The crime of tampering with a witness applies to both civil and criminal cases and can involve either offering or providing "any benefit" to the witness or acting to coerce a witness. Witness tampering can involve influencing a witness to testify falsely, influencing a witness to avoid testifying or influencing a witness to not press criminal charges. "Any benefit" is a very broad term and could include promises of money, assistance with a lawsuit or helping covering the costs of a move or vacation. Case law summarized below shows that it does not take much to be considered coercion. All lawyers should be very careful in dealing with witnesses, especially those witnesses who are crazy, who have a history of making false allegations or who tape record the promises and threats they receive about their testimony. The best practice is to tell any potential witness,"I just want you to tell the truth," early and often. Section 36.05 of the Texas Penal Code states in part: Sec. ... Read More >
Trey Apffel Elected State Bar President!
Trey Apffel of League City won the run-off to be the State Bar of Texas President-Elect. It is awesome to see such a good thing happen to one of the planet's truly fine human beings (and a great attorney). Trey was in the middle of a medical malpractice jury trial in County Court No. 3 when Judge Dupuy was indicted and arrested. The judge called the lawyers to the bench right after lunch and indicated he had to be gone that afternoon and might not be able to go forward the next day. Sure enough, the judge had some other business to attend to and a mis-trial was declared. ... Read More >
The Texas Constitution Has Two Guarantees to the Right to a Jury Trial
I recently argued to Judge David Farr that the amount of reimbursement due the community estate is not a jury question because reimbursement is once again an equitable remedy and historically, juries were not used in courts of equity. Judge Farr went with the Pattern Jury Charge book but then the parties stipulated on the amount. It turns out my argument was wrong because the Texas Constitution contains two provisions which guarantee the right to trial by jury (at least in district courts).Taylor v. Taylor, 63 S.W.3d 93, 99 (Tex. App. - Waco 2001, no pet.) provides this explanation: Article I, section 15 is a part of our Bill of Rights. See TEX. CONST. art. I, § 15. It provides in pertinent part: The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency. TEX. CONST. art. I, § 15. Article I, section 15 guarantees the right of trial by jury for those ... Read More >
Important New Case on Waste in Divorce Cases is a Game Changer
A recent decision from the First Court of Appeals out of Judge Hellums' court (won by Michael Childs) provides a new twist to claims of waste or constructive fraud. In Puntarelli v. Peterson, No. 01-11-01120-CV (Tex. App. - Houston [1st Dist.] Feb. 14, 2013), the wife asked the age old question "where did all of the money he earned go?" The wife was awarded a $196,000 judgment for wasting community funds because the husband could not account for how he spent his significant income during the five years this informal marriage/divorce case was pending. The important message from this case that should prompt almost all non-monied spouses to allege constructive fraud is this - the wife did not have to prove any specific improper transfers of community funds. The wife merely had to show that the husband's expenses were much less than his income and then the burden shifted to the husband to show where the money went. Proving how one spent money years ago is often not easy, but failure to ... Read More >
When Does An Inmate Have The Right To Participate In Trial?
