HC Justices of the Peace nd Legislative Update

HC Justices of the Peace nd Legislative Update – 82 Legis. Civil Jurisdiction & Causes of Action AUGUST 12, 2011 Oh, Great! Changes effective 9/1/11 unless otherwise noted

Are you kidding me? HB 274 Early dismissal of frivolous causes of action S Ct to adopt rules for Motion & hearing w/in 45 days (GV 22. 004) Award of attorney fees & costs to prevailing party (CV 30. 021)

Giddy Up! HB 274 Promote Efficiency of Civil Actions S Ct to adopt rules to promote efficiency in District, County and Probate Courts with particular attention to lowering Discovery costs (GV 22. 004)

There IS such a thing as a free lunch HB 942 School Districts added to list of govt entities that may institute/prosecute suits w/out giving security for costs and appeal w/out giving supercedeas or cost bonds (CV 6. 004)

You calling me a liar? HB 3674 Currently, Unsworn Declaration (U. D. ) use limited to inmates NOW, all persons may use U. D. in lieu of verifications, oaths, affidavits, etc. that are required by statute or rule

(So what if I am? ) HB 3674 Unsworn Declaration MUST be: In writing; AND Subscribed by person making declaration as true under penalty of perjury & must contain jurat Inmates’ U. D. must contain inmate’s ID number & location of incarceration (CV 132. 001/Both forms there too)

You calling me a liar? (Part Deux) HB 962 For all process SERVED after 1/1/12, return of service MUST : (1) state when it was served; (2) state on whom it was served; and (3) be signed under penalty of perjury by the party making the service Does away w/ notary public requirement ( too timely & costly? ) (CV 17. 065(b)

Guess I am – so what? HB 962 S Ct to adopt rules for new returns of service, including required info, and MUST provide: that return not required to be endorsed or attached to orig. process; may be filed electronically; must contain process server’s ID number; and provide that a certified process server signs under penalty of perjury (tampering w/ govt record) (new CV 17. 030)

Registered, Schmegistered HB 2047 Where Registered Agent is organization, req’d to have employee available at registered office during normal business hours to receive service of process, notice, or demand ANY employee of the organization may receive the Oh, Great! service of process (BO 5. 021)

The Tax Man Cometh SB 582 Process req’d to be served by political subdivision for collection of delinquent prop taxes on corporations whose corp privileges/right to transact business is forfeited or corp/LLC involuntarily terminated/whose registration is revoked can be delivered to any officer/director/manager listed in most records of the Sec of State (BO 5. 257)

You can’t find these guys - really? HB 1381 By 12/1/11, warden of each TDCJ facility must designate an employee @ facility to serve as agent for service of citation/other civil process for inmates confined therein (CV 17. 029)

Parlez-vous ya’ll? SB 428 W/ foreign judgment, judgment creditor/atty still required to file affidavit showing name & last known address of judgment debtor & judgment creditor AND NOW must also mail notice of filing of foreign judgment to judgment debtor Judgment creditor/atty must file proof of mailing w/ clerk-clerk required to note mailing in docket (CV 35. 004)

Showdown at the AG Corral HB 2425 Court req’d to notify AG when a party files petition/motion/pleading challenging constitutionality of Tex statute if AG not already party to suit Notice & copy of pleading must be served by CMRRR or to email designated by AG for that purpose Notice must ID statute & basis of challenge Court may not enter FJ holding statute unconst. before 45 th day after notice served on AG (GV 402. 010)

The Final Frontier SB 115 A space flight entity is NOT liable to any person for space flight injury/damages is participant has signed an agreement & warning EXCEPT for injuries caused by SFE’s gross negligence SFE can prohibit person from space flight unless they choose to assume the risk (CV 100 A. 001 et seq. ) 4/21/11

Careful with that muzzle. . . HB 2973 Defendant sued b/c of exercising right to free speech or right to petition govt may file motion to dismiss suit Once filed, Plaintiff must show by clear, specific evid that P has genuine case for each element of claim Court req’d to rule on Motion not > 30 days after hearing Failure to rule = denial of Motion by operation of law If Motion granted, P may be req’d to pay D’s atty fees Expedited appeal – filed w/in 60 days of Ct’s ruling (CV 27. 001)

So buy some earplugs already SB 766 Prohibits civil action against sport shooting range, its owner/operator, or person owning RE where located for recovery of damages resulting from, injunctive relief/abatement of nuisance related to, or damages/other relief related to discharge of a firearm (CV 128. 051)

Not so quick w/ that six-shooter, partner SB 766 Civil actions allowed for: Breach of K for use of RE Oh, Great! Damage/harm prop caused by discharge of firearm on SSR PI or death caused by dischg of firearm on SSR Injunctive relief to enforce valid ordin/stat/reg Requires expert report served not later than 90 th day after orig. Pet filed, w/ one 30 -day extension if report deficient If report not filed, upon Motion, court may dismiss claim w/ prejudice and award attorney fees & costs (CV 128. 051)

