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"Law for the Layman" is another public service offered by Klee's Kaleidoscope. All articles published herein are written by licensed attorneys. "Law for the Layman" is intended to educate readers generally as to their legal rights and obligations under the law and to offer the public a better understanding as to how the law affects their everyday lives. An Index to all Law for the Layman articles posted to this website for the last year is published at the end of this page.

CAVEAT: Legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although every effort is made to assure the information contained herein is accurate and useful, it is recommended one consult an attorney if they want professional assurance that the information, and one's interpretation of it, is appropriate to their particular situation.

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Texas Seniors Should Beware of Identity Theft Scams, Health Care Fraud (August 30, 2010)

At the Texas Attorney General’s Office, Texas’ senior citizens are a top priority year round. This month they are getting heightened attention nationwide because it is Older Americans Month.

Like all law enforcement agencies, we rely on our fellow Texans to help deter crime. So this month, we are focusing on educating Texans about scams that target their senior friends and family members.

Fraud against seniors is more widespread than most people realize, but well-informed and vigilant citizens can help prevent all fraudulent schemes, including two new ploys that have emerged in recent weeks.

Identity Theft Scams

With the arrival of April, the 2010 U.S. Census is officially underway. Texans should quickly complete and return the forms to the Census Bureau. When doing so, residents should be cautious of con artists who are using the program as an opportunity to swindle people out of their hard-earned money – and even their identities.

Recently, we heard from a concerned Texan who received a letter that appeared to be a Census form. The recipient said that the form asked for her Social Security number, which she provided on her completed form.

A few days later, the woman received another Census form – but this form did not ask for her Social Security number. She realized that the first letter was likely a fraudulent attempt to obtain her personal information and steal her identity.

Texans should remember that the official 2010 Census questionnaire asks 10 questions – none of which request personal financial information such as bank or credit card numbers or Social Security numbers.

No official census information will be collected via e-mail, so anyone who receives an e-mail that appears to come from the U.S. Census should be cautious. These are very likely fraudulent e-mails unlawfully seeking recipients’ personal information.

In the coming weeks, Census workers will begin walking door-to-door in residential areas in order to verify certain Census information. Participants should always look for identification from Census takers before opening the door and agreeing to provide personal information. Census Bureau employees will be clearly identified with a badge, a handheld device, a Census Bureau canvas bag and a confidentiality notice.

Some Texans may receive an American Community Survey, a legitimate questionnaire that collects statistical data for federal and state government programs. Recipients who have questions about the survey should visit https://ask.census.gov.

Texans who think they may have completed and returned fraudulent census forms should immediately take steps to prevent their identities from getting stolen. Victims should file a report with local law enforcement and contact the credit bureaus to secure a fraud alert. They should also visit the attorney general’s website at www.texasattorneygeneral.gov or call (800) 252-8011 for a copy of the Identity Theft Victim’s Kit.

Health Care Scams

Last month, the president signed a sweeping new health care law that will have an unprecedented impact on individual Texans. There are a lot of problems with this legislation. I have joined multiple attorneys general and challenged the new law’s constitutionality.

Another problem we have seen has nothing to do with the law itself. Although the law is less than a month old, U.S. Health and Human Services Secretary Kathleen Sebelius has already had to warn state officials about scam artists taking advantage about the confusion surrounding the new law by hawking phony health insurance policies. Apparently, hustlers are going door-to-door claiming there is a time-limited open-enrollment period and urging seniors to buy insurance immediately. Some con artists have even set up 1-800 numbers to sell fake health care coverage.

Texas seniors also should be cautious of unsolicited, official-looking documents claiming that Medicare and Social Security benefits will be terminated. While many programs are undoubtedly going to change under the new law – the Medicare and Social Security programs have absolutely not been eliminated. Any documents making that claim are fraudulent and should be ignored.

Seniors should not be tricked into unwittingly providing personal information or purchasing unnecessary services after receiving a mail solicitation. All Texans with concerns about how the new health care law will affect either them or their elderly loved ones should consult a reputable source – and ignore unsolicited direct mail.

This month, I hope you will join me and countless others who will take a moment to express our gratitude for the greatest generations. We are proud of our senior Texans, their tremendous sacrifices and their remarkable contributions they have made to our great nation.

Crime Victims’ Rights: Fairness. Dignity. Respect(August 23, 2010)

All crime victims deserve to be treated fairly, respectfully – and in a way that preserves their dignity. Fortunately, victims’ rights laws and the State of Texas’ extensive network of victim support services embody these ideals.

This year’s National Crime Victims’ Rights Week theme, “Crime Victims’ Rights: Fairness. Dignity. Respect.,” encourages us all to raise awareness about these foundational principles – and to continue striving to ensure that all crime victims are still treated with fairness, dignity and respect.

Many Texans know someone who has been a victim of crime. Yet, too few know that the law protects and serves victims by giving them rights – rights that we highlight during National Crime Victims’ Rights Week, but that may apply throughout the year.

Crime victim advocates work tirelessly to give Texas crime victims a voice and to help crime victims and their families understand the rights they are guaranteed under the Texas criminal justice system. One of the fundamental rights afforded to Texas crime victims is the right to compensation.

Every law enforcement agency in the state is required to provide crime victims with information about the Texas Crime Victims’ Compensation (CVC) Program and an application for financial assistance. Applications also may be found at local hospitals and medical centers. Victims and survivors can also contact the Office of the Attorney General (OAG) directly for an application.

The Texas Legislature established the Compensation to Victims of Crime Fund to help victims and their families when they cannot afford the financial cost of crime. Funded by convicted criminals’ fees, court costs and restitution, the CVC Program is available to help eligible victims and their families that have no other means of financial support. The CVC Program is intended to offset victims’ out-of-pocket expenses that stem from violent crime.

