By this time, most of us have either already filed our federal income taxes or at least filed for an extension of time to file the return. So, having rounded the 2009 tax year corner, we can slow down and take a moment to catch our breath. Or can we? There are many who have previous tax years that haunt them. There are some who are resolved to be better prepared for April 15, 2011.


For those people who are struggling through past tax year liability, know that there is hope. There are several methods to petition for relief. One effective method is an Offer in Compromise. For those who qualify the Offer in Compromise will result in a reduction of the tax debt. Generally, one qualifies for this relief if there is a justifiable doubt that the tax debt is even correct. It is advisable here to verify that the IRS has properly calculated the tax liability. It can be tedious and frustrating to obtain the necessary document through the IRS, but it is important to determine if any mistakes were made in the calculation of the debt. Many times the IRS simply has incorrect information. Believe me, the IRS is not going to contact you to verify. It is going to assess the liability and send you a bill. It is up to the taxpayer to contest any inaccuracies. Another way to qualify for an Offer in Compromise is for the taxpayer to show that the entire amount of the debt could not ever be paid back. Naturally, there is a great deal of detail that goes into making this particular claim. The third way to qualify is to show that an economic hardship exists. On average, it can take up to five months to prepare the proper forms and supporting documentation, over one year for the IRS to process the Offer in Compromise, and up to three months to finalize the offer and set up payments.

Another form of relief is to enter into an Installment Agreement with the IRS. This is fairly self-explanatory. After negotiating the best terms available one signs a contract with the IRS to repay the debt under a payment plan. This may be effective is stopping IRS collection efforts such as levy, garnishment, and/or liens. Interestingly, there is also a Partial Payment Installment Agreement that allows the taxpayer to make a regular payment to the IRS, but after a certain point the IRS agrees to forgive the remaining balance.

Finally, the IRS may agree that the taxpayer has no ability to pay the tax debt. If the IRS determines that the taxpayer is Currently Not Collectible then the IRS must cease its collection activities. After ten years, the statute of limitations will expire, meaning that the IRS has ten years to collect the tax.

Arguably, there are few things scarier than having the IRS breathing down your neck. Indeed, it was the IRS who finally nabbed Al Capone. However, there are ways for the proactive taxpayer to jump in and resolve the issues and I would advise that the process start sooner than later. The IRS never sleeps.

Think Twice

I commonly see situations where individuals decide to loan money. For example, many would rather borrow from an individual in order to pay off higher interest loan or because of poor credit. While it is much faster in the short term to shake hands on the agreement or maybe even write a quick notation on a handy piece of paper, one should think twice about lending money. Borrowing or loaning money is a risky and complicated process, especially if it is between friends or family. This is and should be a treated like a real business transaction. The parties must be clear on whether the money is a gift or a loan. If interest on the loan will be a part of the agreement then the interest must be lawful under the Texas Finance Code, which itself is very complicated. And beware – if an interest rate is not set then the IRS may do it for you. There should be an agreement on a repayment schedule and whether any collateral will secure the loan. The parties should put the entire agreement into written form in case the agreement must be enforced later on. This also establishes an expectation that the loan is to actually be repaid. These basic terms should merely form the skeleton of the promise to repay. Any fleshing out of the terms may need to be reviewed by a professional. Also, one should think twice about how the loan will affect the family members. It is good to keep in mind that you will likely be sitting across the dinner table from that person at the next holiday.

First of all I will state that borrowing money is a dangerous concept because a borrower may one day suddenly find his or herself out of work and unable to repay the loan. Certainly, we live in a culture of consumerism that constantly bombards us with the message that we should buy more stuff. Many families, corporations, and even certain states now face the inability to repay on the money borrowed to buy that stuff. And many of them have little or no savings in reserve to stay afloat in a sea of that debt. However, borrowing is sometimes necessary and it can be done responsibly and with a budget in place. Yes, a written budget is needed so that income can be balanced against expenses in order to show how much money is left over at the end. Unfortunately, responsible money management is, shall we say, not as widely broadcast by our culture as the spending of money is. And if you are on the lending end of the transaction, it is advisable to make sure you protect your investment by speaking with a professional about the profits and pitfalls involved.

How (Not) To Avoid Jury Duty

Many Texans do not realize how very important jury service is. It is certainly very important for the person sitting in the Defendant’s chair. For that person the jury panel has the most important job in the world because in many cases the jury will determine the guilt or innocence of the Defendant. In a trial that is not criminal, the parties trust a jury of their peers to determine the wrongdoing of a party. Despite the importance of serving, some who are called for jury duty either take steps to get out of going at all or do what they can to not be chosen.

