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Look to the Law
Texas Law for Ministers, Elders, and Deacons
Classification of Property
The State of Texas has always been a community property state. The basic rules and definitions governing community and separate property are part of our State Constitution and the Texas Family Code. Although Texas is referred to as a community property state, there are actually two classifications of property: separate property and community property. One's separate property consists of:
- property owned or claimed by a spouse before marriage;
- property acquired by a spouse during marriage by gift, devise, or descent; and
- the recovery for personal injury sustained by the spouse during marriage, except in a recovery for loss of earning capacity during marriage.
Community property is defined as "the property, other than separate property, acquired by either spouse during marriage." The separate or community nature of property is determined at the time the property is acquired. This legal theory is sometimes referred to as the "inception of title" rule. If property is acquired during marriage, it is presumed to be community property. Separate property can lose its "separate" identity if it is mixed with community property during the marriage. Furthermore, without an agreement to the contrary, income from separate property is generally presumed to be community property. Therefore, parties must often offer evidence to prove that property is separate to overcome the presumption.
Changing the Character of Property
Couples may alter the character of property as separate or community by partitioning (dividing) or exchanging their community property between themselves. When this is done, the partitioned property becomes separate property of the spouse to whom the property was transferred. Married persons or those contemplating marriage may agree that the income or property arising from separate property shall become the separate property of the owner. It should be noted that the agreements discussed in this paragraph are complex and should be formalized in writing with the assistance of a lawyer.
Spouses Power to Deal with Assets
The Texas Family Code also addresses each spouse's power to deal with assets on behalf of both spouses. Except as to one's homestead, a spouse has the power to convey, sell, trade, encumber, or otherwise deal with his separate property without the other spouse's joinder, consent, or participation. As to community property, each spouse has the sole management, control, and disposition of his personal earnings, revenue, and income from their separate property, and recoveries for personal injuries. However, "sole management" community property can become subject to "joint management" by commingling. "Joint management" community property can be avoided by certain written agreements and couples should seek legal counsel to assist them if this problem is encountered. Generally, the earnings of a minor child are subject to the joint management, control and disposition of the parents of the child.
Rules of Marital Property Liability
Section 5.61 of the Texas Family Code addresses the issue of marital property liability as follows:
- A spouse's separate property is not subject to liabilities of the other spouse unless both spouses are liable by other rules of law.
- Unless both spouses are liable by other rules of law, the community property subject to a spouse's sole management, control, and disposition is not subject to:
- any liabilities that the other spouse incurred before marriage; or
- any non-tortious liabilities that the other spouse incurs during marriage.
- The community property subject to a spouse's sole or joint management, control, and disposition is subject to the liabilities incurred by him or her before or during marriage.
- All the community property is subject to tortious liability of either spouse incurred during marriage.
Homestead Rights
A homestead, whether separate or community property, cannot be sold, conveyed, or encumbered without the joinder of the other spouse except under special circumstances. Special circumstances, allowing the sale or encumbrance of the homestead by one spouse without the joinder of the other spouse, exist in situations where the other spouse is incompetent, has disappeared and his location remains unknown, has permanently abandoned the homestead, is a prisoner of war, or is missing in public service.
Conducting a Marriage Ceremony
In Texas, a number of persons are authorized to conduct marriage ceremonies, including licensed or ordained Christian ministers and priests; Jewish rabbis; persons who are officers of religious organizations and who are duly authorized by the organization to conduct marriage ceremonies; and appellate justices, judges of the district, county, and probate courts, judges of the county courts at law, courts of domestic relations, and juvenile courts, retired justices and judges, justices of the peace, and federal judges and magistrates of this state. Upon receiving an unexpired marriage license, an authorized person may conduct a marriage ceremony 72 hours after issuance of the marriage license. The 72-hour waiting period can be waived if an applicant is on active duty in the armed forces or if an order is issued by a district court. The marriage license expires at the end of the 30-day period immediately following the date that the license was issued. It is the duty of the person conducting the marriage ceremony to determine, from the county clerk's endorsement on the license, whether the license has expired. Any authorized person who conducts a marriage ceremony after the license has expired is guilty of a misdemeanor punishable by a fine of not less than $200 nor more than $500. Consequently, the marriage license should be carefully reviewed before the ceremony.
Minors
Parental consent can be given for a marriage if the person to be married is 14 years of age or older, but under the age of 18 years. The parental consent must be written on a form supplied by the county clerk. A person under the age of 18 can petition a district court for an order granting permission to marry. After a hearing, the order may be granted if the judge believes marriage to be in the best interest of the petitioning child.
Void and Voidable Marriages
Generally, it is the policy of the state to preserve and uphold each marriage against claims of invalidity. Void marriages are those that have no legal effect. Voidable marriages are those that may be set aside upon proper application of either party. The validity of a marriage is not affected by lack of authority of a person conducting the marriage ceremony if there was a reasonable appearance of authority by that person, and at least one party to the marriage participated in the ceremony in good faith, and that party treats the marriage as valid. Generally, a marriage is void in Texas in two circumstances. First, a person may not marry an ancestor or descendant, by blood or adoption; a brother or sister, of the whole or half-blood or by adoption. Second, a marriage is void if either party was previously married and the prior marriage was not dissolved.
