Does it Have to be in Writing? Answering Your Questions About Oral Agreements

December 21st, 2011

By Josh Borsellino

“If you don’t have it in writing, you don’t have it at all.” That is a popular saying that is frequently used to encourage people to put their agreements in writing. But it is not always true. There is considerable confusion among non-lawyers (and even some attorneys) as to whether a contract must be in writing to be enforceable under Texas law. There is no simple answer to this question, but it is fair to say that oral agreements can be enforceable under some circumstances. Under Texas law, there are four basic requirements to proving the existence of a legally enforceable contract:

• an offer
• an acceptance
• mutual assent (sometimes called a “meeting of the minds”)
• consideration from both sides that would support the contract.

Of course, a written agreement is much more desirable than an oral agreement, as it allows the parties to avoid a swearing match as to what the terms of their agreement were. Nonetheless, it is possible for parties to satisfy all four of the elements listed above through an oral agreement.

Texas recognizes a defense to a claim for breach of contract known as the “statute of frauds.” A contract that is subject to the statute of frauds, such as one for the sale of real estate or one that cannot be performed in less than one year, must be in writing and signed by the party against whom the contract will be enforced. But there are exceptions to the statute of frauds. For example, an oral agreement to purchase real property or a contract that cannot be performed in less than one year (which would ordinarily be required to be in writing) is enforceable if it is proven that the agreement was partially performed by the parties.

In conclusion, oral agreements may be enforceable. If you have entered into an oral agreement and are seeking to determine whether you can enforce your legal rights, please contact Josh Borsellino at Bailey & Galyen at (817) 276-6000. Mr. Borsellino is licensed to practice only in the state of Texas.

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I Would Never File for Bankruptcy

December 21st, 2011

By James K. Ince

Many people have uttered those words. The exact wording may change, but the thoughts are the same. What we really mean to say is that we cannot imagine what set of circumstances could lead us to make such a dramatic decision. That is really the issue. Bankruptcy can often catch people completely by surprise, despite all the planning and saving that they may have done. Sometimes life just has other ideas.

Take, for example, the Ben Sessions family. They were not going to make the mistake of buying a home that was overvalued. Mr. Sessions had more than enough income to buy a house for many times what he actually wanted but allowed his common sense to help dictate what plan of action he would need to find the right house. He had certain criteria. He wanted a house on an acre of land in the countryside. It was a shock to him and his family when they found a great, fairly new home in Idaho on two acres of land, with five bedrooms priced at only $180,000. He had seen comparable homes priced much above that amount. Further, their new home was fewer than 125 miles from Yellowstone National Park.

Mr. Sessions made an offer and soon was the happy owner of the new house. His now-pregnant wife wanted to raise chickens so they could have fresh eggs. During the building of the chicken coop, Mr. Sessions lifted a piece of metal only to see two snakes slither away. More and more snakes began to appear over the coming days. There were so many snakes in the yard that it looked like the grass was moving. Soon, the snakes were everywhere. The couple would lay awake at night and listen to them crawl into the walls. Mr. Sessions would collect them in a bucket. One day he found more than 40. It turned out their house was built on a snake den and there was no method for removing them. The day their new baby was born, they moved out.

Mr. Sessions had no choice but to file for bankruptcy. He could not sell this house and nobody would forgive the debt on it. We see people like Mr. Sessions all the time. They have made the best preparations and plans possible, but life has its own set of plans. Often, walking away from a financed asset is all one can do when job layoffs and other disasters hit. If you are in a situation in which bankruptcy appears to be the best option, come see us about your finances. We have experienced bankruptcy attorneys who will help you through whatever situation life has dealt you.

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How to Kill People with Your Cell Phone

December 21st, 2011

By John Fabry

The National Highway Traffic Safety Administration (NHTSA) calculated that distracted driving, including cell phone use, contributed to 3,092 deaths in highway crashes last year. Cases in which investigators found that the use of electronic devices while driving were distractions include a high school bus driver using his hands-free cell phone when crashing into a stone bridge on the George Washington Parkway in Alexandria, Virginia, in 2004. The operator of a commuter railroad passenger train in California ran through a red stop signal in 2008 while texting, crashing into a freight train and killing 25 people and injuring many others. A tractor-trailer driver was distracted by his cell phone and crashed into a 15-passenger van in Kentucky, killing 11 people in 2010. Also in 2010, the mate on a tugboat pulling a barge on the Delaware River in Philadelphia was distracted by a cell phone and laptop computer. The tugboat ran over a tour boat, killing two people. Another fatal crash in 2010 was caused by a 19-year-old pickup truck driver who had sent 11 text messages in the 11 minutes just before causing a chain-reaction collision that killed two people and injured 38 others. Daniel Schatz, the driver of the pickup, was one of the two killed in the wreck. National Transportation Safety Board (NTSB) member Robert Sumwalt said, “This is becoming the new DUI, it is becoming an epidemic.”

