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  • Texas is an “at will” employment state.  This means that  absent a specific agreement to the contrary, “employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all.” Federal Express Corp. v. Dutschmann, 846 S.W.2d 282, 283 (Tex. 1993).  Some employers may want to change this default rule for certain employees but most do not. For these employers, the most important thing to avoid is to accidently or unintentionally change an employee from  “at will” status.  This is why carefully drafted employee handbooks make it clear that the employer’s policies are just that—policies and not contractual representations.

    The desire not to upset the “at will” apple cart leads to the question: Is it possible to bind an employee to an enforceable arbitration agreement and still maintain “at will” status?  The answer is yes.  In  In re Halliburton Co., 80 S.W.3d 566, 573 (Tex. 2002), the Texas Supreme Court held that arbitration agreements between an employer and an at-will employee are enforceable when there is an agreement that is valid under traditional contract principles.   One of the keys to making such an arbitration agreement valid and enforceable is that it be mutually binding on the parties.   If the employer retains the ability to unilaterally avoid arbitration, the agreement will be found to be unenforceable. See, J.M. Davidson, Inc. v. Webster, 128 S.W.2d 223 (Tex. 2003).  Therefore, in this context, applying the general rule in favor of employer “policies” rather than contract provisions can get an employer into difficulty:  a contract to arbitrate disputes may be found to be enforceable but a mere policy to arbitrate will not.

    At first (and maybe even second) blush, the foregoing principle seems counterintuitive. If you have a mutually binding agreement to arbitrate, isn’t that a contract that alters the employee’s “at will” status? Not if its done right.  According to the Supreme Court in Haliburton,  if the employer agrees to be bound by the arbitration agreement, instead of merely agreeing to extend employment in exchange for the employee’s agreement to arbitrate, this is sufficient and the employee is still considered to be an “at will” employee.  But this must mean that you cannot require the employee to sign the arbitration agreement as a condition of employment, right?   Common sense may seem to dictate as much, but such is not the case. According to the Supreme Court in Haliburton an employer can always premise continued employment on acceptance of new or additional employment terms because the “at will” doctrine gives the employer the right to discharge the employee for any or even no reason.  Thus, an employee’s refusal to sign an arbitration agreement is a sufficient basis for termination because no basis at all is required.

    In order for an arbitration agreement to be enforceable, the employer also must establish that the employee had notice of the agreement and accepted it.  This does not require that the employee receive a complete copy of the agreement and sign it, although this would usually be considered to be a good practice.

    Another important consideration with regard to the enforcement of employee arbitration agreements is that the employee cannot be required to give up any substantive statutory rights under the labor code.  For example, an agreement that required the employee of a non-subscriber waive his rights to make a claim for personal injuries would not be enforceable.

  • Few charges carry such significant consequences as that of sexual assault. To be sure, a conviction on charges of sexual assault in Texas could lead to years or decades spent behind bars, as well as astronomical fines. Furthermore, an individual convicted of sexual assault will face professional and personal repercussions as well, which will, in fact, last for a lifetime.

    If you have been charged with sexual assault in Texas, it is imperative that you understand the effects this may have on your life. Read through the following information as a preliminary guide, and don’t hesitate to contact a legal professional to begin working on your defense immediately.

    What Constitutes Sexual Assault?

    In general, sexual assault is synonymous with the term “rape” as it is used in a colloquial context. Specifically, as defined under Texas law, sexual assault occurs when an individual causes any type of sexual penetration of another without the other party’s consent. Here, consent is key; it must be proven that the sexual penetration was non-consensual in order for a conviction to take place.

    In addition to general sexual assault, the state of Texas separately classifies such acts of penetration that involve the use of violence or threats, as well. Codified as aggravated sexual assault, this crime takes place when an individual causes sexual penetration of another party without their consent, and the crime leads to serious body injury, the accused uttered threats or used a weapon during the course of the penetration, or the accused engaged in a variety of other activities specified in the Texas Penal Code.

