Texas Fraud Statutes in Chapter 27 Business & Commerce Code–Texas Business Attorneys

CHAPTER 27. FRAUD

BUSINESS AND COMMERCE CODE

TITLE 3. INSOLVENCY, FRAUDULENT TRANSFERS, AND FRAUD

CHAPTER 27. FRAUD

 

Sec. 27.02. CERTAIN INSURANCE CLAIMS FOR EXCESSIVE CHARGES. (a) A person who sells goods or services commits an offense if:

(1) the person advertises or promises to provide the good or service and to pay:

(A) all or part of any applicable insurance deductible; or

(B) a rebate in an amount equal to all or part of any applicable insurance deductible;

(2) the good or service is paid for by the consumer from proceeds of a property or casualty insurance policy; and

(3) the person knowingly charges an amount for the good or service that exceeds the usual and customary charge by the person for the good or service by an amount equal to or greater than all or part of the applicable insurance deductible paid by the person to an insurer on behalf of an insured or remitted to an insured by the person as a rebate.

(b) A person who is insured under a property or casualty insurance policy commits an offense if the person:

(1) submits a claim under the policy based on charges that are in violation of Subsection (a) of this section; or

(2) knowingly allows a claim in violation of Subsection (a) of this section to be submitted, unless the person promptly notifies the insurer of the excessive charges.

(c) An offense under this section is a Class A misdemeanor.

Added by Acts 1989, 71st Leg., ch. 898, Sec. 1, eff. Sept. 1,

 

Sec. 35.02. INSURANCE FRAUD. (a) A person commits an offense if, with intent to defraud or deceive an insurer, the person, in support of a claim for payment under an insurance policy:

 

(1) prepares or causes to be prepared a statement that:

 

(A) the person knows contains false or misleading material information; and

 

(B) is presented to an insurer; or

 

(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

 

(a-1) A person commits an offense if the person, with intent to defraud or deceive an insurer and in support of an application for an insurance policy:

 

(1) prepares or causes to be prepared a statement that:

 

(A) the person knows contains false or misleading material information; and

 

(B) is presented to an insurer; or

 

(2) presents or causes to be presented to an insurer a statement that the person knows contains false or misleading material information.

 

(b) A person commits an offense if, with intent to defraud or deceive an insurer, the person solicits, offers, pays, or receives a benefit in connection with the furnishing of goods or services for which a claim for payment is submitted under an insurance policy.

 

(c) An offense under Subsection (a) or (b) is:

 

(1) a Class C misdemeanor if the value of the claim is less than $50;

 

(2) a Class B misdemeanor if the value of the claim is $50 or more but less than $500;

 

(3) a Class A misdemeanor if the value of the claim is $500 or more but less than $1,500;

 

(4) a state jail felony if the value of the claim is $1,500 or more but less than $20,000;

 

(5) a felony of the third degree if the value of the claim is $20,000 or more but less than $100,000;

 

(6) a felony of the second degree if the value of the claim is $100,000 or more but less than $200,000; or

 

(7) a felony of the first degree if:

 

(A) the value of the claim is $200,000 or more

 

Amended by:

 

Acts 2005, 79th Leg., Ch. 1162, Sec. 4, eff. September 1, 2005.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County 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.

Martindale AVtexas[2]

Unfair Debt Collection Practices Guide – Dallas Fort Worth Attorneys

 

Federal and State Laws prohibit unfair debt collection practices.  Many consumers do not realize that there is a statute of limitations on collecting these old debts.  The debt collectors are disregarding these statutes of limitations and are harassing consumers in order to make them pay when the consumers no longer owe the debt.

 
Fair Debt Collection Practices Act
 
The debt collection harassment has gotten to be such a bad problem that the federal government passed a law to protect consumers from these collectors.  We have seen cases come in the office where the debt collector, who is usually on a commission, has threatened the consumer with being arrested, has contacted the consumer’s neighbors and relatives, has called the consumer’s work and made bad comments to the consumer’s supervisors or coworkers, and has used threatening or foul language and repeated phone calls at odd hours to harass the consumer (a violation under the Texas Penal Code).
 
