As Houston business lawyers, we are sometimes asked by local business whether a repair shop can keep or repossess a vehicle.

In Texas, a worker who repairs a vehicle, motorboat, vessel or outboard motor may retain possession of the article until the amount due under the contract for repairs is paid, or if no amount is specified by contract, the reasonable and usual compensation is paid.

If a worker who repairs a vehicle, motorboat, vessel or outboard motor relinquishes possession of the article because the worker is given a check, money order, or credit card and the payment is stopped or dishonored, the worker may be able to repossess the article.  If the check, money order, or credit card transaction on which payment is made is stopped, has been dishonored because of insufficient funds, no funds or because the drawer or maker of the order or the credit card holder has no account or the account upon which it was drawn or the credit card account has been closed, the worker maintains their lien and is entitled to possession of the article.

Although a worker may maintain their lien if payment is not made, the worker may only repossess the article if the owner of the vehicle has signed a notice stating that the article may be subject to repossession under Section 70.001 of the Texas Property Code.  The notice must either be provided in (a) a separate document than the repair contract or (b) in the written repair contract, credit agreement, or other document as long as the notice is boldfaced, capitalized, underlined or otherwise set out from the surrounding material so that the notice is conspicuous, and must include a separate signature line than the rest of the contract or invoice.  If the above conditions are met, the worker may take possession of the article either pursuant to judicial process or without judicial process if they do not breach the peace.

If the article is repossessed, the article must be promptly delivered to the location where the repairs were made or to a licensed storage facility, and must remain there at all times.  Also, if a worker obtains possession of an article registered in Texas, the worker must give notice to the last known registered owner and each lienholder of record not later than the fifth day after possession is obtained.  If the vehicle is registered outside of Texas, the notice must be given no later than the 14th day after possession is obtained.  The notice must be sent by certified mail, return receipt requested and must contain: (a) a request to move the motor vehicle; (b) a request for payment; (c) the location of the vehicle; and (d) the amount of accrued charges.

Additionally, if the worker keeps a vehicle that is registered in Texas in their possession for thirty days after charges accrue, the worker must give notice to the owner and to each holder of a lien recorded on the certificate of title.  The worker must also file a copy of the notice with the county tax assessor-collector.  The notice must include the amount of the charges and a request for payment and must be given by certified mail, return receipt requested.  The notice should include: (a) the physical address of the real property at which the repairs to the motor vehicle were made; (b) the legal name of the person or entity that holds the possessory lien for which the notice is required; (c) the taxpayer identification number or employer identification number, as applicable, of the person or entity that holds the possessory lien for which the notice is required; and (d) a signed copy of the work order authorizing the repairs on the vehicle.

Before a worker retains possession or takes possession of a vehicle after nonpayment for repairs, the worker should consult an attorney in their jurisdiction.  Failure to do so could result in liability for wrongful repossession.

As business lawyers in Houston, Texas, we are sometimes asked about the employment of minors in Texas.  As a general rule, in Texas you may not employ a child under the age of 14, and there are specific restrictions on the employment of 14 and 15 year old children.  The following are some of the restrictions to the employment of 14 and 15 year olds:

•    The child may not work more than eight hours in one day;

•    The child may not work more than 48 hours in one week;

•    If the child is enrolled in a term of school, the child may not work:

•    Between the hours of 10 p.m. and 5 a.m. on a day that is followed by a school day;
•    Between the hours of midnight and 5 a.m. on a day that is not followed by a school day;
•    Between the hours of midnight and 5 a.m. during the summer if the child is not enrolled in summer school.

•    The child may not be employed in an occupation that is particularly hazardous to children or that has been designated hazardous by any agency of the federal government.

•    Any child younger than 14 may not be used to solicit donations or sell items or services unless the child is accompanied by a parent or guardian.

•    A child 14 or older may not be employed to solicit donations or sell items or services unless:

•    The employer obtains written consent of a parent or guardian at least seven days before the child begins employment;
•    Provides a map of the route and the supervising employer for each trip;
•    Provides at least one adult supervisor for every three children on the solicitation trip;
•    The solicitation trip is limited to no later than 7 p.m. on a day before the child is required to attend school or between the hours of 10 a.m. and 7 p.m. on all other days.

