TYSK–Infidelity and Divorce in Texas

By Jennifer Pahlka from Oakland, CA, sfo  [CC BY-SA 2.0], via Wikimedia Commons
The AshleyMadison.com hack and subsequent release of about 30GB of user data claimed at least one very high-profile victim this week: Josh Duggar.  The former FRC Action head’s brand image was already tarnished by his acknowledged inappropriate behavior with his siblings (hence, why his position with the Family Research Council is marked with “former”), and now his acknowledged infidelity brings that image even lower.

(As an aside, generally speaking, whether a person has an affair is pretty much an issue to be dealt with only by that person and that person’s spouse.  However, when a person has made a career on publicly and zealously telling other people that affairs and pornography are evils which must be eradicated, but doesn’t toe the line himself, I think it becomes newsworthy.)

Can You Sue Your Cheating Spouse in Texas?

Infidelity, cheating, adultery, alienation of affection, criminal conversation, whatever you want to call it, used to be a crime in Texas.  (It still is, in fact, in some states; whether those laws would actually be enforced today is another question.)  It also used to be an independent tort which could support a civil cause of action against the wayward spouse.  Since 1997, however, Texas does not have an independent cause of action against someone who strays. See Tex. Fam. Code §§ 1.106 & 1.107.

How About Divorcing Your Cheating Spouse?

Adultery, however, is explicitly listed as a grounds for divorce in Texas.  See Tex. Fam. Code § 6.003 (“The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.”)  Rarely, though, will you see a divorce petition which lists adultery as the reason for the divorce.  This is because Texas allows a divorce without fault when things have become irreconcilable.  See id. § 6.001 (“the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”)  With such catch-all language available, there is often little reason to make a spectacle of such proceedings.  In other words, while infidelity indubitably is the cause of many divorces, many parties simply want to get the proceedings over with with as little hassle as possible.

This is not to say that adultery should never be alleged in a petition for divorce.  Adultery, for example, is one of the factors a court will consider when determining whether spousal maintenance should be ordered.  See Tex. Fam. Code § 8.052(10).  It can also affect the division of the community’s property. See id. § 7.001 (“the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”)  It can also be a factor in determining whether a party has committed a fraud on the community, and if so, whether that will affect the division of the estate.

Not All Affairs End in Divorce

It is also important to note that a great number of relationships have been able to withstand a spouse’s infidelity, and I’m certainly not suggesting that Anna Duggar is going to run out to file divorce papers on Josh Duggar.

If, however, you have questions about your spouse’s infidelity and how it affects you, please contact the Choate Firm to schedule an appointment.

TYSK: Changes to Texas Expunctions are NOT Coming

Sample first page of Petition for Expunction
Sample first page of Petition for Expunction

Earlier this morning, I mentioned that a lot of changes to the Texas petition for nondisclosure regime are coming on September 1, 2015.  Alongside those changes, the legislature also passed HB 3579 which would have made some fairly significant changes to the expunction regime in Texas.

The legislature will have to wait to implement those changes, however, because Governor Abbott vetoed the legislation on June 20, 2015.  In so doing, he stated in part:  “[HB 3579] goes too far by allowing courts to expunge dismissed criminal charges–including serious felony charges–even when the defendant was convicted of other, related charges.”

Not much else to add to this, other than the current expunction process remains in place.


TYSK: Changes to Texas Petitions for Nondisclosure are Coming

Image from: «WinonaSavingsBankVault» por JonathunderTrabajo propio. Disponible bajo la licencia CC BY-SA 3.0 vía Wikimedia Commons.

It wasn’t so long ago (February 26, 2015, to be precise) that I mentioned that people who did some sort of straight probation (rather than getting a deferred adjudication) were out of luck when it comes to sealing their criminal records in Texas.  (Which of course causes people to ask “How do they expect me to live and not steal stuff if I can’t get a job?!?!”  Perhaps not the most ethically responsible question to ask, but it’s at least understandable and does form the basis for the change…)

And when I speak to people in those situations, I always whimsically mention that maybe the Texas legislature will surprise all of us by giving people some sort of relief, even with a conviction, but until then… well.

Turns out, the Texas legislature has surprised us.