If you have a debt collector harassing you, it is possible to pursue the debt collector under the Fair Debt Collection Practices Act.
 
Texas State Law
 
Texas state law also provides common law and statutory protections against unfair debt collection.  Texas statutory law provides for recovery of attorney fees and penalties to be paid by the debt collector as damages.  Texas common law allows you to recover additional damages caused by the debt collector’s harassment.  We use the combination of the state and federal law to protect you from the collection harassment.  We also see debt collectors who do not have the required bond and licensing in Texas to even engage in debt collection in the state.
 
Prohibited Practices
 
Debt collectors are not allowed to use threats of violence or harm, publish a list of names of people who refuse to pay the debt, use obscene or profane language, or repeatedly use the phone to annoy you.
 
Debt collectors are not allowed to lie when they are trying to collect the debt.  They are not allowed to:
  • falsely claim that they are attorneys or government representatives,
  • falsely claim that you have committed a crime,
  • falsely represent that they operate or work for a credit reporting company,
  • misrepresent the amount that you owe,
  • indicate that papers they send you are legal forms when they are not, or
  • indicate that papers they send you are not legal forms when they are.

 

 

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas civil litigation attorneys in Tarrant County 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.

Martindale AVtexas[2]

Stay of Foreign Judgment in CPRC §35.006 –Fort Worth, Texas Collections and Foreign Judgment Attorneys

CPRC §35.006. STAY
(a) If the judgment debtor shows the court that an appeal from the foreign judgment is pending or will be taken, that the time for taking an appeal has not expired, or that a stay of execution has been granted, has been requested, or will be requested, and proves that the judgment debtor has furnished or will furnish the security for the satisfaction of the judgment required by the state in which it was rendered, the court shall stay enforcement of the foreign judgment until the appeal is concluded, the time for appeal expires, or the stay of execution expires or is vacated.
(b) If the judgment debtor shows the court a ground on which enforcement of a judgment of the court of this state would be stayed, the court shall stay enforcement of the foreign judgment for an appropriate period and ,require the same security for suspending enforcement of the judgment that is required in this state in accordance with Section 52.006.
History of CPRC §35.006: Acts 1985,69th Leg., ch. 959, §1, eff. Sept 1,1985. Amended by H.B. 4, §7.01, 78th Leg., eff. Sept. 1, 2003.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas collections lawyers in Tarrant County 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.

Martindale AVtexas[2]

Fort Worth–Attorney’s Fees in Texas Workers’ Compensation Subrogation Law–Awarded to Claimant’s Attorney From State’s Recovery

TEXAS ATTORNEY FEES IN FORT WORTH–SUBROGATION LAW
In Subrogation/Awarded Claimant’s Attorney From State of Texas Recovery
Texas Depart Of Transportation v. Wilson 1998 WL 784033 (Tex.App.-Fort Worth) Nov. 12, 1998
Wilson, a TXDOT employee, was involved in an auto accident with King. Wilson’s attorney, Wood, filed suit against King for negligence and King’s Carrier settled the lawsuit for $75,000. The Attorney General then intervened to collect its $70,000 subrogation lien. The Trial Court relied on Section 417.003 and distributed over $20,000 in attorney fees to Wood.
The Court of Appeals for Fort Worth affirmed. The State is treated as an insurance carrier for workers’ compensation purposes. The Attorney General complained that, under Section 417.003(a), a private attorney must be retained by a state agency before he can receive payment. The Court responded, however, that under Section 417.003(c), the Court can apportion part of the insurance carrier’s subrogration recovery as attorney fees for the employee’s attorney and attorney fees for the insurance carrier’s attorney if the carrier’s attorney actively participated in obtaining the subrogration recovery. Here, the Attorney General was awarded some fees and the Court deemed that those fees were earned by representing the Attorney General and that Wood’s fees were earned while representing Wilson.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas subrogation lawyers in Tarrant County 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.