•    A child may be employed to sell items or services or solicit donations for exempt organizations like charitable organizations or for family-owned businesses.

Consult a business attorney in your jurisdiction prior to making any legal binding decisions.

As commercial attorneys in Houston, Texas, we are asked by medical business clients whether doctors can charge for producing records requested by patients and others.  The Texas Medical Practice Act, which is part of the Texas Occupations Code, governs the disclosure of confidential patient medical and billing records.  Any licensed physician who receives written consent for release of a patient’s information must furnish copies of the requested medical or billing records, or a summary of the records, including records received from another physician or health care provider.

In the Texas Occupations Code, “physician” is defined as a person licensed to practice medicine in the state of Texas.  Pursuant to Tex. Occ. Code §159.008(a)(1), a physician may charge a reasonable fee, as prescribed by the Texas Medical Board, for copying billing or medical records.  The Texas Medical Board Rules for 2010 define the allowable charges for copying patient files as follows:

•    A reasonable fee shall be no more than $25.00 for the first twenty pages and $0.50 per page for every copy thereafter.

•    If an affidavit is requested to certify that the information is a true and correct copy of the records, a reasonable fee of up to $15.00 may be charged for executing the affidavit.

•    A reasonable fee may only include the cost of (1) copying, including labor and the cost of supplies for copying; (2) postage, when the individual has requested the copy or summary be mailed; and (3) preparing a summary of the records when appropriate.  The fee may not include costs of searching for and retrieving the information.

The Texas Occupations Code is divided into several sections according to occupation.  Pursuant to Texas Occupations Code §201.405(f), which deals with chiropractors,  the patient or a person acting on the patient’s behalf shall pay a reasonable fee for the information provided by the chiropractor.  Unlike the analogous provision for physicians, the provision for chiropractors does not refer to a chiropractic rule making body for the definition of reasonable fees.  The Texas Occupations Code is silent as to the fee a dentist may charge for the production of patient records.

Consult a business lawyer in your jurisdiction before signing any documents or making legally binding decisions.

As business lawyers in Houston, Texas, we are often asked how to determine whether people who work for a client should be considered independent contractors or employees.  The IRS defines an “independent contractor” as one who offers their services to the public and that the employer has the right to control or direct the result of the work but not the means and methods of accomplishing the result.  The IRS determines employee status by assessing the relationship between the worker and the employer for which he works.  The factors considered by the IRS are:

Behavioral control:
•    how much influence the employer exerts over how, when and where the work is performed;
•    how much influence the employer exerts over the equipment to use, workers to hire or use, and the supplies or services used;
•    how much influence the employer exerts over the sequence of the work to be accomplished; and
•    whether the employer trains the worker or requires the worker to use his existing skills.

Financial control:
•    whether there are expenses incurred in the performance of the job that the employer does not reimburse the worker for;
•    whether there are there fixed ongoing costs incurred regardless of whether work is currently being performed;
•    the extent of the worker’s investment in facilities used;
•    the extent to which the worker makes his services available to the open market, how often he advertises, whether he maintains a separate business location, and whether he is allowed to accept additional business opportunities; and
•    the method in which the employer pays the worker.  An employee is generally guaranteed a regular wage amount for an hourly, weekly, or other period of time.  An independent contractor is usually paid by a flat fee for the job.

Type of relationship:
•    whether there is a written contract;
•    whether the worker receives employee-type benefits (insurance, pension plan, vacation and sick pay);
•    the permanency of the relationship – if an employer engages a worker with the expectation that the relationship will continue indefinitely, that workers is usually an employee rather than an independent contractor;
•    the extent to which the services performed by the worker are essential to the regular business operation.  The more essential the services the worker provides, the more likely that the worker is an employee rather than an independent contractor.

If a company misclassifies a person as an independent contractor without a reasonable basis for doing so, the company may be liable for employment taxes for that worker.  The IRS provides relief provisions if a company has a reasonable basis for not treating a worker as an employee.  To be relieved of the liability of the employment taxes for that worker, the company must:
1.    File all required federal information returns on a basis consistent with the treatment of the worker.
2.    The company must not have treated any similar worker holding a substantially similar position as an employee or any period beginning after 1977.

