Does Texas Recognize Common Law Marriage?

A common-law or informal marriage can be established by showing the parties

(1) entered into an agreement to become husband and wife;

(2) cohabitated as husband and wife; and

(3) held each other out publicly as husband and wife.

TEX. FAM. CODE ANN. § 2.401(a)(2) (Vernon 1998).

However, there is a crucial prerequisite: both parties must possess the legal capacity to marry. Villegas v. Griffin Indus., 975 S.W.2d 745, 749-50 (Tex. App.--Corpus Christi 1998, pet. denied).

In order to constitute a valid informal marriage, it must be established that the parties:

(1) entered into an expressed or implied agreement to become husband and wife,

(2) that such agreement was followed by cohabitation as man and wife, and

(3) that they held each other out professedly and publicly as husband and wife.

TEX. FAM. CODE ANN. § 1.91 (a)(2) (Vernon 1993).

There is, of course, one additional fundamental rule, that in order to establish a valid marriage, the parties must possess the legal capacity to marry and there must not be any legal impediment prohibiting the marriage contract. Franklin v. Smalldridge, 616 S.W.2d 655, 657 (Tex. Civ. App.--Corpus Christi 1981, no writ); Howard v. Howard, 459 S.W.2d 901, 904 (Tex. App.--Houston [1st Dist.] 1970, no writ); Esparza v. Esparza, 382 S.W.2d 162, 166 (Tex. Civ. App.--Corpus Christi 1964, no writ). Villegas v. Griffin Indus., 975 S.W.2d 745, 749-750 (Tex. App. Corpus Christi 1998)

Can a Minor Get Married in Texas?

In order for a person to be legally married in the State of Texas, one must first apply for a marriage license. For minors, there is the added requirement for consent by a parent.

Sec. 2.003 of the Texas Family Code: APPLICATION FOR LICENSE BY MINOR. States in part that in addition to the other requirements provided by chapter 2 of the Family Code, a person under 18 years of age applying for a license must provide to the county clerk:

(1) documents establishing, as provided by Section 2.102, parental consent for the person to the marriage;
(2) documents establishing that a prior marriage of the person has been dissolved; or
(3) a court order granted under Section 2.103 authorizing the marriage of the person.

The Family Code plainly provides that a person under the age of 18 may not be a party to an informal marriage. TEX. FAM. CODE ANN. § 2.401(c)(1). This age requirement was added by the Texas Legislature in 1997. Act of May 26, 1997, 75th Leg., R.S., ch. 1362, § 1, 1997 Tex. Gen. Laws 5113. Kingery v. Hintz, 124 S.W.3d 875, 877 (Tex. App. Houston 14th Dist. 2003)

Although the law allows for an annulment of marriage to a minor, it does not allow for the legal marriage of a minor without parental consent. Section 6.102 of the Texas Family Code merely provides that a marriage of a minor entered into without parental consent or court order, but otherwise allowed by law, is capable of being voided. Kingery v. Hintz, 124 S.W.3d 875, 878 (Tex. App. Houston 14th Dist. 2003)

Consult with a family law attorney or lawyer before consummating marriage of a minor or to a minor.

Best Interest of the Child - Texas Child Custody and Visitation

The best interest of the child is the primary consideration in the determining issues of possession and access when it comes to Texas child custody and visitation disputes. Tex. Fam. Code Ann. ' 153.002 (Vernon 2002). The trial court has broad discretion in determining possession and access to a child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

If the trial court appoints a managing conservator, it may appoint one or more possessory conservators. Tex. Fam. Code Ann. ' 153.006(a) (Vernon 2002).

With respect to appointing a parent as a possessory conservator, the Texas Family Code provides:

The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.

Tex. Fam. Code Ann. ' 153.191 (Vernon 2002) (emphasis added). The Family Code further provides with regard to the restriction of a parent's access to a child:
The terms of an order that denies possession of child to a parent or imposes restrictions or limitations on a parent's right to possession of or access to a child may not exceed those that are required to protect the best interest of the child. Tex. Fam. Code Ann. ' 153.193 (Vernon 2002).

The trial court's determination that access, even restricted access, would endanger the physical or emotional welfare of the child precludes the court from appointing that parent possessory conservator. In re Walters, 39 S.W.3d 280, 286 (Tex. App.Texarkana 2001, no pet.). However, the trial court may appoint a parent possessory conservator if it determines access would not endanger the physical or emotional well being of the child, even though access to the child would not be in the child's best interest. Id.; Hopkins v. Hopkins, 853 S.W.2d 134, 137 (Tex. App.Corpus Christi 1993, no writ). In such cases, the trial court may appoint a parent a possessory conservator and deny that parent any access to or possession of the child, if such restriction is in the best interest of the child. Hopkins, 853 S.W.2d at 137B38; see also In re Walters, 39 S.W.3d at 286 n.2 (stating a limitation that amounts to a denial of access is permissible if it is in the best interest of the child).

