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Legal F.A.Q.

The answers to the questions on this page do not constitute specific legal advice about any particular claim or matter by the Conover Law Firm. If you have a particular question about a specific legal issue, you should contact an attorney before taking action. You may also go to the Contact page of this website and submit a question, however, merely contacting this office does not create an attorney-client relationship.

Frequently Asked Questions

GENERAL QUESTIONS AND ANSWERS:

How much will it cost to hire an attorney?

The cost of each case is based upon the unique facts and circumstances involving your situation. After an initial consultation, often free of charge, the attorney will be able to provide an estimate of the anticipated fees for handling your case. A payment of a “retainer fee” is often required. In addition to attorney’s fees, you will also be responsible for the payments of the costs associated with the litigation, such as filing fees and discovery costs.

Some attorneys represent clients on a flat fee basis depending upon the type and complexity of the particular case. Others charge clients at an hourly rate. However, most attorneys also require that a client pay court costs and other fees, such as service fees, associated with your case. Prior to retaining an attorney to represent you, you should insist that the attorney inform you what costs you will be responsible for in addition to the attorney’s fees. Fees for criminal cases, civil cases, family law cases, and personal injury cases vary from case to case and county to county.

You should also insist upon a written contract that specifically spells out what fees and costs you will be responsible for paying, as well as the form of payment required. When you sign a contract, you must be prepared to follow the contract and pay your fees as agreed upon. The failure to pay attorney’s fees as agreed can result in your attorney withdrawing from your case. If you fail to do so, it may be difficult for you to find another attorney to represent you.

Does my case have merit?

After discussing your case with you, an attorney can help you evaluate whether you have a meritorious claim or defense. The person filing a lawsuit in court has the “burden of proof.” In most civil cases, you must establish certain matters by a preponderance of the evidence. In defending a case on the merits, the person being sued must demonstrate a lack of sufficient evidence or affirmatively prove some legal theory of defense.

Every case should be evaluated upon the specific facts relative to the suit. Consequently, it is extremely important that you provide your attorney with all the facts; both good and bad. While most potential clients tend to provide an attorney with “their” version of the fact situation, providing an attorney with only your version of the case makes it nearly impossible for an attorney to honestly evaluate the merits of your claims or defenses. Since communications with an attorney are confidential, you should be honest and truthful from the start.

When will my case go to court?

Once a lawsuit is filed, the proceedings are governed by the “Texas Rules of Civil Procedure.” These rules are established by the Texas Supreme Court and apply in every court in the state. Before a trial is held, both sides engage in a process known as discovery. This involves answering questions and producing documents before the trial. In most civil cases, the courts now require some sort of alternative dispute resolution (ADR) before proceeding to trial. After discovery and if a settlement has not been reached, the case is then set for trial before the Court or a jury.

How long will it take for a lawsuit to be resolved?

Every case is different.  It can take as little time as a few months to as long as several years, depending on the complexity of the case, and whether the case goes to trial or is appealed.  An attorney should always try to resolve a case as quickly as possible consistent with obtaining the best result for the client. However, no attorney can predict when, or if, your case will go to trial or become final. Even after a trial, the losing party has the right to appeal the Court’s or jury’s decision. The appeals process can be lengthy.

When do I need to file my lawsuit?

The time within which you must file your claim in court is called the “statute of limitations.”  The statute of limitations varies depending upon the type of case you have.  Some types of cases, especially those involving governmental bodies, may have special limitations periods and a requirement that administrative remedies must be exhausted before suit can be filed.  If you fail to exhaust these administrative remedies or fail to file suit within the limitations period, your right to file suit is barred and you will lose any legal basis for recovery.

You should always attempt to find an attorney that is experienced in the area of law regarding your case. For example, if you have a personal injury case, you should try to find an attorney that is experienced in such matters. The statute of limitations in personal injury cases is different than cases involving breaches of contract. Similarly, if your case involves real estate issues or oil and gas leases, you should look for an attorney that has experience in those areas of the law.

Is the information I provide my attorney confidential?

Yes, the information you provide an attorney, even that information provided to an attorney during a consultation that you do not hire, remains confidential except in limited circumstances.  This is called the “attorney-client privilege.”  This privilege remains in effect even after the case is concluded.  However, a client cannot use this privilege in an attempt to commit a crime. But, if a current or potential client advises an attorney that he or she is going to commit a crime, especially a crime that could result in the death or harm to a specific person, the attorney is required to inform appropriate law enforcement agencies.

I have been sued, but I did not do what the person suing me says I did . Do I need to hire an attorney?

