Legal Blog 2016
What Exactly is a Common Law Marriage?
By Sarah Wagner, Looney & Conrad, P.C.
There are many misconceptions about what is required for a couple to be informally married (aka married under common law) in Texas. Frequently, people will tell me they were formally married on a particular date but they had actually been informally married for much longer because they lived together while dating. It is also common for a person to say that they are “common-law married” when they would not qualify as such under Texas law.
It is more difficult to be common law married than you might think. A wise law professor of mine stated it is impossible to accidentally enter into a common law marriage. Yes, it is true that a couple who resides together might be common law married - however, that is only one of three requirements. In addition to living under the same roof, the couple must agree to be married and display to the public that they are, in fact, a married couple.
An agreement to be married is not the same as a proposal where thereafter the couple starts pouring their time and money into a wedding that will take place at some point in the future. For a common law marriage to be valid, the couple must agree to be married immediately. They agree that, from that point forward, they are husband and wife or husband and husband, or wife and wife after Obergefell v. Hodges (a case in which the Supreme Court of the United States declared that same-sex couples have a fundamental right to marry).
Additionally, the couple must display, or “hold out” to the public, they are a married couple. This needs to be done with such diligence that the friends and family of the couple believe they are married. Occasionally introducing your significant other to strangers as “your spouse” will probably not be enough to rise to a satisfactory level for a court.
If you do find yourself in a common law marriage, you are entitled to the same benefits as if you were ceremonially married. Couples who are ceremonially married get no preferential treatment over couples who are common law married. By the same token, they are also subject to the same restraints (such as the need for a formal divorce).
The biggest issue with common law marriage arises when one person says they were common law married and the other claims they were not. How can you possibly prove that you had an agreement to be married? What if there was an instant where you acted as though you were not married (e.g. you filed separate tax returns)? There are major issues in proving up a common law marriage. If you want to be treated as a married couple without the expense of a wedding, my best advice is to go to your county clerk and obtain a marriage license for less than $100. After the 72-hour waiting period, have a judge perform a short ceremony. This will also give you an opportunity to invite your family so they don’t resent you.
If you or someone you know has questions about common law marriage, call the Best Family Law Attorney today at Looney & Conrad, P.C. with offices in Houston and Hempstead, Texas. Our Hempstead Family Law Attorneys can help you with questions. Call today 979-826-8484 and ask for our Hempstead Family Law Attorney Sarah Wagner. Mention you saw this on our website and receive a FREE Family Law consultation (regularly $75).
By Richard Senasac, Attorney at Looney & Conrad, P.C.
The first and most important thing to know about tenant rights is that most of them come from the lease. The two best things a renter can do to protect him or herself is to HAVE a lease in the first place and read the lease carefully before entering into it.
Yes, the lease says what you think it says. If you have a written lease, it will likely be interpreted in plain language. If your landlord tells you that the lease agreement includes something that the lease does not plainly say or that is at odds with what the lease says; the written lease will control. The only way to modify a lease is by a written document signed by all parties. If the landlord scratches out a section of the lease or writes in something extra, the landlord and the tenant must both sign or initial it. Any agreement with the landlord must be fully spelled out in the lease. If it isn’t in the lease, it didn’t happen.
But there are rights outside of the lease. You also have the right to “quiet enjoyment” of the rented property. This means the landlord cannot evict you without cause or otherwise disturb your right to live in peace and quiet. If the landlord does attempt to evict you for no cause, prosecution in bad faith for harassment purposes leave the landlord liable for one month’s rent plus $100 and attorney’s fees under the Texas Property Code Section 92.004. If other tenants are bothering you, it is the landlord’s duty to protect you from their illegal or wrongful behavior. Most leases make activities that rise to the level of serious disturbances a violation of the lease. Also, unless provided for in the lease or unless the interruption results from bona fide repairs, construction, or an emergency, the landlord cannot interrupt utilities.
