DWT – the new driving offense

Driving while texting. Or DWCW — Driving While Communicating Wirelessly. Some cities have had ordinances on the books banning DWT for some time, and we all know the no-DWT in school zones. But this is comprehensive.

I am going to shamelessly steal an excellent write-up Jerry Bullard that was recently communicated, but not wirelessly while driving!

As of September 1st, texting and using other types of electronic messaging while driving is illegal in Texas.  HB 62 prohibits drivers from using “a portable wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped.”  Under the new law, “electronic message” means “data that is read from or entered into a wireless communication device for the purpose of communicating with another person.”  However, it is an affirmative defense to prosecution if a driver uses a portable wireless communication device in conjunction with a hands-free device or to do, among other things, the following: (1) navigate using a GPS or other navigation system; (2) report illegal activity, summon emergency help, or enter information into an app that provides information relating to traffic and road conditions to app users; (3) read an electronic message that the person reasonably believed concerned an emergency; or (4) to activate a function that plays music.  Of course, drivers may still get pulled over if a police officer suspects them of texting or using the device for other prohibited purposes.

HB 62 includes provisions intended to preempt local texting-and-driving ordinances; however, it does not necessarily supersede stricter bans (i.e., hands-free laws) that currently exist in many Texas cities.  . . . .  Also, here is a link to Dallas attorney Jeff Rasansky’s blog, which provides an excellent overview of the law (post-HB 62) and summarizes several municipal ordinances currently in effect: http://www.jrlawfirm.com/blog/texas-texting-and-driving-laws/#hands-free.

Violations of the law enacted by HB 62 are punishable by a fine of $25-99 for first-time offenders; $100-200 for repeat offenders. HB 62 also provides that, if an accident caused by prohibited conduct results in the death or serious bodily injury of another person, the driver can be charged with a Class A misdemeanor punishable by a fine not to exceed $4,000 and confinement in jail for a term not to exceed one year (in addition to any other charges or penalties).

— From an email by Jerry D. Bullard of Adams, Lynch & Loftin, P.C., Grapevine, TX. (with permission)

Veteran’s post-divorce disability waiver sticks former spouse

Veteran’s post-divorce disability waiver affects former spouse

The case

An important case where considering a property division with a service member. The case is HOWELL v. HOWELL, certiorari to the supreme court of arizona, No. 15–1031. Argued March 20, 2017—Decided May 15, 2017.

The short answer

Service member and spouse divorced, then he retired and she began getting 50% of his retirement pay. 13 years later, the Air Force classified him as partially disabled. As required in receiving disability pay, he waived $250 per month. Retroactively, ex-spouse’s part was also reduced. SCOTUS says she’s stuck.

Planning point

Build in a contingency plan that compensates her if a post-divorce disability determination occurs.

Case report

The following is as reported from Legal Information Institute at Cornell Law School.

The Uniformed Services Former Spouses’ Protection Act authorizes States to treat veterans’ “disposable retired pay” as community property divisible upon divorce, 10 U. S. C. §1408, but expressly excludes from its definition of “disposable retired pay” amounts deducted from that pay “as a result of a waiver . . . required by law in order to receive” disability benefits, §1408(a)(4)(B). The divorce decree of petitioner John Howell and respondent Sandra Howell awarded Sandra 50% of John’s future Air Force retirement pay, which she began to receive when John retired the following year. About 13 years later, the Department of Veterans Affairs found that John was partially disabled due to an earlier service-related injury. To receive disability pay, federal law required John to give up an equivalent amount of retirement pay. 38 U. S. C. §5305. By his election, John waived about $250 of his retirement pay, which also reduced the value of Sandra’s 50% share. Sandra petitioned the Arizona family court to enforce the original divorce decree and restore the value of her share of John’s total retirement pay. The court held that the original divorce decree had given Sandra a vested interest in the prewaiver amount of John’s retirement pay and ordered John to ensure that she receive her full 50% without regard for the disability waiver. The Arizona Supreme Court affirmed, holding that federal law did not pre-empt the family court’s order.