Last year, the OAG, which administers the CVC Program, received more than 38,000 applications for assistance and awarded more than $76 million in benefits to victims and their families. We also distributed more than $40 million in grants to nonprofit organizations and public entities that provide emergency shelter, crisis counseling, court accompaniment and other victim assistance.

Violent crime is often accompanied by extraordinary physical, emotional and financial suffering. Despite the enormous difficulties they face, countless crime victims successfully work to overcome these senseless acts of violence. It is a testimony to the human spirit’s resilience and the strength of individuals that so many crime victims manage to rebuild their lives.

National Crime Victims’ Rights Week gives all Texans the opportunity to participate in community events that honor victims and survivors of crime. By observing this important week, Texans have the opportunity to join the fight for fairness, dignity and respect for all.

Points To Remember

Crime Victims’ Rights

The Crime Victims’ Compensation Program reimburses out-of-pocket expenses to victims of violent crime and their families. Expenses covered by the CVC Program may include:

• funeral costs

• medical and counseling costs

• child care

• relocation expenses for sexual assault victims attacked in their homes and for family violence victims

For more information on the Office of the Attorney General’s Crime Victims’ Compensation Program, contact:

CRIME VICTIM SERVICES DIVISION

Office of the Attorney General

Monday–Friday 8 a.m.–5 p.m.

Toll Free: (800) 983-9933

crimevictims@oag.state.tx.us

Colonia Geographic Database (August 16, 2010)

The term “colonia” generally applies to residential subdivisions near the U.S.-México border that lack legally mandated water or wastewater services.

Most colonias lie outside city limits or in isolated areas of a county. Residents of these substandard housing developments lack access to basic necessities such as drinking water, sewage treatment and paved roads.

Over the past 15 years, the Texas Legislature has worked to prevent unlawful colonia developments by reforming state laws and placing new requirements on border-area developers. The colonia prevention laws have four major thrusts:

• Requiring subdividers to provide basic infrastructure (water, sewer, roads and drainage) when they create or “plat” new residential developments; • Restricting the advertising and selling of lots that are not platted or that lack water and sewer; • Establishing standards governing connections to utilities in substandard areas; • Mandating certain disclosures and protections when lots are sold through contracts for deeds.

The Office of the Attorney General (OAG) has enforcement responsibilities under several of these laws and has taken legal action to stop violations and remedy unlawful colonia developments. In addition, the OAG created and maintains an extensive Colonia Geographic Database for the border region.

The recently updated database stores accurate geographic and descriptive data on over 2,000 colonia areas in 31 border area counties. Maps and data from this database are viewable on the attorney general’s Web site: www.texasattorneygeneral.gov.

Colonia geographic features displayed include the location, boundary and area of each colonia; roads serving the community; the internal road network; and water features and community resources, such as schools and parks. Satellite views of the colonia areas and adjoining terrain are also available. The database stores additional, non-geographic information collected by various state and local entities such as the Texas Water Development Board and the Texas Secretary of State’s Colonia Program.

The database was created to:

• Help the OAG undertake its colonia prevention effort.

• Further authorities’ understanding of the extent of colonias within Texas.

• Stimulate scrutiny of social and economic conditions within colonias.

• Provide data for colonia project funding proposals.

• Provide the basis for developing a registry of colonias suitable for listing as Census Designated Places (CDPs) so that better, more specific Census statistics are available for local government and colonia project planners.

Before purchasing residential property outside the city limits, border area purchasers should check with county officials to confirm that the property was legally subdivided and that the developer has made necessary arrangements to supply required water and wastewater facilities.

Texans along the Texas-México border can file complaints with the OAG against developers or sellers who fail to provide water or wastewater services or who subdivide land without first obtaining necessary county approval. Complaints can be filed on the attorney general’s Web site or by calling (800) 252-8011.

Points To Remember

Colonia Geographic Database

The Colonia Geographic Database contains:

• Location, boundary and description of over 2,000 colonia areas in 31 border area counties • roads serving the community • internal road network • water features and community resources

Access the database at the Border Colonias tab on the attorney general’s Web site:

www.texasattorneygeneral.gov

Residents along the Texas-México border can file complaints with the Office of the Attorney General online or by calling (800) 252-8011.

Supreme Court Rules Mojave Desert Cross Can Stay (June 21, 2010)

By Jennifer Riley, Christian Post Reporter

The Supreme Court ruled recently that the 75-year-old war memorial cross in the Mojave Desert of California can remain in place.

In a splintered 5-4 ruling, the justices said “the constitution does not oblige government to avoid any public acknowledgment of religion’s role in society.” They also said the lower courts did not take enough consideration to the fact that the government has decided to transfer the land where the cross is erected to private ownership.

Congress had authorized in 2004 the transfer of the one acre of land under the cross to the Veterans of Foreign Wars in exchange for five acres of land elsewhere to avoid constitutional concern regarding religious symbols on public land.

“Passive displays like the World War I Memorial, the Ten Commandments, Nativity scenes, or statements like the National Motto do not force anyone to participate in a religious exercise and, thus, do not establish religion,” commented Mathew Staver, founder of Liberty Counsel, in response to the high court’s ruling.

“It (Mojave cross) stood as a memorial to the heroes of World War I,” he added. “Removing this memorial would be an insult to our war veterans.”

The VFM, a private organization, erected the 8-foot cross in 1934 with a plaque stating, “The Cross, Erected in Memory of the Dead of All Wars.” Another plaque read, “Erected 1934 by Members of Veterans of Foreign Wars, Death Valley Post 2884.”

In 2001, the American Civil Liberties Union filed a lawsuit on behalf of Frank Buono, a former National Park Services employee, against the Mojave Desert memorial. A district court and the U.S. Court of Appeals for the Ninth Circuit ruled that the cross and the land transfer violated the Establishment Clause and ordered it removed.