Some courts rely on the IRS analysis of who is an employee and who is a contractor.  However, not for all purposes.  If you have an issue that requires you to determine the status of a person working for you, consult a qualified business attorney in your jurisdiction.

We are Houston, Texas based lawyers. who are often asked by clients to take judgments, collect judgments and overturn judgments.  It is important for individuals and business entities to know whether a judgment has been taken against them and whether that judgment is final.  A “final” judgment has important consequences, because generally an appeal can only be made from a final judgment.  Additionally, the date the final judgment or final order disposing of the case is signed begins the deadlines for filing any post-judgment motions and appeals deadlines.  In Texas, the period in which the court that signed the judgment still has power of the judgment is also calculated from the date the final judgment or order disposing of the case is signed.  If you believe a judgment against you or your business has been signed, immediately seek the help of a licensed attorney in your jurisdiction.

In Texas, a judgment is final only if it disposes of all parties and all claims in the lawsuit.  If a judgment resolves all claims, it is final even it says that it is not.  In Texas, a judgment issued without a conventional trial is final for the purpose of appeal if and only if either it actually disposes of all parties and all claims then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties.  On the other hand, an order does not dispose of all parties and claims simply because it is titled “final.”  There is a presumption that a judgment signed following a conventional trial on the merits disposes of all claims and is final.

In Texas, the general rule is that an interlocutory judgment is not final and appealable.  An interlocutory judgment can be converted into a final judgment by merger or severance.  An interlocutory judgment is merged into a final judgment when all the remaining claims are resolved, either on the merits or by dismissal.  An interlocutory judgment can also become final when the trial court severs the interlocutory judgment from the unadjudicated claims.

A party with a final judgment in Texas can begin garnishment immediately after a final judgment is signed.  Garnishment is a process in which a judgment creditor “freezes” assets of the judgment debtor while the assets are held by a third party.  Bank accounts are the most common third-party asset “frozen” by garnishments.  Executions and levy are generally not available until the time for filing motions for new trial have run.  In Texas, this can be 30-120 days from the signing of a final judgment.

Fettner Thompson serves small businesses and entrepreneurs in the Houston, Texas area. One question that has been asked by businesses over the years is: “How should we handle maternity leave?”  The answer to that question varies depending on a number of factors, the most important of which how many employees the business has and whether the employee handbook addresses the situation. Another important issue is whether there is a contract between the employee in question and the business. If there is a contract, the contract ordinarily (but not always) is the controlling document when it comes to questions regarding maternity leave.  The policies in the employee handbook should be followed if the handbook addresses maternity leave.

If the employer has less than 50 employees, the Family Medical Leave Act (“FMLA”) does not apply and an employer must treat its pregnant employees the same way it treats employees who are “temporarily disabled.”  The EEOC provides guidelines to the Pregnancy Discrimination Act and states,

“when a pregnant woman is out on a maternity leave, she must receive the same type and scope of benefits as any other temporarily disabled worker. For example, if the employer continues payment of pension benefits, health insurance premiums for a temporarily disabled worker while on leave, the employer must do the same for a woman on pregnancy leave.”

This, however, does not require an employer to pay the worker while on leave, unless other workers are paid while on temporary disability leave.  If an employer has an employee handbook or policy manual that explains the terms of leave for short term disability, the policies stated in the handbook or manual will apply.  If it specifies the policy for leave due to pregnancy, that will apply (unless it is discriminatory against pregnant women, in which case the policy used for other disabilities will be used).

If an employer has more than 50 employees the FMLA applies. To qualify for FMLA leave, the employee must have been employed by that business for at least one year and must have worked at least 1,250 hours in the 12 months prior to taking the leave.  The employer is required to give eligible employees up to 12 weeks of unpaid leave in a 12 month period for a covered event, which includes pregnancy.  Employers may require the worker to use all accrued paid leave before applying the FMLA leave.  The worker will return to the same job at the same compensation.