had your tinting installed awhile ago.  Otherwise, you might have to explain this to a judge. If you have doubts about the legality of your window tinting, it might be a good idea to take your car or truck to a reputable window tint dealer and have it checked out.

Deferred Adjudication in Traffic Cases Just Got Easier

A new law makes clarifications that should make it easier for traffic courts to place defendants on deferred adjudication. Now, it may all be done by mail—if the court goes along with it.  House Bill 1544 amends the Code of Criminal Procedure to require a court to dispose of the case, without requiring a court appearance, of a defendant who is charged with a misdemeanor punishable by fine only and who mails or delivers in person to the court a plea of “guilty” or “nolo contendere” and a waiver of jury trial, if the court receives the plea and waiver after the time the defendant is scheduled to appear in court but at least five business days before a scheduled trial date. The bill authorizes a judge who defers further proceedings and places on probation a defendant found guilty of such a misdemeanor to impose a special expense fee on the defendant in an amount not to exceed the amount of the fine that could be imposed on the defendant as punishment for the offense. The bill sets forth provisions relating to the collection and payment of the fee and removes a provision authorizing the imposition of a special expense if a complaint is dismissed after the deferral period.  The provision for setting up a deferred adjudication by mail is not mandatory, but it may encourage the courts to set up policies and systems allowing defendants to “mail in” their deferred adjudication agreement, avoid a mark on their driver’s record, and never have to go to court!

WILLS, ESTATES & PROBATE

A Power of Attorney Alone May Not be Enough to Allow Your Agent to Deal With Property Taxes

House Bill 1203 amends Tax Code provisions relating to a property owner’s designation of an agent for property tax purposes to require that the written authorization making the designation be on a form prescribed by the comptroller of public accounts. The bill excludes the designee from those who may sign the form on behalf of the owner. It provides that the designation does not take effect with respect to an appraisal district, or a taxing unit participating in the appraisal district, until a copy of the designation is filed with the district. The bill clarifies the requirement for timely filing of a motion or protest by an owner’s agent, providing that if the appraisal review board sets a time and place for a hearing appearance, the authorization of an agent is considered to be filed at or before the hearing if a copy of the authorization is filed at such time and place.

Tip: When planning your Estate and designating a Power of Attorney to manage your real estate matters, you may be well advised to sign a Comptroller’s designation form to authorize your power-of-attorney to act on your behalf in property tax matters.  The signed form should be kept with your will, advance medical directives and other important papers, in a secure place for your trusted family or friends to access in the event of your incapacitation.  This can help your designated agent deal with your property tax problems without the delays and expenses involved with guardianship proceedings.

Forfeiture Provisions in Wills Meant to Prevent Litigation Will Now be Harder to Enforce

Under the new law passed this year, it will be much harder for people to prevent probate litigation through provisions in their will.  Previously, wills were commonly drafted so that any heir who filed a lawsuit contesting the will itself, or certain provisions in the will, would end up forfeiting their inheritance.  These provisions were not iron-clad lawsuit prevention, however, since if the will was ultimately thrown out due to fraud or incapacity, then the forfeiture provisions in the will would be void, and the heirs would end up litigating over their inheritance anyway.  Under the new law, if an heir files a lawsuit, has “probable cause” to do so, and maintains the suit in good faith, then a forfeiture provision in the will is null and void and has no effect.  It will be interesting to see how the courts interpret “probable cause,” but this law may help weed out frivolous probate lawsuits while allowing sincere claimants an opportunity for their day in court.

Motor Vehicles Transferred Through a Will are Subject to a Nominal Sales Tax

House Bill 2654 amends the Tax Code to provide that the $10 tax imposed on the recipient of a gift of a motor vehicle applies only if the recipient obtains the vehicle from a spouse, parent or stepparent, grandparent or grandchild, child or stepchild, sibling, guardian, or decedent’s estate or if the recipient is a 501(c)(3) organization exempt from federal income taxation and the vehicle will be used for the purposes of the exempt organization. Any other transaction in which a motor vehicle is transferred from one person to another without payment of consideration is treated by the bill as a sale, and under other applicable code provisions is taxed at the motor vehicle sales tax rate of 6-1/4 percent, in which case the value of the vehicle is considered to be 80 percent of the standard presumptive value as determined by the Texas Department of Transportation based on a designated guidebook. The bill amends provisions relating to the joint statement filed in connection with a gift transfer to require the principal parties to make a joint statement describing the relationship between the parties and to require that such a statement be notarized.