In all cases, access, conservatorship and child visitation disputes are always reviewed under the best interest of the child standard. However, divorcing parents can and often do agree to modified access, conservatorship and visitation. Parties are allowed to enter into an agreed visitation and conservatorship agreement. It's best to have a family law or child custody attorney review agreements before entering into such modified custody agreements.

Evidentiary Proof in Child Support Enforcement Actions

When filing for child support enforcement lawsuits or motions to enforce child support in Texas, the admissibility of evidence is reviewed on a "abuse of discretion" standard. Although trial courts have a lot of latitude and discretion in admitting or excluding evidentiary proof or testimony in child support enforcement actions, it is still subject to review by a higher court.

On this note, it is always helpful to have good legal representation. It takes a keen and experienced lawyer to preserve error or proof at the trial court level especially if an appeal to a higher court is anticipated.

In Texas child support enforcement proceedings or hearings, questions concerning the admission and exclusion of evidence are reviewed under an abuse of discretion standard. In re R.J.P., 179 S.W.3d 181, 184 (Tex. App.-Houston [14th Dist. 2005, no pet.). An appellate court will reverse only if the trial court abused its discretion by acting without reference to any guiding rules or principals or by acting arbitrarily or unreasonably. Id.; Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). A trial court abuses its discretion as to legal issues when it fails to analyze or apply the law correctly. In re D.S., 76 S.W.3d 512, 516 (Tex. App.-Houston [14th Dist.] 2002, no pet.). A higher court may not reverse for abuse of discretion merely because it disagrees with the trial court's decision. Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.-Dallas 2006, no pet.).

Section 157.002 of the Texas Family Code dictates the requirements of a motion for enforcement of a child support order. Section 157.002(b)(1) requires a motion for enforcement to include the amount owed as provided in the support order, the amount paid, and the amount of the arrearage. See Tex. Fam. Code Ann. § 157.002(b)(1) (Vernon 2002).

Section 157.002(b)(3) provides that the motion may include as an attachment a copy of a record of child support payments maintained by the Title IV-D registry or a local registry. Id. § 157.002(b)(3)

Section 157.162(c) provides that a “copy of the payment record attached to the motion is evidence of the facts asserted in the payment record and is admissible to show whether payments were made. The respondent may offer controverting evidence.” Id. § 157.162(c) (Vernon Supp. 2006).

When petitioning the trial court to enforce and or modify child support obligations in Texas, proper documentation and evidence is key to getting the enforcement or modification order.

What is Reasonable Attorney's Fees in Texas?

On occasion a client may wonder if the attorney's fees charged on his or her case is reasonable or justified. Attorney's fees can be a source of litigation in and of itself especially when it comes to protracted litigation, complex cases, or cases that become contentious or hotly contested.

When reviewing the reasonableness and justification of attorney's fees, Texas courts look to the following factors:

1. The time and labor required

2. The novelty and difficulty of the questions involved

3. The skill required to perform the legal service properly

4. The likelihood that the acceptance of the particular employment will preclude other

employment

5. The fee customarily charged in the locality for similar legal services

6. The amount involved and the results obtained

7. The time limitations imposed by the client or by the circumstances

8. The nature and length of the professional relationship with the client

9. The experience, reputation, and ability of the lawyer or lawyers performing the services; and

10. Whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.

See Arthur Anderson & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). It is not necessary, however, that the record include evidence on each of these factors. See Burnside Air Conditioning v. T.S. Young, 113 S.W.3d 889, 897-98 (Tex. App.-Dallas 2003, no pet.). Generally, the nature and extent of the attorney's services are expressed by the number of hours and the hourly rate. Id. However, there is no rigid requirement that these facts must be introduced into evidence to support a finding that attorney's fees are necessary and reasonable. Id; Hays & Martin, L.L.P. v. Ubinas-Brache, M.D., 192 S.W.3d 631,636 (Tex. App.-Dallas 2006, pet. denied). In Hays & Martin, the court's holding affirmed an award of attorney's fees where the evidence did not include evidence of the number of hours spent working on the case. Hays & Martin L.L.P., 192 S.W.3d at 637. The attorney testified as to his hourly rate and that of another partner who worked on the case. He testified that the case was procedurally complicated and specified some of the work involved including numerous discovery motions, responses to jurisdictional motions, and a continuance. Id.