There are a number of grounds to set aside a voidable marriage. Such suits generally are referred to as suits for annulment. Grounds for annulment include being underage, consent to marriage while under the influence of alcohol or narcotics, impotency, fraud, duress, force, mental incompetency, and concealed divorce. The requirements for securing an annulment are detailed, and members of the clergy should promptly refer a person seeking an annulment to an attorney.
Informal/Common-Law Marriages
Texas recognizes informal or common law marriages. In other words, parties may be married without the formalities of any ceremony, and this is accomplished by signing a declaration of their marriage pursuant to the statutory requirements or by evidence of the following:
- the man and woman agreed to live together as husband and wife;
- after the agreement they did live together in this state as husband and wife; and
- they represented to others that they were married.
A common law marriage may only be dissolved by a divorce, which has the same implications on property rights and children born to the common law marriage as a marriage by ceremony does.
A divorce is initiated by one of the parties to the marriage filing a petition in an appropriate court. The petition itself is a document that identifies the parties to the suit, outlines the relief requested, and gives the grounds upon which the dissolution of the marriage is requested. The "Petitioner" is the person who files the divorce, and the person against whom the divorce is filed is referred to as the "Respondent."
In order to prevent people from dissolving the marriage relationship without giving due regard to the importance of the marriage, the best interests of any children involved, and the division of their community estate, Texas law provides that a divorce may not be finalized until at least 60 days have elapsed since the date of the filing of the suit.
Grounds for Divorce
Divorce is governed by the Texas Family Code. The large majority of divorces that are granted in Texas are granted on the grounds of "insupportability." This is the Texas form of no-fault divorce. It contemplates a discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. A number of other grounds exist for dissolving a marriage. Those grounds, which include cruelty, adultery, conviction of a felony, abandonment, and confinement in a mental hospital, are very rarely used.
First Stage of Divorce
A divorce may be more easily understood as a two-stage proceeding. The first stage is the temporary phase, which is from the filing of the petition until the final hearing, 60 or more days after the filing of the petition. During this stage, the court may decide who will receive the temporary right to use the parties' property, who will have custody of any children during the pendency of the case, and whether to award temporary alimony, temporary child support, temporary restraining orders, and temporary injunctions. These decisions will only be effective until the final hearing.
Once the suit for divorce is filed, the parties have the right, through their attorneys, to "discover" the assets and liabilities that make up the community estate, in order to come up with either an agreement incident to divorce disposing of the community estate, or a proposal for the court to consider upon a trial.
Also, during the temporary stage, the Texas Family Code provides that the court in its discretion may direct the parties to counsel with a person or persons named by the court. The counselor is then obligated to file a written report to the court before finalization of the case. The counselor gives his opinion on whether there exists a reasonable expectation of reconciliation and, if so, whether further counseling would be beneficial. As a practical matter, if both parties are willing to consider counseling in an attempt to rehabilitate their marriage, no court order is necessary. If one of the parties is resistant to counseling, the court will usually not order counseling, simply because it is not going to be of benefit.
Second Stage of Divorce
The second stage of the divorce is where the parties are divorced, the final resolution of all property matters is made, and custody and support of any children involved are decided. Most divorce cases in Texas are finalized by agreement of the parties concerning child support, custody, and division of property. When one or more issues cannot be decided by agreement, a trial occurs, and the judge makes the decision concerning those matters.
Division of Property
A common misconception about the division of the property is that each party will receive half of whatever they have accumulated. Under Texas law, neither party is guaranteed one-half of the community property. Further, the values on various items owned by the parties vary substantially, and it is usually difficult for a judge to ascertain exact values on much of the parties' property. The judge is obligated to divide the properties in a manner that is "just and right," having due regard for the rights of each party and the children of the marriage. In making the division, the judge is governed by the provisions of the Texas Constitution, which define the property that is considered separate and the property that is considered community. The judge will divide the community estate, being all real and personal property that meets the community property definition. Under present law, separate property of the spouse is not divisible upon divorce.
Custody of Children
In determining custody of the children, the court or the jury determines what is in the best interest of each child. A person who is granted custody of the minor child is called a managing conservator, and the person with visitation rights is referred to as the possessory conservator. In most cases, the possessory conservator is also the one who is ordered to pay child support. The visitation schedule varies depending on the circumstances of the people, and the courts within the state now have a standardized schedule for child support.
The Texas Family Code provides, in Section 14.021, that both parents can be appointed joint managing conservators by the court or through an agreement between the parties. This conservatorship allows frequent and continuing contact on the part of the children with both parents. It allows the parents to share rights and responsibilities concerning the raising of their children. This system requires parental maturity and cooperation and maintains as foremost the best interest of the children. A detailed laundry list located in the statute must be met before a joint managing conservatorship will be approved by the court.