As I mentioned in a previous article, the law requires that the landlord repair any conditions that seriously and materially affects your health and safety and provide you with a fit place to live. The lease may even allow for you to make repairs yourself. The landlord does not have a duty to pay for or make repairs if you or your guests cause an unsafe or unhealthy condition through negligence, carelessness, abuse or accident. If the tenant has to make repairs of conditions affecting a tenant's health and safety, as long as the cost of the repair does not exceed $10,000, the tenant can go to justice of the peace court without an attorney to obtain a repair order that the landlord make the repair, reducing the tenant’s rent from the date of the first notice of the need to repair, giving a judgment against the landlord for one month’s rent plus $500, actual damages and costs and attorney’s fees under Texas Property Code Section 92.0563.
Also, the landlord must provide smoke detectors. This cannot be waived, even in writing. And the tenant cannot disable or remove the smoke detectors.
In general, a landlord must provide certain security devices such as window latches, deadbolt locks on exterior doors, sliding door pin locks, handle latches or sliding door security bars, and door viewers. If these devices are broken or missing, the tenant can send notice to the landlord requesting that this be corrected.
If the landlord has required a deposit, he must refund it within 30 days of the tenant surrendering the premises, unless the landlord provides a valid reason for withholding it. A requirement that a tenant give advance notice of surrender of the property as a condition for refunding is effective only if the requirement is in writing and underlined or in bold print. But the landlord doesn’t have to return the deposit or give a written description of damages until the tenant gives the landlord a written notice of the tenant’s forwarding address. The landlord may not charge you for normal wear and tear on the premises, such as normal wear on carpets, but may charge for actual abnormal damage, such as stains or burns on the same carpet.
If the landlord is in violation of any of the rights listed above, the tenant can hire an attorney to sue the landlord, contact the local tenant’s counsel or the Better Business Bureau. You can also file a complaint through the Attorney General’s Office.
If you or someone you know needs a Tenant's Rights Attorney, call the Best Tenant's Rights Attorney at 979-826-8484. Our Houston and Hempstead Tenant's Rights Attorneys are available to answer your questions. Call Looney & Conrad, P.C. today and ask to speak to a Texas Tenant's Rights Attorney.
You Could be Breaking the Law Every Day Without Even Knowing It
By Paul Looney, Attorney at Looney & Conrad, P.C.
Did you know it is a federal crime to be in possession of an undersized lobster? It doesn’t matter if someone gave it to you, if you bought it at a store, if it’s dead or alive, if you found it after it died, or even if you killed it while acting in self-defense. You can go to federal prison because of a lobster.
If the federal government has access to every email you’ve ever written and every phone call you’ve ever made, it’s almost certain they could find something you’ve done that violated a provision in the 27,000 pages of federal statues or 10,000 administrative regulations. You probably do have something to hide – maybe lots of somethings -- you just don’t know it yet.
The complexity of federal criminal law, arranged in several thousand sections of the United States Code, and given the infinite variety of factual circumstances that might trigger an investigation, make it difficult for anyone to know just when a particular set of statements or actions might appear be evidence of a crime.
And that’s just federal law. There is Texas state law. And of course, municipal codes in every city of the State.
And if you travel – 49 other states, and the District of Columbia, have their own laws and regulations.
Here are some crazy state laws in Texas:
1. The entire Encyclopedia Britannica is banned in Texas because it contains a formula for making beer at home.
2. It is illegal to take more than three sips of beer at a time while standing.
3. A recently passed anti-crime law requires criminals to give their victims 24-hours’ notice, oral or written, and to explain the nature of the crime they plan to commit.
4. It is illegal to drive without windshield wipers. You don’t need a windshield, but you must have the wipers.
5. It is illegal to shoot a buffalo from the second story of a hotel.
6. You can be legally married by publicly announcing a person as your wife/husband three times.
7. It is illegal to milk another person’s cow.
8. When two trains meet at a railroad crossing, each shall come to a full stop and neither shall proceed until the other has gone.
