Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Civil Litigation Defense Attorney James L. Williams of Fort Worth, Texas has been selected as a Member of the prestigious Claims and Litigation Management Alliance (CLM Alliance), an alliance comprised of insurance companies, corporations, Corporate Counsel, Litigation and Risk Managers, claims professionals and insurance defense attorneys. Through education and collaboration the organization’s goals are to create a common interest in the representation by firms of companies, and to promote and further the highest standards of litigation management in pursuit of client defense. Selected attorneys and law firms are extended membership by invitation only based on nominations from CLM Fellows.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
“I have a dream that my little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
— Martin Luther King
“The first requisite of a good citizen in this republic of ours is that he shall be able and willing to pull his weight.” ― Theodore Roosevelt
“Constitutions have to be written on hearts, not just paper.”
— Margaret Thatcher
“That government is best which governs the least, because its people discipline themselves.”
–Thomas Jefferson
“It has been said that democracy is the worst form of government except all the others that have been tried.”
–Winston Churchill
“In Revolutionary times, the cry “No taxation without representation” was not an economic complaint. Rather, it was directly traceable to the eminently fair and just principle that no sovereign power has the right to govern without the consent of the governed. Anything short of that was tyranny. It was against this tyranny that the colonists “fired the shot heard ’round the world.” Independence Day Oration, July 4th, 1946
–John F. Kennedy
“Firearms stand next in importance to the Constitution itself. They are the American people’s liberty teeth and keystone under independence.”
— George Washington
“As far as military necessity will permit, religiously respect the constitutional rights of all.”
–George B. McLellan
“Here in America we are descended in blood and in spirit from revolutionists and rebels — men and women who dare to dissent from accepted doctrine. As their heirs, we may never confuse honest dissent with disloyal subversion.”
–Dwight D. Eisenhower
The Declaration of Independence…is not a legal prescription conferring powers upon the courts; and the Constitution’s refusal to ‘deny or disparage’ other rights is far removed from affirming any one of them, and even farther removed from authorizing judges to identify what they might be, and to enforce the judges’ list against laws duly enacted by the people.
–-Dr. Laura Schlessinger
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
American Registry LLC, a respected recognition organization, has named Fort Worth civil litigation attorney James L. Williams to The Registry™ of Business and Professional Excellence.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Fort Worth Civil Litigation Attorney James L. Williams has been awarded a “Superb” Rating by AVVO (aperfect score of 10.0 out of 10.0), a Top Attorney rating calculated using a mathematical model that evaluates relevant data in an attorney’s profile, including experience, disciplinary history, professional achievements, client reviews, peer reviews and industry recognition .The rating system periodically collects background data from multiple sources, including state bar associations, court records, websites, and other information, and is considered a premier consumer dedicated attorney rating system.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
“Justice will not be served until those who are unaffected are as outraged as those who are.”
― Benjamin Franklin
“Right is right, even if everyone is against it, and wrong is wrong, even if everyone is for it.”
― William Penn
“It is reasonable that everyone who asks justice should do justice”
― Thomas Jefferson
“Someday, the realm of liberty and justice will encompass the planet. Freedom is not just the birthright of the few, it is the God-given right of all His children, in every country. It won’t come by conquest. It will come, because freedom is right and freedom works. It will come, because cooperation and good will among free people will carry the day.”
― Ronald Reagan, The Quest for Peace, the Cause of Freedom
“A man who really fights for justice must lead a private, not a public, life if he is to survive for even a short time.”
― Socrates, The Apology
Any discussion of how pain and suffering fit into God’s scheme ultimately leads back to the cross. ”
― Philip Yancey
“Let a crown be placed thereon, by which the world may know, that so far as we approve of monarcy, that in America the law is King. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other.”
― Thomas Paine
“In questions of power, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution.”
― Thomas Jefferson
“Today, no less than five Supreme Court justices are on record, either through their opinions or speeches (or both), that they will consult foreign law and foreign-court rulings for guidance in certain circumstances. Of course, policymakers are free to consult whatever they want, but not justices. They’re limited to the Constitution and the law.”
― Mark R. Levin
“Do not follow the crowd in doing wrong. . . do not pervert justice by siding with the crowd.”
