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August, 2009
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Spotlight on Cleaning or Sealing Your Criminal Record in Texas
Having a clean criminal record is extremely important. There is a mistaken belief that if a case was dismissed or a jury returns a finding of “not guilty” the records related to the underlying arrest and charges are hidden from public view. Similarly, there is a misconception that if you complete deferred adjudication the records will also be hidden. That is simply not the case.
The truth is, several entities will have records related to the arrest. For instance, the arresting police department and prosecuting district attorneys office will retain records of the arrest and resulting charges. In addition, records of the arrest are also sent to the Texas Department of Public Safety and may be retained by a probation office if the charges result in probation. More troubling, under the Texas Open Records Act, the records of the arrest and charges are often compiled by companies such as Public Data and are easily accessible by anyone.
Prior to the Internet, records of an arrest and subsequent charges were largely hidden from view because they were simply too costly to obtain. However, the internet has brought low cost background checks to the masses. The result is that everyone from potential employers, apartment complexes and schools to nosy neighbors and colleagues and even little league organizations are routinely doing background checks.
There are two ways to clean your criminal record in Texas. An expunction, in which the records of the arrest and related charges are actually destroyed; and a non-disclosure, in which the records of the underlying arrest and subsequent charges are sealed from view of almost everyone. The types of charges and the disposition of the case will determine if the records can be expunged or if a non-disclosure is appropriate.
The filing for an expunction or a petition for non-disclosure is a technical matter that may require a hearing in front of a judge for approval. More importantly, you only get one chance to get it right. If the application is denied for any reason, such as not having the proper information, it may not be filed again and the underlying charges will remain in the public eye. But like an expunction and order of non-disclosure are well worth the time and expense to keep your past private.
Click here to learn more about expunctions and non-disclosures>
Texting While Driving: More Dangerous Than Driving While Impaired?
We are sure you have seen drivers texting - they are easy to spot as they are typically all over the road. Several recent studies suggest that texting behind the wheel may be more dangerous than drinking and driving or even driving under the influence of marijuana.
A recent study by the Transport Research Laboratory in the U.K. found that when subjects were text messaging and driving at the same time, reaction speed was reduced by 35 percent, thereby increasing the likelihood of an incident. Those that were driving and drinking within the legal limit only suffered a 12 percent loss of reaction speed, and those that were driving under the influence of marijuana had their reaction speed reduced by 21 percent, 14 percent lower than while driving and texting. The study also found that texting and driving reduces a driver’s steering ability by 91 percent compared to 35 percent by a driver under the influence of marijuana.
Click here to read more about the Transport Research Laboratory study>
A June 2009 study by Car and Driver found similar results. While the study did not test drivers under the influence of marijuana, it confirmed that reaction times for drivers were slower while texting than under the influence.
Click here to read more about the Car and Driver study>
Of course, this inattention has led to an increase in accidents, some of which have been high-profile. While the problems with texting are serious, few states have passed laws outlawing the behavior. More troubling is that even were the laws to be passed, enforcement would present a hefty challenge. Never the less, we anticipate legislatures to start finding ways to address this growing concern and, unfortunately, seeing more clients who have been injured by someone who was texting. 2009 Legislative Update: A Missed Opportunity on Paid v. Incurred
Texas politics has never been a dull subject, and the 2009 regular session of the State Legislature definitely wasn’t any exception. With a new speaker and divisive issues such as voter id consuming much of the legislature’s time, this was termed a rather “slow” legislative session despite having had a record number of bills introduced. There is an old adage in Texas that no law is good law; however, we feel this legislature missed several opportunities in this session including amending the Paid v. Incurred.
A 2003 amendment to the Texas Civil Practice & Remedies Code added section 41.0105, which states:
In addition to any other limitation under law, recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.
Since its passage, courts and lawyers have been trying to interpret what the legislature meant by “actually paid or incurred.” The dispute arises when an injured party has health insurance. In such a case, the health insurance often pays a reduced bill because of contractual provisions between the insurer and the health provider. For instance, on a $1,000 bill, the health insurer may pay only $700. The remainder of the bill is adjusted, or written off. The insurance lobby contends that an injured party is only entitled to the amount paid; however, this ignores what is meant by incurred, which has traditionally meant the total charges by the medical provider.