In all likelihood, you will need to hire an attorney. If you have been sued, you must answer the suit within a period of weeks after having been served with the lawsuit. If you fail to file an answer, the attorney for the person that filed the suit will obtain a “default judgment” against you. It is much more difficult and expensive for an attorney to present a defense on your behalf if you wait until the last minute to hire an attorney to defend you.

In addition to filing a general denial and answer on your behalf, an attorney may be able to assist you in filing jurisdictional pleas, affirmative defenses, and counter-claims against the person who has sued you. If the Court determines that the suit filed against you is frivolous or without basis, you may be able to recover attorney’s fees and court cost against the person who filed the frivolous claims.

FAMILY LAW QUESTIONS AND ANSWERS:

I was divorced 2 years ago, and now my ex-spouse refuses to pay child support and will not comply with several other provisions of the divorce decree. What can I do to enforce my rights under the divorce decree?

You must file suit against your ex-spouse to enforce the provisions of the Final Decree of Divorce.  If the child support obligations are payable through the Office of the Attorney General, it could take months or years before action is taken.  By hiring an attorney to file suit to enforce the decree, action on your case will be taken more quickly.  Moreover, the Attorney General does not get involved in matters such as custody and visitation disputes, or other issues that do not involve the financial obligations of your ex-spouse to pay child support or provide medical insurance.

My ex-husband was given custody of my son three years ago during our divorce, who is now 15 years old. My son no longer wants to live with his father and his step-mother. Is there any way that I can get the right to have my son live with me?

You will need to file a suit to Modify the Parent-Child Relationship to bring your son’s wishes before the Court. The Court will appoint either an Attorney Ad Litem or an Amicus Attorney to advise the Court about what is in the best interest of the child. Each parent will be required to pay ½ of the attorney’s fees for the Ad Litem or Amicus Attorney (usually somewhere between $500.00 to $750.00 per parent). The Ad Litem or Amicus Attorney will meet with the child as well as each of the parents will make a recommendation to the Court. In addition, the Court will often meet with the child to determine their opinion.

More often than not, the Court and Ad Litem/Amicus Attorney will defer to the wishes of a child of that age as long as there are no issues regarding drug abuse or criminal activity on the part of the parent requesting the change of managing conservatorship. However, such deference is subject to the Court’s discretion. Children under the age of 12 may not be granted the same deference as older children.

CRIMINAL LAW QUESTIONS AND ANSWERS:

I was arrested and put in jail. I bonded out of jail and now have criminal charges filed against me. Do I need to hire an attorney?

Generally, you will need an attorney at your side when you are charged with a crime. The “prosecutors” are attorneys paid by the State of Texas, and usually have extensive resources to bring charges against you in court. In addition to the police, prosecutors have access to their own investigators and criminal histories of the Defendants. With all the resources available to the State, the likelihood of being able to defend yourself is slim.

Criminal cases also involve different procedures than in civil cases. In the past, each County and District Attorney were not required to allow a criminal defense attorney access to all information in their files. As of January 1, 2014, however, all of the District and County Attorneys in Texas are required by law to provide each criminal defense attorney hard copies of all documents, witness statements, and investigative reports or via Electronic Discovery. This new process has helped level the “playing field” for criminal defendants. Once an attorney in a criminal case has received the prosecutor’s files, the attorney must then file various pre-trial motions before the case is set for trial.

I was arrested for DWI. What type of punishment will I face if I am convicted?

The legal limit in Texas is .08 Blood Alcohol Content (BAC). If a breath or blood test indicates that your BAC meets or exceeds that limit, then you are presumptively guilty of the offense. A first DWI offense is a Class B Misdemeanor and you could face a punishment of up to 180 days in the county jail and up to a $2000.00 fine. The minimum term of confinement is 72 hours. A second offense is a Class A Misdemeanor with punishment of up to 1 year in the county jail and a $4000.00 fine. The minimum term of confinement is 30 days. Even a first DWI can be enhanced to a Class A Misdemeanor if your BAC is .15 or greater.

In some cases, a DWI can be a felony offense. A third DWI is a felony. Having a child passenger in your vehicle at the time of the offense, injuring someone during an accident while you are legally intoxicated, or an injury to a person leading to their death are all felonies of various degrees.

Having competent legal counsel at your side is imperative. An experienced attorney can help you in many ways, including getting you favorable terms and conditions of probation depending on the offense.

I was arrested for DWI and refused to provide a sample of my breath or blood. The police officer took my driver’s license. I need a license so I can drive to work. What can I do?