Of particular note is the factor of the likelihood of preclusion from other work. Most clients sometimes put pressure on his or her attorney or lawyer to finish or conclude a case. The reality in most lawyer's practices is that the attorney is sometimes faced with a heavy docket of cases. Taking a case sometimes precludes a lawyer from working on other cases or taking on any new cases. The fact that the attorney takes on a case, means that the lawyer is banking on getting compensated. Texas jurisprudence recognizes this practical aspect of a lawyer's practice and therefore considers this factor in determining the reasonableness and necessity of attorney's fees in Texas.

Texas Summary Judgment In a Nutshell

Most litigants finding themselves in court or being sued for the first time often here of the phrase "motion for summary judgment." Under Texas rules of civil procedure a party to a litigation or lawsuit can move or motion the court to grant it judgment or victory regarding the movant's claims if there are no genuine issues of material fact. In other words, the facts of the case are so in favor of the party moving for judgment that the court must grant summary judgment without having a full trial on the merits.

Under well- settled standards for summary judgment in Texas, and in a traditional motion for summary judgment, the party moving for summary judgment has the burden of showing there is no genuine issue of material fact and that he, she or it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). A defendant moving for a traditional summary judgment has the burden of proving all essential elements of his defense as a matter of law. Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990). By contrast, when a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Gen. Mills Rest., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex. App.-Dallas 2000, no pet.). If the nonmovant fails to do so, the trial judge must grant the motion. Id.

Tolling of Limitations in Tort Actions & Auto Injury Cases

The general rule of limitation in Texas is that when a person is injured in tort, for example, in an auto accident case, he or she has until the expiration of two (2) years to file suit otherwise, any claim is precluded under the statute of limitation found in the Texas Civil Practice and Remedies Code.

There is however an exception to this rule. Although recovery on most tort actions would be barred after the expiration of two years, an exception to that rule provides that a tolling of the statute of limitations takes place if a party has filed a previous suit in a different court and that action was dismissed because of lack of jurisdiction, provided that the party refiled the suit in a court of proper jurisdiction within sixty days after such dismissal. Tex. Civ. Prac. & Rem. Code Ann. § 16.064 (Vernon 1997); Clary Corp. v. Smith, 949 S.W.2d 452, 461 (Tex. App.--Fort Worth 1997, writ denied). The cases also note that the statute is to be liberally construed to effectuate its objective--relief from penalty of limitation bar to one who has mistakenly brought his action in the wrong court. Tex. Civ. Prac. & Rem. Code Ann. § 16.064; Clary Corp., 949 S.W.2d at 461.

Timeliness of Property Tax Appeal in Texas

When appealing a property tax assessment by a tax appraisal district's review board, a taxpayer must comply with the Texas Tax Code provision requiring a taxpayer to file an appeal within 45-days of notice of an appealable order.

Subject-matter jurisdiction cannot be waived, and it may be raised at any point in the proceeding. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008); OAIC Commercial Assets, L.L.C. v. Stonegate Village, L.P., 234 S.W.3d 726, 735 (Tex. App.-Dallas 2007, pet. denied). “Whether a court has subject matter jurisdiction is a question of law.” Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004); see also Tex. Natural Res. Conservation Comm'n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002).

In cases where a taxpayer files an appeal outside of the appeal period, a state taxing authority has a right to have a case dismissed through a plea to a jurisdiction. When a plea to the jurisdiction challenges the pleadings, the courts must determine if the pleader has alleged facts that affirmatively demonstrate the court's jurisdiction to hear the cause. See Miranda, 133 S.W.3d at 226. Texas courts construe the pleadings liberally in favor of the plaintiff and look to the pleader's intent; see Dallas Cent. Appraisal Dist. v. 1420 Viceroy Ltd. P'ship, 180 S.W.3d 267, 269 (Tex. App.-Dallas 2005, no pet.) Courts liberally construe the pleadings in favor of jurisdiction, focusing on the pleader's intent. If the pleadings do not contain sufficient facts to affirmatively demonstrate the trial court's jurisdiction but do not affirmatively demonstrate incurable defects in jurisdiction, the issue is one of pleading sufficiency and the plaintiffs should be afforded the opportunity to amend. See Miranda, 133 S.W.3d at 226-27 (citing County of Cameron v. Brown, 80 S.W.3d 549, 555 (Tex. 2002). If the pleadings affirmatively negate the existence of jurisdiction, then a plea to the jurisdiction may be granted without allowing the plaintiffs an opportunity to amend. Id. Miranda at 227.

Section 42.21 of the Tax Code. requires a party bringing an appeal of an appraisal review board decision to file a petition for review in district court within forty-five (45) days after the party received notice that a final appealable order was entered. Tex. Tax Code Ann. § 42.21(a) (Vernon 2008). The failure to file the petition for review timely deprives the trial court of jurisdiction over the claim. Appraisal Rev. Bd. v. Int'l Church of Foursquare Gospel, 719 S.W.2d 160, 160 (Tex. 1986) (per curiam); Gregg County Appraisal Dist. v. Laidlaw Waste Sys., Inc., 907 S.W.2d 12, 16 (Tex. App.-Tyler 1995, writ denied).