On September 1, 2015, the regime governing petitions for nondisclosure will change, opening up new opportunities for certain individuals to put mistakes behind them and try to get ahead in life.

Five Things You Should Know

  • 1. Senate Bill 1902 was signed by Governor Abbott on June 20, 2015, and the law will take effect September 1, 2015.
  • 2.  The Senate Research Center’s Bill Analysis addresses the need for such a change to the nondisclosure regime:
    • A criminal record can be a crippling barrier to obtaining employment. Studies show that ex-offenders who are gainfully employed are much less likely to re-offend. Thus, a responsible, limited expansion of current nondisclosure law is important in giving reformed offenders a second chance, creating a safer Texas, and increasing the workforce with individuals who are no longer limited by their minor criminal histories.
  • 3. An Order of Nondisclosure is not for everybody.  As the Bill Analysis states, in part: “S.B. 1902 maintains current law which exempts serious violent offenders, sexual offenders, and family violent offenders from ever receiving an OND.” There are other exceptions to receiving an OND.
  • 4. The procedure and eligibility information for Orders of Nondisclosure is transferred from Tex. Govt. Code § 411.081(f) to Tex. Govt. Code § 411.0715 et seq.  The new regime is fairly convoluted (not that the old system wasn’t) and, as is typical for Texas statutes, contains a lot of cross-references.
  • 5. There are 4 classes of individuals who are eligible for an Order of Nondisclosure:
    • First-Time Non-Violent Misdemeanor Offenders placed on Deferred Adjudication (Texas Govt. Code § 411.072)
    • “Traditional” Nondisclosure Petitioners (Tex. Govt. Code § 411.0725)
    • Non-Violent, Non-Sexual, Non-Alcohol Misdemeanor Offenders placed on “Straight” Probation (Tex. Govt. Code § 411.073)
    • Non-Violent, Non-Sexual, Non-Alcohol Misdemeanor Offenders who serve a period of confinement (Tex. Govt. Code § 411.0735)

There are indubitably some downsides to the new nondisclosure regime. For example, certain law enforcement, educational, and licensing agencies are still entitled to review one’s criminal record.  In addition, banks and other financial institutions, along with facilities that handle dangerous materials, will be allowed to review the criminal record in certain situations.

I’m still wading through the legislation, but if you have any questions regarding petitioning for an order of nondisclosure, please feel free to contact me.

TYSK: J&J Sports Productions

Schachboxen1 If you own a small restaurant or bar, and you’ve shown a pay-per-view boxing match on your television, chances are, you’ve received a letter from J&J Sports Productions, Inc. alleging that you’ve somehow illegally received a satellite transmission of the fight. The letter you received might discuss violations of 47 U.S.C. § 553 and/or 47 U.S.C. § 605.  The letter might also warn you that you face statutory penalties of $100,000.00.

And you’re probably a little confused.

After all, if you’re like a lot of people who end up getting sued by J&J, you ordered the fight from your provider, and your provider told you the cost was, say, $65. Certainly not the $100,000 that J&J thinks you should pay.

There’s a lot going on here, and you should know at least two things about J&J:

  1. Ignoring the letter won’t really help.  J&J files a lot of lawsuits. According to PACER, since 2005, there have been at least 3,111 cases filed against bar and restaurant owners all across the country. 22 cases were filed this week alone: one on Monday in Arizona;  15 on Tuesday in Arizona, Arkansas, and California; and six on Wednesday in California.
  2. J&J is heavily committed to the litigation. In one Northern District of California case, J&J won a favorable recommendation  for a default judgment from a United States Magistrate Judge.  J&J Sports Prods. v. Bracamontes, 2012 U.S. Dist. LEXIS 36726 (N.D. Cal. Mar. 15, 2012). J&J didn’t like that the Magistrate Judge recommended only $2,400 in damages instead of the $111,200 it sought.  J&J then filed an objection to the recommendation with the District Court, along for a request for a de novo review.  The District Court determined that J&J had actually not established enough damages that the fight in question was the fight referenced in its supporting evidence for the default judgment. J&J Sports Prods. Inc. v. Bracamontes, 2012 U.S. Dist. LEXIS 125329 (N.D. Cal. Sep. 4, 2012).  As a result, the District Court wiped out the recommendation and sent the case back to the Magistrate Judge.  J&J fixed the evidentiary problems, and the Magistrate Judge again recommended $2,400 in damages.  J&J Sports Prods., Inc. v. Bracamontes, 2012 U.S. Dist. LEXIS 186965 (N.D. Cal. Nov. 13, 2012). J&J again objected to the report and sought enhanced damages claiming that $2,400 did not serve as a sufficient deterrent.  The District Court declined to enhance the damages and entered the default judgment as the Magistrate Judge recommended.  J&J Sports Prods., Inc. v. Bracamontes, 2013 U.S. Dist. LEXIS 38480 (N.D. Cal. Mar. 19, 2013).  While federal courts in California admittedly use the Magistrate Judges regularly, it’s still pretty notable that four opinions stemmed from one motion for default judgment.