Under Texas law, if you fail to give a sample or your breath or blood upon request by a peace officer, you automatically lose your driving privileges.  This process is known as “administrative license revocation” or “ALR.”  You can appeal an ALR decision, but you must do so within a specific period of time.  If you do not prevail at the ALR hearing you will have your license suspended for a specific period of time depending upon whether you have a previous conviction for DWI.

Even when you do provide a breath or blood sample, you will have your license suspended if your sample exceeds the legal limit for intoxication.  In some counties, including Johnson County, Texas, if you refuse to provide a sample of your breath, the officer will request a “Blood Warrant” from a Judge to obtain a sample. In both cases, you will need to apply to the court for an “occupational license.”  You should hire an attorney to assist you with both the ALR process and the occupational license procedure.

BUSINESS, REAL ESTATE, AND OIL & GAS QUESTIONS AND ANSWERS:

I own a small business that is not incorporated. I have heard that if I incorporate my business, I can avoid being held liable if someone files suit against me. Can you give me some advice about incorporating my business?

Suits against businesses, whether incorporated or not, can be costly. Incorporation of your business may or may not be the best thing to do, depending on the nature of the business and the potential for liability. You should consult an attorney, as well as financial professionals, before deciding to incorporate. Then, your attorney should assist you in the incorporation process and advise you of any legal ramifications. You should have an attorney review any contracts before you sign them and assess any risks your particular business may have in the area of personal injury litigation.

You should also consult with your insurance agent to determine what type of liability insurance you may need to carry, as well as your tax advisor for any local, state, or federal tax implications. Remember, any time you conduct business, you may be sued and be held liable for any damages you may have caused one of your clients to suffer.

My neighbor has filed a suit against me because he thinks that I built a fence on his side of our common property line. I do not want to hire a lawyer and fight with him over a $5000.00 fence, but I do not want to take it down either. Is there a way for us to sit down and work this out without spending a lot of money?

Your thinking makes a lot of sense. In the past, lawsuits were about the only way to get matters such as these resolved, and yes, lawyers make substantial fees in such disputes. Today, however, issues such as you have described can be handled by alternative dispute resolution (ADR) proceedings. There are many forms of ADR: informal negotiations, mediations, or even arbitration.

Courts regularly refer cases such as these to alternative dispute resolution. These proceedings are more informal than a court proceeding. If a Court refers a matter to ADR, the Judge will appoint a qualified mediator, who has met the statutory training requirements under state law. The person appointed will be impartial and unbiased. More often than not, the ADR process is successful. However, if the case is not settled, both parties can go back to court and spend much more in attorney’s fees than the cost of a $5000.00 fence.

I had a company send me information about leasing the mineral interests in my property. I also had another company send me a letter wanting to buy my mineral rights. What should I do?

Mineral rights and royalties can be very valuable depending upon the amount of real property you may own. It is very important for you to consult with an attorney when a company wants to lease or purchase you mineral rights. An attorney experienced in mineral rights should be consulted before you sign or reject a lease. In many cases, an attorney may be able to negotiate with the company a greater royalty percentage than you may be able to do on your own. In addition, an attorney will be able to explain to you the benefits or pitfalls of such a lease.

Depending upon your circumstances and the location of your mineral rights, you may also need to address issues regarding pipeline easements. Oil and gas companies often can use the eminent domain process to place a pipeline on your property even if you do oppose it. Your attorney, more often than not, can negotiate a greater per foot payment for a pipeline easement than you could on your own. Never sign an oil and gas lease or pipeline easement without first consulting an attorney.

GOVERNMENT AND ADMINISTRATIVE LAW QUESTIONS AND ANSWERS:

I live in a community where I am always unsure as to whether or not my city council or local school board are following the laws regarding open records or the laws regarding open meetings laws. What can I do to ensure that open meetings and open records laws are being followed?

This is a common issue I have heard from individuals since 1984 when I became an Assistant Attorney General under Jim Mattox. I was assigned to the Division of the Office of Attorney General that represented state agencies regarding such matters. I represented numerous state agencies that tried to skirt these laws on one or more occasion. Fortunately, I had a boss who had my back and advised me that if I ever believed that an agency was not following the open meetings or open records law, I was to advise them that the Office of the Attorney General would not represent them in any lawsuit if they failed to follow the law or refused to follow the legal advice offered by the Attorney General or one of his Assistant Attorneys General.

