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Originally published by Teri Rodriguez.
To highlight some of the posts that stand out from the crowd, the editors of Texas Bar Today have created a list from the week’s blog posts of the top ten based on subject matter, writing style, headline, and imagery. We hope you enjoy this installment.
8. The ADA Throws a Curveball at America’s Favorite Pastime – Charles Wallace of Creedon PLLC @CreedonPllc in Frisco
6. Feral Felines Are Focus of Appellate Court’s Findings on Fracas Over Domestic Animal Exclusion – Verne Pedro of the Merlin Law Group @MerlinLawGroup in Houston
4. Is the MMA Unconstitutional? Eminem’s Publisher Sues Spotify – Peggy Keene of Klemchuk LLP @K_LLP in Dallas
3. Who Pays When Your New Employee Brings Your Competitor’s Trade Secrets? – Cleve Clinton of Gray Reed & McGraw @GrayReedLaw in Dallas
Originally published by Academic Support.
I’m a deer in the headlights. Throughout law school, I lived in what I’ll call a perpetual state of “socratic fear.” I muddled through classes for the first weeks of law school, never called on but ever so fearful. But,…
Originally published by Charles Sartain.
Can an email be directed to a particular state? No, said a Texas court in Enerquest Oil & Gas, LLC v. Antero Resources Corporation. The court questioned “the very premise of the contention that an email can be sent to a particular state”. Emails are not sent to a designated computer or electronic device located at a particular place. Email accounts have no physical address. They are sent into cyberspace, saved onto a server or servers, and opened by the recipient wherever that person might happen to be whether, as the court said, “in Texas, Tennessee or Tibet.”
Enerquest is an LLC organized under Oklahoma law; operates properties in Oklahoma, Texas and other states; is headquartered in Oklahoma; and is registered and conducts business in Texas. It maintains no officers or employees in Texas. Enerquest and Braxton Minerals formed BMI, III, LLC, governed by Delaware law. Its principal place of business is Texas and was organized to acquire and own mineral interests in states other than Texas.
Penn sued Braxton, BMI II and others, including Bauer and Ashburn in Tarrant County. Antero intervened and added Enerquest as a party, alleging trade secret misappropriation and claiming that Bauer and Ashburn stole confidential information and gave it to Enerquest. Antero alleged that Enerquest, through its president, emailed Bauer to acquire and misappropriate the trade secrets and that BM III, with its principal place of business in Texas, was funded by Enerquest, Enerquest later became manager of a related entity BM III and thereby improperly benefited from the misappropriation of Antero’s trade secrets. Enervest said it received the alleged trade secrets in Oklahoma and denied wrongdoing.
Texas law on personal jurisdiction
For a Texas court to obtain personal jurisdiction over a nonresident defendant the long-arm statute must authorize its exercise and the exercise must be consistent with constitutional due process guarantees. There must be “minimum contacts” in which the nonresident defendant purposely avails itself of the privilege of conducting activities within the forum state and invokes the benefits and protections of its laws. There is specific jurisdiction if the nonresident defendant’s contacts with the forum are purposeful and a cause of action arises from or relates to those contacts.
Enerquest alleged in a special appearance that the Texas court had no personal jurisdiction over it. Said Enerquest: There was no general jurisdiction because the company was organized under Oklahoma law, and maintains its principal place of business there. There was no specific jurisdiction because none of the actions alleged by Antero arose from activity by Enerquest hat was intentionally or purposefully directed at the State of Texas, and the damages would be realized in states other than Texas.
The trial court overruled Enervest’s special appearance. Enerquest was stuck in Texas with the Oklahoma blues again. But the court of appeals reversed.
Merely because Enerquest was registered to do business in Texas and conducted business there wasn’t enough on its own to establish personal jurisdiction when those acts had no connection to Antero’s claims. The court refused to accept that an email “reaching out” (as Antero put it), requesting information established that the tort of misappropriation was committed in Texas. The president received an email with the alleged trade secrets in Oklahoma.