A Texan must meet the following requirements to qualify to sit on a jury:

1. Be 18 years of age or older;

2. Be a Citizen of the US and Texas;

3. Be qualified (not necessarily registered) to vote in the county of jury service;

4. Reside in the county of jury service;

5. Be able to read write; and

6. Be of good moral character and sound mind.

A Texan may not sit on a jury if:

1. Served on a jury for six days during the last three or six months;

2. Convicted of a felony or theft (unless rights restored); or

3. On probation or under charges for a felony or for theft.

A Texan may be excused from service if:

1. Over 70 years of age;

2. Have legal custody of child 10 years or under service would leave the child unsupervised;

3. A student in class;

4. A caretaker of a person who is an invalid; or

5. A physical or mental impairment can be shown.

The penalties for refusing to appear for jury duty may include fines between $10 and $1,000.

I have found that those who do have the pleasure of sitting on a jury often find it to be a highly educational experience. There is much to learn from watching the legal process from the inside. Others find that there is a real sense of civic responsibility and pride for their service. Not everybody who receives a jury summons will actually sit on the jury. Many people (called a jury panel) will appear on the day of jury selection and the lawyers and judge will ask questions to learn more about the thoughts and feelings of the panel. One of my favorite jobs in this profession is speaking to the jury panel. Since an attorney cannot speak with the jurors once the trial begins, the jury selection process is my only opportunity to speak with them.

I encourage those who receive a jury summons to take their civic duty to sit on a jury seriously. It can be a learning experience and it can be fun. But most importantly, for the people who trust a jury of their peers to decide their fates, the jury is an essential part of the legal process.

Time to Update

As summer ends and winter begins, I am reminded that time passes quickly. The beginning of the school year and the cooler temperatures are reminders of changing times and of new things to come. It is also a stark reminder that some things on the “to-do list” need to be done. For instance, not only do my wife and I have a child going into second grade, but we were also blessed with our third child. This means that I need to update my will. It is important to keep your important documents such as life insurance, powers of attorney (including medical), wills and trusts, and other estate planning documents up to date and relevant.

In my situation, I should make sure that my new child is provided for just as I wish her to be rather than allow the state to decide for me. Moreover, I should consider what changes have occurred since the time my current will was drafted. Much happens over eight years, and there may be some provisions to modify.

During this season of change, it is advisable to think about your life planning documents. Whether it be a change to your 401k or retirement account or an update of your last will, a competent professional can properly advise on the measures that can be taken to achieve the desired goal.

Don’t Mess With Texas

Recently, I travelled to Houston for a criminal law seminar on the topic of clemency, specifically clemency in death row cases. One of my friends and colleagues from law school was speaking about his role in the clemency application of Robert Lee Thompson of Houston. Thompson was convicted for his role in the 1996 shooting of a clerk in a convenience store. The details of the case, as in many criminal cases, are highly interesting. In fact, interesting may not be the proper word for this case, rather words like provocative and sobering come to mind. Thompson, the getaway driver was actually convicted under the theory of accomplice liability. It was not Thompson who pulled the trigger, but Thompson’s partner who fired the fatal shot. Thompson was tried and sentenced before his partner. He received the death penalty. His partner received life in prison, and will eventually be eligible for parole.

In Texas, the governor has the authority to grant clemency once a majority of the Board of Pardons and Paroles recommends it. This is extremely rare. Clemency includes pardons, commutations (reductions) in sentence, and reprieves (delays). In a death penalty case, commutation means that instead of death the individual may get life in prison. Or, in those cases where the individual is less lucky, the governor may merely grant a one-time thirty day reprieve of execution. Although the seven-member Board holds the power over the life or death of an inmate, there is frighteningly little transparency about how it operates. Texas is the only death penalty state that does not mandate that the Board meet publicly. It does not report its conclusions or findings for denial. Votes to recommend or deny a clemency application can be phoned or even faxed in. Under Texas law, the documents reviewed by the Board are kept secret. There is no public record of the proceedings. The Texas Board of Cosmetology meets more frequently, holds its licensure proceedings in a public forum, and reports its findings and conclusions.