If you’ve received a letter from J&J Sports Productions, contact me as soon as possible so we can discuss your options.

TYSK: Standardized Field Sobriety Tests (SFST)

Image cropped from original source: Ayden Cocktails on Flickr, used under Creative Commons license.

Axiomatically, every man is presumed to know the law. This is, of course, a falsehood.  But it’s a legal fiction that allows courts to avoid the problem of dealing with a defendant whose main defense is “well, shoot, if I’d a’ known it was illegal to kick a horse, I probably wouldn’t a’ done it…” After all, if everyone could avoid criminal penalties by claiming ignorance, well… we would have a lot fewer people in the criminal justice system.

To that end, I’ll be doing some posts under the general banner of “Things You Should Know” (TYSK) which will, I hope, shed a little light on things that have a huge impact on people from a legal perspective.  This post, for example, addresses DWIs and Standardized Field Sobriety Tests (SFST) and three reasons why you should never try to perform them.

TYSK about SFSTs

1.  SFSTs are not just about performance; they are also about following instructions.  I’ve had a number of clients tell me with pride how well they did on the Walk & Turn portion of the SFST. “I was able to walk in a straight line all the way to thirteen!” one might say, or “During the turn, I did a crisp military swivel just like I learned in marching band in High School; I stopped, planted, and spun around, without even falling over!” might say another. Unfortunately, going the extra mile, or executing a fairly complicated turn registers as a fail. This is because the paperwork the officer fills out for the W&T looks like this:

Image adapted from firm's files.
Image adapted from firm’s files showing some of the cues an officer is looking for when he conducts the SFSTs.

Notice how there isn’t a check box for “went the extra mile” or “can do a fancy pirouette”? What matters on these tests is whether you do what you you’re told to do, not that you’re trying to get extra credit.

2. The officer’s subjective belief about your state of intoxication matters a whole lot more than it should, and Texas judges are keen to give a lot of deference to law enforcement officers. After all, officers are seen as performing a valuable service to society (keeping us all safe from criminals), while exposing themselves to occupational hazards (getting shot at or run over in the middle of the night). So they get a lot of leeway when it comes to their testimony at trial.  Even if he completely botches the administration of the SFSTs, an officer who testifies “I could just tell that dude was drunk because he couldn’t keep his foot elevated for thirty seconds” is going to be believed more often than an officer who doesn’t have any demonstrable evidence. Why give them that kind of ammunition?

3. You’re almost never going to be able to perform your way out of these tests.   Officers will always testify that not every person pulled over and asked to perform SFSTs will end up getting arrested for DWI. (These officers are also never able to give an exact number of such releases, but they insist that they let some people go.) Here’s the thing: if you’re asked to perform a SFST, it’s because the officer feels he is able to establish probable cause to ask you to consent to some sort of intoxication testing. He will say something to the effect of “the individual had glassy bloodshot eyes, and I could detect the odor of alcohol on his breath.” Once that happens, and you’re asked to step out of your vehicle, you’re almost assuredly not getting back in it that night.  Yes, you’re going to be facing a lot of expenses from that moment forward because you’re getting arrested for DWI, but refusing to do the SFSTs just might mean you get your case dismissed or an acquittal at trial instead of a conviction.

Obviously, if you’re going to go out drinking, it’s always better and safer to secure a sober drive.  But if you do get pulled over for DWI, do yourself a favor and don’t perform the SFSTs.