San Antonio Injury Attorney Blog

In our last blog entry , we outlined the RIGHT way to handle a Texas police stop . Now, let us discuss the wrong way to handle a police stop with the aid of the following video:

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I cannot begin to tell you the number of things that these individuals did wrong on the video. Sadly, this is the norm for many of my clients, not the rule. Imagine being a student and having your federal college loans revoked because of a misdemeanor possession of marijuana charge ? Do you think the police magically obtain the evidence against you ? No, people empower the police by essentially waiving their constitutional rights.

People do not understand that if they can be charged with possession if an illegal item is found in their vehicle that does not belong to them .

Remember a basic common rule:

ILLEGAL ITEM + CONSENT = ARREST

In the video above, the teenagers committed several cardinal sins.

First, they acted nervously and the police seized on their fears.

Second, they would not shut up! They just kept talking and answering questions. Remember that being silent is a simple and direct way to assert your right to remain silent. This is a cardinal rule that is especially prevalent on San Antonio DWI Defense cases - the driver just keeps talking and talking , digging himself a deeper and deeper hole !

Third, the individuals consented to the search of their vehicle! Why would anyone in their right mind ever do such a thing ?

Fourth, the teenagers got tricked. They cowered under the police threat and gave in. Rather they should have recognized the police tactics for what they were - a hollow, empty means to intimidate them to forsake their constitutional rights !

If you have been charged with a Bexar County misdemeanor / felony, and you need a San Antonio criminal defense lawyer , then do not hesitate! In the meantime, make life easier for yourself and your criminal defense attorney by holding on to your right to remain silent and refuse consent on any searches.

UPDATE: Please read about this new Supreme Court Case on the right to remain SILENT and what you must do to protect it.

As I have handled more San Antonio criminal defense cases, I have come to the startling revelation that many of my clients would not find themselves in their current situation if they applied some basic rules when dealing with the police. If you are willing to remember some key points when dealing with the police, then you stand a far greater chance of either being released with a simple citation or being acquitted of all charges if you are actually arrested.

You can prevent a traffic stop from turning into a Bexar County misdemeanor or a misdemeanor from turning into a full blown San Antonio felony charge.

People have this naive idea that the police are willing to work with them, and if they simply explain the situation, the police will empathize and release them Wrong! The police are not your friends - think of them as the agents of the District Attorney's office. The job of the police is to build a case against you. Even the purely innocent must be wary of any statements made to the police. What if the police claim you stated something you didn't or they misinterpret your statements? Can you imagine a jury having to determine between a criminal defendant and a police officer as to who is telling the truth ? Who are they more likely to favor ? It is a no win situation and a lesson you should learn now as opposed to later.

Remember that the police may legally lie to you so never let them trick you into waiving your rights.

So in this blog entry, I will cover some basic rules on routine traffic stops that can become your worst nightmare if you do not follow some simple rules. With the aid of the following video, I will add some commentary to guide you through.

Review this first clip to see the RIGHT way to act with the police:

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Notice how one person takes control of the situation – ie. One person does all the talking.

By rolling up all the windows, the officers’ access to the car is limited.

When first dealing with an approaching officer, allways put your hands on the wheel in plain view

By asking why he was pulled over, the driver asserts his innocence.

In response to the question , “Do you know the speed limit ?" , the driver asserts his 5th amendment right against self incrimination and does not answer.

"Officer, how can I help ? " . This is a relatively easy way for the driver to be cool and courteous , a key rule to remember.

"Why officer?" Again, this question forces the officer in a corner. He must have probable cause to search the vehicle. It is interesting if he cannot articulate his reasons right then and there.

When asked to step out of the car, driver locks his doors. This makes it clear the officer does not have permission to search the vehicle.

“Are you detaining us officer or are we free to go ?” This is an excellent question.

Always ask if you can leave. The police must have some probable cause to detain you.

Make it verbally clear that you do NOT consent to any searches.

In these situations, the officer is NOT looking to help you.

What is the probable cause for detaining the occupants of a car ? There is none. It’s an idle threat.

Ask again if you can leave. Speeding does not constitute probable cause for a vehicle search.

What is the “next level” ? It is just police rhetoric designed to intimidate you into doing what they want.

The Supreme Court states that once you are cited, you are free to leave. If you stick around, it is on your own free will. Take the ticket and leave.

Did you notice the common thread in this situation ? The driver talked very little! Plus, he did not directly answer any questions. He simply asserted his right to remain silent and did not consent to any vehicular searches.

Knowing some of these basic rules can greatly assist you especially if you need a San Antonio DWI lawyer. Contact one today immediately if you have been arrested in Bexar County or surrounding counties such as Wilson County or Atascosa County.

UPDATE: Please read about this new Supreme Court Case on the right to remain SILENT and what you must do to protect it.

Often clients will come in and ask about the conditions under which Bexar County child support may be terminated. For example, perhaps the child no longer lives with the custodial parent, and the non-custodial parent no longer wishes to make payments to the custodial parent. Well, you can certainly change to whom you make payments, but you cannot change the fact that you must make payments regardless of where the child resides - unless of course it is with you.

The Texas Family Code is very clear on the fact that child support must continue - 1) until the child turns 18 or graduates from high school, whichever is later; 2) until the child is emancipated (usually when they marry or when the court rules they are no longer a minor); 3) until the child dies; or 4) if the child becomes disabled indefinitely. If the county Department of Protective and Regulatory services becomes the managing conservator of the child, then the court can order both parents to make child support payments.