The decision concerning child support and custody is subject to modification on change of circumstances of either of the parties or of the children, until the children reach the age of 18. Once a child reaches the age of 14, he has the right to choose the parent with whom he wants to live, subject to the court's approval.
Wife's Name Change
The wife in a divorce proceeding can have her maiden name restored. This can be accomplished in the divorce proceeding, and avoids unnecessary expense in the future. The Texas Family Code also provides that a divorced person may remarry after 30 days have elapsed since the date of divorce.
Role of Clergymen
The role of the attorney and the role of the member of the clergy differ substantially in a divorce case. An attorney is under an ethical obligation to be an advocate for his client, and lawyers differ on their approach to divorce proceedings. Generally, legal counsel refrain from psychological, psychiatric, or pastoral counseling because such counseling is beyond his area of expertise. Members of the clergy, on the other hand, are normally not advocates for either spouse, and have as their sole aim what is best for the parties. Since the roles of the attorney and the counselor differ, their advice and approach may differ. In such instances, communication between the member of the clergy and the attorney is essential.
A child support order must be entered by a court to initiate enforcement proceedings. Support orders are commonly entered by a court as a result of paternity suits, suits affecting the parent-child relationship when parents are separated but not divorced, and as a result of divorce suits. There are guidelines which the court must use to set both visitation and child support, except in cases where extraordinary circumstances exist. These guidelines have been in effect since September, 1987.
Texas courts have been under a duty to order income withholding in all child support orders entered since September 1, 1985. This enforcement tool, frequently called wage garnishment, is also available to collect child support arrears which have accrued pursuant to a support order entered prior to September 1, 1985.
Income Witholding Order
An income withholding order is served upon the employer of the obligated parent and directs the employer to withhold child support from the obligor's disposable earnings. As of January 1, 1987, the maximum amount in Texas that an employer can withhold from the obligor's disposable earnings is 50%. The order to the employer need not specifically name the obligor's employer, and the order may be served upon all subsequent employers of the obligor. The exception to a general order to the obligor's employer is primarily in cases in which the obligor is a member of the United States armed services or other branch of the federal government. It is then necessary that the employer's order be specific before it will be honored.
The income withholding order is also effective for collecting child support when the obligor is receiving social security disability benefits and unemployment compensation. However, it is not presently effective against workers' compensation benefits in Texas.
A self-employed person may be required to post a bond to secure the payment of child support. The court has discretion in setting the amount of the bond.
Contempt Proceedings
The courts can also enforce their orders by holding the person who is failing to pay the child support in contempt. The punishment for contempt can be imprisonment for up to 180 days and/or a fine of not more than $500 in addition to court costs and attorney's fees, which can be awarded to the custodial parent or the attorney. The penalty of imprisonment and/or the fine can also be imposed for each and every instance in which the possessory conservator did not pay the support. The contempt proceeding is initiated by the filing of a motion for contempt in the court that ordered the child support payments. The court then issues a notice to the person who is not paying the child support to appear and show cause why he should not be held in contempt. At the hearing, after listening to any explanation offered by the person for his failure to pay the child support, the court will decide the punishment.
Arrearage Judgment
The person who is not receiving child support payments as ordered can also file a motion asking that the court decree the amount by which the person is in arrears and enter a judgment against the person for that amount. This judgment can then be enforced by all other remedies that are available to enforce judgments in the State of Texas. In effect, an arrearage judgment becomes just like any other judgment awarded a party in a civil suit and is subject to all the collection proceedings provided for other civil judgments.
A private attorney will usually file a motion for contempt, a motion for involuntary wage assignment, and a motion to reduce the arrearage to judgment, in one pleading, called a motion to enforce, and ask the court for all three remedies.
Enforcement of an Out of State's Child Support Order
In the interstate context, the Texas courts will enforce another state's child support order under the Revised Uniform Reciprocal Enforcement of Support Act, effective November 1, 1987. Similarly, a Texas child support order can be enforced in other states that have enacted reciprocal enforcement statutes. To initiate these proceedings, the parent to whom support is owed should contact the Child Support Enforcement Division of the Texas Attorney General's Office, or their local District Attorney.
Enforcement Tool Through the Texas Attorney General's Office
The Texas Attorney General's Office is also empowered to establish and enforce child support orders. In addition to the enforcement methods discussed above, the Attorney General's Office has enforcement tools that are not available in private sector legal proceedings. These remedies include intercepting the obliged parent's federal income tax refund for payment of child support arrears, and a procedure which became available on January 1, 1987, known as Administrative Income Withholding. For information on the services provided through the Attorney General's Office, one should call the child support toll-free hot line number, 1-800-252-3515.
Relationship Between Child Support and Child Custody
Contrary to what most people believe, child support and visitation are not interrelated, that is, the duty to pay child support does not depend on whether one is allowed to visit the child, and the failure to receive child support payments does not give the person to whom child support is owed the right to refuse to allow the other parent to visit the child(ren). The two obligations and rights exist independently of each other. In addition, unless the order specifically provides, child support is not abated during long periods of visitation. That is, during extended visitation, which usually occurs in the summer, the parent who is under the court order to pay child support must do so unless the court order specifically provides differently.