― Exodus 23 2 NIVHoly Bible
“If there is any society among robbers and murderers, they must at least. . . .abstain
from robbing and murdering one another. So beneficence is less essential than justice is to the existence of society; a lack of beneficence will make a society uncomfortable, but the prevalence of injustice will utterly destroy it.”
― Adam Smith, The Theory of Moral Sentiments
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
CHAPTER 15. MONOPOLIES, TRUSTS AND CONSPIRACIES IN RESTRAINT OF TRADE
SUBCHAPTER E. COVENANTS NOT TO COMPETE
Sec. 15.50. CRITERIA FOR ENFORCEABILITY OF COVENANTS NOT TO COMPETE. (a) Notwithstanding Section 15.05 of this code, and subject to any applicable provision of Subsection (b), a covenant not to compete is enforceable if it is ancillary to or part of an otherwise enforceable agreement at the time the agreement is made to the extent that it contains limitations as to time, geographical area, and scope of activity to be restrained that are reasonable and do not impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee.
(b) A covenant not to compete relating to the practice of medicine is enforceable against a person licensed as a physician by the Texas Medical Board if such covenant complies with the following requirements:
(1) the covenant must:
(A) not deny the physician access to a list of his patients whom he had seen or treated within one year of termination of the contract or employment;
(B) provide access to medical records of the physician’s patients upon authorization of the patient and any copies of medical records for a reasonable fee as established by the Texas Medical Board under Section 159.008, Occupations Code; and
(C) provide that any access to a list of patients or to patients’ medical records after termination of the contract or employment shall not require such list or records to be provided in a format different than that by which such records are maintained except by mutual consent of the parties to the contract;
(2) the covenant must provide for a buy out of the covenant by the physician at a reasonable price or, at the option of either party, as determined by a mutually agreed upon arbitrator or, in the case of an inability to agree, an arbitrator of the court whose decision shall be binding on the parties; and
(3) the covenant must provide that the physician will not be prohibited from providing continuing care and treatment to a specific patient or patients during the course of an acute illness even after the contract or employment has been terminated.
(c) Subsection (b) does not apply to a physician’s business ownership interest in a licensed hospital or licensed ambulatory surgical center.
Added by Acts 1989, 71st Leg., ch. 1193, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch. 965, Sec. 1, eff. Sept. 1, 1993; Acts 1999, 76th Leg., ch. 1574, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 1420, Sec. 14.729, eff. Sept. 1, 2001.
Amended by:
Acts 2009, 81st Leg., R.S., Ch. 971 (H.B. 3623), Sec. 1, eff. September 1, 2009.
Sec. 15.51. PROCEDURES AND REMEDIES IN ACTIONS TO ENFORCE COVENANTS NOT TO COMPETE. (a) Except as provided in Subsection (c) of this section, a court may award the promisee under a covenant not to compete damages, injunctive relief, or both damages and injunctive relief for a breach by the promisor of the covenant.
(b) If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, for a term or at will, the promisee has the burden of establishing that the covenant meets the criteria specified by Section 15.50 of this code. If the agreement has a different primary purpose, the promisor has the burden of establishing that the covenant does not meet those criteria. For the purposes of this subsection, the “burden of establishing” a fact means the burden of persuading the triers of fact that the existence of the fact is more probable than its nonexistence.
(c) If the covenant is found to be ancillary to or part of an otherwise enforceable agreement but contains limitations as to time, geographical area, or scope of activity to be restrained that are not reasonable and impose a greater restraint than is necessary to protect the goodwill or other business interest of the promisee, the court shall reform the covenant to the extent necessary to cause the limitations contained in the covenant as to time, geographical area, and scope of activity to be restrained to be reasonable and to impose a restraint that is not greater than necessary to protect the goodwill or other business interest of the promisee and enforce the covenant as reformed, except that the court may not award the promisee damages for a breach of the covenant before its reformation and the relief granted to the promisee shall be limited to injunctive relief. If the primary purpose of the agreement to which the covenant is ancillary is to obligate the promisor to render personal services, the promisor establishes that the promisee knew at the time of the execution of the agreement that the covenant did not contain limitations as to time, geographical area, and scope of activity to be restrained that were reasonable and the limitations imposed a greater restraint than necessary to protect the goodwill or other business interest of the promisee, and the promisee sought to enforce the covenant to a greater extent than was necessary to protect the goodwill or other business interest of the promisee, the court may award the promisor the costs, including reasonable attorney’s fees, actually and reasonably incurred by the promisor in defending the action to enforce the covenant.