The court acknowledged occasions when a trade secret thief can reach into Texas. But here, Enerquest’s contacts lacked the substantial connection to Texas and were too attenuated to the disputed acts allegedly committed in Texas to establish personal jurisdiction.
Today’s musical interlude: Galactic – from New Orleans; maybe not “New Orleans music” you would expect..
Originally published by Environmental and Energy Law Blog.
In Texas, mineral owners often sign oil and gas leases that include language requiring oil or gas be produced in commercially paying quantities in order to keep the lease active. When production falls below a contractually mandated level, the lease may lapse or terminate. In addition, such leases often contain what is known as a “shut in royalty” clause. A shut-in royalty is a payment made by a lessee to a lessor in order to keep a lease in force when a well capable of producing gas or oil is not utilized. A recent Texas Supreme Court case addressed the issue of whether a party may terminate a producing oil and gas lease.
In BP America Production Co. v. Red Deer Resources LLC, a marginal well operated by BP was producing at very low levels. BP then invoked its lease’s shut-in royalty clause with the mineral owners. In this case, the court addressed the question of whether the shut-in royalty clause was valid and whether the lease had actually terminated.
This case is based on a lease owned by BP for approximately two thousand acres of property in Lipscomb and Hemphill counties in Texas. Between 2011 and 2012, BP experienced a decline in production from its remaining wells on the lease, and Red Deer Resources notified BP that the wells on the property had become non-commercial, thus resulting in the termination of BP’s lease. As noted above, BP’s lease contained a shut-in royalty clause. Red Deer Resources claimed that that the shut-in royalty clause didn’t apply because the wells were not producing at paying levels and weren’t capable of producing in payable quantities.
At trial, the court held that BP’s lease had terminated. BP appealed this decision, and the appeals court agreed with the trial court. However, the Texas Supreme Court reversed the decision of the appeals court, holding that the BP lease had not terminated because Red Deer did not demonstrate that the well was incapable of production in paying quantities under the plain language of the lease.
If you have a lease in which production has significantly slowed down, it’s important to have an experienced energy, oil, and gas attorney review the lease to determine whether the lease has terminated. In other words, it’s imperative that those involved in the energy, oil, and gas industries have reliable, experienced, and knowledgeable legal representation to help guide them through the ever-changing Texas legal landscape.
At the Law Office of C. William Smalling, P.C., we are highly experienced in the drafting and review of energy, oil, and gas contracts, including surface use agreements, joint operating agreements, farm-out agreements, master service agreements, drilling contracts, licensing agreements for use of seismic or technical data, and nondisclosure agreements. If you are in need of expert energy, oil, and gas legal representation in Texas, contact us today for a consultation.
Originally published by Cris Feldman.
First Amendment rights are a concept most Americans hold in high regard. It can be difficult to imagine not having these certain rights, especially when it comes to advocating for something you believe in. Unfortunately, the San Antonio Professional Firefighters Association (SAPFA) has faced many hardships involving the city of San Antonio in the last year, one of which involves a lawsuit over the group’s First Amendment rights. Now, almost a full year after a vote last November, the city wants a federal judge to step in and dismiss the union’s suit altogether.
Just last year, SAPFA sued the city of San Antonio in federal court, alleging city officials violated union representatives’ First Amendment rights. The allegations came after the city sought to enforce a “free speech area” policy during SAPFA’s San Antonio First Initiative in order to hinder its efforts to gather signatures for two union-backed charter amendments SAPFA eventually won. These “free speech areas” were small and located far from where the firefighters could interact with residents according to the union.
In addition to these “free speech areas,” SAPFA alleges city officials tried to intimidate its representatives by posting notices at the libraries where they were originally petitioning. These notices stated that unidentified petitioners would try to gather signatures from them and that citizens should be allowed to read a petition prior to signing it, and to not feel pressured into it.
With the passage of the charter amendments, San Antonio voters capped city managers’ tenure and pay, giving the firefighters union sole power to send contract negotiations into binding arbitration. The union sought such measures after firefighters had gone years without a contract. Now, nine months later, the city wants a federal judge to dismiss the lawsuit completely.