Held: A state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay to receive service-related disability benefits. This Court’s decision in Mansell v. Mansell, 490 U. S. 581 , determines the outcome here. There, the Court held that federal law completely pre-empts the States from treating waived military retirement pay as divisible community property. Id., at 594–595. The Arizona Supreme Court attempted to distinguish Mansell by emphasizing the fact that the veteran’s waiver in that case took place before the divorce proceeding while the waiver here took place several years after the divorce. This temporal difference highlights only that John’s military pay at the time it came to Sandra was subject to a future contingency, meaning that the value of Sandra’s share of military retirement pay was possibly worth less at the time of the divorce. Nothing in this circumstance makes the Arizona courts’ reimbursement award to Sandra any the less an award of the portion of military pay that John waived in order to obtain disability benefits. That the Arizona courts referred to her interest in the waivable portion as having “vested” does not help: State courts cannot “vest” that which they lack the authority to give. Neither can the State avoid Mansell by describing the family court order as an order requiring John to “reimburse” or to “indemnify” Sandra, rather than an order dividing property, a semantic difference and nothing more. Regardless of their form, such orders displace the federal rule and stand as an obstacle to the accomplishment and execution of the purposes and objectives of Congress. Family courts remain free to take account of the contingency that some military retirement pay might be waived or take account of reductions in value when calculating or recalculating the need for spousal support. Here, however, the state courts made clear that the original divorce decree divided the whole of John’s military pay, and their decisions rested entirely upon the need to restore Sandra’s lost portion. Pp. 6–8.

238 Ariz. 407, 361 P. 3d 936, reversed and remanded.

Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Alito, Sotomayor, andKagan, JJ., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment. Gorsuch, J., took no part in the consideration or decision of the case.

How to Kill a Perfectly Good Lawsuit with a Motion to Show Authority in Texas

I loved seeing this blog post. While on the bench, I actually saw a couple of these. While this blog discusses it in terms of a business environment, I can imagine other situations in Guardianship and Estate cases. Continue reading

Email required now by State Bar

email graphicAmazing, I think back to January 1, 1997 when I first took the bench as Judge of the 33rd Judicial District of Texas and no lawyer in the five counties 1 was using email. No lawyers had web sites. Possibly the Llano District Clerk had a web site but I’m now sure about that. Continue reading

  1. Burnet, Blanco, Llano, San Saba and Mason

Trial court may not use “best interest” test to deny enforcement of mediated settlement agreement

In In re Lee, 2013 Tex. LEXIS 809 (Tex. Sept. 27, 2013) 1 the Texas Supreme Court in the preamble to the opinion states

“If a mediated settlement agreement meets [certain requirements], a party is entitled to judgment on the mediated settlement agreement notwithstanding . . . another rule of law.”Tex. Fam. Code § 153.0071(e) (emphasis added). We are called upon today to determine whether a trial court abuses its discretion in refusing to enter judgment on a statutorily compliant mediated settlement agreement (MSA) based on an inquiry into whether the MSA was in a child’s best interest. We hold that this language means what it says: a trial court may not deny a motion to enter judgment on a properly executed MSA on such grounds. Accordingly, we conditionally grant the writ of mandamus. (emphasis added)

The Court framed the issue thusly:

The sole issue before us today is whether a trial court presented with a request for entry of judgment on a validly executed MSA may deny a motion to enter judgment based on a best interest inquiry.6 While Texas trial courts have numerous tools at their disposal to safeguard children’s welfare, the Legislature has clearly directed that, subject to a very narrow exception involving family violence, denial of a motion to enter judgment on an MSA based on a best interest determination, where that MSA meets the statutory requirements of section 153.0071(d) of the Texas Family Code, is not one of those tools. Accordingly, the trial court in this case abused its discretion by denying entry of judgment on the MSA and setting the matter for trial.7

In re Lee, 2013 Tex. LEXIS 809, 9 (Tex. Sept. 27, 2013)

Suffice it to say that there were grounds alleged upon which a trial court could reasonably conclude that enforcing the MSA was not in the best interest of the child. Nevertheless, with this bright-line ruling it is clear that even the most egregious circumstance calling for a different “best interest” result will not deter enforcement of the MSA. What then, does this mean?

It means that in a mediation, if all other prerequisites for a viable MSA are met, parents can agree to terms calculated to result in harm to a child. A couple of questions come to mind. First, does the mediator have ethical issues resulting from consummation of the MSA if he believes that harm is likely to result to a child? Does he have an obligation to make a referral to the Texas Dept of Family & Protective Services?

If TDFPS learns of the agreement, could there be sufficient grounds from the MSA alone for a removal — after a hearing or even an emergency removal?

Questions. Perhaps answers will follow. In the meanwhile, the opinion is worth reading for its extensive analysis and reasoning.

Enforcing the SAPCR — a missed opportunity for mediation

As we know, the most frequently mediated cases tends to be in the area of family law. Divorce, modification of the terms of a SAPCR of the past, all impose a huge cost of money and emotion to achieve.

Then why don’t enforcement issues come to mediation? Is it due to the additional emotion (on top of all of the emotion of the past which may never have been resolved) or just that litigants don’t think about it. It’s probably some of both and perhaps the additional cost if it’s child support being sought by an obligee party who has waited to seek enforcement until the financial situation is dire.

The SAPCR enforcement is idea for pre-filing mediation. Why not try to resolve it before re-traumatizing everyone with fresh litigation which will also, no doubt, include the children where support or possession is involved.