Added by Acts 1989, 71st Leg., ch. 1193, Sec. 1, eff. Aug. 28, 1989. Amended by Acts 1993, 73rd Leg., ch. 965, Sec. 2, eff. Sept. 1, 1993.
Sec. 15.52. PREEMPTION OF OTHER LAW. The criteria for enforceability of a covenant not to compete provided by Section 15.50 of this code and the procedures and remedies in an action to enforce a covenant not to compete provided by Section 15.51 of this code are exclusive and preempt any other criteria for enforceability of a covenant not to compete or procedures and remedies in an action to enforce a covenant not to compete under common law or otherwise.
Added by Acts 1993, 73rd Leg., ch. 965, Sec. 3, eff. Sept. 1, 1993.
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law defense attorney who protects the rights of businesses in Texas employment law cases, with respect to both state and federal law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
(The following version of Form C-8 is identical in content, but not in format, to the Form C-8 adopted by the Texas Workforce Commission and published in the Texas Register as part of the Payday Rules. That test may be found on the Internet in PDF format athttp://www.texasworkforce.org/ui/tax/forms/c8.pdf (PDF). Employers may also request a copy in printed form by asking for Form C-8 from “Texas Workforce Commission, Tax Department, 101 E. 15th Street, Austin, Texas, 78778”.)
EMPLOYMENT STATUS – A COMPARATIVE APPROACH
Under the common law test, a worker is an employee if the purchaser of that worker’s service has the right to direct or control the worker, both as to the final results and as to the details of when, where, and how the work is done. Control need not actually be exercised; rather, if the service recipient has the right to control, employment may be shown.
Depending upon the type of business and the services performed, not all of the twenty common law factors may apply. In addition, the weight assigned to a specific factor may vary depending upon the facts of the case. If an employment relationship exists, it does not matter that the employee is called something different, such as: agent, contract labor, subcontractor, or independent contractor.
1. INSTRUCTIONS:
11. ORAL OR WRITTEN REPORTS:
An Employee receives instructions about when, where and how the work is to be performed. An Independent Contractor does the job his or her own way with few, if any, instructions as to the details or methods of the work.
An Employee may be required to submit regular oral or written reports about the work in progress. An Independent Contractor is usually not required to submit regular oral or written reports about the work in progress.
2. TRAINING:
12.PAYMENT BY THE HOUR, WEEK, OR MONTH:
Employees are often trained by a more experienced employee or are required to attend meetings or take training courses. An Independent Contractor uses his or her own methods and thus need not receive training from the purchaser of those services.
An Employee is typically paid by the employer in regular amounts at stated intervals, such as by the hour or week. An Independent Contractor is normally paid by the job, either a negotiated flat rate or upon submission of a bid.
3. INTEGRATION:
13. PAYMENT OF BUSINESS & TRAVEL EXPENSE:
Services of an Employee are usually merged into the firm’s overall operation; the firm’s success depends on those Employee services. An Independent Contractor’s services are usually separate from the client’s business and are not integrated or merged into it.
An Employee’s business and travel expenses are either paid directly or reimbursed by the employer. Independent Contractors normally pay all of their own business and travel expenses without reimbursement.
4. SERVICES RENDERED PERSONALLY:
14. FURNISHING TOOLS & EQUIPMENT:
An Employee’s services must be rendered personally; Employees do not hire their own substitutes or delegate work to them. A true Independent Contractor is able to assign another to do the job in his or her place and need not perform services personally.
Employees are furnished all necessary tools, materials, and equipment by their employer. An Independent Contractor ordinarily provides all of the tools and equipment necessary to complete the job.
5. HIRING, SUPERVISING & PAYING HELPERS:
15. SIGNIFICANT INVESTMENT:
An Employee may act as a foreman for the employer but, if so, helpers are paid with the employer’s funds. Independent Contractors select, hire, pay, and supervise any helpers used and are responsible for the results of the helpers’ labor.
An Employee generally has little or no investment in the business. Instead, an Employee is economically dependent on the employer. True Independent Contractors usually have a substantial financial investment in their independent business.
6. CONTINUING RELATIONSHIP:
16. REALIZE PROFIT OR LOSS:
An Employee often continues to work for the same employer month after month or year after year. An Independent Contractor is usually hired to do one job of limited or indefinite duration and has no expectation of continuing work.