Martindale AVtexas[2]

Collection of Judgments in Texas Small Claims Courts–Fort Worth, Texas Collections Attorneys

COLLECTION OF JUDGMENTS IN TEXAS LAWSUITS–SMALL CLAIMS AND JUSTICE OF THE PEACE

 

If a party in a Texas lawsuit obtains a Judgment against the Defendant and the Defendant does not file a Motion for New Trial within five (5) days, does not file an Appeal within ten days, or does not pay the Judgment within ten (10) days you may seek other remedies to collect the Judgment. The Justice Court cannot assist a party in collection of that Judgment. Below are listed some remedies that are available to the parties:

 

ABSTRACT OF JUDGMENT: A party may obtain an Abstract of Judgment any time after the 11th day from the date of Judgment. The cost of an original Abstract is Five Dollars, and the party may obtain them from the Small Claims or Justice Court. The Abstract may then be filed in the office of the County Clerk in any County where you think the Judgment Debtor may own real property. The Small Claim or Justice Court can also provide a short list of the surrounding County Clerk’s offices where a party can file the Abstract.

 

WRIT OF EXECUTION: A party may obtain a Writ of Execution any time after the 30th day from the date of Judgment. A Writ of Execution allows a Sheriff or Constable to try and seize certain non-exempt property from the Defendant. If property is seized, an auction will be held and the proceedings from the sale will satisfy your Judgment. The cost of a Writ of Execution varies from County to County, and the party may also want to contact the Constable or Sheriff in that County to discuss what items are considered non-exempt and may be subject to execution.

 

WRIT OF GARNISHMENT: A Writ of Garnishment is available 7 Days after the date of Judgment. This is a new lawsuit and is a complicated procedure. It is recommended that a Texas Civil Litigation Attorney be consulted.

 

TURNOVER WRIT: This process requires a formal court hearing. It is recommended that a Texas Civil Litigation Attorney be consulted.

 

HOW TO PAY TEXAS JUDGMENTS WHEN THE JUDGMENT HOLDER CANNOT BE FOUND

 

If a party to whom a judgment is owed cannot be located, it is possible to pay the judgment into the registry of the court on a showing of good faith attempts by the judgment debtor to locate the prevailing party. Once the court is satisfied that the party cannot be located, the payment can be accepted and the court can issue a release. The money is at that point held until claimed by the party to whom it is owed, or the money is forfeited to the State of Texas. It is again recommended that a Texas Civil Litigation Attorney be consulted.

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas collections lawyers in Tarrant County 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.

Martindale AVtexas[2]

 

Texas Fair Debt Collection Statute–Fort Worth, Texas Collections Law Attorneys

Texas Fair Debt Collection Statute

 

Finance Code

 

Chapter 392. Debt Collection

 

Subchapter A. General Provisions

 

Texas Fair Debt Collection Practices Act § 392.001. DEFINITIONS. In this chapter:

 

 

(1) “Consumer” means an individual who has a consumer debt.

 

(2) “Consumer debt” means an obligation, or an alleged obligation, primarily for personal, family, or household purposes and arising from a transaction or alleged transaction.

 

(3) “Creditor” means a party, other than a consumer, to a transaction or alleged transaction involving one or more consumers.

 

(4) “Credit bureau” means a person who, for compensation, gathers, records, and disseminates information relating to the creditworthiness, financial responsibility, and paying habits of, and similar information regarding, a person for the purpose of furnishing that information to another person.

 

(5) “Debt collection” means an action, conduct, or practice in collecting, or in soliciting for collection, consumer debts that are due or alleged to be due a creditor.

 

(6) “Debt collector” means a person who directly or indirectly engages in debt collection and includes a person who sells or offers to sell forms represented to be a collection system, device, or scheme intended to be used to collect consumer debts.

 

(7) “Third-party debt collector” means a debt collector, as defined by 15 U.S.C. Section 1692a(6), but does not include an attorney collecting a debt as an attorney on behalf of and in the name of a client unless the attorney has nonattorney employees who:

 

 

(A) are regularly engaged to solicit debts for collection; or

 

(B) regularly make contact with debtors for the purpose of collection or adjustment of debts.