Child Abuse and Family Violence
Child abuse and family violence have become a horrible reality in American society. Child abuse and neglect are among the leading causes of children's deaths in the United States. According to government statistics, approximately one million children are abused by their parents each year in America.
Reporting Child Abuse
In Texas, ALL persons "having cause to believe" that a child is being abused or neglected are required to report the possible abuse to the Texas Department of Human Services. Any person reporting the child abuse is immune from civil and criminal liability, except for bad faith or malicious reporting. The Texas Family Code states that evidence in a proceeding will not be excluded on the grounds of "privileged communication" in a child abuse case. Knowing failure to report child abuse is a Class B misdemeanor in Texas and is punishable by a fine of up to $1,000, confinement in jail for up to 180 days, or both.
Protective Orders
Victims of family violence may apply for protective orders, pursuant to Title 4 of the Texas Family Code. In order to file an application, the victim must come within the Family Code definition of "family," "household," or "member of a household". Included would be those related to the individual alleged to have committed the violence, by marriage or blood; former spouses; natural parents of the same child; foster child and foster parent; persons living together in the same dwelling, whether or not they are related; or a former member of a household who has filed an application or for whom protection is sought.
An application for a protective order may be filed by an adult member of a family or household, or by a prosecuting attorney. This application is filed with the clerk of a state district court, court of domestic relations, or a statutory county court, with a required filing fee. After a hearing, this filing fee may be waived by the court if the applicant files a sworn statement stating that he is unable to pay the filing fee. The application is to be filed in the county where the applicant resides, or in the county where the individual alleged to have committed the family violence resides.
The application must include the name and county of the residence of the applicant, and the name, address, and county of the residence of the individual alleged to have committed family violence; the relationship between the applicant and individual alleged to have committed family violence; the facts and circumstances concerning the alleged family violence; and a specific request for protective orders. Additional information may be required depending on the relationship between the applicant and the individual alleged to have committed the family violence.
After the application is filed, the court sets a date and time for a hearing on the application. The hearing must be no more than 20 days after the date the application is filed unless the applicant requests, in writing, a later date.
After the court has conducted a hearing on the application and finds that family violence has occurred or will likely occur in the foreseeable future, the court may make a "final" protective order authorized by Title 4 that is in the best interest of the family or household or a member of the family or household. Such a final protective order is effective for the period specified in the order, not to exceed one year.
Protective orders may include prohibiting certain acts such as interference with the custody of a child, transference or disposal of property, commission of family violence, communication directly with a family member or household member in a threatening or harassing manner, or going to or near the residence or place of employment of a member of the family or household. In addition, the court may order exclusive possession of a residence, payment of child or spousal support not to exceed a year, or counseling. After a final protective order is issued by the court, the clerk of the court issuing such orders sends a copy of the protective order to the local law enforcement agency, and the individual alleged to have committed the family violence is served with a copy of such protective orders.
Violation of a Protective Order
A knowing or intentional violation of a final protective order is a crime and should be reported to local law enforcement authorities. Violation of such protective orders is a Class B misdemeanor and is punishable by a fine up to $1,000 or six months in jail, or both.
Child Custody by the State
In rare circumstances, there is an emergency procedure whereby the state can temporarily take custody of children. This is done by a court order, upon a court finding of immediate danger to the physical health or safety of a child. The guarantee of a prompt hearing and other safeguards built into the system insure that courts will not arbitrarily interfere with interfamily relationships.
Where to Report Child Abuse
Members of the clergy who need to report child abuse or family violence should contact the Texas Department of Human Services in Austin, Texas, at 1-800-252-5400, or the local office of the Texas Department of Human Services. The Texas Young Lawyers Association has prepared a pamphlet entitled "Child Abuse and the Law," which is available at a nominal cost. Please write to the Texas Young Lawyers Association, P. O. Box 12487, Capitol Station, Austin, Texas 78711. Also available at the same address is a videotape prepared by the Texas Young Lawyers Association entitled "Recognizing Child Abuse and Neglect."
Purpose of a Will
A will allows the person making the will (called the "testator") to accomplish the following purposes: 1) to direct the disposition of his assets at death; 2) to choose the proper individuals to manage the assets and affairs of the person after his or her death; and 3) if necessary, to choose the proper individuals to act as guardians and trustees for his or her minor children.
The person who manages the assets and affairs of the testator is called an "executor." The executor is responsible for determining and collecting the property of the deceased, distributing the property as directed in the will, paying debts and expenses of the last illness and funeral, and settling with the Internal Revenue Service and other taxing authorities. In addition, the will may also name a trustee, who has the duty to administer a trust, preserving and managing the assets of the deceased for the beneficiaries of the trust, usually minor children.
