So You’re Being Evicted
By Richard Senasac, Attorney
Many renters find themselves being evicted for one reason or another. Every renter should have a lease; the first thing to do is read it. There are situations in which the landlord cannot evict. If a renter demanded repairs, unless in breach of the lease, the landlord cannot evict. Further, after giving the proper notice for repairs, the landlord cannot increase rent, evict, terminate the lease or otherwise retaliate for the demand for repairs for a period of six months. But, if a tenant is in violation of any part of the lease, the landlord can use it to justify the actions.
Renters also have the right to “quiet enjoyment” of the rented property. This means the landlord cannot evict without cause or otherwise disturb the right to live in peace and quiet. If the landlord does attempt to evict for no cause, prosecution in bad faith for harassment purposes leave the landlord liable for one month’s rent plus $100 and attorneys fees under Texas Property Code Section 92.004. Also, unless provided for in the lease or unless the interruption results from bona fide repairs, construction, or an emergency, the landlord cannot interrupt utilities. That means the landlord cannot turn off utilities to force the tenant out.
Failure to pay rent is the most common reason for eviction. If the lease defines when a payment is late, that controls. The lease may also provide for “curing” a failure to pay or making a late payment. But if the lease does not provide otherwise, the rent is late the day after the day it is due. Often leases will give a few days “grace” after that date. The lease may also provide for a penalty for late payment and this must be paid, as well as the rent, to cure the violation. Under Texas Property Code Section 92.019, the landlord has to give at least a one-day grace period before charging this penalty but this does not apply to the eviction process.
Once the rent is late, the landlord must post a notice to vacate. The notice must give the tenant at least three days to vacate, must list the date, name of tenant, address, reason for the eviction and that the tenant must pay the rent (and penalties) or move within this period or the landlord will take legal action. If the notice is missing any of this information, the three-day period does not start. The notice must be personally delivered, mailed or posted on the door of the rental unit.
Once properly served, the tenant has several options. He or she can move out or pay the rent (if that option is available), can negotiate for a longer period to move – even making a partial rent payment or agreeing that the landlord may keep some or all of the deposit – or refuse to vacate the premises. If any agreement is made with the landlord, it should be in writing signed by all parties, should recognize what, if anything, is still owed to the landlord, and the dates on which the tenant will move out and the security deposit be returned. If the tenant does not pay the rent or move out (or otherwise come to an agreement with the landlord) the landlord may begin eviction proceedings through the local Justice of the Peace Court.
Posting the notice to vacate, or even being served with the eviction suit, does not force the tenant to move out. The landlord cannot have a law enforcement agent remove the tenant until the landlord wins the suit in JP Court and is granted a Writ of Possession by the Court. No written answer is required and the tenant can request a jury trial, but if the tenant does not appear at a scheduled trial date, the landlord wins. Win or lose, the tenant should get a copy of the judgment. After a trial, either party has five days, counting weekends and holidays, to appeal to County Court. A tenant should speak to the JP Clerk about this process if there is a wish for an appeal. The Court will set a bond for the appeal. If a tenant cannot afford to post the bond, he or she should ask the Clerk about filing a pauper’s affidavit instead. Also, if a tenant appeals, he or she should hire an attorney since parties are held to the same rules in County Court whether or not they are represented by counsel.
If the tenant loses and does not appeal, after five days the landlord can get a Writ of Possession. The constable’s office will post a 24-hour notice on the door of the rental unit and after that period, can remove the tenant if the tenant does not vacate the unit.
There are several good internet sites for tenant’s rights including the Texas Attorney General’s website. A search for “tenant’s rights” can find many other sites. Many cities have “tenant’s council’s” which provide help. There are also free legal aid organizations.
Handling an Outstanding Warrant
By Paul Looney & Clay S. Conrad, Attorneys
The idea of an arrest warrant issued with your name on it can be terrifying. Several questions spring to mind when the news of a warrant for you reaches you: What did I do? Are the police coming for me? How do I verify whether the warrant is real or a mistake? Who can I talk to in order to fix this?