 

Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 62, § 7.42, eff. Sept. 1, 1999. SUBCHAPTER B. SURETY BOND

 

Williams, McClure & Parmelee is dedicated to high quality legal representation of businesses and insurance companies in a variety of matters. We are experienced Fort Worth, Texas collections lawyers in Tarrant County 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.

Martindale AVtexas[2]

ERISA Litigation and Significant Issues in Litigation–DOL- Employment Law For Texas Employers

Fulghum v. Embarq Corp. (10th Cir.)
The merits issue in this case is whether participants were promised and are entitled under the employer’s plan to certain lifetime medical and life insurance benefits upon retirement. The district court dismissed the case as untimely, agreeing with the majority of courts that hold that the “fraud or concealment” exception to the ERISA section 413’s six-year statute of limitations requires an affirmative act of “fraudulent concealment” separate from the underlying misrepresentation constituting the alleged breach of fiduciary duty. It also decided the claims were untimely because they accrued at the time of the misrepresentation of lifetime benefits, more than six years before suit was brought. The court issued its initial decision on February 14, 2013, and it issued a decision denying reconsideration on July 16, 2013. A notice of appeal was timely filed on September 17, 2013. On December 18, 2013, the Secretary filed an amicus brief arguing that the district court erred in concluding that the “fraud or concealment” standard for statute of limitations purposes only applies when a fiduciary takes steps in additional affirmative steps to conceal the fiduciary misrepresentation. Plan Benefits Security Division

Fuller v. Sun Trust Banks (11th Cir.)

This case involves both the three-year and six-year statutes of limitations under section 413 of ERISA. Appellant’s brief was filed on February 12, 2013, and the Secretary filed an amicus brief in support of the plaintiff-appellant on March 12, 2013. The brief argued, with respect to the three-year actual knowledge standard, that the district court wrongly applied a constructive knowledge standard by relying on certain documents attached to the motion to dismiss that plaintiff never saw, and that she would not have had actual knowledge of all the elements of the alleged fiduciary breach even if she had reviewed those documents. The brief did not address the six-year statute of limitations issues. Oral argument, in which the Secretary participated, was held on November 7, 2013. Plan Benefits Security Division

Hi-Lex Controls, Inc. v. Blue Cross and Blue Shield of Michigan (6th Cir.)

In this private action, the court found that Blue Cross violated its fiduciary duties by charging health care plans sponsors hidden administrative fees and ordered Blue Cross to reimburse the sponsor $5.1 million. The court held that the claims were not time-barred under ERISA’s three or six-year statute of limitations because ERISA’s “fraud or concealment” exception to the normal statutory period applied. In so holding, the district court relied on a Second Circuit decision construing the exception more leniently than the construction applied by other circuits. On December 10, 2013, the Secretary filed an amicus brief agreeing with the court’s analysis of the statute of limitations issue, and also taking the position that the court was correct in deciding that Blue Cross acted as a fiduciary and committed a fiduciary breach in collecting the hidden fees from the plan assets it controlled. Plan Benefits Security Division

In re Revstone Casting Fairfield (N.D. Tex.)

On February 25, 2013, the Secretary obtained an inspection warrant that allowed the Department and an appraiser entry on to property owned by the Revstone Casting Fairfield Plan, in order for the appraiser to prepare a valuation of the property. See also Perez v. Hofmeister, Section K. Financial Institution and Service Provider Cases. Dallas and Chicago Offices

Solis v. Rice (N.D. Ohio)

On January 23, 2013, the court entered an amendment to a consent order and judgment, entered on November 25, 2003, involving the Ohio Industries, Inc. Group Medical, Dental and Weekly Disability Income Plan and the Ohio Locomotive Crane Co., Inc. Savings Investment Plan. The amendment, which appoints a new independent fiduciary to replace the one who withdrew, provides for the new fiduciary to accept $29,562.83 in funds ($25,314.46 for the Group Medical, Dental and Weekly Disability Income Plan and $4,248.37 for the Savings Investment Plan) distributed from Ohio Industries’ bankruptcy case. In addition, the independent fiduciary is to secure unclaimed funds in the name of the plans from the State of Ohio and distribute these assets, along with the bankruptcy funds, to the plans’ participants. Cleveland Office

Smith v. Aegon (6th Cir.)