By making a will, a person assures that his property will be transferred with minimal inconvenience and expenses to survivors. Court control and supervision greatly increases the cost of the transfer process; independent administration created by will and testamentary trusts for minors can reduce or eliminate these expenses. Often a trustee will also be better able to evaluate the testator's intentions regarding those needs.
Types of Wills
Texas law recognizes witnessed and attested (formal) written, handwritten (holographic) and oral (nuncupative) wills. In order to have a valid will of any kind, the testator must be at least 18 years of age (or be or have been a member of the armed services or lawfully married) and of sound mind. There is no single definition of sound mind. The term is often used interchangeably with "competency" and "testamentary capacity." In general, sound mind requires that the testator know the natural objects of his bounty (surroundings), the nature and extent of his estate, and the effect of the will he is making on his estate and the beneficiaries. If the will is formal, it must be signed by the testator, and by two credible witnesses over the age of 14. Witnesses must sign their names in their own handwriting in the presence of the testator. A holographic will must be totally in the handwriting of the testator, but needs no witnesses to be valid. The use of nuncupative, or oral, wills is very limited. The will must be heard by three witnesses. The testator must make the will during his last illness at his home or where the testator lived for the ten days preceding the date of the will. The nuncupative will disposes only personal property and is limited in the amount that can be disposed.
Dying Without a Will
When an individual dies without a will (intestate), the Texas statute referred to as the Law of Descent and Distribution controls the disposition of the estate.
If a person dies intestate with living descendants, his surviving spouse will retain one-half interest in community property, but will receive only one-third of any separate personal property and a life estate in one-third of any separate real property. The decedent's descendants will receive all of his one-half of the community property, two-thirds of his separate personal property, and two-thirds plus a remainder interest in his separate property. Only if an individual dies leaving no descendants, no parents, and no descendants of his parents, will a surviving spouse receive all of his property, both community and separate. For example, Husband dies owning a house and $10,000 which are community property, and 100 acres of land which are separate property. Husband is survived by Wife, his second wife, and three children by his previous marriage. After Husband's death, Wife will jointly own the house with the three children, will receive $5,000 and will have a one-third life estate in the 100 acres.
Intestacy, which is generally inconvenient and expensive, may require a guardianship for minor children. In addition, intestacy usually greatly increases the cost and convenience of any required administration of the estate of the decedent. Many problems associated with intestacy may be avoided by making a will incorporating appropriate planning.
Probate
Probate is a process by which title to property is transferred from the deceased to his heirs. Title to property must be transferred, whether or not the decedent left a valid will. Contrary to popular belief, there is no way to avoid at least some form of probate if title is to be transferred. Depending upon the size and complexity of the estate, probate may be as simple as filing the will alone as proof of title. In more complex situations, it may be necessary to have an administration of the estate. Texas law allows "independent" administration, which greatly reduces the expense and inconvenience of probate by severely limiting court oversight and control of the probate process.
One important aspect of wills and probate is the consideration of taxes. The federal government imposes an "estate" tax and the State of Texas imposes an "inheritance" tax.
The Federal Estate Tax for 1987 provides for a unified credit, which allows $600,000 to pass without payment of tax. For persons in community property states with only community property, a couple could own property valued at $1.2 million and escape taxation if appropriate planning is implemented. Tax planning should be considered if the total property owned by both spouses (or an individual), including the face value of life insurance, exceeds the amount which can pass without payment of tax. Tax statutes are frequently changed, and an attorney or accountant should be consulted for specific information. Estate and inheritance taxes may be held to a minimum by proper planning of wills, gifts to children, charitable gifts, etc.
Privileged Communications For the Clergy
The dilemma of a member of the clergy who has knowledge of a crime or confidential personal matter of another, gained through confession of a repentant person, has been the subject of much speculation and friction. Analysis of the state statutes in Texas case law, however, indicates that the clergy rarely faces a demand for disclosure.
In 1983, Texas adopted rules of evidence which include Rule 505. Rule 505 provides that a person has a privilege to refuse to disclose and prevent another from disclosing any confidential communication by the person to the clergyman in his professional character as spiritual adviser. A communication is defined to be confidential if it is made privately and not intended for further disclosure. Consequently, it is not necessary that the communication be penitential in character to qualify for protection. Marital counseling and advice regarding other matters of a spiritual or moral concern are therefore covered by the privilege.
Definition of Clergymen
The rule also defines clergymen as being a "minister, priest, rabbi, accredited Christian Science Practitioner, or other similar functionary of a religious organization or an individual reasonably believed so to be by the person consulting him." The language is obviously designed to include those persons who are engaged in activities performed by the clergy in major religious denominations, but it appears to exclude at least some self-denominated "ministers." Although definitional problems may arise, in all probability they will do so infrequently.
Who Can Claim the Priviledge
Rule 505 also provides that the privilege may be claimed by the person, by his guardian or conservator, or by his personal representative if he is deceased. The rule also provides that the clergyman is presumed to have authority to claim the privilege on behalf of the communicant. This is a change of the prior rule, which required the communicant only to invoke the privilege.