I’ve got this bridge you might be interested in SB 1353 RE brokers/salespeople exempt from DTPA Does NOT apply to: Express misrep of material fact that cannot be characterized as advice, judgment or opinion Failing to disclose info if failure was intended to induce consumer into transaction wouldn’t have otherwise done if info known Unconscionable action (not ad, op, judg) (BC 17. 49)

I know it’s an emergency but wait a second. . . SB 328 Add’l req. that notice be given to injured individual in order to secure hospital/emergency medical services lien Notice not later than 5 th biz day after hospital/EMS receives notice from Co Clk that notice of lien has been filed in Co records Notice must inform: that lien may attach to cause of action/claim indiv may have agnst another for his injuries; the lien does NOT attach to real prop owned by individual Notice not req’d if given on service authorization form signed by injured indiv & failure to receive doesn’t affect validity of lien (Prop C 55. 005)

Just like one of the guys SB 1271 Governmental entities included among those intended to use ADR to resolve disputes (CV 152. 001) 6/17/11

They’ve gotta be good for SOMETHING at this age HB 2717 Age of child that may serve as basis for jury service exemption for person w/ legal custody of child who will be left w/out adequate supervision b/c of service lowered from 15 YOA to 12 (GV 62. 106) 6/17/11

Who loves ya, baby? SB 85 Jury service exemptions to be made to voter registrar NOT tax assessor-collector (GV 62. 107; . 108; and. 109)

At this rate, I can retire early SB 1 B/t 9/1/11 & 9/1/13, person who reports for jury duty is entitled to reimbursement: -Not less than $6 for first day; and -Not less than amount provided in General Appropriations Act for each day after first (GV 61. 001) 9/28/11

Apparently, a rose by any other name is NOT still a rose HB 989 Based on the alarm of local florists. . . Prohibits person from misrepresenting geo location of biz that derives 50% or more of its GI from the sale/arranging for sale of flowers in listing of the biz: -in phone directory -on Internet website -in print advertisement (BC 17. 462) (I feel better already. . . ) Oh, Great!

New Kids On The Block HB 1146 Est. of regulation for registration & operation of Appraisal Management Companies AMC = 3 rd party that performs Appraisal Management Services (think valuing prop for securing mortgage) AMS = select appraiser, contract w/ appraiser, provide a completed appraisal (OC 1104) 3/1/12

Lessons from Ike (not Turner) HB 1711 Prohibits disaster remediation contractor from -requiring person to make full/partial payment before beginning work - requiring any partial payment exceed an amt reasonably proportionate to work performed, including materials Prohibitions must be in K in @ least 10 point size Waiver of provisions is void Violation by contractor is a Deceptive Trade Practice Provisions DO NOT apply if contractor has maintained physical biz address in county/adjacent county to prop for 1 year preceding K (BC 57. 003)

Gimme MY money SB 141 If consumer cancels debt management service agreement, service provider MUST immediately return: -any money held in trust by provider for consumer’s benefit; and - 65% of any portion of account set-up fee that hasn’t been credited against settlement fees (FI 394. 2095)

Try not to squeal the tires, ok? HB 2468 Requires pay-to-park/valet services to include name, address & telephone # of owner on the receipt/claim ticket or on sign where you pay for parking Subject to $200/violation civil penalty Does NOT apply to owner of restaurant, cafeteria, other food seller, inn, hotel or motel (Hmmm, who’s left? ) (BC 106. 001)

And him … and her…and him… HB 274 Defendant not allowed to designate person as responsible 3 rd party after limitations has run if D has failed to comply w/ timely disclosure obligations, if any, under TRCP 3 rd party practice rules (CV 33. 004)

Psssst, need a lawyer? SB 1716 K for legal services voidable is procured in violation of barratry laws or Tex DRPC rules Client may recover fees & expenses paid, actual damages & attorney’s fees If person solicited but didn’t enter into K, may still file civil action and recover penalty of $10 K, actual damages & attorney’s fees if he prevails Oh, Great! (GV 82. 065 &. 0651)

Wasn’t THAT much “juice” in the fence. . . SB 1160 Owner/occupant/lessee does NOT owe a duty of care to a trespasser & is NOT liable for injury to trespasser except owes duty to refrain from injuring trespasser willfully, wantonly, or through gross negligence (So much for the moat and alligators. . . ) (New CV 75. 007)

Those pesky kids again. . . (More SB 1160) Owner MAY be liable for injury to child caused by highly dangerous artificial condition of land if: Owner knew/should have known kids likely to trespass; Owner knows condition exists & is unreasonable risk to kids; injured kid didn’t know risk of meddling w/ condition; burden to Owner of eliminating condition slight compared to risk; and Owner failed to exercise reasonable care to eliminate condition (New CV 75. 007)