U.S. District Judge Xavier Rodriguez has not yet ruled on the city’s motion to dismiss the lawsuit. If Judge Rodriguez allows the suit to move forward, the union plans to continue to fight the city for its legal rights.
Protecting Your Constitutional Rights
At Feldman & Feldman, your constitutional rights are important to us. We fiercely advocate for clients whose rights have been infringed upon. If you feel your rights may have been violated, contact us today to see how we can help.
The post San Antonio Professional Firefighters Association Faces More Challenges appeared first on Feldman & Feldman.
Originally published by Peggy Keene.
In the latest chapter of music industry versus streaming services, Spotify has come under fire again for allegations that it did not secure the proper licensing rights from popular rap artist Eminem before streaming his songs billions of times. The music publisher claims the Music Modernization Act is unconstitutional.
Eight Mile Style, Eminem’s music publisher, filed a copyright infringement lawsuit in federal court last week against Spotify over royalty and licensing rights. While lawsuits against Spotify have not been uncommon, the latest development is new because Eminem’s publisher’s claims that the Music Modernization Act (“MMA”), which Spotify used to avoid paying royalties, is actually unconstitutional on its face.
The complaint made by Eminem and his publisher is groundbreaking because this is the first time a famous artist has declared the MMA to be unconstitutional, which surprises many as the MMA was supported by many different stakeholders in the music industry. While all sides agreed that the MMA was not a perfect piece of legislation that would solve all standing issues, the MMA enjoyed popular support because it was the first piece of legislation that actually began to tackle new copyright issues that had arisen due to the new technology platform and services that are known as digital streaming.
Before the passage of the MMA, digital streaming services such as Spotify and Apple Music had been sued multiple times under allegations that they had not paid the proper royalties due to songwriters, artists, and composers. In their defense, the streaming services had argued that the lack of a digital and centralized database made it unduly burdensome for the services to be able to track down the rightful owners of copyrighted works.
In the particular case at hand, Eight Mile Style has alleged that Spotify has purposely used the MMA to skirt paying proper royalties because it has listed many of Eminem’s songs under “copyright control,” which means that the song has no known owner. While Eight Mile Style is mostly faulting Spotify for its allegedly deceitful practices, complaining that it is ridiculous that Spotify would try to assert that Eminem’s music has no “known owner,” the complaint also takes issue with the MMA by arguing that it is unconstitutional because it does not provide adequate compensation for copyrighted works taken under “copyright control,” thereby violating the Fifth Amendment’s Takings Clause.
Generally, the “copyright control” provision of the MMA was intended to be applied to music that has either become public domain by virtue of the expiration of copyright protection or because there are no confirmed owners of the copyright in question. Because Spotify used this provision in order to avoid paying royalties, Eight Mile Style is arguing that this loophole in the MMA violates the Fifth Amendment, which limits the eminent domain (i.e., taking) power of the federal government by requiring compensation to be paid when private property is taken for public use, because streaming services have thus been able to avoid paying royalties by claiming works to be under “copyright control.”
While it is possible that Eight Mile Style and Spotify could potentially settle this case before it ever gets to the Supreme Court, many agree that the Fifth Amendment issues raised by Eminem are not frivolous and should be heard before the Supreme Court. As such, it behooves counsel to follow this case as it winds its way through federal courts and potential appeals. Should the case settle early, it is possible the claim that the MMA could have unconstitutional issues will likely be raised by others. Additionally, streaming music platforms falling back on the MMA copyright control provision as a default safe harbor from obtaining proper licensing and paying royalties should take heed.
software & copyrights
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Klemchuk LLP is a litigation, intellectual property, transactional, and international business law firm dedicated to protecting innovation. The firm provides tailored legal solutions to industries including software, technology, retail, real estate, consumer goods, ecommerce, telecommunications, restaurant, energy, media, and professional services. The firm focuses on serving mid-market companies seeking long-term, value-added relationships with a law firm. Learn more about experiencing law practiced differently and our local counsel practice.