Another major change is that the prior statute governing the clergyman-penitent privilege was qualified, and disclosure could be compelled when necessary for the administration of justice. What effect this change will have is unknown, since no case was reported under the prior statutory privilege.
Priviledge as it Applies to the Confidentiallity of Mental Health Information
It is also unknown at present what will result between the interplay of the clergy privilege and the privilege granted in regard to confidentiality of mental health information. Those involved in the diagnosis, evaluation, or treatment of a mental or emotional disorder, or in the treatment or examination of drug abusers, may also be the recipient of privileged information. However, the confidentiality required of psychotherapists has enumerated exceptions, including for example, when the disclosure of a confidential communication is relevant in any suit affecting the parent-child relationship. The question may arise in some instances whether the communication was made to one as a member of the clergy, or if the clergyman has training in psychotherapy, whether this communication was made to him as a psychotherapist. In such a case, the rules may differ in regard to disclosure of such communication. As a consequence, if a member of the clergy is trained in psychotherapy and is involved in counseling, it may be advisable to contact an attorney in the event he is called as a witness in the trial of a civil matter.
Also, if the clergyman is licensed or certified by the State of Texas in the diagnosis, evaluation, or treatment of any mental or emotional condition or disorder, or is reasonably believed to be so by the patient, Article 5561h permits disclosure "to medical or law enforcement personnel where the professional determines that there is a probability of imminent physical injury by the patient/client to himself or to others, or where there is a probability of immediate mental or emotional injury to the patient/client." Once again, if the clergyman is licensed or certified and is acting in that capacity, the above statute may be controlling as to any such communication, and advice of counsel would be suggested.
Rule 505 of the Texas Rules of Criminal Evidence now governs privileged communications for the clergy in criminal matters. Rule 505 of the Rules of Criminal Evidence is essentially the same as the Civil Rule 505 with one area worthy of special attention.
The Texas Rules of Criminal Evidence became effective September 1, 1986, and it appears that the priest-penitent privilege will not be recognized in situations of child abuse or neglect. According to the Texas Family Code, Section 34.04, no privileges apply in a proceeding regarding child abuse or neglect. Since it is a crime to fail to report evidence of child abuse and neglect (see Texas Family Code Section 34.07), it is possible that a clergyman could be forced to reveal confidential communications in those situations involving children being abused or neglected by adults.
The term "malpractice" in the broadest sense, refers to negligent professional conduct and applies to all professions. While it has been associated with the medical and legal professions in recent years, a few cases have arisen alleging "clergy malpractice." Most of the cases have been directed at counseling situations. While no Texas court or jury has found that a member of the clergy has failed to exercise proper or due care in counseling, members of the clergy should be careful to counsel only within their area of expertise. The standard of care for members of the clergy will vary depending upon the circumstances. For example, a person having extensive credentials in marital counseling, who represents to the public he is competent to counsel, should reasonably expect to be held to the standard of care commensurate with any professional with those credentials.
Another potential area for clergy malpractice may lie in the disclosure of a privileged communication by a member of the clergy. Since the privilege granted in regard to communications made to clergy is very broad, the disclosure of a confidential communication by a member of the clergy, without the consent of the person making the disclosure, may subject the clergyman to a malpractice action. No case has arisen regarding such circumstances, but the potential for a claim is present.
A unique area of litigation has focused on the rule of members of the clergy in "deprogramming" certain members of religious sects. Regardless of what constitutes a "religious sect," a member of the clergy could be confronted with a lawsuit alleging deprivation of freedom while "deprogramming" someone. While there is a potential for liability, no Texas court has found members of the clergy liable in those circumstances.
Insurance coverage for "clergy malpractice" is now available in Texas. Generally, the cost is negligible. Care should be taken to investigate the coverage under such policy, since certain types of counseling or other professional conduct may be excluded from coverage.
The Church's Ad Valorem Tax Exemption
Pursuant to the Texas Property Tax Code, all real and personal property within the taxing jurisdiction of the State of Texas, on January 1st of a given year, is subject to taxation for that year, unless otherwise exempt by law. The primary exemption for churches and other religious organizations is found in Section 11.20 of the Texas Property Tax Code.
Qualifications for Exemption as a Religious Organization
Section 11.20 provides for exemption from taxation of certain property owned by qualified religious organizations. To qualify as a religious organization under this section, the organization, whether an individual, corporation, or association, must meet a three-part test. The organization must:
- be organized and operated primarily for the purpose of engaging in religious worship or promoting the spiritual development or well-being of individuals;
- be operated in such a way that no distributable profits or private gain (other than reasonable salaries or other compensation for services rendered) is realized; and
- by charter, bylaw, or other regulation adopted by the organization to govern its affairs,
- pledge its assets for use in performing the organization's religious functions, and
- direct that on discontinuance of the organization, its remaining assets be distributed to the State of Texas or to an organization qualified as a "charitable organization" under Section 501(c)(3) of the Internal Revenue Code.
As used in Section 11.20, "religious worship" means individual or group ceremony or meditation, education, and fellowship, the purpose of which is to manifest or develop reverence, homage, and commitment in behalf of a religious faith. "Religious faith" is not defined.