An Employee does not ordinarily realize a profit or loss in the business. Rather, Employees are paid for services rendered. An Independent Contractor can either realize a profit or suffer a loss depending on the management of expenses and revenues.
7. SET HOURS OF WORK:
17. WORKING FOR MORE THAN ONE FIRM AT A TIME:
An Employee may work “on call” or during hours and days as set by the employer. A true Independent Contractor is the master of his or her own time and works the days and hours he or she chooses.
An Employee ordinarily works for one employer at a time and may be prohibited from joining a competitor. An Independent Contractor often works for more than one client or firm at the same time and is not subject to a non-competition rule.
8. FULL TIME REQUIRED:
18. MAKING SERVICE AVAILABLE TO THE PUBLIC:
An Employee ordinarily devotes full-time service to the employer, or the employer may have a priority on the Employee’s time. A true Independent Contractor cannot be required to devote full-time service to one firm exclusively.
An Employee does not make his or her services available to the public except through the employer’s company. An Independent Contractor may advertise, carry business cards, hang out a shingle, or hold a separate business license.
9. LOCATION WHERE SERVICES PERFORMED:
19. RIGHT TO DISCHARGE WITHOUT LIABILITY:
Employment is indicated if the employer has the right to mandate where services are performed. Independent Contractors ordinarily work where they choose. The workplace may be away from the client’s premises.
An Employee can be discharged at any time without liability on the employer’s part. If the work meets the contract terms, an Independent Contractor cannot be fired without liability for breach of contract.
10. ORDER OR SEQUENCE SET:
20. RIGHT TO QUIT WITHOUT LIABILITY:
An Employee performs services in the order or sequence set by the employer. This shows control by the employer. A true Independent Contractor is concerned only with the finished product and sets his or her own order or sequence of work.
An Employee may quit work at any time without liability on the Employee’s part. An Independent Contractor is legally responsible for job completion and, on quitting, becomes liable for breach of contract.
C-8(0406)
(Source: 40 T.A.C. § 821.5, adopted to be effective June 1, 1998, as published in the Texas Register, May 29, 1998, 23 TexReg 5732.)
As always, it is important to contact a knowledgeable and experienced Texas employment law defense attorney to help you understand your rights as an Employer. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran employment law defense attorney who protects the rights of businesses in Texas employment law cases, with respect to both state and federal law.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
Sec. 31.001. PASSAGE OF TITLE. A judgment for the conveyance of real property or the delivery of personal property may pass title to the property without additional action by the party against whom the judgment is rendered.
Sec. 31.002. COLLECTION OF JUDGMENT THROUGH COURT PROCEEDING. (a) A judgment creditor is entitled to aid from a court of appropriate jurisdiction through injunction or other means in order to reach property to obtain satisfaction on the judgment if the judgment debtor owns property, including present or future rights to property, that:
(1) cannot readily be attached or levied on by ordinary legal process; and
(2) is not exempt from attachment, execution, or seizure for the satisfaction of liabilities.
(b) The court may:
(1) order the judgment debtor to turn over nonexempt property that is in the debtor’s possession or is subject to the debtor’s control, together with all documents or records related to the property, to a designated sheriff or constable for execution;
(2) otherwise apply the property to the satisfaction of the judgment; or
(3) appoint a receiver with the authority to take possession of the nonexempt property, sell it, and pay the proceeds to the judgment creditor to the extent required to satisfy the judgment.
(c) The court may enforce the order by contempt proceedings or by other appropriate means in the event of refusal or disobedience.
(d) The judgment creditor may move for the court’s assistance under this section in the same proceeding in which the judgment is rendered or in an independent proceeding.
(e) The judgment creditor is entitled to recover reasonable costs, including attorney’s fees.
(f) A court may not enter or enforce an order under this section that requires the turnover of the proceeds of, or the disbursement of, property exempt under any statute, including Section 42.0021, Property Code. This subsection does not apply to the enforcement of a child support obligation or a judgment for past due child support.
(g) With respect to turnover of property held by a financial institution in the name of or on behalf of the judgment debtor as customer of the financial institution, the rights of a receiver appointed under Subsection (b)(3) do not attach until the financial institution receives service of a certified copy of the order of receivership in the manner specified by Section 59.008, Finance Code.