The firm publishes Intellectual Property Trends (latest developments in IP law), Conversations with Innovators (interviews with thought leaders), Leaders in Law (insights from law leaders), Culture Counts (thoughts on law firm culture and business), and Legal Insights (in-depth analysis of IP, litigation, and transactional law).
Originally published by D. Todd Smith.
I wouldn’t describe myself as a podcast nut, but I do enjoy them when I have time to listen. I don’t have much of a daily commute, so the chance usually comes when I’m exercising or doing something around the house. It’s a nice escape and a good way to learn something new.
In looking at the list of podcasts I subscribe to, I’m sad to say that almost all of them have something to do with law, business, or technology. I guess I could stand to branch out more. This is pretty different from my streaming TV choices, which trend toward science fiction, dystopian drama, and rock-and-roll documentaries.
Anyway, on to what prompted this post.
Lawyerist recently published a Best Legal Podcasts list. I’m privileged to have been a guest on three of the ten shows featured. I thought I’d give a shout out to each of the three, tell you a little about them, and encourage you to check them out.
Immigration lawyer Jim Hacking and personal-injury lawyer Tyson Mutrux are just a couple of guys from Missouri trying to improve their practices and help other lawyers do the same. The topics they discuss on The Maximum Lawyer Podcast run the gamut, from online marketing to hiring to automation. I especially like when they interview solo and small firm lawyers about their practices and how they got where they are.
Jim and Tyson are very forward-thinking and do a great job of building people up on the podcast and in their private Facebook group. Over the last couple of years, they’ve brought the party into the real world by hosting their own live conference, which has received rave reviews.
Maximum Lawyer is a must-listen for any attorney who is considering starting their own practice. Weekly episodes run about 30 minutes. Start at Episode 1 and go from there.
My episode: Focus on What You Do Best.
New Solo is part of the Legal Talk Network, which produces several high-quality law-focused podcasts. Host Adriana Linares is a Florida-based legal technologist who can often be found in New Orleans. Her monthly show—which generally runs about 45 minutes—covers a variety of topics of interest to lawyers thinking about or engaged in solo practice.
Adriana is a good interviewer who knows the challenges her guests face and has a way of relating both to them and to the audience. Her show should be included in any solo’s playlist.
Neil Tyra, a sole practitioner in Maryland, hosts The Law Entrepreneur, a podcast dedicated to covering the business side of law practice and similar topics we weren’t taught in law school.
Law is not Neil’s first career, and he is very open in discussing the challenges he faces in building his practice into the kind of business he wants it to be. Most episodes run 30 to 45 minutes and are more like listening in on a casual telephone conversation between Neil and his guest than a formal interview. I recommend his show to anyone who considers themselves as much an entrepreneur as a lawyer—and these days, that should be all of us.
My episode: Demystifying Appellate Law & Leveraging the Cloud.
Originally published by Kelly McClure.
In some Texas custody cases, the parents live near each other and where the case will be heard is not an issue. In other cases, however, one parent has moved away and there may be a dispute over jurisdiction. Although the child’s home state generally has jurisdiction, there are circumstances where the child does not have a home state.
In a recent case, a mother challenged the Texas court’s jurisdiction over the child’s custody. The family lived in South Carolina when the child was born, but moved to Texas a few months later. They went to Michigan to celebrate the child’s first birthday. The father said it was a vacation, but the mother said she planned to move to Michigan then. They all went back to Texas, but the mother moved to Michigan with the child early the next month.
The father then filed suit seeking temporary child custody orders in Texas. He sought the exclusive right to designate the child’s primary residence. The Texas court entered temporary orders. The father added a divorce petition.
The mother responded with counter petitions and attached an Out-of-State Party Declaration stating she had not taken part in any other court case involving the child. She subsequently filed for an emergency order in a Michigan court. The Texas and Michigan courts communicated with each other and the Texas court had a hearing to determine if it had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Finding the father and child had significant contacts with Texas and substantial evidence regarding the child was available in Texas, the Texas court found it had jurisdiction. The Michigan court rescinded its order and dismissed the mother’s complaint. The Texas court granted the divorce and entered child custody orders.