This is an appeal from a district court decision dismissing an ERISA pension benefits case brought in Kentucky based on a forum selection clause that was incorporated into the plan more than seven years after the participant retired, which clause required him to file suit in Ohio rather than Kentucky. The plaintiff filed his opening brief on July 22, 2013. On August 12, 2013, the Secretary filed an amicus brief arguing that ERISA invalidates the forum selection clause. Plan Benefits Security Division

In re Ormet Corporation (Bankr. Del.)

On November 15, 2013, the Secretary filed two objections in the Ormet Corporation Chapter 11 bankruptcy proceeding. Ormet was an Ohio corporation with four affiliated companies. It had approximately 14 employee benefit plans, some of which were subject to ERISA. The Secretary’s first objection involved the debtors’ motion for the approval of the sale of all of its assets relating to one of its facilities, including the transfer of employee benefit plans. The Secretary objected to the motion because the debtors’ filings failed to include sufficient information for the Secretary to determine whether the sale would violate any provisions of ERISA, including its COBRA provisions, or to determine whether the buyer would incur any successor liability. The Secretary also objected based on the debtors’ attempt to disclaim all ERISA liability with respect to the buyer and non-debtor third parties. In addition, the Secretary also objected to the debtors’ second emergency motion, which sought relief from its current obligations to several ERISA-covered plans and attempted to disclaim all COBRA obligations and some of its plan payment obligations. Chicago Office

In re Robert Plan Corp. (Bankr. E.D.N.Y.)

This case involves an ongoing dispute with a Chapter 7 trustee over a bankruptcy court’s jurisdiction to approve payments to the trustee and his retained professionals for work performed in terminating the debtor’s 401(k) plan. On October 26, 2010, the bankruptcy court held that it had core jurisdiction to rule on the fee requests, but avoided ruling on whether it had jurisdiction to determine the amount of the fees to be paid using plan assets. On March 1, 2011, the bankruptcy court issued a first interim fee award to the trustee and his professionals in amounts greater than the Secretary believed appropriate, but consistent with the October 2010 Order, and refused the trustee’s request to rule on what amounts were payable by the plan. On December 11, 2011, the Secretary filed an objection to the second interim fee request by the trustee and his law firm and a final fee application by the auditor and pension consultant assisting the trustee. On August 20, 2012, the bankruptcy court overruled the Secretary’s objections and granted the fee applications. Departing from the terms of the 2010 Order, which had stated that “[a]ny order awarding fees would contain no determination of whether Plan funds could be used to satisfy the award,” the bankruptcy court expressly provided in the August 2012 decision that the trustee could use plan funds to pay the professionals, thereby effectively asserting jurisdiction over the ERISA plan and its assets. The interim fee award to the trustee of $132,378.24 resulted in an effective hourly rate of approximately $2,000 per hour. As a portion of the relief granted in the 2012 decision was interlocutory, on September 4, 2012, the Secretary filed a motion for leave to appeal to the district court. On September 14, 2012, the trustee filed an opposition to the Secretary’s motion. On September 27, 2012, the Secretary filed a motion for leave to file a reply brief, to which the trustee filed an opposition on October 4, 2012. On April 9, 2013, rather than rule on the Secretary’s request to file a reply brief, the district court granted the Secretary’s request to appeal solely that portion of the August 2012 decision that asserted the bankruptcy court’s jurisdiction to order the payment of fees from plan assets; it determined that the issues regarding the amount of the compensation of the trustee and his law firm would be appealable at a later date when final orders of compensation were issued in the bankruptcy case. The Secretary filed its appeal brief on April 30, 2013, and the trustee filed an opposition on May 15, 2013. The district court has not yet issued an opinion. Plan Benefits Security Division

In re Saetveit (Bankr. D. Colo.)

