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Criminal FAQs

1. If stopped by the police, should I submit to an intoxilizer machine for the breath test?
No, unless you are absolutely certain you have not had too much to drink. If the machine is not calibrated correctly, it may measure the alcohol in your breath incorrectly. If so, you may be providing the police with evidence they may use to convict you. If you tell the police that you will not take the breath test without a lawyer present, they will treat your comment as a refusal. However, this is easier to deal with at the time of trial than a breath test result that is over the limit.

2. Will I lose my driver's license?
If you take the breath test and the machine registers over
.08 breath/alcohol concentration, DPS will suspend your license for ninety days for a first DWI arrest. If you refuse to take the breath test after having been arrested for a DWI, then the DPS will suspend your license for 180 days.

3. Can I contest the suspension?
You have a right to request an administrative hearing and try to challenge the driver license suspension. You must request that hearing within 15 days or you have waived your right to that hearing. If you do not request a hearing within 15 days, then your license will automatically be suspended 40 days after you were arrested. It has been my experience that because this is an administrative hearing and the burden of proof is less, the administrative judge nearly always rules in favor of DPS.

4. Can I drive during the suspension period?
No unless you obtain a restricted drivers license during this suspension. You can petition the courts for an occupational driver's license which allows you to drive up to 12 hours per day compatible with your work schedule. Unfortunately, this does not apply to commercial Drivers Licenses.

5. How do I get my license reinstated?
Within 30 days of obtaining the order from the court, the driver must file his occupational license with the Department of Public Safety in Austin along with the following documents:

a. A SR-22 (this is a statement from an insurance company indicating that the driver is insured)

b. A copy of the Order granting the restricted driver license

c. A $10 fee for the brown occupational driver license

d. A SR37

6. Will I go to jail?
Whether or not you go to jail depends on a variety of factors. Among those are the skills of your attorney, your criminal record, and individual factors in your case.

8. If my driver license is suspended, how do I get it back?
If you pay your reinstatement fee, when your suspension period is over, your license will be reinstated.

9. If I am under 21, will I be treated differently?
Yes. A person under 21 arrested for DWI will be treated differently in regard to your driver's license. Driver license restrictions and suspensions are more severe for a person under 21 arrested and convicted of DWI. A person who is under 21 will have a one year suspension period even if they receive probation for DWI. Thus, they may need an occupational driver's license for one year.

Texas Divorce FAQs

1. What are the residency requirements in order to obtain a divorce in Texas?
You or your spouse must live in Texas for the preceding six month period and in El Paso for the preceding 90 day period. There is a special exception for members of the military whose home state is Texas.

2. What are the grounds for divorce?
Texas has what is known as "No Fault Divorce." This means that either party has an absolute right to a divorce based upon incompatibility. However, fault grounds such as physical or mental cruelty, or adultery, may be alleged if custody is in dispute or a party is seeking a greater share of the community property.

3. How long does a divorce take?
If your divorce is agreed, it may be finalized after the divorce has been on file for sixty days. Contested matters before the court are normally resolved in three to six months. Jury trials are normally resolved in one year or more.

4. How is property divided in Texas?
Texas is a community property state which means that all property acquired during the marriage must be divided in the fair and equitable manner. The Court does have the authority based on fault or other equitable grounds to award a party a greater share of the community property.

5. Does a Court have any authority to divide separate property?
Separate property is defined as any property owned prior to marriage, acquired by gift, inheritance, or personal injury excluding wages. A Texas Court does not have the authority to divide separate property.

6. Does Texas provide for temporary spousal support while the case is pending?
Temporary spousal support is often awarded at a temporary hearing where one spouse is unemployed or earning significantly less than the other spouse. There are no statutory guidelines to set temporary spousal support, so the party seeking support should be prepared to show what his/her needs are and what resources are available to the other spouse to meet those needs.

7. What about permanent alimony?
Texas did not have permanent alimony until 1996. In order to qualify for spousal maintenance in Texas, the paying spouse has to have been convicted of family violence within two years of the date of the filing of the divorce or the marriage must have lasted ten years or longer and the requested spouse lacks sufficient property to provide for his/her minimal needs. If a party qualifies for maintenance, the amount ordered cannot exceed 20% of the gross income of the paying spouse.

8. My spouse has been violent and abusive, what are my legal rights?
You have a right to file for a divorce and seek a restraining order against your spouse from harming or harassing you; alternatively, you may seek a protective order. The main advantages of seeking a protective order are:

a. It is the only means to exclude a spouse from a residence without notice and a hearing; and

b. It is filed with the police department therefore, if your spouse violates the protective order, the police can immediately arrest your spouse.