At some point, we all handle cases where the opposing party is incarcerated and pro se. The recent case of Camp v. Camp, No. 07-11-00282-CV (Tex. App. - Amarillo 8/3/2012, no. pet.)(mem. op.) summarizes the law on when the inmate is entitled to be present at trial. The Texas Supreme Court in the case of In re Z.L.T., 124 S.W.3d 163, 165-6 (Tex. 2003) also noted the factors courts should consider in making arrangements for the inmate to be brought to court or to participate in some alternate fashion (by telephone, deposition or even affidavit): Following the Seventh Circuit's decision in Stone v. Morris, 546 F.2d 730, 735-36 (1976), Texas courts of appeals have recognized a variety of factors that trial courts should consider when deciding whether to grant an inmate's request for a bench warrant. These factors include the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner's ... Read More >
File For a Mandamus If a Judge Refuses to Sign an Order Or Set a Hearing
The Houston First Court of Appeals granted a writ of mandamus against a trial judge who refused to set a civil case for trial in case of In re Harrell, No. 01-11-00760-CV (Tex. App. - Houston [1st Dist.] 1/26/2013) (mem. op.)(orig. proc.). The Court of Appeals stated: A court of appeals may not prescribe the manner in which a trial court exercises its discretion, but it may, by mandamus, require a trial court to exercise its discretion in some manner. A trial court may not arbitrarily halt proceedings in a pending case, and mandamus will lie to compel a trial court to entertain and rule on motions pending before it. A trial court is required to consider and rule upon a motion within a reasonable time. If a motion is properly filed and pending before a trial court, the act of considering and ruling upon that motion is ministerial, and mandamus may issue to compel the trial court to act. (citations omitted). ... Read More >
A Quote to Give a Judge Who Feels Resolving a Case Quickly Is More Important Than a Fair Trial
The Supreme Court of Texas has stated: Although a goal of our system is to resolve lawsuits with "great expedition and dispatch and at the least expense," the supreme objective of the courts is "to obtain a just, fair, equitable and impartial adjudication of the rights of litigants under established principles of substantive law." This means that "convenience and economy must yield to a paramount concern for a fair and impartial trial." And basic to the right to a fair trial--indeed, basic to the very essence of the adversarial process--is that each party have the opportunity to adequately and vigorously present any material claims and defenses. Southwestern Refining Co., Inc. v. Bernal, 22 S.W.3d 425, 437 (Tex.2000)(citations omitted). ... Read More >
Student Loans Incurred Before Marriage Are Separate Debt
A trial court cannot order one spouse to pay the student loans of the other spouse which were incurred before the marriage. The Houston First Court of Appeals has ruled: The obligation to pay the loans arose before marriage and should be treated as Sophia's separate debt-separate debt that could not be assigned to the non-incurring spouse. Accordingly, we conclude the trial court erred in assigning Sophia's premarital student loan debt to Albert because that student loan debt constituted Sophia's separate debt. Love v. Love, 217 S.W.3d 33, 35 (Tex. App. - Houston [1st Dist.] 2006, no pet.). ... Read More >
Gifts to Family Members Are Not Always Constructive Fraud or Waste
Marshall v. Marshall, 735 S.W.2d 587 (Tex. App. - Dallas 1987, writ ref'd n.r.e.), involved a two and a half year marriage and a husband who, during the marriage, earned $542,315.72 and gave $63,375.58 (11.7%) to his daughter and grandson. The trial court's ruling that these gifts were not constructive fraud and was upheld by the court of appeals, which said: The courts consider three primary factors in determining whether the wife's claim of constructive fraud exists: the size of the gift in relation to the total size of the community estate, the adequacy of the estate remaining to support the wife in spite of the gift, and the relationship of the donor to the donee. We conclude that the evidence supports the trial court's finding of no constructive fraud. The community received $542,315.72 during the marriage as Woody's special community property. The contested gifts of $63,375.58 are only 11.7 percent of this amount. The remaining $478,940.14 in community funds from the ... Read More >
The Ultimate Property Division Spreadsheet
Click here to download my Inventory comparison chart. Two years ago I put on a half day seminar for about 300 lawyers called the "Ultimate Property Division Seminar." I talked to a lot of judges about what they wanted and did not want to hear in a property division trial. Here is the one thing they all wanted -- a unified spreadsheet which shows both parties' values and proposed divisions and which provides space for the judge's ruling. This ideal spreadsheet can only be prepared after you have both spouse's proposed values and divisions. The spreadsheet has to be printed on very wide ledger size paper (or two letter size pages taped together) and has columns for: -- Asset/Debt -- Husband's Proposed Value -- Wife's Proposed Value -- Court's Value (blank - for judge to fill in) -- Husband's Proposed Division -- Wife's Proposed Division -- Court's Division (blank) The spreadsheet also shows the differences between the parties on what is separate property. I color ... Read More >