San Antonio Injury Attorney Blog

May 10, 2010

What To Do on a Police Stop in San Antonio Texas and Bexar County

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.

May 7, 2010

San Antonio Texas Child Support Guidelines and Modification

by Michael Baseluos

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.

May 3, 2010

San Antonio TX Adverse Possession – Statute of Limitations

by Michael Baseluos

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.

May 1, 2010

San Antonio Texas Real Estate Law : Adverse Possession and Trespass

by Michael Baseluos

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.

April 25, 2010

Texas Toxic Torts: Leukemia and Other Cancers From Exposure to Industrial Chemicals

by Michael Baseluos

A life-long printer worker. A paint factory worker. An aviation gas refueler. What do these occupations have in common ? These are occupations in which workers are exposed to carcinogenic chemicals on a daily basis. They often work for companies who do not value personal safety of their workers. Companies express their lack of concern by refusing to invest in safety programs and issuing Personal Protective Equipment (PPE) such as masks and gloves to their workers.

Many of the solvents that such workers use on a daily basis contain carcinogens. These chemicals such as benzene, toluene, xylene, and naptha cause cancers that do no manifest themselves until 20-30 years after exposure. These types of illnesses are known as “latency injuries”. To illustrate, chronic myelogenous leukemia (CML) is associated with an exposure to benzene that can occur 25 years prior to the first manifestations of the symptoms.

Often times, a Material Safety Data Sheet (MSDS) accompanies these chemicals. However, industrial companies are lax in educating their workers about the risks of such chemicals from the information on the MSDS. The MSDSs contain explicit warnings on the carcinogenic effects as well as pulmonary and respiratory dangers. There are several international organizations which issue warnings on carcinogenic effects, including the National Toxicology Program (NTP), IARC (International Agency for Research on Cancer), OSHA (Occupational Safety Health Administration), and ACGIH (American Conference Of Governmental Industrial Hygienists) . The MSDS will often cite these organizations when discussing the classification of the particular components of a product.

April 22, 2010

Elements of Common Law Divorce in San Antonio and Greater Texas

by Michael Baseluos

The Texas Family Code recognizes two types of marriages : ceremonial and common law. Although Texas recognizes common law or informal marriage, there is a great deal of confusion about what constitutes a Texas common law marriage . The elements of an informal / common law marriage are that a man and woman (1) agreed to be married, (2) lived together in Texas as husband and wife after the agreement, and (3) in Texas represented to others that they were married. Tex. Fam.Code Ann. Section 2.401. All three elements must be in place at the same time for common law marriage to occur.

According to the courts, the agreement to be married means that the man and woman had an immediate agreement to be married as husband and wife, and they intended to have a permanent marital relationship. Simply becoming engaged does not constitute an agreement to be married.

There are certain examples that would tend to support agreements to be married. For example, a couple may purchase property such as a home and refer to each other in legal documents as “husband” or “wife”. Each party may include the other in their health plan.

April 18, 2010

Bexar County Guidelines and Modification of San Antonio Texas Child Support

by Michael Baseluos

The Texas Family Code outlines specific grounds for the modification of child support. Bexar County and greater San Antonio judges have the authority to modify a prior child support order, including amounts set aside for health care coverage under Section 156.401 of the Texas Family Code.

The grounds under which child support may be modified include whether the circumstances of the child have “materially and substantially changed”. To determine material and substantial change, trial judges compare the circumstances of the parents and the children at the time of the initial order with current circumstances. Current and historical evidence of a person’s financial situation is the key to such an analysis. Without the ability to compare 2 distinct sets of financial data, the court will not modify the order. Bexar County courts are given broad discretion in setting child support and revising the payments.

For example, in one case, the children no longer lived with the mother during the week and she was no longer providing the same level of services to the children as she did at the time of the divorce. However, the father was providing a greater level of services to the children now than he did when the divorce occurred. Such a change in circumstances represented a material and substantial change that obviated a modification of child support.

April 15, 2010

Texas Product Liability Lawsuits

by Michael Baseluos

A Texas product liability lawyer must be very mindful of House Bill (HB) 4, which has preempted the rights of personal injury victims. The purpose of this blog entry is to review some of the major changes associated with HB4 in Texas product liability law.

HB 4 had several major changes. First, it created a presumption of no liability in particular areas. It created a 15 year statute of repose. A statute of repose is similar to a statute of limitations, but usually the deadlines are enforced more strictly . For example, the statute of limitations would be tolled or delayed based on the discovery rule, which states that the clock on bringing a claim does not run until the injury could reasonably have been discovered, A statute of repose would not normally be tolled by the discovery rule. HB4 also created immunity for passive sellers.

The Texas Civil Practice and Remedies Code (CPRC) codifies these changes, including a presumption of no design or marketing defects in certain areas; a presumption of no marketing defects in specific Texas medical device / pharmaceutical drug injury cases; the creation of the 15 year statute of repose; and the establishment of passive seller immunity.

April 10, 2010

Texas Personal Injury Lawsuits for Assault

by Michael Baseluos

Do you remember the OJ Simpson criminal and civil trials of the 1990s? In that case, in June 1994, Nicole Simpson and Ronald Goldman were found stabbed to death. Criminal charges were filed shortly thereafter against OJ Simpson for murder. What people fail to remember is that in May 1995, a wrongful death civil lawsuit was filed against OJ Simpson on behalf of the Goldmans. However, the civil suit trial did not commence until after the criminal trial ended in the acquittal of Simpson in October 1995. The civil trial commenced in October 1996 and resulted in a jury finding of liability against Simpson with compensatory damages of $8.5 million.

People often wonder about the disparate results between the civil and criminal cases. The answer lies in the standard of proof. The criminal case required a standard of proof of beyond a reasonable doubt, while the civil case requires the lesser standard of preponderance of evidence , which means a greater than 51% chance that Simpson killed Goldman. So it would be much easier to obtain a finding of liability in the civil matter than in the criminal one.

The law allows a Texas civil action for assault by infliction of bodily injury if the defendant acted intentionally, knowingly, or recklessly; made contact with the plaintiff; and caused bodily injury to the plaintiff. The action of personal injury assault can also be brought against the employer if the assault was committed by the employee within the course and scope of his employment. This type of situation is known as vicarious liability under the doctrine of respondeat superior. A defendant can also be held liable for assault under the theory of participatory liability if the defendant aided and abetted another to commit the assault or participated in a conspiracy to commit the assault.

April 7, 2010

Types of Economic Damages in Texas Wrongful Death & Survival Actions

by Michael Baseluos

There are various types of losses a Texas personal injury attorney can recover for an injured claimant. In San Antonio wrongful death cases , for example, medical, funeral, and burial expenses can be recovered in a survival action brought by the executor of the estate. Medical and funeral expenses are also recoverable in wrongful death actions, but recovery is strictly limited to those expenses actually incurred by the beneficiaries.

In an action for wrongful death, the beneficiary can recover medical expenses provided the beneficiary had a legal obligation to pay for those expenses. In addition, an estate can recover punitive damages in a survival action, but parents cannot recover exemplary / punitive damages for a child’s death. Any expenses must also be reasonable in order to have recovery.

In a survival or wrongful death action, there is also recovery for pecuniary losses such as the value of the care, support, and services, a plaintiff would have received if the deceased individual had lived. There must be evidence the deceased family member provided such support and services. Expenses for psychological counseling also fall under the realm of pecuniary losses and may be recovered in wrongful death actions.