Taxpayers must timely file a state property tax appeal in State district court within 45 days of an appealable order from the district's appraisal review board's order. Legal arguments of violation of rights to due process, to access to the courts, and to open courts as guaranteed by the United States and Texas constitutions, all do not apply, and a taxpayer must strictly adhere to the timeliness of the filing requirement. The Texas courts have held that the Tax Code's provisions do not deny a taxpayer these rights. See Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 808 S.W.2d 169, 172 (Tex. App.-El Paso), rev'd in part on other grounds, 826 S.W.2d 124 (Tex. 1991) (per curiam).

Please consult a Texas property tax attorney or lawyer for your specific property tax appeal case.

What Makes a Valid Contract in Texas?

A legally enforceable and valid contract requires the following elements:

(1) an offer,

(2) an acceptance,

(3) a meeting of the minds,

(4) each party's consent to the terms, and

(5) execution and delivery of the contract with the intent that it be mutual and binding.

Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.--Houston [1st Dist.] 2002, pet. denied). To prevail on a breach-of-contract claim or lawsuit, the plaintiff must prove: (1) a valid contract between plaintiff and defendant existed; (2) the plaintiff performed or tendered performance; (3) the defendant breached the contract; and (4) the plaintiff sustained damages as a result of the breach. Id.

To be enforceable, the contract must be sufficiently certain to enable a court to determine the rights and responsibilities of the respective parties. T.O. Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 221 (Tex. 1992); America's Favorite Chicken v. Samaras, 929 S.W.2d 617, 622 (Tex. App.--San Antonio 1996, writ denied). Under settled principles of contract interpretation, Texas courts construe a contract as a matter of law to determine whether it can be enforced as written without resorting to parol evidence (that is evidence outside the contract itself). J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). The primary concern that Texas courts look to is to ascertain the intent of the parties, as expressed in the contract instrument. R.P. Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980)).

Parties form a binding contract when the following elements are present:

(1) an offer,

(2) an acceptance in strict compliance with the terms of the offer,

(3) a meeting of the minds,

(4) each party's consent to the terms, and

(5) execution and delivery of the contract with the intent that it be mutual and binding.

See, Am. Nat'l Ins. Co. v. Warnock, 114 S.W.2d 1161, 1164 (Tex. 1938); Prime Prods., Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 636 (Tex. App.--Houston [1st Dist.] 2002, pet. denied).

Finally, when interpreting contract disputes between parties, Texas courts look to

the parties' intentions as expressed in the document within the four corners of the contract, or within the confines of the contract terms itself. See, Frost Nat'l Bank v. L & F Distribs., Ltd., 165 S.W.3d 310, 311-12 (Tex. 2005); J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 229 (Tex. 2003). Texas courts, therefore, look to the entire writing and attempt to harmonize and give effect to all the provisions of the contract by analyzing these provisions with reference to the whole agreement. See, Frost Nat'l Bank, 165 S.W.3d at 312; J.M. Davidson, Inc., 128 S.W.3d at 229. Accordingly, no single provision is taken alone or given controlling effect; rather, all the provisions must be considered with reference to the whole instrument itself. See, J.M. Davidson, Inc., 128 S.W.3d at 229. A contract is unambiguous, and construed as a matter of law, if a court can give it a certain or definite legal meaning or interpretation. See also, Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983) If an appellate court is unable to harmonize the provisions and give effect to all its clauses, the contract is susceptible to more than one reasonable interpretation and it is ambiguous. Coker, 650 S.W.2d at 393; United Protective Servs., Inc. v. W. Village Ltd. P'ship, 180 S.W.3d 430, 432 (Tex. App.--Dallas 2005, no pet.). Killeen v. Lighthouse Electrical Contractors (Tex.App.- Dallas 2007, pet denied)

Presumption of Managing Conservatorship of a Parent

Generally in Texas Section 153.131 of the Texas Family Code creates a presumption of managing conservatorship in favor of a parent or parents unless the court finds that such appointment “would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.” Tex. Fam. Code § 153.131(a).

There is an underlying presumption in Texas family law that a parent or parents are best able to assume the parental responsibilities of his or her child or children. However, the presumption is not absolute or does not always hold true under certain circumstances. One factor would be a history of family violence. Thus when competing parents are vying for the "full custody" of his or her child or children, the parent who has committed family violence is at a disadvantage in a custody case or lawsuit. A finding of a history of family violence involving a child’s parents removes the presumption that appointment of the child’s parents is in the child’s best interest. Texas Family Code § 153.131.