While not all warrants mean an imminent arrest, all warrants should be addressed as quickly as possible in order to avoid something as uncomfortable as a possible midnight raid or being detained following a routine traffic stop. Once arrested, you will be held to face whatever charges motivated the warrant in the first place, from a traffic offense to murder. If the alleged offense was committed in another state, you will be held in jail in the state you are currently in until an extradition hearing can be scheduled to determine whether there is sufficient evidence to have you transported to another state to face charges.
Most people arrested are able to post bond, but on a serious offense bond can present a significant financial burden. In drug cases, bonds are often initially set as a multiple of the alleged value of the drugs, determined by the highest street price. An attorney can often get your bond reduced, provided you can show that you are not a flight risk. This is where lawyering-up and being pro-active can make a huge difference: nothing shows that you are not a flight risk better than turning yourself in, with an attorney, prepared to confront the charges against you.
The first step after you learn of the possibility of a warrant with your name on it is to verify that there is in fact such a warrant out there. One way a warrant can be verified is to call the county clerk or the local police. If you do not want to involve the court quite yet, another way to verify a warrant is to go online and use a third-party website or to contact a bondsman or attorney. In this way you may be able to learn the date of the offense, when and where the charges were filed, what the charges are and what court the case is in. It is not recommended to go through the legal system alone, so the next step is to arrange, with an attorney, to turn yourself in and arrange for bond. Having an attorney with you shows the judge that you are taking the charges against you seriously.
Many people make the mistake of thinking if they put it off long enough, it will be forgotten: this is never true. Once an arrest warrant has been issued, it will remain in the national databases until it is recalled or you are arrested; and eventually you will, for one reason or another, encounter a police officer or other government worker who will have you arrested – often at the least opportune time. Perhaps you will be in a car accident or get a traffic ticket, apply for a State license or permit, be a victim or witness to a crime or accident, have your driver’s license photo taken, apply for a passport, etc. The more you take control of the situation, the less the situation will take control of you and the sooner you will be able to put it behind you.
How can you Defend Those People?
By Clay S. Conrad, Attorney
The most frequent question asked, when people first meet a criminal defense lawyer, has to do with the morality of defending people who may have committed heinous crimes. “Those People,” this question assumes, have, by being accused of some horrible act, forfeited the right to a fair and just resolution of those accusations. Even if they are guilty of the most horrendous acts – in that case, especially so – they deserve to have someone on their side to help them face those allegations.
Every lawyer has his own answer to this question. Some of us, I think, enjoy being on the side of the underdog. For most of us, there’s more than that. We believe when the awesome power of the government is arrayed against a citizen we need to be there, ready to even the score.
The American criminal justice system was not designed so that all guilty people would be convicted. In fact, the Constitution and Bill of Rights are based on the premise that it is better for ten guilty men to go free than for one innocent man to be convicted (Ben Franklin put the ratio at 100-1.) John Adams, our second President, wrote:
“It is more important that innocence be protected than it is that guilt be punished, for guilt and crimes are so frequent in this world that they cannot all be punished. But if innocence itself is brought to the bar and condemned, perhaps to die, then the citizen will say “whether I do good or whether I do evil is immaterial, for innocence itself is no protection,” and if such an idea as that were to take hold in the mind of the citizen that would be the end of security whatsoever.”
There are so many broad, vague laws nowadays that attorney Harvey Silverglate has written that an average American commits three felonies a day. John Baker, a retired law professor, commented: “There is no one in the United States over the age of 18 who cannot be indicted for some federal crime. … That is not an exaggeration.” More than one in each hundredof the U.S. adult population is presently incarcerated. Moving wild deer off your property, or catching short lobsters, are federal felonies. Supreme Court Justice Antonin Scalia has noted that falsely calling in sick to work is a federal felony! The U.S. Code now takes up over twenty-five feet of shelf space -- in 1925, it consisted of one volume. The Federal Register, which lists federal regulations, is many times longer. We regularly see clients who are stunned to learn what they did was illegal, much less a serious felony carrying potential prison time.
It is a truism that “all men are presumed to know the law.” No lawyer knows all the laws that govern this country or this state; we just know where to find them and how to understand and interpret them. But all men are still responsible for following the law. Is it surprising that they sometimes fail, and need competent legal help to understand the situation they are in?