The cross has been covered in a plywood box since 2002.

While the Supreme Court overall supported the decision that the cross stay, six of the nine justices wrote separate opinions about the Salazar v. Buono case.

Justice Anthony M. Kennedy announced the court’s decision and gave his opinion, which Chief Justice John Roberts Jr., and Justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr. agreed with in part. All but Thomas wrote separately.

Justice John Paul Stevens dissented along with Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Stephen Breyer, for various reasons.

“Americans want memorials to our nations’ fallen heroes protected,” said ADF Senior Counsel Jordan Lorence, in a statement. “Congress was doing just that when it transferred the land under this memorial to the veterans’ group that cares for it.”

ADF and Liberty Legal Institute are among the organizations involved in the Defense of Veterans’ Memorials Project that seeks to defend America’s veterans’ memorials in the courtroom.

Articles by Texas Attorney General Greg Abbott

Warning to Teens and Parents About Sexting Dangers (May 10, 2010)

During a recent visit to the national Teen Dating Abuse Helpline (NTDAH), the Office of the Attorney General warned Texas teens and parents about the dangers of sexting. Sexting is the practice of teens sending sexually explicit messages or images electronically, primarily between mobile phones.

Embarrassing or explicit messages can spread like wildfire through a school or across the country – or even get posted on public Web sites. Before they know it, teens find that what started as a bit of fun starts to have severe consequences – humiliation, suspension from school or athletic participation and loss of jobs or college scholarships.

When they encounter peer pressure to participate in sexting, teens should contact NTDAH online at www.loveisrespect.org or call NTDAH at (866) 331-9474. NTDAH provides the only 24-hour help line in the country where trained teen advocates counsel fellow teens about digital harassment. The advocates do not tell teens what to do, but guide them on how to handle sexting peer pressure, regret, embarrassment or other sexting issues they are encountering.

NTDAH counselors also provide guidance to concerned parents who call the Helpline. Parents must have frank conversations with their children about the potential for embarrassment and the legal ramifications of sexting. If teens do not want a photo or text message to fall into the wrong hands – including strangers, potential employers, teachers or college admission officers – they should not send it.

By talking with their teenage children and staying aware of developments in their child’s life, parents can show that they care and are approachable when problems arise. Setting boundaries and simultaneously entrusting kids to conduct themselves responsibly may feel like a balancing act, but it can really help protect teens from an instance of bad judgment that can haunt them for life.

Teens, parents and law enforcement authorities must keep an open line of communication to combat sexting. For additional advice, teens should turn to the trained advocates at NTDAH. Every teen’s decision to avoid sexting helps build a much brighter future for our great state.

Points To Remember

Sexting Dangers

Before pressing “Send,” teens should consider five tips:

• Do not assume anything sent or posted is going to remain private.

• Anything sent or posted in cyberspace will never truly go away.

• Do not give in to the pressure to do something that causes discomfort, even in cyberspace.

• Consider the recipient’s reaction.

• Nothing is truly anonymous.

National Teen Dating Abuse Helpline

(866) 331-9474

www.loveisrespect.org

Tax Season Tips (April 5, 2010)

With the April 15 federal income tax filing deadline fast approaching, many Texans will undoubtedly encounter billboards, e-mails and direct mail that advertises tax return-related services. As with any contractual agreement, Texans should carefully read the fine print before entering into a financial transaction involving their income tax returns. Taxpayers who understand the nature of these agreements are more likely to make informed decisions that just might save some of their hard-earned money.

For example, Texans should always avoid tax preparation services that “guarantee” the largest possible tax return. Under federal law, any deductions tax preparers make for their clients must be accurate and legally permissible. Tax preparers that submit false information in order to obtain larger refunds for a client (and higher fees for the preparer), put their clients in legal jeopardy. Competent, legitimate tax preparers will not hesitate to sign their clients’ tax return, so Texans should always avoid preparation services that refuse to sign their clients’ tax returns. Taxpayers who believe a tax preparer is not complying with the law should file a complaint with the Office of the Attorney General.

Many businesses market “instant cash” to taxpayers seeking quick access to their income tax refunds. Tax preparation services, automobile dealerships, furniture outlets and other vendors typically market tax refund anticipation loans as an “instant cash advance” against a borrower’s expected tax refund. Frequently, the “instant cash” is actually a loan that the taxpayer must repay. Refund anticipation loans often carry processing fees and high interest rates, so the amount of advance cash the taxpayer receives is typically less than the refund they are owed by the federal government. 

Under Texas law, refund anticipation loans are perfectly legal as long as lenders fully and clearly disclose certain details to borrowers. Refund anticipation lenders must provide the estimated fees charged for the loan, the annual interest rate and the loan fee schedule in writing. Lenders who advertise in Spanish must provide the same required disclosures in Spanish.

Refund anticipation lenders must also inform borrowers about the average time it takes to receive a refund directly from the IRS, which now offers electronic tax filing and direct deposit refunds. Both significantly speed up the process. According to the IRS Web site, electronic refunds can be processed and deposited into taxpayers’ bank accounts within 10 days. With that in mind, taxpayers should carefully consider which option is in their best interest: instant cash refunds reduced by interest and lender fees or a full refund from the IRS at a later date.

Although many Texans would prefer not to pay their taxes, it is well settled law that federal income taxes are NOT voluntary. Any tax professional claiming to uniformly exempt taxpayers from their federal income tax liability should be handled with caution. U.S. courts have repeatedly rejected the argument that taxes are voluntary or optional.

Finally, taxpayers should beware of unsolicited telephone calls and e-mails from individuals claiming to be IRS agents. During the sham telephone calls, the fake agents may claim tax refunds are available via direct deposit in order to obtain the taxpayers’ Social Security numbers and bank account information.