The Secretary filed a joint stipulation as to non-dischargeability of debt in December 2013 in the bankruptcy case of William Roger Saetveit, a fiduciary responsible, along with others, for committing a series of ERISA violations in the course of investing plan assets and allowing plan participants to direct their plan account assets into a hedge fund that later was revealed to be a Ponzi scheme. Saetveit, the fiduciary debtor, was grossly negligent with regard to his responsibilities as a plan fiduciary and thus committed defalcation. Denver Office

Schoenfeld v. Perez (9th Cir.)

This is an appeal from a case brought by the Secretary in which the Secretary successfully argued that fiduciaries breached their duties to an ESOP by allowing the corporate sponsor to withdraw funds from the ESOP to pay corporate expenses and that the debt is non-dischargeable under the bankruptcy code because of defalcation. The appellants filed their brief on August 20, 2013, and the Secretary filed a response brief on extension on October 25, 2013. San Francisco Office and Plan Benefits Security Division

In re Thelen LLP (Bankr. S.D.N.Y.)

Thelen LLP, a major national law firm and Chapter 7 debtor, was the sponsor and plan administrator for three ERISA-covered plans: a 401(k) plan, a defined benefit plan, and a cash balance plan. Pursuant to section 704(a)(11) of the Bankruptcy Code, Thelen’s Chapter 7 trustee became obligated to fulfill the plan administrator role. On or about July 13, 2010, the trustee filed a motion seeking payment from the plans for legal services provided by Fox Rothschild LLP (“Fox”), the trustee’s law firm. The trustee filed motions on January 13, 2011, and October 13, 2011, seeking: (i) authorization to terminate the plans; (ii) authorization for the plans to pay for services provided by professionals retained by the trustee; (iii) the retention of an independent fiduciary to terminate the plans and pay retained professionals from plan assets; and (iv) to quash an administrative subpoena issued by the Secretary to the trustee. On March 17, 2011, and February 10, 2012, the Secretary objected to the jurisdiction of the bankruptcy court to approve the payment of the fees and expenses of Fox and the other professionals, the appointment of the independent fiduciary, and the quashing of the subpoena. On October 20, 2011, the PBGC filed an objection to the appointment of an independent fiduciary and the failure of the trustee to sign a trusteeship agreement for the transfer of the defined benefit plan to the PBGC for termination. On May 17, 2012 a consensual order was entered by the district court providing for, among other things: (i) a withdrawal of the reference of the motions from the bankruptcy court to the district court; (ii) the appointment of an independent fiduciary for the cash balance and the 401(k) plans to terminate those plans and to pay the plan professionals (including Fox); (iii) fixing Fox’s fees at $125,000, less than half of what Fox would have claimed; (iv) the assignment of the defined benefit plan to the PBGC; and (v) the Secretary’s release of her prohibited transaction claims and certain other claims against the trustee and Fox. The independent fiduciary is now in the process of terminating the cash balance and 401(k) plans; termination of the 401(k) plan is near completion. Plan Benefits Security Division

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 new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

The Statutory Basis for Declaratory Judgment Actions in Texas Lawsuits

 

  1. State: Uniform Declaratory Judgment Act, Tex. Civ. Prac. & Rem. Code Ch. 37
  • 37.004 provides:

(A) A person interested under a deed, will, written contract, or other writings constituting a contract or whose rights, status, or other legal relations are affected by statute, municipal ordinance, contract, or franchise may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status, or other legal relations there under.

(B) A contract may be construed either before or after there has been a breach.