The mother appealed the Texas court’s jurisdiction over child custody. Pursuant to Tex. Fam. Code Ann. § 152.201, the home state has jurisdiction over an initial custody matter. However, neither Texas nor Michigan was the child’s home state. If no forum has home state jurisdiction, a Texas court may exercise jurisdiction if the child and a parent have a significant connection with the state, and there is substantial evidence regarding the child in Texas. Specifically, there must be evidence of the child’s care, training, relationships, and protection. The husband worked in Texas and the family had lived there four months. However, there was no evidence of any relationships the child had in Texas. Although the trial court found it sufficient, the appeals court noted it was “tenuous” evidence upon which to base jurisdiction. The appeals court found “the more appropriate forum jurisdiction” was not applicable because there was no evidence that courts having jurisdiction had declined to exercise jurisdiction because Texas was more appropriate.
There is, however, a default jurisdiction, under which a Texas court can exercise jurisdiction if no forum has home state jurisdiction, significant connections/substantial evidence jurisdiction, or more appropriate forum jurisdiction. Michigan was the only other potential forum, and it did not have home state jurisdiction. There was no evidence other forums declined jurisdiction in favor of Michigan or that there were significant connections and substantial evidence in Michigan as of the date in question.
Finding the Texas court had default jurisdiction, the appeals court affirmed the judgment.
Jurisdiction in another state can mean you have to travel for the proceedings. If you are dealing with a custody issue, a skilled Texas child custody attorney can fight for your rights. Call the attorney’s at McClure Law Group at 214.692.8200 to schedule a consultation.
Originally published by David Coale.
A securities-fraud class action lived to fight another day in Broyles v. Commonwealth Advisors: “The district court erred in deciding that plaintiffs lacked standing under Delaware law to bring a direct action against their investment advisers rather than initiating a derivative action in behalf of the hedge funds that the advisers had assembled and managed for fraudulent inducement purposes. The investor plaintiffs adequately supported their motion for partial summary judgment demonstrating their Article III standing with appropriate evidence of their injury-in-fact that arose :immediately upon their purchase of the falsely overvalued securities; were induced and caused by the defendant advisers’ fraudulent advice and solicitations; and likely will be redressed by a favorable decision on the merits.” No. 17-30092 (Aug. 28, 2019).
Originally published by Verne Pedro.
A few days ago, a family member called to ask me if I was interested in adopting a stray kitten. Hmmm… I had to think about this offer. I have “owned” cats over the years. But cats are quirky. Perhaps that is why memes and videos of domestic cats make up some of the most…… Continue Reading
Originally published by Texas Lawyer.
Third-party litigation funding is having a moment. Vannin Capital Managing Director Scott Mozarsky explains its biggest selling points.
Originally published by Hank Stout.
Texas’ new texting and driving laws take effect September 2019. Here’s everything you need to know.
Texas’ New Texting While Driving Law At-a-Glance:
Effective Sept. 1, 2019, texting while driving will be illegal across the state of Texas as the result of a new texting-while-driving ban passed by the Texas legislature. The law will prohibit motorists from reading, writing or sending electronic messages while driving.
As of September, texting while driving within the state of Texas will be punishable by a fine of $25-99 for first time offenders, and $100-200 for repeat offenders (although no points will be assessed).
The new law also states that if an accident caused by texting and driving 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, or confinement in jail for a term not to exceed one year (in addition to any other charges/punishments).
“One in five crashes in Texas is caused by distracted driving,” said Texas Department of Transportation Executive Director James Bass. “We are pleased the Texas Legislature recognizes the extreme danger caused by texting and driving. The new law sends a very clear message to Texans to put down their phones and focus on the road. We are hopeful this new law will help save lives and reduce injuries.”
In 2018, 109,658 traffic crashes in Texas involved distracted driving. Those crashes resulted in 455 deaths and 3,087 serious injuries.
In 2017, the Texas Legislature passed a statewide ban on using a wireless communications device for electronic messaging while operating a motor vehicle.
For those under 18 years of age, Texas law already bans all cell phone use while driving, including hands-free, except in the case of emergencies.