Every person accused of a crime, from a regulatory infraction to capital murder, deserves a vigorous defense. In fact, courts rely on good criminal defense lawyers to function, because a person accused of a crime is constitutionally entitled to the assistance of a competent, effective lawyer. Attorneys who aren’t dedicated to doing everything in their power to assist their clients, regardless of the charge, hurt not just their client but the entire system by allowing the convictions of innocent people.
Sometimes, an attorney may be so personally troubled with a case that he should decline to work on it. If his emotional reactions are such that he can’t do his best work, it is not ethical for him to take the case. But when he does accept a case, he takes on an enormous responsibility and is legally and ethically obligated to use his talents, and his best judgment, to do what is best for his client. So the only answer I can offer as to “how can I represent those people?” is “to the best of my abilities.” And I believe that if any of us were to find ourselves in a situation beyond our control, regardless of what we’d done or why, that is the kind of representation that we would want, and that we would deserve.
Understanding a DWI
By Paul Looney, Attorney
Driving while intoxicated is illegal in every state in the country, but the laws vary from state to state. Because everyone’s body and alcohol tolerance is different, a person may exceed a blood alcohol content (BAC) of .08 percent (the legal limit for adults in all 50 states) without being aware that they are under the influence. For these reasons, unless you either never drink, or do not drive at all (something almost impossible to refrain from in rural Texas), it’s important to understand how these laws can be violated, and what the consequences may be.
For example, two drinks of 80-proof whiskey, two beers or two 6-ounce pour of wine would put an average 160 pound person around a .05 BAC, and a 100 pound person at the .08 legally intoxicated level. Utah recently passed a law that will reduce the legal BAC level to .05, taking effect next December.
But those “average” numbers can vary wildly from person to person, based on factors like whether and how much they’ve eaten (blood alcohol levels peak more quickly and go higher on an empty stomach), their general health and metabolism, medications, how quickly they drink, their body type, gender, and body mass index. It’s also important to recognize that not all whiskey is 80-proof (some may be over 120 proof) and not all beers and wines have the same strength either. Some bartenders are more “generous” than others, and a mixed drink at one bar might be twice as strong as a mixed drink at the bar across the street. A 215 pound man could have four Margaritas at one bar and not be intoxicated, while a 140 pound woman could become intoxicated on just one Margarita poured by a more liberal bartender!
For those under the legal drinking age of 21, any BAC over .02% is considered intoxicated. While many people drink before they turn 21, it is extremely risky for them to get behind the wheel after having had even one drink. It is estimated that over 10% of all alcohol consumed in the U.S. is drunk by underage drinkers, who cause roughly 5,000 deaths annually. Inexperienced drivers are dangerous enough on their own, and their judgment and reaction times can be harmed by even small amounts of alcohol.
Punishments vary widely with Arizona, Tennessee and Georgia penalizing DWI convictions with mandatory jail time for first offenders. In Wisconsin, a first-offense DWI isn’t even a crime – it’s a civil infraction that results in a ticket.
In Texas, driving while intoxicated is punished as a Class B Misdemeanor for a first offense, with a maximum jail time of six months, a maximum fine of $2,000, a 180 day license suspension, and a maximum probationary period of two years. However, if the BAC is over .15%, or if there is a minor in the vehicle, the person has had prior DWI convictions, has a suspended or revoked driver’s license or was driving at an excessive speed, the crime moves into the realm of an aggravated or felony DWI, and depending on the individual facts of the case can result in jail time of up to ten years.
BREATH OR BLOOD TESTING
In Texas when a person applies for a driver’s license he is giving implied consent to field sobriety tests and to blood or breath testing to determine impairment. Refusing to submit to testing means facing a driver’s license suspension as well as the possibility of additional penalties. The test must be taken as soon as possible from when the person was last driving, and the officer will choose which test to take. After submitting to this test, the person has the right to have a blood test taken within two hours of the arrest by a medical professional of the person’s choice -- at his own expense.
After Refusing to Take the Test
Upon arrest, the officer will inform the suspect that if he refuses a test, evidence of the refusal can be used against him in court. Refusing the test does not guarantee the person won’t be convicted: he could still be found guilty of a DWI even if the BAC is under .08% if the State can prove that the suspect had lost the normal use of his faculties because of the use of alcohol or some other drug.
