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.

Where There’s Will There’s a Way

Many of my clients have heard me declare my belief that everyone eighteen years of age or older in the State of Texas should have a will. I usually follow that up with another statement regarding the need for a living will, durable power of attorney, and a medical power of attorney. These documents are not only useful for people with large estates but they can prove very important for people with very small estates as well. If you die in Texas without a will, then certain statutes under Texas law will dictate how your assets will be divided among your heirs. The statutes also determine who may be appointed as a guardian over your minor children, and it may be somebody you would not have chosen. This month’s article will discuss some of the more persuasive reasons why I feel estate planning is essential to protecting your interests.
Do You Really Need Estate Planning?
Like many people in Texas, there are those who do not have minor children, significant personal or real property, or extended family. This is a scenario in which after speaking with you I tell that you may not actually need a will (although my official advice would still be to draft a very simply will just to cover any property that you may not even know you owned – yes, that happens). However, you and your loved ones would benefit tremendously from estate planning documents such as powers of attorney for medical, financial, and health care. These documents, to which I alluded above, afford you with the peace, security, and comfort of knowing that your interests will be taken care of in the event you become incapacitated and cannot make sound decisions for yourself. A living will makes your wishes know about whether to administer life prolonging medical treatment. Sometimes this is called an advance directive or directive to physician. For example, you may recall that in 2005 Ms. Terri Schiavo’s case was in the national news because her husband and guardian argued that she would not have wanted life support. In fact, Terri had been in a persistent vegetative state since 1990. It was a heartbreaking case of medical ethics and the right freedom of an individual to control and limit medical intervention. A durable power of attorney authorizes your agent to manage and make decisions about your income and assets in the event you become incapacitated. A medical power of attorney allows you to assign an agent to make decisions about your medical care in the event you become incapacitated. Importantly, this also allows you to provide your agent, family members, and healthcare providers with written instructions regarding the type of treatments that should or should not be given.
Okay, So You Need a Will
You may have heard the stories about people writing their wills on napkins or hotel stationary. I have even read a story about a man who, after accidentally rolling his tractor over onto himself, wrote his last will on the fender of the tractor just before dying. Any person eighteen years or older or any married minor or minor in the Armed Forces, and who is of sound mind may make a will in Texas. The basic requirements for a valid will in Texas depend on what kind of will you want to make. A typewritten will must (1) be signed by the person making the will (testator), or signed in the presence of the testator at the testator’s direction; and (2) be witnessed (attested to) by at least two witnesses over the age of 14. Texas law also provides for a holographic will, which is a will that is wholly in the handwriting of the testator and then signed by the testator. This will does not need to be signed in the presence of witnesses. A Texan can also make an oral will but this is only valid for personal property. An oral will is valid if made by the testator in his or her last illness and at his or her home, unless he or she has been take sick away from home and dies before returning home. This type of will may require a certain number of witnesses. As one can imagine, the typewritten will is the best option to avoid challenges to the probate of the will.
Intestacy
Intestacy means that a person has died without leaving a last will. In this scenario, the State controls how your property is divided among your heirs. Some surveys show that up to 70% of Texans die intestate. Even well-known Texas billionaire Howard Hughes dies without leaving a will. Intestacy laws in Texas are extremely complex and require the deceased’s heirs to work within the Court system to administer an estate. Other intestacy considerations are whether the person was married or unmarried, surviving descendants, surviving parents, surviving siblings, and the degree of relationship among the heirs of the deceased.
Everyone who has the privilege of making a will should do so. It can be one of the most important items to leave behind for your heirs, and it can save them a great deal of time and expense. Also, the other estate planning documents should be drafted so that your wishes can be made known to your loved ones and to your doctors. I would encourage you to meet with an estate planning lawyer to discuss your specific details and goals. Moreover, I would be happy to schedule a time to review your situation or previous will to assist you with implementing an estate plan or making a change to your current will.