Due in part to Thompson’s significant mental disabilities, ineffective assistance of trial counsel, and the fact that he didn’t pull the trigger, he actually received a favorable recommendation from the Board. However, Governor Perry refused to grant clemency and Thompson was put to death by lethal injection. My friend was standing beside Mr. Thompson when the sentence was read in court - a harrowing experience he assured me. It takes a strong stomach to work on a clemency case. The odds are very poor. It can be depressing and grim. Since 1982, 457 death row inmates have been executed in Texas. The next highest death penalty state executed only 107. Let’s not forget Harris County, which alone is responsible for 113 of Texas’ executions. By contrast, Angelina County only lists one execution.

Many legislators and critics have called for another moratorium on the death penalty, or at least sweeping reform. As this paper was to relate some of the interesting facts of which I learned at my seminar, I have not touched upon issues such as the incredible racial disparity of death row inmates or execution of the mentally disabled. Whether for or against the death penalty, there are many circumstances which should be taken into consideration.

The Right to Bear Arms

The Right to Bear Arms

One of the things that I am thoroughly enjoying about my move out of the big city is the ability to walk out onto my land with a firearm and target practice. In the city I had to drive to the indoor shooting range to shoot a firearm. It is simply much more enjoyable to be out in the open air. Thankfully we live in a nation and state that allow their citizens to own firearms.

Under the United States Constitution, Article 1, Section 23, “Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.” In Texas, a resident may buy rifles, shotguns, ammunition, reloading materials, or firearm accessories. Of course, it is illegal to sell or rent (or even loan or give) a gun to another person in situations such as when it is known that the person intends to use it unlawfully, or the recipient is under the age of 18 years old (without written consent of his or her parent or guardian), or to someone who is intoxicated.

In Texas, a person has the right to possess a rifle, shotgun, or handgun without a license unless that person has been convicted of a felony or Class A misdemeanor involving that persons' family or household, or in the event of certain court orders. Texas also allows a person to apply for a concealed carry license after successful completion of classroom and range components of a handgun safety course. However, there are restrictions on a persons' right to possession. It is unlawful to possess, manufacture, transport, repair, or sell a machine gun in Texas. It is unlawful to display a firearm in a public place in a manner calculated to alarm. It is unlawful to discharge a firearm in a public place or on or across a public road. It is also unlawful to possess, manufacture, transport, repair, or sell handgun ammunition designed primarily for the purpose of penetrating metal or body armor and to be used principally in a pistol or revolver. And there are many more detailed restrictions.

As long as the right to bear arms has existed, the federal and state governments have legislated it. And they continually move for additional laws and controls over ownership and possession. It is important to stay informed about gun laws and any proposed legislation.

Drive Responsibly in Texas

Drive Responsibly in Texas

Many Texas drivers are not aware that when a driver is cited with a certain traffic violation the state assigns a series of points against the violator. The Driver Responsibility law established a system of points toward Class C misdemeanor violations and also applies various surcharges. Those drivers who accumulate too many points may even face license suspension. The point system was originally implemented as a method of tracking those less than safe drivers, but it has been found to generate significant income for states.

Under this law, an offender accumulates two points for a moving violation in Texas or in another state. However, points will not be assigned for speeding less than 10% over the legal speed limit or for a failure to wear a seat belt conviction. A child safety seat violation accrues two points. If the moving violation results in an accident then three points will be assessed. Points accrued remain on the driver's record for three years from the date of conviction date. This can result in an extremely burdensome financial drain for a driver because these financial assessments are charged annually over this three year period. Additionally, the driver's insurance company may (and likely will) choose to increase insurance rates.

At the end of the year, drivers with greater than six points on their licenses will be required to pay an assessment fee of $100 plus $25 for each additional point. Criminal traffic offenses, such as driving while intoxicated, failure to carry proper liability insurance, driving while license is invalid or driving without a license, will result in the assessment of other surcharges. These surcharges are in addition to the point based system. The state can asses this surcharge annually for up to three years. An assessment notice will be sent to the driver and if it is not paid within 30 days the driver's license will be suspended. Driving privileges remain suspended until the fine is paid. In some circumstances the driver can establish an installment agreement.

So the next time you feel that jolt of panic as you speed past a highway patrolman, or the next time you approach that stop sign, beware the Driver Responsibility Program and the point system. Texas has a relatively low point count compared to some other states.

It is advisable to give serious thought to any citation you receive. Simply paying the fine to resolve the ticket may result in fines and lead to eventual license suspension. Paying that traffic ticket could merely be the tip of the financial iceberg. If you believe the citation is not justified then you have the right to contest that citation. A driver may check the status of the driver's license by ordering a driving record report. This is a great resource to check how many points will be shown against the license.