9. Can I get medical insurance benefits through my spouse's employer after the divorce?
Under Federal law you may be entitled to keep your medical insurance benefits under your former spouse's group plan. Under a Federal law known as COBRA benefits are available to the former spouses of people who work for the employer who have twenty or more employees. In general this law provides that employers must offer "continuation coverage" for the first three years after the marriage. In order to obtain COBRA benefits, you must file your application with your spouse's employer no later than sixty days after the termination of your marriage. If you do not file your application by the date, you will not be able to get these important benefits.

10. Do I have to appear in Court in order to get divorced?
A party seeking a divorce must appear in person, by telephone or by deposition in order to finalize the divorce. In contested cases, both parties and their attorneys will appear in court.

11. Do I need an attorney to file for divorce?
No. However, unless your divorce is extremely uncomplicated and does not involve children or a division of substantial property, real estate, or retirement benefits, then using the services of a family law attorney is generally a good idea.

12. What is a Board Certified Family Law Attorney?
To be a Board Certified Family Law attorney you must be licensed in minimum of five years, have more than fifty percent of your practice in the area of family law, completed twice the minimal continuing legal education requirements, demonstrated special competence among your peers and judges, and passed a competency exam. There are approximately a dozen attorneys in El Paso that are Board certified in family Law.

13. What about the $75 "do it yourself" divorce kits?
Most lawyers really like these kits, because they can charge you a lot of money to fix the messes that they have created. Be wary before attempting to utilize such a kit. If you really want to "do it yourself," at a minimum have an attorney experienced in family law review your paperwork.

14. If my spouse and I are unable to agree on the terms of divorce, is there an alternative to going to court and fighting over everything?
Yes, I am a member of the Collaborative Family Lawyers of El Paso. This is a group of independent unaffiliated family law practitioners who seek to resolve family law disputes in an amicable manner without court intervention, except for finalizing the parities agreements. If you'd like more information on how the Collaborative Family Law works, please request a brochure.

Probate FAQs

1. What is probate?
Probate is the judicial procedure by which a testamentary document is established to be a valid Will. It clears title to real estate, settles legitimate debts (and wipes out others), and permits clear title distribution of property to the beneficiaries under the terms of the Will.

2. How long do I have to probate a Will in Texas?
Four years from the date of death unless good cause is shown as to why the Will was not presented within four years (i.e. lost and suddenly found). After four years, Letters Testamentary can not be issued, but it may be possible to probate the Will as a Muniment of Title.

3. What are Letters Testamentary?
Letters Testamentary represent evidence of an appointment of an administrator/executor. They give authority to act for and on behalf of the estate.

4. What is a Muniment of Title?
A Muniment of Title is a probate proceeding in which no personal representative of the estate is appointed, but title to real estate, stocks and bonds, etc. are cleared.

5. I was appointed "executor" of my father's estate. What is an Executor?
An executor is a person appointed in the Will of the decedent to carry out the desires of the decedent as expressed in the Will and to administer the estate to the decedent.

6. As an "executor" what are my duties?
You are the decedent’s representative for the purposes of terminating the decedent’s affairs. This is called “administration” and requires you to locate and assist in the valuation of decedent’s assets; the preparation of an inventory listing those assets; the payment of debts, expenses of administration, and taxes; and the distribution of remaining assets to those beneficiaries named in decedent’s Will. In discharging your duties, keep in mind that you are a fiduciary and that you have a duty to deal fairly with the creditors, heirs, and beneficiaries of this estate and to carefully manage the estate for their benefit. Your first duty should be to take possession of decedent’s assets, valuable papers, and records and safeguard decedent’s property.

7. Is there a difference between being appointed dependant and independent executor?
Yes. The word "independent" means that the executor may act independently of the court except with respect to those matters which have already transpired and for the filing of the required inventory, appraisement and list of claims. Without being appointed "independent" virtually all of your duties and actions would be subject to prior approval by the court. A dependant administration is much more cumbersome and expensive.

8. As an executor, am I entitled to receive a commission or fee?
Yes. Texas Probate Code provides for a fee of 5% of all sums actually received in cash and paid out in cash in the administration of the Estate on a finding by the court that the administrator has acted properly. An administrator/executor is not entitled to a fee for monies in financial institutions or from collecting the proceeds of any life insurance policies or the sale of stocks and bonds.

9. As Executor, how do I make sure that I have located all of the decedent's assets and liabilities?
You will need to review decedent's records, income tax returns, check registry, credit card statements, and talk to decedent's financial advisor, relatives and close friends.

10. Are life insurance and retirement benefits part of the estate?
No, life insurance and retirement benefits are not part of the probate estate and are paid to the designated beneficiaries regardless of how the Will disposes of the property. However, if there is no designated beneficiary, then it is included in the estate.