And here are a few dumb city laws in Texas:
1. In Austin, wire cutters cannot be carried in your pocket.
2. In El Paso, appearing in public places wearing a “lewd dress” is prohibited.
3. In Galveston, no person shall inhale fumes from model glue.
4. In Houston, beer may not be purchased after midnight on a Sunday, but it may be purchased on Monday.
5. In Richardson, it is illegal to do “U-Turns”.
Although it is obvious some of these dumb laws are really just old and irrelevant to our society today, most are still technically enforceable.
This is one of the reasons it is never wise to speak to police without a lawyer present – many people have gone to prison for things that they never suspected were illegal until they’d confessed to them and found themselves under arrest. Martha Stewart, for example, did not go to prison for insider trading: she was prosecuted and imprisoned solely for what she told Federal investigators. Just because a person is confident that they’ve done nothing wrong doesn’t mean that they haven’t done something illegal – it just means that they haven’t meant to break the law, and don’t think they broke the law. But it pays to have a lawyer by your side if the police want to speak to you… you never know when the topic of conversation may shift to baby lobsters.
If you or someone you know needs a Texas Criminal Defense Attorney to handle a "dumb law" case, call the Best Houston Criminal Defense Attorney today at 281-597-8818. Our Best Houston Criminal Defense Attorney is available 24 hours a day, 7 days a week. Call our law offices today for the Best Houston Criminal Defense Attorneys!
Tenant’s Rights - Repairs
By Richard Senasac, Attorney at Looney & Conrad, P.C.
One of the most common telephone calls an attorney gets is from tenants who feel that they are being abused by their landlords. An attorney is usually unable to help for several reasons including the amounts involved are too small to justify the expense of hiring a lawyer, there is no lease, or the lease the landlord has from a rental support site is geared to the landlord and the tenant has no place to turn. It is not uncommon, however, for attorneys and courts to handle disputes over commercial leases where the amounts in controversy are greater and the leases more thoroughgoing and complex.
Let’s start by assuming a fairly standard lease. Something is broken or leaking or not working. Here’s what to do:
1. Read the lease and see if the landlord is required to repair the problem. The landlord, outside of what is specifically mentioned by the lease, is only required to repair problems that affect the health and safety of the tenant. Examples of these have been vermin infestations, sewage leaks and faulty wiring.
2. Send a dated notice with a specific description of the problem to the landlord by certified mail demanding the problem be fixed in seven days. Keep a copy for your files, as well as the mailing receipt. If you are behind in your rent or otherwise in violation of the lease, the landlord can use this as a reason not to make the repairs.
3. If the landlord does not make repairs, send a second notice, again for seven days, in the same manner, stating that you will terminate the lease, sue the landlord or make the repairs yourself and deduct the cost from rental payments. Note that if you choose the last option, it is likely you will be sued by your landlord and should hire an attorney before doing this. If you have not taken all the proper steps, you may have to reimburse your landlord or may be evicted. However, it is an effective threat.
4. Additionally, Justices of the Peace now have the authority to order landlords to repair conditions affecting a tenant's health and safety, as long as the cost of the repair does not exceed $10,000. You can go to justice court without an attorney to obtain a repair order.
Now let’s say you demanded repairs and now your landlord is trying to evict you. Unless you are in breach of the lease, your landlord cannot evict you. Further, after giving the proper notice for repairs, your landlord cannot increase your rent, evict you, terminate your lease or otherwise retaliate for your demand for repairs for a period of six months. But if you are in violation of any part of your lease, the landlord can use it to justify his actions.
There are several good internet sites for tenant’s rights, some of which include forms tenants can use to officially notify their landlords of violations of the lease that the landlord must deal with. The Texas Attorney General offers one site. Many cities have “tenant’s councils” which provide help. A search for “tenant’s rights” can find many other sites. There are also free legal aid organizations.
The two most important things a renter can do to protect him or herself is to have a lease in the first place and read the lease carefully before entering into it. The potential tenant should also make sure that any agreement with the landlord is fully spelled out in the lease. If it isn’t in the lease, it didn’t happen.