    In all cases involving sexual assault, the burden of proof is on the plaintiff, the individual claiming they were victimized, to demonstrate that the defendant, the victimizer, not only facilitated the penetration, but did so without the plaintiff’s consent, and, in the case of aggravated sexual assault, took other actions that are in violation of Texas law.

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    Possible Penalties Upon Conviction

    The penalties associated with a conviction on charges of sexual assault or aggravated sexual assault should not be taken lightly. In fact, the consequences may have devastating, long-term effects on a variety of the defendant’s life.

    For example, Texas law defines sexual assault generally as a second-degree felony, the punishments for which may include a prison term of between two and 20 years, and a fine of up to $10,000. Aggravated assault, however, is considered a far graver offense, and is instead classified as a first-degree felony. Conviction of this crime carries a prison term of between five and 99 years, as well as a heavy fine.

    Sadly, the punishment doesn’t end there. An individual convicted of such a sex crime in Texas must place their name on the Texas Public Sex Offender Registry, a database viewable by the public. “And anyone whose name is on the registry will inevitably have a difficult time finding or keeping a job, enrolling in an educational institution, and even securing housing. Furthermore, the stigma of being a sex offender may even lead to the loss of friendships or relationships, and other devastating personal consequences.” says Patrick Hancock, a San Antonio Sexual Assault Attorney.

    Fight the Charges

    There is no substitute for experienced professional guidance if you are facing charges for sexual assault in Texas. Don’t attempt to fight these charges alone; instead, reach out to an attorney that specializes in defending sex crimes for skilled assistance. A criminal justice attorney will begin working immediately to help craft a unique defense to ensure you receive the best possible outcome for your case.

  • Since I am not an attorney yet, I get asked all the time “how do I find a decent Austin criminal defense attorney”. So I put together some broad factors to consider when looking through a lawyer listing. Even if someone is a “referral”, you should do your due diligence.  The internet is chock full of reviews.

    Look, just because someone hired an SEO Expert, it doesn’t make them a good attorney.

    OK, so – for all my Austin friends, my criteria… These include but are not limited to:

    Location

    The criminal lawyer you choose must be licensed to practice in your particular state (Texas) in order to represent you.

    Concentration

    Some criminal defense attorneys specialize in a specific area of criminal defense e.g. theft, DUI, domestic crimes, technical crimes, violent crimes, and others. It is helpful to find an attorney with a concentration associated with your specific charges because this means they will have more experience in that area. Please don’t hire a lawyer just because you saw them on a billboard.

    Education

    Find out the law school and college they attend and what degrees he holds. This information should be located on their Linkedin page or company website.

    Dedication

    Find out if the attorney you are interested in has ever at a law school or CLE program, or published a legal article. These activities take research and show field work dedication, and a commitment to good practice policies and will help you determine your lawyer’s standing in the legal community.

    Qualities

    It is up to you to decide the qualities that your criminal defense lawyer will need to represent you best. Do you prefer someone who works in a large or a small firm? More experience with a larger case load or someone with less experience and less cases so they can put more time in to your case? Are strong credentials important?
    Reputation- It is important to consider your attorney’s reputation; some are known for taking difficult case. You can find out more about your lawyer’s reputation by reading testimonials from previous clients, reviews, and publications. In addition, Find out if he or she has ever held an office in any of the organizations that he or she belongs to. This will indicate how colleagues feel about him/her. Determine if your lawyer has earned a Martindale-Hubbell rating. AV is the highest ability/ethics rating based on the opinions of judges and lawyers who know; BV and CV are good also. It is important to note, however, that many attorneys do participate in the Martindale-Hubbell’s directory and rating system.

    Cost

    The cost of private defense varies based on a variety of factors that include the nature of the charges filed against you, the lawyer’s level of experience, how complex the case is, the jurisdiction that the charges were filed, and more.

    Bottom Line is — please do some research! The internet is full of places to look. Find some reviews, testimonials… or ask me in three years 😉

  • A Travis County grand jury Friday indicted Gov. Rick Perry on two charges related to his effort last year to force District Attorney Rosemary Lehmberg to resign after her drunken driving arrest.

    American-Statesman Staff, KVUE News