Court Upholds Texas Open Meetings Law

On September 25, 2012, a federal appeals court ruled that the Texas Open Meetings Act is constitutional and that it encourages free speech and government transparency in Asgeirsson v. Abbott. The case began in 2005, when Alpine city council members were prosecuted for discussing city business in private emails. They sued saying the law was unconstitutionally vague and discouraged free …

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Top Ten Reasons to Plan Your Estate Now – Number Two

 2. Guardianship of Minor Children If you have a minor child, who would care for him or her in the event that you died or became incapacitated?  Would it be someone you deem to be in the best interest of your child, or would it be someone whom a court deems to be in the best interest of your child?  …

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Supreme Court of Texas Continues to Interpret Craddock in Favor of Defaulting Party

On October 26, 2012, the Supreme Court of Texas released a per curiam opinion in Milestone Operating, Inc. v. ExxonMobil Corporation, No. 11-0647. ExxonMobil sued Milestone Operating, Inc. (“Milestone”) for breach of contract related to an oil and gas agreement. Milestone failed to appear and ExxonMobil took a default judgment against Milestone.   Milestone filed a motion for new trial challenging the service …

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Texas Supreme Court Rules Franchise Tax is Constitutional

On October 19, 2012, the Texas Supreme Court held that the Texas franchise tax does not violate the Texas Constitution.  Nestle USA and two Texas-based companies, Switchplace, LLC and NSMBA Relators, sued the State of Texas arguing the Texas franchise tax is unconstitutional.  The franchise tax charges one-half of one percent to wholesalers, but a full one percent to businesses …

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Tenth Court of Appeals Rules City is Immune From Suit

On November 1, 2012, the Tenth Court of Appeals held that the City of Bruceville-Eddy was immune from being sued in a declaratory judgment action brought by Daniel Ferguson, former Chief of Police.  See City of Bruceville-Eddy v. Daniel Ferguson, No. 10-12-00109-CV. The trial court had previously denied the City’s motion to dismiss for lack of jurisdiction.  The City argued …

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Foreclosing on Residential Property under the Protecting Tenants at Foreclosure Act of 2009

In response to the housing collapse in 2009, the United States Congress enacted the Protecting Tenants at Foreclosure Act of 2009 (the “Act”) to protect tenants who live in residential properties that are being foreclosed from abruptly losing their homes. Lenders foreclosing on residential properties must comply with the obligations presented by the Act before filing a forcible detainer action …

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Top Ten Reasons to Plan Your Estate Now – Number Three

If you have a special needs child, do you have a plan in place that will allow your child to receive government assistance if something were to happen to you? Or would your child inherit assets that would disqualify him or her from receiving government assistance? Special Needs Trusts are instruments used by parents of special needs children, which allow …

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A Primer on Expedited Actions Under Texas Rule of Civil Procedure 169

  In 2011, the Texas Legislature passed House Bill 274, which called upon the Supreme Court of Texas to promulgate procedural rules and amendments for expedited civil actions. The Supreme Court formed a task force to answer the legislature’s call, and the task force proposed several modifications to the Texas Rules of Civil Procedure. On November 13, 2012, the Supreme …

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Texas Supreme Court to Determine if Arbitration Clause in Trust is Enforceable

In Rachal v. Reitz, 347 S.W.3d 305 (Tex. App.–Dallas 2011, pet. filed), a beneficiary of a trust (the “Beneficiary”) sued the trustee (the “Trustee”), alleging failure to provide an accounting and breach of fiduciary duties.  The Trustee filed a motion to compel arbitration and to stay litigation, arguing that the Beneficiary must arbitrate his claims against the Trustee pursuant to …

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Strict Compliance Required for Default Judgment

In Bailey’s Furniture, Inc. v. Graham-Rutledge & Co., No. 05-11-00710-CV, the Fifth District Court of Appeals reaffirmed the long standing rule that strict compliance with Texas Rule of Civil Procedure 106(b) is necessary to establish proper service on a defaulting defendant.    In this case, the plaintiff unsuccessfully attempted to serve Charles Bailey, registered agent for Defendant Bailey’s Furniture on …

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