Texans who receive such calls or e-mails must recognize that these are bogus attempts to steal taxpayers’ identities. The IRS does not unexpectedly call taxpayers to demand their personal information. Taxpayers solicited in this manner should just hang up or delete the e-mails.

Points To Remember

Tax Season Tips

• Read tax returns carefully before signing them. Never sign a form with spaces left blank. Taxpayers are responsible even if their returns are prepared by someone else.

• Consider carefully whether a high-interest refund anticipation loan is more favorable than waiting for a larger check directly from the IRS.

• HANG UP on scammers who call unexpectedly and pose as IRS agents.

• Contact your local tax-assessor collector to file a homestead exemption free of charge.

Additional information on tax-related scams and questions is available directly from the IRS at www.irs.gov or by calling (800) 829-1040.

To report a tax preparer who is not complying with the law, or to report fraudulent telephone solicitations, file a complaint with the Office of the Attorney General online at www.texasattorneygeneral.gov or by calling (800) 252-8011.

Surviving an Economic Downturn (March 8, 2010)

How the Child Support Division Helps

Virtually everyone is affected in some way by the nation’s economic slump. Each day brings new reports of industry downsizing, factory closures and job losses. Although Texas’ unemployment rate is below the national average, many families are having a tough time making ends meet.

The Office of the Attorney General’s Child Support Division can help improve the financial picture for parents who need or pay child support. Single parents who have custody of their children may suddenly need the extra help that child support provides, and our office will assist them by establishing a child support order or enforcing an existing order. 

Parents who pay child support may be struggling because the amount of their court-ordered payment no longer matches their income. The CSD can help those parents modify, or change, the amount of their court-ordered child support payment.

In Texas, judges follow guidelines in the law when setting the amount of the child support payment. In most cases, noncustodial parents pay a percent of their net income each month, ranging from 20 percent for one child to not less than 40 percent for six or more children. Special rules apply for parents with a net monthly income greater than $7,500, and in cases of joint placement or multiple children in different households. Each child support order also includes the obligation to provide medical support.

Child support orders can be modified if a material and substantial change in circumstances has occurred since the last child support order. Many times, this means a parent’s income has either decreased or increased. Orders also can be modified if three or more years have passed since the order was established or last modified and the monthly amount of the current payment differs by either 20 percent or $100 from the amount that would be awarded according to the guidelines.

To obtain information about changing the amount of a child support order, parents are encouraged to visit the child support section of the OAG’s Web site www.texasattorneygeneral.gov, where they will find answers to frequently asked questions on the subject. Parents who believe they are due a modification can use the child support calculator to compute the monthly payment amount, based on information they enter about their current earnings and family situation.

Parents whose orders may qualify for a modification can complete an online form to request a review of their case. A review can also be requested by contacting their local child support office.

The local child support office will review each parent’s request and, for those who qualify, schedule a modification court hearing or office appointment that includes the other parent.

If a parent is unemployed and has no source of income, the modified child support payment is generally calculated based on past employment, ability to work and earn an income, and the federal minimum wage. Up to 50 percent of a parent’s unemployment benefits are withheld through wage withholding and applied to the child support obligation.

Noncustodial parents who lose their jobs should immediately notify the child support office handling their case. If requesting a modification, it is important to show evidence of seeking work. Notify the office as soon as you get another job so that a wage withholding order or writ can be sent to the new employer.

Remember that only a court can change the amount a parent is ordered to pay. Completing a request for a review does not guarantee that the order will be changed.

After submitting a written request for a review, parents should:

•Continue to make regular child support payments because changes to the court-ordered amount are not retroactive.

•Provide all the information requested for the review. Missing information will slow down the process.

•Show up to any appointments or court hearings that are scheduled. If a parent fails to appear, the court or our office may not be able to complete the modification request.

•Keep in touch with the local child support office until a final decision has been made.

Parents understand the importance of providing for their children through good and bad economic times. The amount of court ordered payments should be within reach, according to a parent’s earnings. Our office is committed to helping parents caught up in the financial downturn by helping them align their child support orders to their current circumstances. Parents who do not have cases with our office can apply for services online from the child support section of the Attorney General Web site, or by calling (800) 252-8014 to request an application.

Texans Should Safely Participate in 2010 U.S. Census (March 1, 2010)

In March, census forms will be delivered to every residence in the United States. Participation in the 2010 Census is crucial to Texas’ future. The U.S. Constitution requires that the federal government conduct a population count every 10 years.

Demographic data obtained during the census process ultimately determines the number of seats Texas gets in the U.S. House of Representatives, so it has a major impact on Texas’ representation in Washington. Additionally, this population data is used to calculate Texas’ share of $400 billion dollars in federal funding. These taxpayer dollars fund buildings, roads and services such as hospitals, job training centers, schools, senior centers and emergency medical care. For example, Census data determined the number of vaccines delivered to Texas cities during the H1N1 crisis.

Under federal law, Census participation is mandatory for all Texas residents, whether they are citizens or noncitizens. Household data provided during the event is confidential. Census workers face unlawful disclosure penalties of up to five years in prison and fines up to $250,000.

Census forms will arrive in the mail by mid-March. Recipients should complete the form and return it immediately. No official census information will be collected via e-mail, so participants should be cautious of any e-mails regarding the U.S. Census. These are fraudulent e-mails unlawfully seeking recipients’ personal information.

Census workers will visit door-to-door in residential areas in order to verify certain Census information. Participants should always look for identification from Census takers before opening the door. Census Bureau employees will be clearly identified with a badge, a handheld device, a Census Bureau canvas bag and a confidentiality notice.

Census takers will visit a home up to three times to record resident information. Every time a Census worker comes to the door, they will leave a door hanger containing a telephone number for the residents to call to schedule a visit when the resident is available.

By conducting door-to-door checks, the Census Bureau is attempting to collect correct and accurate information. The 2010 Census forms will only contain 10 questions, including name, home address and the number of people at the address. Census workers might also ask for a salary range, but participants can refuse to answer this question if they do not feel comfortable giving out that information.