Types of Exemptions
Once an organization qualifies as a "religious organization," it may receive several tax exemptions. The first is an exemption from taxation of real property, i.e. land and the improvements thereon, that is owned by the religious organization, is used primarily as a place of regular religious worship, and is reasonably necessary for engaging in religious worship. In addition, any tangible personal property that is owned by the religious organization and is reasonably necessary for engaging in worship at the place of worship specified immediately above, is subject to an exemption. Occasional use of such real or personal property for secular purposes other than religious worship, will not result in loss of the property's exempt status if the property's primary use is for religious worship, and all income from the other use is devoted exclusively to the maintenance and development of the property as a place of religious worship.
Also eligible for exemption, is the real property owned by the religious organization and reasonably necessary for use as a residence, if the property is used exclusively as a residence for those individuals whose principal occupation is to serve in the clergy of the organization, and the property produces no revenue for the religious organization. In addition, any tangible personal property owned by the religious organization and reasonably necessary for use of such a residence is also exempt from taxation.
Effective January 1, 1988, real property owned by a religious organization will include any incomplete improvement located on the land on January 1. The improvement must be under active construction on January 1. It must also be designed and intended for use as a place of regular worship. Such an exemption may last for two years. An improvement that is under construction for more than two years can no longer receive an exemption beginning with the third year.
Finally, a qualified religious organization is entitled to an exemption from taxation of endowment funds owned by, and used exclusively for support of, the religious organization. To be eligible for the exemption, such funds must be invested exclusively in bonds, mortgages, or property purchased at a foreclosure sale, for the purpose of satisfying or protecting the bonds or mortgages. Foreclosure sale property, however, is only subject to this exemption for the two-year period immediately following its purchase at the foreclosure sale.
Date of Determination for Eligibility
A religious organization's eligibility for these tax exemptions, as well as the amount of exemption, is determined by its qualifications on January 1 of the year for which the exemption is sought. If the organization does not qualify on January 1, it is ineligible to receive the exemption for the entire year.
Application for Exemption
A religious organization must apply for an exemption by filing an exemption application form with the chief appraiser for each appraisal district in which the property subject to the claimed exemption is located for purposes of taxation. This application form must be filed by May 1. For good cause shown, however, the chief appraiser may extend the May 1 deadline for a single period not to exceed 60 days.
Once the exemption is allowed, the religious organization need not re-apply in subsequent years. The exemption continues to apply to the property until it changes ownership or the organization's qualification for the exemption changes. The chief appraiser may, however, require the organization to file a new application to confirm its current qualification for the exemption. The religious organization must notify the appraisal office in writing before May 1, after its entitlement to the exemption ends.
After an application for exemption is made, the chief appraiser must consider the application and all relevant information to determine if the organization is entitled to the exemption. This determination must be made before the appraisal records are submitted to the Appraisal Review Board for review and determination of protests. The chief appraiser has several options. He may approve the application and allow the exemption, modify the exemption and allow it as modified, disapprove the application and request additional information, or deny the application altogether. If additional information is requested, it must be furnished within 30 days of the request, or the application will be denied. The chief appraiser may, however, extend this period for 15 days for good cause shown.
Denial of Exemption Application
If the application is modified or denied, the chief appraiser must deliver a notice of the modification or denial to the organization within five days after such determination is made. This notice must include a brief explanation of the procedures available to the organization to protest such determination.
In order to be entitled to a hearing and determination of a protest, the organization must file a written notice of protest with the Appraisal Review Board before June 1 or within 30 days after the date the appraisal notice is delivered to the property owner, whichever is later. This notice of protest must identify the protesting property owner and the property that is the subject of the protest, and indicate a dissatisfaction with the denial or modification of the exemption. A protest form put out by the State Property Tax Board is available, on request, from the State Property Tax Board, the Appraisal Review Board, and the appraisal office.
Once a notice of protest is properly filed, the Appraisal Review Board must schedule a hearing on the protest and deliver a notice of the date, time, and place of the hearing to the organization. The organization is entitled to appear at the hearing and may offer evidence and argument if it so desires. The organization may also offer its evidence and arguments by affidavit, if it chooses not to appear at the hearing. The organization must swear to the affidavit before an officer authorized to administer oaths and must submit the affidavit to the Appraisal Review Board before the hearing on the protest begins. The Appraisal Review Board must make its determination of the protest by written order, delivered to the organization by certified mail.
If the Appraisal Review Board confirms the action of the chief appraiser in modifying or denying an application for exemption, the organization is entitled to appeal. To perfect an appeal, the organization must file a written notice of appeal with the Appraisal Review Board within 15 days of receiving the notice of the Board's decision. It is important to note that the pendency of an appeal does not affect the date taxes become delinquent. The organization must pay, before the delinquency date, the amount of tax in dispute or the amount of tax paid on the property in the preceding year, whichever is greater. If such payment is not made, the right to appeal is forfeited and the appeal will be dismissed.