The officer should also tell the person that if he decides to take a test and the results show the BAC is above the legal limit, his license will be suspended for at least 90 days and the person will spend three days in jail. If there was an open container of alcohol in the vehicle, the person will spend six days in jail. After explaining those consequences, the officer can ask the person to take a test.
If the person refuses, the officer will have him sign a statement that he warned the person of the consequences of refusal, take the person’s license, and give him a temporary permit good for 45 days. Within 15 days a hearing can be requested to challenge the suspension. If a hearing is not requested or if the person requests the hearing but fails to prove the officer did reasonably believe he had driven while intoxicated or did not refuse a test, the license will be suspended for 180 days on a first refusal. For second or subsequent refusals within 10 years, the suspension will last for two years. (An Essential Needs License may be obtained in most cases to allow the individual to work and attend to essential household and legal obligations.)
Refusing a test does not resolve the issue. The officer may still get a search warrant for a blood test following a refusal. The officer has to apply to a court for permission to obtain blood, and must swear to facts establishing probable cause that the suspect was driving while intoxicated. If the judge agrees that the facts alleged establish probable cause, then the officer will take the suspect to a place where blood can be drawn without the suspect’s consent.
INTERPRETING THE TEST RESULTS
The alcohol concentration in a person’s bloodstream changes, literally, from moment to moment. Alcohol is gradually absorbed in the gut, and once it has been absorbed it is constantly being eliminated by the liver until it is all removed. Determining from a blood or breath test what a person’s blood alcohol level was an hour or more earlier when they were behind the wheel involves extrapolation that depends on many facts, such as the time of drinking, how much a person has had to eat, what medications they are on, etc. A BAC level of .06% doesn’t necessarily mean the driver was sober behind the wheel, and a BAC of .09% doesn’t necessarily mean they were intoxicated.
Learn More About Your DWI in our FREE Consultation
If you or a loved one were arrested for a DWI, you need legal representation immediately, especially if you want to contest the blood or breath test results. This article only covers a few of the many issues that may arise, and all cases are different. Call today for a FREE consultation (281) 597-8818 in Houston or (979) 826-8484 in Hempstead. www.looneyconrad.com
The Costs of a DUI This Holiday Season
By Paul C. Looney, Attorney
Being arrested for drunk driving is not only stressful, it is also expensive costing the offender an average of $10,000. And the repercussions don’t end with the costs. There’s also loss of freedom, potential job loss, broken relationships, serious injury, lives lost and a criminal record. It is important to have a plan this holiday season if you plan to consume alcohol and then go home. Here’s a breakdown of the costs:
A DUI arrest will result in physically being taken to jail. Bail will need to be paid before being released after arraignment in front of a magistrate or judge. The average cost for bail is between $150 and $2,500.
Upon arrest, the motor vehicle is usually towed to a central impound lot and an initial storage fee of $100 to $1,200 will be charged and then a daily storage fee for each 24 hours the vehicle remains at the impound lot.
Legal representation for a first-time DUI offense is usually between $2,000 to $20,000.
Several factors determine the fines that will need to be paid, including the minimum fine (mandated by the State), the Breath Alcohol Content (BAC) at the time of arrest, whether or not this is a first DUI and/or whether or not anyone was injured. Fines range from $250 to $10,000.
Most insurance companies will raise the rates for insurance after a DUI due to the insured going into a category of higher risk. Increased car insurance premiums can cost anywhere from $500 to $2,000 more per year, the price of which does not decrease for several years.
Alcohol Education and Treatment Classes
Upon a DUI conviction, education and/or treatment classes about driving and the dangers of alcohol. The classes usually cost $300 to $1,000.
Ignition Interlock Device
Some states require even a first-time offender to install an Ignition Interlock Device (IID) on their vehicle. The installation cost is usually about $350 with an additional monthly fee of around $200.
License Reinstatement Fees
After completion of all requirements of the judge and the DMV, more fees have to be paid in order for the driver’s license to be completely reinstated. These fees usually cost $100 to $500.
The bottom line is that DUIs are expensive. Even for DUI arrests that ultimately end up not being charged or convicted, the expenses involved add up before it’s over. If you plan to drink during this holiday season, plan ahead with a designated driver. If you or a loved one have questions or need assistance with a DUI or DWI, call our law office at 281-597-8818 (Houston) or 979-826-8484 (Hempstead).
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