Census workers might also ask for basic financial information, but they will not ask for Social Security numbers, bank account or credit card numbers nor will they ask for any type of donations. For more information about the 2010 Census, participants should visit www.census.gov/2010census.

Points To Remember

2010 U.S. Census

• U.S. Census workers will have a badge, a handheld device, a Census Bureau canvas bag and a confidentiality notice.

• Census employees will not request Social Security numbers, credit card or banking information, or donations.

• Census employees might ask for basic financial information, such as salary range. Participants may decline to provide such information.

For more information about the 2010 U.S. Census, visit:

http://2010.census.gov/2010census/

Texas Targets Immigration Scams (February 16, 2010)

Every year, countless foreign nationals pursue the opportunity to legally reside in America. Whether they arrive with student visas or temporary work permits, these law-abiding immigrants follow the proper procedures and comply with the law so they do not jeopardize their presence in our country.

Unfortunately, a few unscrupulous scam artists are preying upon these legal immigrants. Exploiting immigrants’ desire to legally obtain resident status or extend their visa, scammers falsely claim they have the authority to provide immigration-related legal services, but all too often they do not. This not only harms law-abiding immigrants, but it also undermines immigration laws by sending the wrong message to those who attempt to play by the rules.

Scammers who falsely call themselves "Immigration consultants" have long exploited the misunderstanding between the term “notary” and the similar-sounding Spanish term “notario,” which is commonly used in Latin America to refer to highly specialized attorneys.

Texas law bars a notary public from preparing immigration documents or implying that a notary public is an attorney licensed to practice law. Notaries face criminal prosecution if they use the words “notario” or “notario público” to advertise their services.

In Texas, notaries public are authorized to witness the execution of certain legal documents, such as contracts or wills. Texas law specifically prohibits notaries public from providing immigration services unless they are a licensed attorney or accredited by the U.S. Department of Justice’s Board of Immigration Appeals.

While the OAG cannot help immigrants obtain residency status, the agency will pursue fraudulent notarios for breaking the law. For additional information or to file a complaint against a suspected unauthorized legal services operation, contact the Office of the Attorney General at (800) 252-8011 or visit the Web site at www.texasattorneygeneral.gov. Assistance is available in English and Spanish.

Individuals who need assistance with residency issues can call the U.S. Citizenship and Immigration Services (USCIS).

Points To Remember

Immigration Scams

• Contact the Texas State Bar to verify a consultant is a licensed attorney.

• Notaries public are NOT authorized to offer legal services. Only a U.S. licensed attorney or accredited representative is authorized and qualified to assist with legal status.

For more information or assistance with legal status or a list of accredited representatives:

U.S. Citizenship and Immigration Service (USCIS)

(800) 375-5283

www.uscis.gov

To report notary public or immigration fraud:

Office of the Attorney General

(800) 252-8011

www.texasattorneygeneral.gov

Supreme Court Strikes Down Campaign Restrictions (February 1, 2010)

 Americans for Limited Government President Bill Wilson today praised the Supreme Court for overturning key aspects of the McCain-Feingold campaign restrictions, calling the decision "a decisive victory for the First Amendment, free speech, and open and fair elections."

"The Roberts Court will go down as the greatest defender of the First Amendment since James Madison wrote it," Wilson declared, calling the overturned restrictions "censorship."

"The twin pillars of censorship by the FEC Act: the so-called 'influencing language' standard whereby any speech that 'influenced' elections could be regulated, and the 'appearance of corruption' standard whereby any donations and expenditures that lead to the 'possibility' of corruption have now been struck down by the Roberts case," Wilson explained.

"First, the 'influencing language' standard in Wisconsin Right to Life case, and now the 'appearance of corruption' standard in today's Citizens United decision," Wilson added.

According to the majority ruling written by Justice Anthony Kennedy, "Limits on independent expenditures, such as §441b, have a chilling effect extending well beyond the Government's interest in preventing quid pro quo corruption. The anticorruption interest is not sufficient to displace the speech here in question."

"Under this ruling, corporate entity restrictions on political campaigning have thankfully been overturned, as they have a chilling effect on legitimate political speech protected by the First Amendment," said Wilson.

Wilson also condemned Senator Chuck Schumer (D-NY) for calling the decision "un-American."

"Chuck Schumer needs to have his head examined," Wilson said, adding, "the First Amendment was upheld in this case.  It doesn't get any more American than that."

In Citizens United v. the Federal Election Commission, the court ruled against provisions that restricted Citizens United from broadcasting a movie it developed, Hillary: The Movie, that was supposed to air during the 2008 Democratic Primary.  In particular, the court ruled that federal restrictions on independent political expenditures by a corporation is a violation of the First Amendment.

The court ruled 5-4 in favor of Citizens United.

 According to Nathan Mehrens, Counsel for Americans for Limited Government, "the ruling set a major precedent.  It's going to be very tough to impose new campaign restrictions on corporate entities' independent expenditures."

The law, the Bipartisan Campaign Reform Act of 2002, also known as McCain-Feingold, "set up distinctions between individuals and corporate entities, treating them far different in the context of making independent expenditures constituting political speech. 

Mehrens said it was a "very good" ruling. "The McCain-Feingold restrictions were so bad, that groups could not even mention a candidate's name during 'black-out' windows," Mehrens explained, pointing to limits on when messages could be broadcast prior to primaries and elections. 

"The case was filed by Citizens United as a pre-enforcement, as-applied challenge by Citizens United, meaning that they had not yet been restricted by the FEC.  Citizens United, in winning the case, was able to show that restrictions did apply in this instance and that there was a reasonable likelihood that the FEC restrictions would be applied," said Mehrens.