  • 37.002 provides that the chapter is remedial: “It’s purpose is to settle and to afford relief from uncertainty and in security with respect to rights, status, and other legal relations; and it is to be legally construed and administered.” The Act does not create or enlarge jurisdiction. E.g., Chenault v. Phillips, 914 S.W.2d 140, 141 (Tex. 1996). Pursuant to §37.003, a declaration may be either affirmative or negative in form and effect. Thus, an insured can seek an affirmative finding of coverage, or an insurer can seek a negative determination that coverage does not exist. However, each party must still plead for relief and carry its own burden of proof. See, e.g., City of Galveston v. Giles, 902 S.W.2d 167 (Tex. App.–Houston [1st Dist.] 1995, no writ); Employers Cas. Co. v. Tilley, 484 S.W.2d 802, 806 (Tex. Civ. App.–Beaumont 1972), aff’d other grounds, 496 S.W.2d 552 (Tex. 1973) (court had no authority to order declaration against insurer in response to insured’s motion for summary judgment on insurer’s claims); Indigo Oil, Inc. v. Wiser Oil Co., 1998 TEX. APP. LEXIS 7550 (Tex. App.–Dallas 1998, pet. denied) (failure to satisfy burden is not finding of proof of opposite).
  • 37.008 provides that the court may refuse to render a declaratory judgment if the judgment would not terminate the uncertainty or controversy giving rise to the proceeding.
  1. Federal: Declaratory Judgment Act, 28 U.S.C. §§2201-2202
  • 2201. Creation of remedy

(a) In a case of actual controversy within its jurisdiction, except with respect to Federal taxes . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought. Any such declaration shall have the force and effect of a final judgment or decree and shall be reviewable as such.

* * *

  • 2202. Further relief

Further necessary or proper relief based on a declaratory judgment or decree may be granted, after reasonable notice and hearing, against any adverse party whose rights have been determined by such judgment.

 

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 new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

Sample Form of Affidavit For Texas Law–Reasonableness and Necessity of Services

AFFIDAVIT

 

Before me, the undersigned authority, personally appeared ______(NAME OF AFFIANT)______, who, being by me duly sworn, deposed as follows:

My name is __________(NAME OF AFFIANT)__________. I am of sound mind and capable of making this affidavit.

I am the person in charge of records of __________(PERSON WHO PROVIDED THE SERVICE)__________.  Attached to this affidavit are records that provide an itemized statement of the service and the charge for the service that __________(PERSON WHO PROVIDED THE SERVICE)__________ provided to __________ (PERSON WHO RECEIVED THE SERVICE)__________ on __________(DATE)__________.  The attached records are a part of this affidavit.

The attached records are kept by me in the regular course of business.  The information contained in the records was transmitted to me in the regular course of business by __________(PERSON WHO PROVIDED THE SERVICE)__________ or an employee or representative of __________(PERSON WHO PROVIDED THE SERVICE)__________ who had personal knowledge of the information.  The records were made at or near the time or reasonably soon after the time that the service was provided.  The records are the original or an exact duplicate of the original.

The service provided was necessary and the amount charged for the service was reasonable at the time and place that the service was provided.

________________________________

Affiant

SWORN TO AND SUBSCRIBED before me on the __________ day of __________, 19___.

My commission expires:

______________________

 

________________________________

Notary Public, State of Texas

Notary’s printed name:

 

 

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 new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]

 

Texas Subrogation Clause Basics–Fort Worth, Texas Subrogation Lawyers

A motor vehicle insurance policy’s subrogation agreement gives the insurance company the right to sue for and recover the amount that the insured might have recovered from a person who negligently causes injury. Maryland Casualty v. Jones, 358 S.W.2d 677 (Tex. Civ. App. – 1962, no writ).

Typical Texas standard automobile insurance policy language does include  a clause specifically allowing the insurance company to recover all that it has paid, aside from uninsured/underinsured motorist benefits and personal injury protection (PIP) payments. An insurance company’s right to subrogation derives from right of the insured, and is limited to those rights; there therefore  can be no subrogation where the insured has no cause of action against the defendant because subrogees always stand in the shoes of the one whose rights they claim.

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 new office location is 5601 Bridge Street, Suite 300, Fort Worth, Texas 76112.

Martindale AVtexas[2]