The Texas Family Code also outlines very specific grounds for the modification of child support. One of the grounds is a “material and substantial change" in the circumstances of the child. For example, if the child no longer lives with the mother during the week, and the mother is no longer furnishing the same degree of services to the child as at the time of the divorce, while the level of the father's services have increased, then such a situation would warrant a modification of child support. The court compares the financial circumstances of the children and the parents at the time of the previously entered order with the current circumstances to determine whether in fact there has been a material and substantial change.

Another common ground for the modification of child support is if it has been 3 years since the order was rendered or modified. In addition, the monthly amount of the child support due under the current guidelines was different by at least 20% or $100 from the current amount being paid. It is important to note that child support payments cannot be modified once they have accrued. In other words, the court can only modify a child support order only as to subsequent child support obligations. What the court can do is retroactively modify the monthly child support by backdating any accrued obligations to the filing of the motion to modify. This is done to remove any motive on the part of the paying parent to engage in delay tactics.

There are certain areas the courts may not consider as grounds for modification of child support. For example, an increase in needs or standard of living or lifestyle of the obligee (the party receiving child support payments) is not a ground for modification. A history of voluntarily provided support by the obligor (the party making payments) and the net resources of new spouses are other factors the court cannot take into account. A remarriage of the obligor is not a factor as to whether to increase or decrease child support.

Ultimately, a San Antonio Texas modification of child support hinges on the net resources and abilities of the parties, as well as the needs of the child. A San Antonio family lawyer can assist you with a Bexar County child support modification .

In our last blog entry on San Antonio adverse possession of real estate , we touched on the conditions of the 3 year and 5 year statute of limitations for an owner to bring an action to recover property held in adverse possession.

Under the ten (10) year statute of limitations, an owner of land must bring suit to recover land held in adverse possession by a party that cultivates, uses, or enjoys the property. This is the most common statute of limitations, since most parties in adverse possession do not hold the land under a title or deed and have not paid any real estate taxes. Without a title, theoretically, a person in adverse possession is entitled to no more than 160 acres.

The final statute of limitations is the twenty-five (25) year limitations period. This is the catch-all limitations period that applies regardless of whether the owner had a disability during the time of adverse possession. An owner who sues for recovery from an adverse possessor may under the law suffer from a disability. Texas real estate law recognizes that an original owner may have a disability such as being a minor (under 18), having an unsound mind, or serving in the military during a time of war. The time of disability is not included in a limitations period. Texas law however essentially cuts off an owner's right to sue for recovery of land held in adverse possession regardless of disability if 25 years passes after the adverse possessor first occupies the property.

In our last entry, we discussed the gentleman who inherited what he believed to be a large vacant lot only to find out that there were "squatters" on the land. There are several options for this gentleman. He can try to file suit for San Antonio forcible entry and detainer which is brought when an owner wants to evict a trespasser. That type of suit is heard by the Texas justice court. From a strategic standpoint, the owner has to realize that the trespasser may claim a right to the property via adverse possession. If the forcible entry and detainer action requires the justice court to establish property title and weigh competing rights to superior possession, then the justice court will lose jurisdiction and the case will be moved to the county court.

The original owner can also sue to recover real estate held by a party via adverse possession. This may be the best bet for the owner, although it is costly and time consuming. If there is a question as to title, the owner can bring a Texas trespass to try title suit to establish a superior title to a piece of property.

In the case of our gentleman, he cannot simply walk onto the land and repossess it. Texas does not condone a self-help repossession of land. The gentleman must utilize legal process, and a San Antonio real estate lawyer can assist you in developing the best legal tools to effectuate possession.

Imagine you have inherited a large, vacant piece of Texas land from your beloved uncle. You are excited, because the land holds promising residential and commercial real estate development. You travel out to view the land, and you notice a large mobile home parked on the land accompanied by what appears to be utilities, including a septic tank and electrical hook up. You are shocked, because no had ever mentioned to you that the land could be occupied. You have no idea how long they have been there, and war stories of adverse possession start circulating through your head.

Before you become too anxious, perhaps the following primer on San Antonio and greater Texas adverse possession will be helpful. Under the Texas Civil Practice and Remedies Code , the term "adverse possession" refers to a situation where a party makes an actual and visible takeover of land that is considered hostile and inconsistent with the claim of another party. The possession must occur over a period of time in which there is no suit by the landowner to recover the property.

There are multiple statutes of limitations on adverse possession in Texas.

For example, under the three (3) year statute of limitations, a party has three years to file suit to recover property held in adverse possession by the occupants if the occupants have asserted title or color of title to the property. Title means that the party in adverse possession is listed in a regular chain of transfer of real estate. "Color of title" refers to a consecutive chain of transfers that is not properly recorded. This is a very short statute of limitations, and it is essential that a property owner researches the county records to make sure that title still remains in their name.

Under the five (5) year statute of limitations, then the owner has five years to bring suit to recover land held in adverse possession where the party occupying the land is enjoying the property, paying the real estate taxes and is claiming the property under a registered Texas deed. The deed must be valid, and it cannot be forged in any way.

In our next post on this topic, we will discuss the 10 year and 25 year statute of limitations and some of the elements of evidence a party must prove in a suit for adverse possession as well as a trespass to try title suit.

If you are like the gentleman above, time is of the essence. You must consult a San Antonio Texas real estate attorney to determine your options to fight someone who is not welcome and has taken over your land.