"In this case, the court decided that the issue was not moot despite the fact that the 2008 elections are over because they made a determination that this could happen again going forward," Mehrens added.

Wilson said that the ruling "could set a template for groups to unhinge unconstitutional restrictions in the future through pre-enforcement challenges."

Mehrens described the ruling as "pretty broad." 

"The only thing that really survived was the reporting requirements for the disclosure of campaign donors' information, because Citizens United could not show the likelihood of injury," Mehrens explained.

 owever, Mehrens said that "There are more cases in the pipeline that deal with campaign finance disclosures," including Doe #1 et al v. Reed, WA Sec. of State, et al, U.S. Supreme Court Docket #09A356. 

"The Supreme Court stayed an order of the 9th Circuit thereby preventing the WA Sec. of State from releasing the names of the signers of Referendum 71," Mehrens said, adding, "While this case deals with referendum signers and not those who give financial contributions, the disclosure issue is similar."

The Supreme Court vote was 8-1 to stay the 9th Circuit's order.

 Wilson called the ruling a "major step in overturning arcane, gargantuan censorship boards, laws and regulations that tie up our electoral processes in red tape, restrict speech, and favor incumbents."

What Texans Should Know About Providing Their Social Security Number (January 18, 2010)

by Texas Attorney General Greg Abbott

According to the Federal Trade Commission, Texas ranks second in the nation for identity theft complaints. In 2008, nearly 32,000 Texans were identity theft victims and, as a result, lost thousands of dollars and hours of time attempting to correct their credit ratings and personal financial history.

Identity theft occurs when a criminal illegally uses someone else’s personal information – a name, address, driver’s license number, credit or debit card account number or Social Security number – to commit fraud or other crimes.

Fortunately, increased identity theft awareness has made Texans much more cautious about freely providing their personal information. One particularly sensitive part of a person’s identity is his or her Social Security number (SSN). Many Texans call the Office of the Attorney General (OAG) to ask when and where they are required to give out their SSN.

One of our most commonly received questions on this subject is, “Can a private business ask for my Social Security number?” Generally, the answer is yes. The law does not prohibit a business from asking for a person’s SSN; however, the customer has options and does not have to provide that information.

Texans are not legally required to provide their SSN to private businesses unless the transaction is one which triggers mandatory Internal Revenue Service notification. Texans should be aware, though, that businesses can refuse to provide products or services to customers who fail to provide their SSN.

If a business insists that customers provide their SSN and customers feel this is not justified, customers may want to ask for a supervisor or manager to discuss the situation. If the company is unwilling to budge, Texans may want to consider taking their business elsewhere 

Be aware that while federal law does not forbid a business from asking for a person’s SSN, it does mandate that the business protect any numbers it collects. People who provide their SSN to a private business should familiarize themselves with the company’s privacy policy.

Texas law also requires that businesses safeguard their clients’ sensitive personal information, including names, addresses, financial information and SSN. The OAG has charged several commercial vendors with unlawfully failing to protect such information.

Many Texans also inquire about government agencies and whether they have the right to ask for a person’s SSN. Federal law does compel government agencies to ask for a SSN in certain instances.

For example, certain government agencies, including taxing authorities, human resource offices and departments of motor vehicles, can require a SSN as mandated by federal law.

Federal law does provide protections when citizens are required to divulge their SSN. The Privacy Act of 1974 requires that all government agencies that request Social Security numbers provide a disclosure statement on the form. The statement explains whether citizens are required to provide their SSN or if it is optional. Additionally, the document details how a person’s SSN will be used.

The Office of Information and Regulatory Affairs in the U. S. Office of Management and Budget provides guidance and oversight regarding the Privacy Act of 1974. Interested Texans may read the Act on the U.S. Department of Justice Web site at www.usdoj.gov.

The Privacy Act also provides that citizens cannot be denied government benefits or services if they refuse to disclose their SSN – if the disclosure is not required by federal law or if the disclosure is to an agency which has been using Social Security numbers prior to January 1975.

Texans who are asked to give their SSN to a government agency but do not receive a disclosure statement may want to cite the Privacy Act and contact their U.S. congressmen or senators.

Points To Remember

Social Security Number

• You do NOT have to give your SSN to a private business.

• If you do give your SSN to a business, get a copy of their privacy policy.

• If you are required to give your SSN to a government agency, you must be provided with a disclosure statement.

• NEVER give out your SSN or other personal information over the phone or by e-mail.

• Report ID theft to your local police department.

• File an ID theft complaint on FTC’s website at www.ftc.gov or call (877) ID THEFT.

Homestead Exemptions on Multiple Contiguous Lots (January 11, 2010)

The following Texas Attorney General’s Opinion No. GA-0752 was rendered in response to a request from the Honorable Mark Homer

Chair, Committee on Culture, Recreation and Tourism, Texas House of Representatives on December 28, 2009 re homestead exemptions on multiple contiguous lots. It may be of interest to Llano County residents.

Re: Whether multiple contiguous lots may be claimed as part of a homestead exemption under section 11.13(j) of the Tax Code (RQ-0808-GA)

Dear Representative Homer:

You ask whether multiple contiguous lots may be claimed as part of a homestead exemption under section 11.13(j) of the Tax Code. (1)

As background, you tell us that an individual purchased a homestead in 1979 and that he subsequently purchased several lots contiguous to that homestead. Request Letter at 1. For the 2007 tax year, the individual applied for a homestead exemption to include all of the contiguous lots. The chief appraiser, and then the appraisal review board, ruled that none of the lots other than the individual's original lot could be claimed as part of the person's homestead because the lots were located in a platted subdivision, and were not used as part of the individual's homestead. Id.

