Category: Legal Board Question of the Month

January 2020

Question: Just needed a bit of clarification please. The new time pay fee ($15): is this only on tickets that are written after Jan 1st (and set up on payment plan, etc.) or any ticket that is set up after Jan 1st for payment plan, etc. Thank you.

Answer: Yes. The Time Payment Reimbursement Fee that became effective January 1, 2020, will apply to all fees assessed after that date, regardless of the date of offense or the date of the conviction. Please see page 19 of the Fines, Fees, & Costs Deskbook for a detailed description of when the Time Payment Reimbursement Fee applies, as there are some differences from the previous version of the Time Payment Fee assessed prior to 1/1/2020. The Deskbooks can be found at: https://www.tjctc.org/tjctc-resources/Deskbooks.html

December 2019

Question: Parent Contributing to Non-Attendance/Truant Conduct question – The school has a policy that if a student is late 15 minutes or more late to school/class it’s considered a LOSIT (Loss of Significant Instructional Time). Would this be considered a part of a day? I know if a student is late to school or class it’s a tardy. Based off the law can the school district use this LOSIT as part of the tenth absence within the six month period? Again this is the District’s policy.

Answer: School district policy doesn’t impact Texas law. This question was recently answered, and can be found by searching the board for the word tardies.

In a 1993 opinion, the attorney general concluded that absences generally do not include tardiness to class, especially if the student is present on the campus but late to class. The particular circumstances of a child’s tardiness on a certain day may be sufficiently egregious to constitute an absence, but school districts should not routinely classify each instance of tardiness as an absence for purposes of truancy. (Op. Tex. Att’y Gen. No. DM-200 (1993)). This would also apply to parent contributing to nonattendance cases.

Also note that the court should not be involved in determining which truancy cases a prosecutor should file. If and when a case is filed, the court’s role is to make a determination on that case.

November 2019

Q. If a plaintiff comes in and asks if an address is in our precinct and we look it up and let them know which precinct it’s in, is that considered giving legal advice?

A. No, assisting a person in determining whether or not an address is in your precinct is not giving legal advice; it is giving factual information.  One way to do this is to help the person look up the address on a map showing the precinct boundaries or in some counties you can enter an address in a database and it will state which precinct that address is in. A court may assist a person in obtaining this factual information.

We are going to start posting a noteworthy legal board question and answer each month. Below is our first one!

QUESTION:

I have a plaintiff asking for a Writ of Execution after 10 years. The plaintiff is claiming that the 10 year period is extended by three years due to a bankruptcy filing after the judgment was entered. Does a bankruptcy filing toll the 10 year judgment period? Judgment was entered 3/19/08, bankruptcy was filed 8/11/09 and dismissed on 8/1/12. The debt is still due and owing as it was not discharged in the bankruptcy.

ANSWER:

The Texas Court of Appeals addressed this issue in the recent case of Cade v. Stone, 2013 WL 3009853 (Tex. App.—Corpus Christi, June 13, 2013, no pet.) and expressly held that the pendency of a bankruptcy proceeding tolls the 10 year life span of a Texas judgment. The court held: “[W]here ‘a person is prevented from exercising his legal remedy by the pendency of legal proceedings, the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right.’” After considering 11 U.S.C. § 108, the court noted that, “[a]pplicable nonbankruptcy law [i.e., Texas common law] … provides that [the applicable statute of limitations] w[as] suspended during the time that Cade was prohibited from executing on the judgment due to the automatic bankruptcy stay.” The court concluded: “Accordingly, the time during which the automatic bankruptcy stay was in effect is not “counted against [Cade] in determining” when the applicable statute of limitations (i.e., section 34.001 of the civil practice and remedies code) operated to bar execution on the 1993 domesticated judgment, and, in turn, when the time period for reviving that judgment expired.”

See also HSBC Bank USA, N.A. as Trustee for Merrill Lynch v. Crum, 907 F.3d 199 (5th Cir. 2018); Baker Atlas v. Cheruvathur, 8 Wash. App.2d 1070 (Wash. App. May 20, 2019).

Under this case authority, the plaintiff is correct and the period of the bankruptcy should be added to the ten-year period in which the judgment remains valid. That is precisely the holding of Cade v. Stone.

However, in this case, the plaintiff is still within the two year period in which he could file a writ of scire facias or an action of debt to revive the judgment even if it had become dormant.  So even if the bankruptcy case had not tolled the ten-year period for enforcing the judgment, he would still be able to do so through those means.