I’m tired of this bill now. . . ( More HB 274) Owner/lessee/occupant who gives permission to another to enter does NOT -Assure premises are safe for that purpose -Owe a greater degree of care than to a trespasser and is NOT liable for injury caused by person to whom permission granted (New CV 75. 007)

Good Samaritan to our furry friends HB 2471 A person who in good faith & w/out compensation gives/obtains med care for a non-livestock animal that is injured, abandoned, running at large, or a stray is not liable for civil damages for injury to the animal unless person is grossly negligent IF person first takes reasonable steps to locate owner (info on tag/collar/chip) or notifies animal control agency he has custody of animal OR vet determines animal needs immediate care or shows signs of recent abuse ( New CV 92. 002)

Is it Shark Week already? Oh, Great! HB 2594 Requires licensing & regulation of certain credit services organizations Credit Services Organization: for payment provides or represents they will provide the following services: -improving consumer’s credit history/rating -obtaining an extension of credit for consumer -provide advice/assistance to consumer as to improving credit history/rating/extension of consumer credit (New FI 393. 601)

FINALLY. . . their day has come More HB 2594 If CSO obtains extension of consumer credit in form of Cash advance in exchange for personal ck or debit authorization in amt of advance + fee AND agrees ck won’t be cashed or debit made, OR, a motor vehicle title loan, MUST -obtain a license -post a bond -display the license at a place of business or on website -give written notice of change of address -comply with rules of Texas Finance Commission (New FI 393. 601)

No chumming allowed More HB 2594 If CSO not licensed, may NOT advertise CSO may NOT advertise on premises of nursing facility, Assisted Living Facility, group home, intermediate care facility or other facilities regulated by Dept. of Aging & Disability Services Violations of any provisions is Class B misd. (New FI 393. 601)

YOU read it if you’re interested HB 2931 Relates to certain Debt Cancellation Agreements in connection w/ retail installment agreements Essentially, where retail seller agrees to cancel all/part of obligation to repay money owed under K upon the total loss or theft of the motor vehicle but does NOT include an offer to pay a specified amount of $$$ upon total loss or theft A GAZILLION acts, occurrences, time periods, deadlines, time constraints, documentation requirements, etc. . Enjoy! (New FI 348. 601)

If it ain’t sharks, it’s leeches SB 767 Regulation of Residential Mortgage Foreclosure Consulting Services Regulates persons who, for compensation, represents they will: prevent/postpone a foreclosure; obtain a forbearance from a mtg & deed of trust; assist in curing default; obtain extension or waiver of acceleration; assist in obtaining loan/advance of funds to prevent foreclosure; stop impairment of credit resulting from recording defaults or foreclosure sales; save residence from foreclosure, or assist in obtaining excess proceeds from foreclosure sale for HO (New BC 21. 001 et seq)

Said the spider to the fly. . . (More SB 767) K for purchase of MFCS must be in writing, dated and signed by HO & MFC Prior to K, MFC must provide HO w/ certain notices MFC may NOT: charge/receive compensation until he has fully performed; receive consideration from 3 rd party; take a power of attorney from HO; acquire interest in real/personal prop of HO to secure payment of compensation; or take assignment of wages from HO Violations of any provisions is Class C misd. (New BC 21. 00 et seq)

On second thought, never mind More HB 2594 Consumer may cancel ID recovery service K at any time If K cancelled BEFORE 31 st day after purchase, provider MUST refund full purchase price, less any claims paid under K and may NOT impose a cancellation fee If K cancelled after 31 st day AFTER purchase, provider MUST refund prorated purchase price, less any claims paid under K, & may impose cancel fee of > $50. 00. Provider faces 10% penalty for each month he fails to refund amount if not refunded w/in 45 days of cancellation of K (OC 1306. 1081)

Love at first byte SB 488 Criminal background checks on users of Online Dating Services: Online dating service provider must disclose whether the DO or DO NOT conduct criminal background investigations on each member If DO NOT – must be in bold, capital letters @ least 12 -pt type (New BC 106. 004)

Can’t wait to take you home to the family Oh, Great! (More SB 488) If DO criminal background ck-must disclose - if they exclude from dating service all persons id’ed as having been convicted of: felony, offense that requires registration as sex offender; or offense w/ family violence -# of years of criminal history included -warn that criminal checks aren’t foolproof and don’t cover convictions except homicide, kidnapping and sexual/assault offenses & no foreign (New BC 106. 005)

Don’t talk to strangers or your online date (More SB 488) Requires online dating service provider to provide safety awareness notices, such as: -”There is no substitute for acting w/ caution when communicating with any stranger who wants to meet you. ” -”Never include your last name, email address, home address, phone number, place of work, or other id info in your profile or initial emails. ” -”If you choose a face-to-face meeting w/ another member, always tell someone in your family or a friend where you are going & when you’ll return. Always provide your own transportation and meet in a public place. ” (New BC 106. 006)