If the elected officials in your county or city refuse or fail to follow the Texas Public Information Act or the Texas Open Meetings Act, you should immediately contact the County or District Attorney in your county, and request that they either investigate the matter or submit the issue to the Office of the Attorney General for review.

If your local officials fail to request an Opinion from the OAG regarding a potential Open Meetings or Open Records issue, you may have the right to sue your local officials in the state district court in the county in which you reside. If you prevail, you may be able to recover your attorney’s fees for having to pursue your case in court.

Quite honestly, smaller counties and local municipalities, as well as the committees they create, are provided little, if any, training about how to comply with the Open Meetings and Open Records laws. Consequently, most of the errors occur as a result of lack of training or plain ignorance of these laws.

The Office of the Attorney General, the Texas Secretary of State, as well as other state agencies and private, non-profit entities offer free or low cost training regarding both the Texas Public Information Act and the Texas Open Meetings Act.

I am a Registered Nurse and someone filed a complaint against me for false allegation that I failed to provide competent health care for one of my patients. How can I defend myself against such allegations?

You need to immediately respond to the Board of Nursing Examiners and provide them with any and all information which supports the facts that you did provide the standard of care required by law for the patient. Should the Board’s investigator determine that you did not provide the proper standard of care, you have the option of requesting a hearing before an Administrative Law Judge appointed by the State Office of Administrative Hearings (SOAH). The ALJ will hold a hearing and will determine whether or not the Board of Nursing Examiners’ complaint has been proved by a preponderance of the evidence.

Should you lose your case before the SOAH Judge, you have the right to appeal the decision to a district court under the substantial evidence test. If the court determines that there was not substantial evidence to support the SOAH Judges decision, the you will prevail and any disciplinary action imposed by the Board or SOAH Judge will be vacated.

WILLS, PROBATE, AND ESTATE QUESTIONS AND ANSWERS:

My father died without a will. Four of his five children are alive, but one of them died, leaving three grandchildren. My mother is in a nursing home and cannot handle her finances any longer. What can I do to straighten out my father’s estate and ensure that my mother is taken care of financially?

These are common problems that most general practitioners deal with on a routine basis.  Legal documents need to be filed with the court concerning your father’s estate, and your mother needs to have a will.  The heirs of your parents may or may not have any legal rights depending on the facts and circumstances involved.  When questions and issues such as these arise, you should consult an attorney as soon as possible.

It is best that wills, powers of attorneys, medical powers of attorney, advanced health care directives, and other legal documents be in place before some catastrophic event happens.  By hiring an attorney before something bad happens to a loved one or yourself, you or your surviving family members can avoid years of heartache and potential litigation.

My wife and I had wills prepared several years ago, but now some of the property we had planned on leaving our children no longer exists. We both are not as healthy as we were 10 years ago. What documents do we need in addition to updating our wills?

Your question is one that attorneys often encounter. As a general rule of thumb, you should update your Wills every 5 to 10 years, especially as you get older. If you no longer own the property you had in your will, then when the will is probated, that portion of your will cannot be given any legal effect. If your current Will names your wife as your Executor and her health is failing, you may want to consider naming another person, such as one of your adult children, to be the Executor. It is also good form to name someone as an alternate Executor in the event the primary Executor is unable to perform the statutory duties of the position.

While a Will is important to have upon death, many people overlook the documents needed while you are still alive. For example, most people need a Statutory Durable Power of Attorney so that your financial affairs can be taken care of if you are unable to act on your own behalf. If you do not have a Power of Attorney and something happens to you, your wife or other family member may have to apply for a guardianship in court. The guardianship process is costly, while advanced planning in the form of a Statutory Durable Power of Attorney is relatively inexpensive.

In addition, you and your wife should have Medical Powers of Attorney, which name someone to make medical decisions for you if you are incapacitated and unable to make your own decisions about your medical care. You and your wife should also consider preparing Advanced Directives, or what some people refer to as Living Wills. These documents direct your physician to provide or withhold certain medical treatment if you have a “terminal condition” or irreversible condition.” You should consult your physician about the types of treatments you may or may not want to be withheld based upon your medical needs, as well as whether you may need an “Out-Of-Hospital” Do Not Resuscitate (DNR) Order.

These same documents can be used to protect the interests of unmarried and unmarried same-sex couples, too.

NOTE: In today’s legal environment, it is important that everyone has a Statutory Durable Power of Attorney (POA), a Medical POA, Advanced Directives, and a valid Last Will and Testament.