(h) A court may enter or enforce an order under this section that requires the turnover of nonexempt property without identifying in the order the specific property subject to turnover.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1989, 71st Leg., ch. 1015, Sec. 1, eff. June 15, 1989; Acts 1999, 76th Leg., ch. 344, Sec. 7.002, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 52 (H.B. 729), Sec. 1, eff. May 17, 2005.
Sec. 31.0025. AUTHORITY OF COURT TO ORDER TURNOVER OF WAGES. (a) Notwithstanding any other law, a court may not, at any time before a judgment debtor is paid wages for personal services performed by the debtor, enter or enforce an order that requires the debtor or any other person to turn over the wages for the satisfaction of the judgment.
(b) This section applies to wages in any form, including paycheck, cash, or property.
(c) This section does not apply to the enforcement of a child support obligation or a judgment for past due child support.
Added by Acts 1991, 72nd Leg., ch. 671, Sec. 1, eff. Aug. 26, 1991.
Sec. 31.003. JUDGMENT AGAINST PARTNERSHIP. If a suit is against several partners who are jointly indebted under a contract and citation has been served on at least one but not all of the partners, the court may render judgment against the partnership and against the partners who were actually served, but may not award a personal judgment or execution against any partner who was not served.
Sec. 31.004. EFFECT OF ADJUDICATION IN LOWER TRIAL COURT. (a) A judgment or a determination of fact or law in a proceeding in a lower trial court is not res judicata and is not a basis for estoppel by judgment in a proceeding in a district court, except that a judgment rendered in a lower trial court is binding on the parties thereto as to recovery or denial of recovery.
(b) This section does not apply to a judgment in probate, guardianship, mental health , or other matter in which a lower trial court has exclusive subject matter jurisdiction on a basis other than the amount in controversy.
(c) For the purposes of this section, a “lower trial court” is a small claims court, a justice of the peace court, a county court, or a statutory county court.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 167, Sec. 3.07(a), eff. Sept. 1, 1987.
Sec. 31.005. EFFECT OF ADJUDICATION IN SMALL CLAIMS OR JUSTICE OF THE PEACE COURT. A judgment or a determination of fact or law in a proceeding in small claims court or justice of the peace court is not res judicata and does not constitute a basis for estoppel by judgment in a proceeding in a county court or statutory county court, except that the judgment rendered is binding on the parties thereto as to recovery or denial of recovery.
Sec. 31.006. REVIVAL OF JUDGMENT. A dormant judgment may be revived by scire facias or by an action of debt brought not later than the second anniversary of the date that the judgment becomes dormant.
Acts 1985, 69th Leg., ch. 959, Sec. 1, eff. Sept. 1, 1985. Amended by Acts 1995, 74th Leg., ch. 935, Sec. 1, eff. Sept. 1, 1995.
Sec. 31.007. PARTIES RESPONSIBLE FOR ACCOUNTING OF OWN COSTS. (a) Each party to a suit shall be responsible for accurately recording all costs and fees incurred during the course of a lawsuit, if the judgment is to provide for the adjudication of such costs. If the judgment provides that costs are to be borne by the party by whom such costs were incurred, it shall not be necessary for any of the parties to present a record of court costs to the court in connection with the entry of a judgment.
(b) A judge of any court may include in any order or judgment all costs, including the following:
(1) fees of the clerk and service fees due the county;
(2) fees of the court reporter for the original of stenographic transcripts necessarily obtained for use in the suit;
(3) masters, interpreters, and guardians ad litem appointed pursuant to these rules and state statutes; and
(4) such other costs and fees as may be permitted by these rules and state statutes.
Added by Acts 1987, 70th Leg., ch. 663, Sec. 3, eff. Sept. 1, 1987.
Sec. 31.008. PAYMENT OF UNCLAIMED JUDGMENT. (a) A judgment debtor may pay to the court that rendered the judgment the amount under the judgment owed to a judgment creditor whose location is unknown to the judgment debtor if the judgment debtor complies with Subsections (b) and (c). The payment must be made without offset or reduction for any claims of the judgment debtor. The judgment debtor shall prepare a recordable release of the judgment. The judge or clerk of the court shall execute the release of the judgment on behalf of the creditor and issue the release to the debtor. The release shall recite the cause number, the court, the parties, the date of judgment, the amount of judgment, the amount paid into the court, and the date of the release.