Section 1 of article VIII of the Texas Constitution requires that "[t]axation shall be equal and uniform" and that "[a]ll real property . . . in this State, unless exempt as required or permitted by this Constitution . . . shall be taxed in proportion to its value." Tex. Const. art. VIII, § 1(a)-(b). Section 1-b of article VIII provides for several kinds of residence homestead exemption, and declares that "[t]he legislature by general law may define residence homestead for purposes of this section." Id. § 1-b. To that end, a "residence homestead" is defined as:

    a structure (including a mobile home) or a separately secured and occupied portion of a structure (together with the land, not to exceed 20 acres, and improvements used in the residential occupancy of the structure, if the structure and the land and improvements have identical ownership) that:

    (A) is owned by one or more individuals, either directly or through a beneficial interest in a qualifying trust;

    (B) is designed or adapted for human residence;

    (C) is used as a residence; and

    (D) is occupied as his principal residence by an owner or, for property owned through a beneficial interest in a qualifying trust, by a trustor of the trust who qualifies for the exemption.

Tex. Tax Code Ann. § 11.13(j)(1) (Vernon 2008).

We begin with the proposition that "our primary objective is to ascertain and give effect to the Legislature's intent." City of Marshall v. City of Uncertain, 206 S.W.3d 97, 105 (Tex. 2006). We attempt to discern such intent from the actual language used by the Legislature. See Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex. 2000). Statutory words and phrases must "be read in context and construed according to the rules of grammar and common usage." See Tex. Gov't Code Ann. § 311.011(a) (Vernon 2005). In addition, "[s]tatutory exemptions from taxation are subject to strict construction because they undermine equality and uniformity by placing a greater burden on some taxpaying . . . individuals rather than placing the burden on all taxpayers equally." N. Alamo Water Supply Corp. v. Willacy County Appraisal Dist., 804 S.W.2d 894, 899 (Tex. 1991).

You state in your request letter that the chief appraiser and the appraisal review board denied the homestead exemption to the lots contiguous to the original homestead in part because those lots had been part of a platted subdivision. We have found no statutory or case law that would recognize such a distinction between platted and non-platted lots. Indeed, the plain language of the term "residence homestead" as defined in section 11.13(j) indicates that the original lot and structure, which the appraisal review board has treated as the individual's residence homestead, and the additional land and improvements about which you inquire could constitute a "residence homestead" to the extent that the land and the improvements thereto are used by the owner in the residential occupancy of the original homestead and have identical ownership. When a statute's language is clear and unambiguous, its plain meaning must prevail. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). Moreover, a court has stated that "where separate pieces of property are occupied and used by the owner for one and the same purpose, and their separate identities and values become merged and consolidated by such use, no separate valuation and assessment is required." Green v. Baldwin, 336 S.W.2d 291, 294 (Tex. Civ. App.--Texarkana 1960, writ dism'd) (citing Moody-Seagraves Co. v. City of Galveston, 43 S.W.2d 967, 970 (Tex. Civ. App.--Galveston 1931, writ ref'd)). (2) We note, however, that the question of "[w]hether property is a homestead presents a fact question." Brown v. Bank of Galveston, 963 S.W.2d 511, 515 (Tex. 1998). Thus, the determination of whether all the lots of which you inquire do, in fact, form part of the residence homestead requires a factual determination that is not conducive to the opinion process.

You also ask whether a chief appraiser is authorized "to limit the exemption to less than twenty acres by requiring the land [to] be used in some manner." Request Letter at 2. In a 1983 opinion, this office said that a chief appraiser is not given the discretion to establish a minimum or maximum amount of acreage as the amount of land receiving the designation "so long as that land is used in the residential occupancy of the structure receiving residence homestead designation." Tex. Att'y Gen. Op. No. JM-40 (1983). Accordingly, so long as the chief appraiser determines that contiguous lots of less than twenty acres are being used as a residence homestead, the taxpayer would be entitled to an exemption.

S U M M A R Y

    Section 11.13(j) of the Tax Code defines "residence homestead" for purposes of the payment of property taxes to include "a structure . . . together with the land, not to exceed 20 acres," regardless of whether any part of the property is located in a platted subdivision. If the chief appraiser finds that contiguous lots totaling less than twenty acres are being used as a residence homestead, the taxpayer is entitled to an exemption on the entire property. Whether any particular group of contiguous lots would qualify as a "residence homestead" is a question of fact.

        Very truly yours,

        GREG ABBOTT

        Attorney General of Texas

Understanding Renter Rights and Responsibilities (December 7, 2009)

All over Texas, students are preparing to return to college. As a result, many young Texans are in the market for a new place to live. Inexperienced renters may find the rental process to be a little intimidating. However, renters who know their rights and responsibilities can take some of the stress out of the process.

Most landlords require a tenant’s signature on a lease. Renters should read their lease documents carefully before they sign them. Real estate agents who know the rental market may be able to help renters. In many cases, rental agents work at no cost to the renter.

Renters who want to change a part of their lease should discuss the changes with the landlord. If the landlord agrees, the two should decide how they want to phrase the change and write it into the agreement. Both should then initial the change. For example, while many standard leases prohibit pets, some landlords may be willing to accept a pet if the tenant puts down extra money as a security deposit.

Once renters have signed their leases, moved in and unpacked, they can expect to enjoy certain rights which include:

• Peace and quiet – A landlord cannot evict renters without cause or otherwise disturb their right to enjoy the residence.

• Privacy – Tenants should study their leases carefully to determine the circumstances under which a landlord may enter their homes. Unless a lease agreement says that the landlord can enter the unit, the landlord has no right to do so, except perhaps in case of emergency or to conduct repairs the tenant has requested.

• Locks and security – Although there are some specific exceptions, under Texas law, a dwelling must be equipped with security devices such as window latches, keyed dead bolts on exterior doors, sliding door pin locks and sliding door handle latches or sliding door security bars, and door viewers. These devices must be installed at the landlord’s expense. If such devices are missing or are defective, a tenant has the right to request their installation or repair.