Additionally, drivers are currently banned from texting and using hand-held cellular devices while driving in school zones. School bus operators also are prohibited from using cell phones while driving if children are present.
Exceptions to the new law include emergency communication or electronic messaging when the vehicle is stopped.
It’s important to note that this new law only addresses “reading, writing, or sending electronic messages” via a “wireless communication device.” It is still legal for motorists in most cities to use their phone for GPS navigation, music apps, dialing phone numbers, etc., but drivers may still get pulled over if an officer suspects them of texting.
Many local areas have passed stricter ordinances which completely limit any cell phone use while driving, so it is the responsibility of drivers to learn the laws in their local areas.
Drivers should be aware that some cities have additional ordinances that are more restrictive.
Not every city has adopted stricter cell phone laws, but since 2009, more than 90 cities and towns across the state have decided to crack down even harder on the use of cell phones while driving. Additional restrictions in many of these municipalities include the following bans:Receiving text messages and reading them while operating a motor vehicle Sending text messages while driving No one with a learner’s permit may use a cell phone in the car for six months following the issuance of their learner’s permit Anyone under the age of 18 is prohibited from using a cell phone in any capacity while driving School bus drivers are not permitted to touch their cell phones in a bus if there are children on the bus with them No one is permitted to use a cell phone in any capacity in a school zone
Not all cities and towns have implemented these laws yet, which is why the safest bet is simply to place cell phones out of reach while driving—regardless of where you travel in Texas.
At least 45 Texas cities have gone above and beyond by enacting more-strict hands-free ordinances within their jurisdictions. These cities include:Alice Amarillo Anthony Aransas Pass Argyle Austin Bedford Bee Cave Boerne Buda Corpus Christi Deer Park Denton El Paso Floresville Garden Ridge Hill Country Village Hurst, Kingsville Kyle Lake Dallas Lake Tanglewood Lakeway Laredo Liberty Hill Little Elm Midlothian Mont Belvieu New Braunfels Port Aransas Rollingwood San Antonio San Juan San Marcos Schertz Sinton Socorro Sunset Valley University City Watauga West Lake Hills Wichita Falls Wimberley
Click here to view a list of cities with stricter cell phone laws
The safest policy is to drive now and use your cell phone later. If you must make a phone call or send a text, pull over. Otherwise, wait until you reach your destination to use the phone.
All it takes is a split-second for something to go wrong on the road. If you find it too difficult to let go of your cell phone habits while driving, you may want to try the following strategies:Consider placing your phone somewhere you cannot reach while driving Turn the notification sounds off so you aren’t distracted when someone is trying to reach you. Consider downloading safe driving apps that help prevent distracted driving. Pull over to make calls or send text messages
If there is something so important it simply cannot wait for your attention, safely pull over in a safe, well-lit area and respond to your call, text, or message.
The simplest thing is to not use your phone at all while driving. It’s the safest thing you can do for yourself and everyone else who is on the road with you.
Originally published by Jack Townsend.
In IR-2019-132, here, the IRS announced that it is “sending letters to taxpayers with virtual currency transactions that potentially failed to report income and pay the resulting tax from virtual currency transactions or did not report their transactions properly.” By the end of August, the notice says, more than 10,000 taxpayers will receive the letters.
The Notice further says:
“Taxpayers should take these letters very seriously by reviewing their tax filings and when appropriate, amend past returns and pay back taxes, interest and penalties,” said IRS Commissioner Chuck Rettig. “The IRS is expanding our efforts involving virtual currency, including increased use of data analytics. We are focused on enforcing the law and helping taxpayers fully understand and meet their obligations.”
The Notice concludes with this:
Taxpayers who do not properly report the income tax consequences of virtual currency transactions are, when appropriate, liable for tax, penalties and interest. In some cases, taxpayers could be subject to criminal prosecution.
Originally published by Rania Combs.
A colleague in a listserv to which I subscribe asked an interesting question: Can parents name a relative who lives in a foreign country as guardian of their children?