Closer to home, on July 11, 2008, Maria Tamez was driving northbound on State Highway 35 from Angleton toward Alvin, Texas. It was a beautiful, clear, sunny day. At approximately 1 in the afternoon, Ms. Tamez entered a no-passing zone just south of Alvin. She then crossed over the double yellow line and crashed into Charles and Scotty Carpenter. Ms. Tamez had been talking on her cell phone all the way from Angleton, according to Chris Coneley, the driver directly behind her the entire time. Ms. Tamez never hit her brakes and crashed into the Carpenters at approximately 60 mph. We represented the Carpenters and, on May 17, 2011, a Brazoria County jury determined that Ms. Tamez is responsible for all of the Carpenters’ medical bills, pain and suffering, and mental anguish. According to Ray LaHood, U.S. Transportation Secretary and a crusader against distracted driving, “Our message on distracted driving is simple: there is no call or text message that is so important that it can’t wait.”

The NTSB has recommended that all states should prohibit all drivers from using portable electronic devices, such as cell phones, while behind the wheel. According to the NHTSA, more than one in six drivers send text messages while driving, and nearly half of drivers under the age of 25 are doing it. In a related story, Allstate Insurance released a report claiming that 556 teenagers lost their lives on Texas roadways in 2009. And 2009 is the same year that Texas lawmakers passed a law prohibiting talking or texting on a cellular device while behind the wheel until drivers turn 18. In the words of NTSB Chairman Deborah A.P. Hersman, “No call, no text, no update, is worth a human life.”

We encourage you to follow the recommendation of Transportation Secretary LaHood and put your cell phone in the glove compartment when you get behind the wheel.

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Grandparents’ Rights

December 21st, 2011

By Martha Akers

We all know that children love spending time with their grandparents. We all hope that parents properly raise and nurture their children, and that they provide for all of their children’s needs. In a perfect world, grandparents would be allowed to spend time with their grandchildren. After spoiling them, grandparents would return their grandchildren to their parents. Today’s world is far from perfect.

The law rightly presumes that children should live with their parents. The United States Supreme Court has ruled that parents are presumed to act in the best interests of their children, even when they do not allow grandparents to see those children. The Supreme Court’s ruling makes it difficult, but not impossible, for grandparents to ask for visitation with or custody of their grandchildren.

The Texas Family Code gives grandparents the right to ask a judge for visitation or even primary possession of children in the following situations:

-The child has been neglected or abused by a parent.
-The parent’s child has been incarcerated.
-The child’s parent has died or been deemed incompetent.
-The parents don’t have custody of the child.
-The child has lived with the grandparent for at least six months.

Parents are responsible for raising their children and for making decisions for their children. If, in the process of doing so, parents endanger or hurt their children, grandparents have the right to ask the court to protect the children. In those unfortunate situations, grandparents can ask the court for custody of the children and/or to order visitation.

If you have any questions about grandparents’ rights, please do not hesitate to contact us.

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How Do We Bring About Real Change in the Government?

December 21st, 2011

By Scott Robelen

“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress . . .”

Article V of the U.S. Constitution (above) provides that an amendment may be proposed either by the Congress with a two-thirds majority vote in both the House of Representatives and the Senate or by a constitutional convention called for by two-thirds of the state legislatures. None of the 27 amendments to the Constitution have been proposed by constitutional convention. The Congress proposes an amendment in the form of a joint resolution. Since the president does not have a constitutional role in the amendment process, the joint resolution does not go to the White House for signature or approval. The original document is forwarded directly to the National Archives and Records Administration’s (NARA) Office of the Federal Register (OFR) for processing and publication. The OFR adds legislative history notes to the joint resolution and publishes it in slip law format. The OFR also assembles an information package for the states that includes formal “red-line” copies of the joint resolution, copies of the joint resolution in slip law format and the statutory procedure for ratification under 1 U.S.C. 106b.

The archivist submits the proposed amendment to the states for their consideration by sending a letter of notification to each governor along with the informational material prepared by the OFR. The governors then formally submit the amendment to their state legislatures. In the past, some state legislatures have not waited to receive official notice before taking action on a proposed amendment. When a state ratifies a proposed amendment, it sends the archivist an original or certified copy of the state action, which is immediately conveyed to the director of the Federal Register. The OFR examines ratification documents for facial legal sufficiency and an authenticating signature. If the documents are found to be in good order, the director acknowledges their receipt and maintains custody of them. The OFR retains these documents until an amendment is adopted or fails, and then transfers the records to the National Archives for preservation.

A proposed amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states (38 of 50 States). When the OFR verifies that it has received the required number of authenticated ratification documents, it drafts a formal proclamation for the archivist to certify that the amendment is valid and has become part of the Constitution. This certification is published in the Federal Register and U.S. Statutes at Large and serves as official notice to the Congress and to the nation that the amendment process has been completed.

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