(b) Before being entitled to pay a judgment to a court under Subsection (a), the judgment debtor shall send a letter notifying the judgment creditor of the judgment, by registered or certified mail, return receipt requested, to:
(1) the judgment creditor’s last known address;
(2) the address appearing in the judgment creditor’s pleadings or other court record, if different from the creditor’s last known address;
(3) the address of the judgment creditor’s last attorney, as shown in the creditor’s pleadings or other court record; and
(4) the address of the judgment creditor’s last attorney, as shown in the records of the State Bar of Texas, if that address is different from the address shown in the creditor’s pleadings or other court record.
(c) If the judgment creditor does not respond to a notice under Subsection (b) on or before the 15th day after the date on which the notice was sent, the judgment debtor may file an affidavit with the court stating that the judgment debtor has provided the required notice, that the judgment creditor has not responded to the notice, and that the location of the judgment creditor is not known to the judgment debtor.
(d) The court shall hold the amount paid to it by the judgment debtor under Subsection (a) and interest earned on that amount in trust for the judgment creditor.
(e) The clerk of the court shall deposit the trust funds and any interest earned by the funds in the clerk’s trust fund account. The clerk shall pay the funds and any interest earned by the funds to the judgment creditor or to the successors to the rights of the judgment creditor. The clerk may presume that the funds are payable to the judgment creditor unless the clerk is furnished with a written assignment of the judgment.
(f) Funds held in the clerk’s trust fund account in accordance with this section are subject to escheat under Chapter 72, Property Code.
(g) If the judgment debtor complies with Subsections (b) and (c) and the judgment creditor refuses to accept payment of the amount under the judgment or accepts payment under the judgment and refuses to execute a release of judgment, the court shall set the matter for hearing on a party’s motion or on the court’s own motion to determine whether or not a release should be filed. On notice and hearing the court may direct the judgment debtor to prepare and file a recordable release of the judgment with the clerk of the court if the court finds that:
(1) the amount under the judgment has been paid into the registry of the court; or
(2) the judgment creditor has accepted payment under the judgment and refused to execute a release of judgment.
(h) In this section:
(1) “Judgment creditor” means a party in whose favor a judgment has been rendered, whether a plaintiff, counterclaimant, cross-claimant, third party plaintiff, or other judgment creditor.
(2) “Judgment debtor” means a party against whom a judgment is rendered.
Added by Acts 1991, 72nd Leg., ch. 730, Sec. 1, eff. Sept. 1, 1991. Amended by Acts 1993, 73rd Leg., ch. 163, Sec. 1, eff. Aug. 30, 1993; Acts 2001, 77th Leg., ch. 656, Sec. 1, eff. Sept. 1, 2001.
Sec. 31.010. TURNOVER BY FINANCIAL INSTITUTION. (a) A financial institution that receives a request to turn over assets or financial information of a judgment debtor to a judgment creditor or a receiver under a turnover order or receivership under Section 31.002 shall be provided and may rely on:
(1) a certified copy of the order or injunction of the court; or
(2) a certified copy of the order of appointment of a receiver under Section 64.001, including a certified copy of:
(A) any document establishing the qualification of the receiver under Section 64.021;
(B) the sworn affidavit under Section 64.022; and
(C) the bond under Section 64.023.
(b) A financial institution that complies with this section is not liable for compliance with a court order, injunction, or receivership authorized by Section 31.002 to:
(1) the judgment debtor;
(2) a party claiming through the judgment debtor;
(3) a co-depositor with the judgment debtor; or
(4) a co-borrower with the judgment debtor.
(c) A financial institution that complies with this section is entitled to recover reasonable costs, including copying costs, research costs, and, if there is a contest, reasonable attorney’s fees.
(d) In this section, “financial institution” means a state or national bank, state or federal savings and loan association, state or federal savings bank, state or federal credit union, foreign bank, foreign bank agency, or trust company.
Added by Acts 1999, 76th Leg., ch. 892, Sec. 1, eff. Sept. 1, 1999.
As always, it is important to contact a knowledgeable and experienced Texas collections attorney to help you understand your rights as a Creditor in a Texas collections case. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran commercial litigation attorney who protects the rights of businesses in Texas commercial litigation and collections cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
In a Texas premises-liability case, a landowner is liable to employees of an independent contractor only for claims arising from a concealed, pre-existing defect rather than from the contractor’s work. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 215 (Tex. 2008). “With respect to existing defects, an owner or occupier has a duty to inspect the premises and warn of concealed hazards the owner knows or should have known about.” Id. (quoting Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004)).