12. I have heard that it is best to have a "living trust" to avoid probate costs and the delay of the probate.
Not necessarily. Texas was the first state to allow for independent administration.
Texas has a simplified probate system, and the Uniform Probate Code was patterned after our procedure and adopted by a number of other states. In Texas most probates are handled inexpensively for a flat fee (not the 3-5% commonly charged in some other states), and are routinely handled within two months of the initial filing.
 

Personal Injury FAQs

1. What should I do if I am involved in a car accident?
Stop. The penalties for "hit-and-run" driving are severe in Texas. If anyone is injured, you may be jailed for up to five years and/or fined up to $5,000. If there is only property damage, you may be jailed up to six months and/or fined up $1,000.

Call the police or Texas Highway Patrol to have them come out to the accident scene to take a report. Take down the name of the police officer and his badge number. Ask him when and where you can pick up a copy of the accident report. If the police will not respond to the scene of the accident, you are required by law to file a written report within 10 days if there are any injuries or property damage over $500.

If possible, do not move the vehicles until a record of the accident has been made. Measure skid marks and take photographs of the scene if possible.

Copy down information contained on all drivers' licenses, vehicle registrations and insurance cards.

Identify all passengers and witnesses. Ask the witnesses what they saw and obtain their names, telephone numbers, and addresses. Try to make sure all drivers, passengers, and witnesses remain at the scene of the accident.

Do not admit fault for the accident to anyone. Do not sign any pieces of paper nor agree to pay for damages. Cooperate with the police officers investigating the case. You must sign traffic tickets; this is not an admission of guilt or wrongdoing. You must take an alcohol test if requested or risk losing your license for one year. Advise the investigating officer of basic facts without adding personal opinions. Keep calm and tell the truth.

If you are not transported to a hospital immediately after the accident, get checked out by a doctor as soon as possible, even if there are no initial signs of pain.

Contact your insurance company as soon as possible to file a claim.

2. I experienced back and neck pain as a result of an accident, should I wait and see if it goes away or seek medical treatment?
 
1. It is important to obtain medical treatment as soon as possible. If you wait several days before seeking treatment, the insurance company may contend that you weren't "really" injured or that you injured yourself after the accident. Be sure to inform the physician of any symptoms or pain that may have resulted from the accident. Obtain treatment as scheduled and realize that if you stop treatments, such as physical therapy, before your physician releases you that it may negatively impact your case.

3. If I am injured in an accident, what damages am I entitled to recover?
If you are injured due to another's negligence, you should be compensated for the following damages:

Past and future medical expenses;

Loss of past and future earning capacity;

Past and future pain and suffering;

Past and future mental anguish;

Past or future physical disability; and

Property damages.

4. Do I need an attorney to handle my personal injury claim?
No. But remember the insurance company representing the person at fault for the accident is not your friend. They have a team of adjusters, investigators and attorneys working to pay you as little as possible to settle your claim. Many of the cases we receive are a result of people trying to handle their cases on their own and discovering that the insurance company is trying to get them to settle the case prior to completion of their medical treatment or is only willing to offer them a nominal amount of money to settle.

5. What will it cost me to hire an attorney to handle my personal injury claim?
An ethical, competent attorney will give you a free, no-obligation initial consultation to discuss and evaluate your case with you.

Upon hiring an attorney to pursue your claim, the attorney will be compensated only if a recovery is actually obtained for you.

6. Will I have to go to trial?
No one can predict which case will settle and which will not. However, the majority of cases, approximately 90 percent, settle without going to trial.

7. What can I do to insure my case has a successful outcome?
Take photographs of the damage to your vehicle and your physical injuries. Preserve torn or bloody clothing.

Keep a diary of how the accident has affected your daily activities, such as being able to perform your normal job duties, household duties, recreational activities, sleep patterns, etc. You should also keep track of how severe the pain is on a particular day and any medication taken. Be sure to include all persons who have witnessed your pain and suffering and changes in your lifestyle. The diary should initially be kept on a daily basis; and as the pain diminishes, the diary should be updated or a weekly or biweekly basis.

Be aware that there is a possibility that you will be videotaped by an investigator for the insurance company. They will attempt to videotape you performing activities that appear to be inconsistent with your injury. For example, if you have a back injury, the adjuster will look for activities such as lifting heavy items, running, jumping, etc. Therefore, you need to follow your doctor's orders and not perform strenuous activities until you are released by your doctor.

Be aware that the insurance company will try to obtain a statement from you soon, sometimes within hours, after the accident to pin you down to a story before you can hire an attorney. The claims adjuster's aim is to get you to say something that could be considered an admission of fault on your part or which limits the seriousness of your injuries.

Remember the insurance company is not your friend.