If you or someone you know is having issues involving a landlord or tenant, call the Hempstead Business Law attorneys at Looney & Conrad, P.C. today! Our Texas Tenant attorney is here to help at 979-826-8484. For issues involving Landlord/Tenant disputes, call the Tenant's Rights attorneys at 979-826-8484
The Crime of Shoplifting
By Paul C. Looney, Attorney at Looney & Conrad, P.C.
There are about 27 million shoplifters in the U.S. today, or one of every eleven people. Men and women shoplift about equally as often and 75% are adults and 25% are teenagers. Shoplifting is usually not a premeditated crime and most shoplifters are “non-professionals” who say the excitement generated from “getting away with it” is the reward, rather than the merchandise itself. This excitement produces a chemical reaction resulting in what shoplifters describe as a “rush” or “high” feeling and drug addicts who become addicted to shoplifting describe it as equally addicting as drugs.
Shoplifting is the theft of merchandise from a store or business establishment. Although the crime of shoplifting may be prosecuted under general larcenystatutes, most jurisdictions have established a specific category for shoplifting. Statutes vary widely, but generally the elements of shoplifting are 1) willfully taking possession of or concealing unpurchased goods that are offered for sale 2) with the intention of converting the merchandise to the taker's personal use without paying the purchase price. Possession or concealment of goods typically encompasses actions both on and outside the premises.
What to do if you are suspected of shoplifting
If a store employee suspects you have shoplifted, he or she is not entitled to search you or your bags without your permission (even if they have a sign saying they can). The employee can ask you to stay but are only allowed to actively prevent you from leaving the store (using reasonable force, known as a “citizen’s arrest”) in limited circumstances. This includes two elements: 1) the goods they think you shoplifted are worth at least $1,000 and 2) it is between the hours of 9:00pm and 6:00am. The employee can call the police who can arrest you and then search your bags. The store can also issue a trespass notice. If the employee finds goods you have taken without paying for them, he or she has the right to recover those goods.
What the police will do with a shoplifter
· 14 years old or younger: Cannot be charged with theft; child care and protection laws will prevail.
· 14-16 years old: Can be charged with theft; most police give a warning or arrange an intervention instead. If given a warning, your parents will be contacted and a record of the warning will be kept in police records. If a formal caution is given, it is done at the police station with a parent or other adult present. You may also be required to go to youth court.
· 17 years or older: The police can arrest you for theft. You could also be given a Pre-Charge Warning which is a formal warning given after arrest for a minor offense and allows avoiding court which could result in a criminal conviction. If charged with theft, you could get diversion or you could have to go to District Court.
What sentence could I expect if I’m found guilty?
If under age 17, the judge may sentence you to supervision, community work or order you to pay a fine.
If you are an adult (aged 17 years or older), the maximum sentences for theft are:
1. up to three months in prison if what you’ve stolen is worth no more than $500
2. up to one year in prison if what you’ve stolen is worth between $500 and $1000
3. up to seven years in prison if what you’ve stolen is worth more than $1000
The District Court judge may instead sentence you to community service.You will also pay court costs. The judge will base the decision on factors such as the effect of the offence on the victim; your personal, family, community and cultural background; whether you’ve had any previous convictions and whether you plead guilty.
If a store accuses someone of shoplifting and the individual is acquitted or if a store makes an erroneous detention, the store may face claims of false imprisonment, extortion, defamation, or intentional or negligent infliction of emotional distress.
If you or someone you know has been accused of shoplifting, call the Houston Shoplifting Attorneys at Looney & Conrad today! The Houston shoplifting attorneys can be reached at 281-597-8818. The Hempstead Shoplifting attorneys can be contacted at 979-826-8484. Call the Texas shoplifting attorney Paul Looney today! Our Houston shoplifting attorneys are available 24 hours a day; 7 days a week. Call today for a FREE consultation!
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