The insurance lobby, which pushed for the bill’s passage, contends that the bill prevents a windfall to injured parties by allowing recovery of the full amount of the medical bills even when some of the bills have been adjusted. While this may seem fair at first blush, their argument misses several important points. First, the negligent party is rewarded for injuring someone who was responsible enough to have obtained health insurance. Accordingly, if two individuals are involved in a collision, both have identical injuries and medical bills, but one has health insurance and the other does not, then the individual without insurance will likely obtain more from a jury than the person who had insurance. In effect, the statue rewards poor behavior. The second problem is that the injured party with health insurance is not given credit for the premiums paid for the insurance. More than likely, the totality of the premiums paid by the injured party over the years will vastly exceed the adjusted amounts. Again, the individual who was responsible enough to have obtained health insurance comes up short under the bill.
The other problem that has arisen with the bill is its implementation. Some courts allow a jury to consider evidence of only the reduced bills while other courts allow a jury to consider evidence of the full bill and any reductions are handled post verdict. Again, this presents a problem to the injured party as the ambiguity of the bill creates problems in preparing for trial.
Recognizing both the inequities of the statue as well as its ambiguities, the 2007 legislature nearly unanimously passed a bill repealing the statute only to have it vetoed late by Governor Perry. A similar bill reappeared this session; however, it fell short of receiving full consideration and therefore this statute, which only helps the insurers and their shareholders, will remain with us for at least another couple of years. Click here to learn more about personal injury claims>
July, 2009
Our Inaugural Newsletter! Welcome to the inaugural issue of the Legal E-Advisor, the monthly newsletter from Hawkins & Walker, PC. We are very excited to bring you this newsletter where we will provide practical legal advice and share recent news developments on various topics of interest to you, our clients and friends. Because this process is new to us, we are open to any and all suggestions on how we can improve this newsletter. Please feel free to contact us if there is a change you can suggest or a particular topic you would like addressed in a future edition.
Spotlight on Traffic Tickets
Times are tough and everyone is feeling the pinch, including local cities. While municipalities have used traffic tickets as revenue makers for years, the decreasing revenue from property taxes is causing cities to become more efficient in processing tickets, clearing warrants and finding new ways to find offenders. For instance, the City of Lewisville is installing license plate scanners on top of police cars. The $25,000 scanners are capable of reading the license plates of passing cars which are checked against a police database. The city was able to clear over 600 outstanding warrants in its first week of use. With this type of success other North Texas cities, including Dallas , are looking into purchasing similar devices. Similarly, Fort Worth is looking to install 10 additional traffic lights in addition to the 25 cameras that are currently active at 17 intersections. The city has issued 1.2 million dollars in fines since 2008, which results in a significant amount of money entering into the city coffers. If you have outstanding traffic tickets, contact us us to discuss your options. We can lift warrants and help keep your record clean saving you from license suspensions and costly surcharges. Tweeting or Facebooking: Beware of the troubles they can cause your case.
Whether going through a divorce or civil lawsuit, beware of the posts that you create on media sites like Facebook and Twitter. While airing comments for your friends and family, and whatever strangers are on your site or following your tweets, you are creating a permanent record that can easily haunt you in the courtroom. In divorces, feelings are hurt and many turn to these social networking sites to vent; however, those posts can also give attorneys a treasure trove of information that could affect the outcome of the divorce proceedings. For instance, off-handed remarks about the soon-to-be ex, talking about that new person in your life or those embarrassing photos that are often posted can easily be used to contradict you in court and adversely effect your divorce proceeding and any accompanying custody fight. Likewise, those innocuous tweets or posts on Facebook can severely affect your personal injury claim. We have seen cases where the defendant adamantly denied any liability but found admissions of liability on Facebook and MySpace. We have also seen issues arise from posts and pictures on Facebook and other networking site that have adversely affected injury claims. We are not advocating abandoning these websites as they have become an important tool to keep in contact in an ever increasingly fast-paced world. However, we are asking that you think before you post because once a post is made it will remain out there forever, even if later deleted by the poster. Feel free to contact us if you would like to discuss the specifics of your family law or personal injury case. For more information on personal injury claims, click here> For more information on family law matters, click here>
Employers Want Online Passwords and Usernames for Background Checks? Well, if you apply for a job with the city of Bozeman , Mont. , you might run that risk. On the city's Web site, a waiver statement for background and reference checks asks job applicants to release information about personal, professional and social networking Web sites, including log-in information and passwords. "Please list any and all, current personal or business web sites, web pages or memberships on any Internet-based chat rooms, social clubs or forums, to include, but not limited to: Facebook, Google, Yahoo, YouTube.com, MySpace, etc.," the document reads.
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