“Premises Liability” refers to accidents that occur due to the negligent maintenance, operation or design of a property owned by someone other than the accident victim. This includes claims against a landlord on behalf of a tenant or against the landowner for injuries suffered by an individual who was lawfully on the property.
The Texas Legislature has waived sovereign immunity for personal injury claims arising from a premise defect. Tex. Civ. Prac. & Rem. Code § 101.021. Former section 101.022 of the Texas Civil Practices and Remedies Code[2] applied different duties of care to a suit depending on whether the condition was a premise defect or a special defect:
(a) If a claim arises from a premise defect, the governmental unit owes to the claimant only the duty that a private person owes
to a licensee on private property, unless the claimant pays for the use of the premises.
(b) The limitation of duty in this section does not apply to the duty to warn of special defects such as excavations or obstructions
on highways, roads, or streets or to the duty to warn of the absence, condition, or malfunction of traffic signs, signals, or warning
devices as is required by Section 101.060.
Act of May 17, 1985, 69th Leg., R.S., ch. 959, 1985 Tex. Gen. Laws 3242, 3303 (amended 2005) (current version at Tex. Civ.Prac. & Rem. Code § 101.022) (hereinafter § 101.022). If a claim involves a premise defect under section (a), a licensee standard applies. Tex. Civ Prac. & Rem. Code § 101.022(a); see also State Dep’t of Highways & Public Transp. v. Payne, 838 S.W.2d 235, 237 (Tex. 1992). Under a licensee standard, a plaintiff must prove the governmental unit had actual knowledge of a condition that created an unreasonable risk of harm, and also that the licensee did not have actual knowledge of that same
condition. Payne, 838 S.W.2d at 237. But if a claim involves a special defect under section (b), a more lenient invitee standard applies. Tex. Civ. Prac. & Rem. Code § 101.022(b). Under an invitee standard, the plaintiff need only prove that the governmental unit should have known of a condition that created an unreasonable risk of harm. Payne, 838 S.W.2d at 237; see also State Dep’t of Highways & Pub. Transp. v. Kitchen, 867 S.W.2d 784, 786 (Tex. 1993) (per curiam) (“Absent a finding that the State knew of the dangerous condition prior to the accident, it is not liable to plaintiffs unless the condition was a special
defect.”). Whether a condition is a premise defect or special defect is a question of law, which we review de novo. Payne, 838 S.W.2d at 238.
The Civil Practices and Remedies Code does not define exactly what a“special defect” is,but does give guidance by likening special defects to
“excavations or obstructions.” See Tex. Civ. Prac. & Rem. Code § 101.022(b)
The term “Premises Liability” encompasses a wide range of events that cause injury and may give rise to liability. For example, a slip and fall due to a wet or defective floor may be actionable against a landowner or a landlord. Other examples include claims for inadequate security, lighting or the failure to properly maintain railings, porches or stairs. These are examples of premises liability actions. Each set of facts giving rise to an injury on a premises must be individually evaluated.
In Texas, a premises owner does not guarantee the safety of its customers or employees. Consequently, an employee is not automatically entitled to
recover for his injuries merely because the injury occurred on his employer’s property.
To prevail on a premises-liability claim, a Plainiff must prove four essential elements:
(1) Actual or constructive knowledge of a condition on the premises by the
owner or occupier;
(2) That the condition posed an unreasonable risk of harm;
(3) That the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and
(4) That the owner or occupier’s failure to use such care proximately caused the plaintiff’s injury.
These four elements are typically referred to as: (1) notice; (2) unreasonably dangerous condition; (3) failure to exercise ordinary care; and (4) proximate cause.
As always, it is important to contact a knowledgeable and experienced Texas insurance defense attorney to help you understand your rights as a Defendant in a premises liability case. James L. Williams of Williams, McClure & Parmelee in Fort Worth, Texas is a veteran insurance defense attorney who protects the rights of insurance carriers and businesses in Texas premises liability cases.
Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Texas civil litigation attorneys based in Fort Worth who know Texas courts and Texas law. For more information, please contact the law firm at 817-335-8800. The firm’s office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.
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