Here’s the situation: The clients are foreign nationals permanently residing in US, and their children are US citizens, having been born in this country.
Neither husband nor wife have any next of kin residing in the United States. As part of their estate planning, they want to name a relative who lives abroad as guardian in the case of their incapacity or death.
This happens every day in our very mobile world. Most of us have family members who live in different states in our country, and the United States is home to people from countries all over the world who may still have family living abroad.
And most people would agree in considering the best interest of a child, it would be better for a child who is orphaned to be cared for by relatives that a parent selects, even if they reside overseas, than foster parents who may be complete strangers.
The plain language of the statutes support the idea that a next of kin who is a nonresident can be appointed as a guardian, as long as a resident agent to accept service of process is appointed:Section 1104.052 of the Estates Code relating to guardianship for minor orphans says that a nearest ascendant “is entitled to guardianship” of the person, and if no ascendant exists, the court “shall appoint” the nearest next of kin. That language appears to be mandatory rather than permissive. Section 1104.103 of the Estates Code provides that a court “shall appoint” the person designated in the Will or declaration to serve as guardian in preference to any other person otherwise entitled to serve unless the court finds that the person designated as guardian is disqualified, is deceased , or refuses to serve. Again, this language appears mandatory rather than permissive. To read about what disqualifies a guardian, read: People Ineligible to be Appointed as Guardian. Additionally, Section 1104.357 of the Estates Code provides, “[a]person may not be appointed guardian if the person is a nonresident who has failed to file with the court the name of a resident agent to accept service of process in all actions or proceedings relating to the guardianship.” This suggests that a nonresident who appoints a resident agent to accept service of process is eligible to serve as guardian.
Although there is a section in the Estates code that gives the court discretion to remove a guardian who is absent from the state for a period of three or more months without the court’s permission or moves out of state, nonresidence is not a per-se disqualifying factor.
The only case law I have found pertinent to this issue is Ramirez vs. Garcia de Bretado, a case out of the El Paso Court of Appeals. It involved a maternal grandmother and resident of Mexico, who had been appointed guardian of orphaned children.
The paternal uncle challenged the appointment claiming that nonresidency disqualified the grandmother. The court disagreed, writing that Texas law does not prohibit the appointment of a nonresident as guardian and found, based on the statute I mentioned above, that there is a presumption that the maternal grandmother was the best qualified person to be guardian (even though she resided in Mexico).
Note however, colleagues have warned that what is technically supported by statute and case law does not necessarily guarantee how a court will rule. One colleague described a case in which he was involved where a judge prevented a terminal parent from naming her sister, a citizen and resident of a foreign another country, as guardian, reasoning that if the children were taken to that country, the court would not have the jurisdiction to protect the children.
As a result, if you intend to name a foreign national as guardian, it is wise to also name an alternate who resides in the United States, so that you have certainty that a guardian of your choice, even if not your first choice, will be appointed.
Originally published by Amy Starnes.
Texas RioGrande Legal Aid, the State Bar of Texas, the American Bar Association Young Lawyers Division (ABA YLD), the Federal Emergency Management Agency (FEMA), and other organizations are partnering to provide legal and recovery assistance to people affected by severe storms and flooding that occurred in Cameron, Hidalgo, and Willacy counties on June 24 and 25.
A toll-free legal hotline (866-757-1570) is available to connect low-income individuals affected by the disaster with local legal aid providers who can help with:Assistance securing government benefits as they are made available to disaster victims; Assistance with life, medical, and property insurance claims; Help with home repair contracts and contractors; Replacement of wills and other important legal documents lost or destroyed in the disaster; Consumer protection issues such as price-gouging and avoiding contractor scams in the rebuilding process; Counseling on mortgage-foreclosure problems; and Counseling on landlord-tenant problems
Individuals who qualify for assistance will be matched with Texas lawyers who can provide free, limited legal help. Requestors should be aware that there are some limitations on disaster legal services. For example, assistance is not available for cases that will produce a fee (i.e., those cases where attorneys are paid part of the settlement by the court). Such cases are referred to a local lawyer referral service.
For more information, read the full news release.