CHILD PROTECTIVE SERVICES QUESTIONS AND ANSWERS:

My granddaughter was removed from my daughter and son-in-law’ home by Child Protective Services and was placed in foster care. I have read that many children in foster care are subjected to physical, mental, and even sexual abuse. My husband and I fear for her safety. We have a spacious home and would like to have my granddaughter placed with us. What can we do?

As a grandparent, you are only entitled to a 1-2 hour visit per month with your grandchild while she is in foster care. The parents usually get 1 hour per week visitation. If you want to get your grandchild out of foster care, you will need to have a “home study” or “social study” prepared. You can either pay a licensed social worker to conduct a private study or request the Department to perform one. Paying for a private study is much quicker and can usually be done within 30 days.

If you request the Department to do the home study, it can take several months to get one done, if at all, due to the complicated bureaucracy and several layers of approval that is necessary. If you or your husband has either criminal history or prior CPS history, the Department “policies” prohibit the Department from even conducting a home study.

If the Department refuses to consider placement of your granddaughter in your home, your next and only step is to hire a lawyer and intervene in the suit filed by the Department. A judge is not bound to follow Department “policies” and can place your granddaughter in your home if he or she finds that is in the best interest of the child to be placed in your home.

The stated goal and policy of the CPS process is to reunify the family within a year. Both your daughter and son-in-law will have to undergo psychological testing, drug assessments, family and individual counseling, and agree to participate in a host of other “services” before the Department will even consider returning your granddaughter to their care.

If your granddaughter is placed in the same foster home for more than six months, the foster parents have the right to seek termination of the parents’ parental rights and petition the Court to adopt your granddaughter. Therefore, it is important that you get involved in the legal proceedings as soon as possible in order to keep your grandchild in her family of origin.

CIVIL RIGHTS AND DISCRIMINATION QUESTIONS AND ANSWERS

I am 52 years old was fired from my job last month. I had worked for the same company for over five years and never had a poor evaluation. I was told by a former co-worker that I was replaced by someone who was 30 years old who they are paying less than what I was making. That does not seem fair to me. What can I do?

This sounds like a case of employment discrimination based upon your age. If you believe that you have been discriminated against, you can file a complaint with the Texas Workforce Commission-Civil Rights Division or the federal EEOC depending on the number of individuals employed by the company. You must file your “intake questionnaire” with the TWC-CDR within 180 days of the adverse employment action or within 300 days with the EEOC. The agency intake investigator will convert you filing into a formal complaint.

Upon receipt of your complaint, the agency will attempt to negotiate a resolution of the issues through a process known as conciliation, which is a form of mediation or alternative dispute resolution. In many instances, the agency may be able to resolve your case favorably without completing a formal investigation.

If conciliation does not result in a resolution of the complaint, the agency will conduct an investigation of the employer’s conduct. It will request employment records from the company’s Human Resource Department, as well as information about other employees who are comparative to you to determine if you have been the subject of discrimination.

If there is cause to believe that discrimination has occurred, then you may be entitled to reinstatement, back pay with benefits, as well as other compensatory damages. If the company refuses to negotiate a settlement of your complaint, then you should hire an attorney to file suit in state or federal court.

There are strict statutes of limitations in both state and federal laws that must be followed in order to ensure that your suit is filed in a timely fashion. If you fail to file suit in the time required, you will lose the opportunity to pursue your complaint in the courts.

MEDIATION AND ALTERNATIVE FORMS OF DISPUTE RESOLUTION ANSWERS AND QUESTIONS:

In this day and age, the Courts often refer contested cases to mediation, arbitration, or some other form of alternative form of dispute resolution. Judges are often reluctant to place a case on their busy trial dockets without first referring cases to ADR, usually mediation. The mediation process involves the Court’s appointing an impartial mediator to assist the parties in resolving the issues and agreeing to a Mediated Settlement Agreement (MSA) which is reduced to an Agreed Final Order which also includes a provision that the MSA can be enforced as a contractual agreement between the parties.

Less frequently, a Court may refer the case to arbitration, which is designed to produce a binding decision recommended by the Arbitrator. Binding arbitrations usually involve labor unions and employers, such as the NBA or Major League Football.

In Texas, a person is required to have completed a 40 hour course in mediation/alternative dispute resolution in order to be a qualified mediator. Before agreeing to mediate a dispute, make sure that the mediator is qualified in the State of Texas.

Disclaimer

The information obtained from this website is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Your calls, letters, and electronic mail are welcome, however, merely contacting The Conover Law Firm does not create an attorney-client relationship. Please do not send any confidential information to the office until such time as an attorney-client relationship has been established. Licensed by the Texas Supreme Court.