• Smoke detectors – The landlord must provide smoke detectors. A tenant may not waive that provision and may not disconnect or disable the smoke detector.

• Freedom from discrimination – The federal Fair Housing Act prohibits landlords from discriminating because of race or color, national origin, religion, gender, familial status, or disability.

• Freedom from retaliation – Under Texas law, it is illegal for a landlord to retaliate against a tenant for complaining in good faith about necessary repairs for a period of six months from the date the complaint was made.

On the flip side, tenants have a number of responsibilities to uphold their end of the rental contract. These obligations may include:

• Paying rent in full and on time in accordance with the lease agreement.

• Appropriate upkeep of the rental property. The landlord may not charge the renter for normal wear and tear on the premises and may only charge for extraordinary damage.

• Notifying the landlord of necessary repairs in writing. If the landlord fails to make repairs that materially affect tenants’ health, safety or security, and tenants follow the procedures required by law, tenants may be entitled to end the lease, have the problem repaired and deduct the cost of the repair from rent. Tenants also could file a civil lawsuit to force the landlord to make the repairs. Renters should consult with an attorney before taking any of these actions.

• Giving notice of a tenant’s intent to move out. Many leases require 30 days notice as a condition of returning a renter’s deposit – though some agreements require more than that.

• Giving a landlord notice of a tenant’s forwarding address. Landlords are required to return tenants’ security deposits or explanations of deductions within 30 days of their departure.

Property codes can be confusing. Texans who have questions about their specific situations can contact their local tenants’ councils or other resources listed in the “Things to Remember” section of this column.

Points to Remember

Renter Rights & Responsibilities

Texas Department of Housing

and Community Affairs

(800) 525-0657

www.tdhca.state.tx.us

The following organizations provide additional information on tenants’ rights, including brochures:

Austin Tenants’ Council

1619 E. Cesar Chavez St.

Austin, Texas 78702

(512) 474-1961

www.housing-rights.org

State Bar of Texas

P.O. Box 12487

Austin, Texas 78711

(800) 204-2222

www.texasbar.com

Texas Apartment Association

1011 San Jacinto Blvd., Suite 600

Austin, Texas 78701

(512) 479-6252

www.taa.org

Office of Attorney General

(800) 252-8011

www.texasattorneygeneral.gov

Consumer Protection: Home Buying & Mortgages (November 30, 2009)

In the wake of the recent housing downturn, many Texans are understandably cautious about the real estate market. But there are many things – like low interest rates, reduced sales prices and government incentives for first-time home buyers – that have many Texans thinking about exploring the benefits of home ownership.

Buying a home can be a complicated process – and mistakes or errors in judgment can have long-lasting consequences for a home buyer. Texans who are eyeing the real-estate market should educate themselves and enlist help from professionals who can protect their interests.

Ideally, Texans should make financial decisions that will foster healthy credit profiles long before they are ready to become home owners. Proof of financial responsibility, often in the form of a higher credit score, can often be parlayed into lower interest rates and mortgage costs.

One of the first things a home buyer should consider is hiring a knowledgeable real-estate agent. Asking friends and family for Realtor recommendations is a good place to start. But buyers should interview an agent to make sure the individual sounds like a good fit. Consider questions such as: How long have you been licensed? What are your hours? What are your rates? How are you different from your competition? With which areas of town are you the most familiar?

Texas home buyers should learn as much as they can about their specific housing markets. The Internet provides a multitude of resources allowing prospective buyers to research homes. Home buyers should consider specific areas of town, home prices and values, tax rates, school districts, mortgage terms, interest rates, proximity and crime rates, as well as any other factors important to them. The more a buyer knows, the more difficult it is for an unscrupulous actor to take unfair advantage.

One of the issues under scrutiny and blamed for much of the mortgage crisis is predatory lending. Predatory lending refers to a variety of illegal activities in the loan industry, including deceiving borrowers into accepting unfair and abusive loan terms.

To reduce the risk of predatory lending, a prospective purchaser should do their homework to best understand mortgage financing. Shopping around for the best mortgage deal can save thousands of dollars over the life of a loan. The lower the interest rate, the less the owner will pay the lender to borrow money. Understanding the terms of the loan is also important. Some loans – like adjustable rate mortgages (ARMs) – have fluctuating interest rates, which means an owner could end up making higher payments after an initial period of time. Home owners should carefully weigh their ability to pay more per month if the rate goes up.

Home buyers should consider getting quotes and information from a variety of lending sources, such as mortgage companies, commercial banks and credit unions. And, of course, home buyers should never sign a loan agreement or sales contract unless they are certain they fully understand the terms.

Lastly, home buyers should always use a title company. This is the only way home buyers can protect themselves from financial loss due to title defects, liens or other problems. Buyers should not skip this service even if the seller “just had a title search six months ago.” Any number of things can happen in six months that affect the seller’s ability to legally transfer a home’s title. Plus, the seller’s title insurance would not protect the buyer in the event that a claim against the property arose after the sale.

More home buying information is available on the Office of the Attorney General (OAG) Web site at: http://www.oag.state.tx.us/consumer/buying_house.shtml.

Texans who believe that they may be a victim of predatory lending, deceptive trade practices or other consumer fraud should visit the OAG’s Web site at www.texasattorneygeneral.gov for more information and to file a complaint.

Points to Remember

HOME OWNERSHIP & MORTGAGES

Texas Department of Housing and Community Affairs

(800) 792-1119

www.tdhca.state.tx.us

U.S. Department of Housing and Urban Development www.hud.gov

Federal Housing Administration

(800) 225-5342

http://portal.hud.gov

Home Affordable Refinance Program

www.makinghomeaffordable.gov

GovLoans.Gov

www.govloans.gov

OAG Consumer Protection

(800) 621-0508

www.texasattorneygeneral.gov

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