In addition, the organization must file a petition for review with the district court. This petition must be filed within 45 days after receiving notice of the Appraisal Review Board's determination of protest. If this petition is not timely filed, the appeal will not be allowed. The district court review is by trial de novo. The court may not admit in evidence the fact of prior action by the State Property Board or the Appraisal Review Board. A jury may be had on demand. An appeal from the district court's final judgment is had as in other civil cases generally.
Potpourri of Questions and Answers
1. What do I do when I receive a subpoena? Without regard to what information may be privileged at the hearing or deposition, all persons are required to obey the court's order in appearing at the time and place designated in the subpoena. Generally, the failure to obey the subpoena will subject the person, including members of the clergy, to a contempt action, which can result in confinement in jail. Attorneys and judges will usually accommodate scheduling needs of the clergy, if possible, but scheduling conflicts are sometimes inevitable. If you are unable to comply with a subpoena, and cannot secure a compromise agreement on the timing of the hearing for deposition, you should seek the advice of legal counsel to see if a protective order is available that would allow you to appear at a different time.
2. Is a peace bond useful? Justices of the peace are authorized to compel certain persons to place a peace bond in certain circumstances. The complaining party appears before the justice of the peace with information that an offense is about to be committed against that person, or that a third person has threatened to commit an offense. The accused individual is brought before the magistrate for a hearing. The magistrate, if he is satisfied that the accusation is true, may make an order requiring the accused to post a bond on the condition that he will not commit the alleged offense, and that he will keep the peace toward the person threatened. The accused must enter the bond. The bond is good for a period up to one year, as outlined by the judge's order. As a practical matter, the peace bond does not prevent the individual from committing the offense. It merely provides him with the financial incentive not to do so.
3. What is the difference between the peace bond and an injunction? An injunction is an order issued by a judge, requiring the defendant to refrain from doing a particular act, or affirmatively ordering him to do a particular act. The chief difference between the injunction and the peace bond is that the failure of the person to comply with the injunction order can result in a finding of contempt by the court. The finding of contempt carries with it the possibility of confinement in jail. Generally, injunctions are issued only upon a showing that irreparable harm will occur if the party is not restrained as requested. Obtaining a temporary restraining order or temporary injunction is a complicated matter, and competent legal counsel should be sought.
4. What are the general requirements for the burial of a dead person in the State of Texas? Texas statutes and various regulations control the disposition of the bodies of dead persons in the State of Texas. The statutes outline the requirements for cremations, crematories, funeral homes, cemeteries, etc. The State Board of Morticians has a free consumer information pamphlet available by writing the State Board of Morticians, 8100 Cameron Road, Building B, Suite 550, Austin, Texas 78753. The two most frequently asked questions are whether or not a casket must be purchased, and whether or not a body must be embalmed. Present regulations provide that the body does not have to be embalmed. Regulations further state that a person does not necessarily have to be buried in a casket, but local cemeteries often require a casket to bury someone in their cemeteries.
5. How do I advise tenants who have problems with the lease of their apartments or homes? Until recently, tenants in the State of Texas had few rights, unless they were expressly agreed upon in the leases. Legislation within the last 15 years has increased tenants' rights, particularly on the return of security deposits, requests for new locks, and general habitability. The Texas Young Lawyers Association has prepared a handbook entitled "Texas Tenants' Rights" dealing strictly with landlord-tenant relations, and copies may be ordered at the address listed at the end of this handbook.
6. What are parents' general obligations for their child's conduct and support? Generally, parents have a statutory duty to support their minor children. The obligation of support terminates when the child reaches majority, which is 18 years of age under Texas law. Nevertheless, a parent can be contractually obligated to pay for an adult child's obligation.
Parents also have the duty of control and reasonable discipline of their children. Consequently, the parents are liable for property damages proximately caused by the negligent conduct of their child, if it is attributable to the negligent failure of the parents to control the child, or if the conduct of the child was willful and if he was between the ages of 12 and 18. Recovery for the "willful" conduct of a minor between the ages of 12 and 18 years is limited to actual damages not to exceed $5,000, plus costs and attorney's fees. There are other ways a parent can be responsible to third persons for a child's support and conduct. The advice of legal counsel may be necessary, depending upon the circumstance.
Children in need of supervision (CINS). Children in need of supervision are those children under 18 years of age that engage in delinquent conduct, or conduct indicating a need for supervision. Delinquent conduct includes violation of Texas Penal Statutes (other than traffic offenses) or juvenile court orders entered by juvenile judges. Conduct indicating a need for supervision includes repeated misdemeanor violations that are punishable by fine only, consistent unexcused absences from school, leaving home without the consent of parents and without intent to return, or driving while under the influence of alcohol or drugs.
Children in need of supervision appear before a juvenile judge who has broad powers aimed at promoting the child's welfare. For example, if a juvenile court finds that the child needs rehabilitation, it can place the child in a foster home or in a private institution. If the court finds that a child is engaged in delinquent conduct, he can be sent to the Texas Youth Council. A court can order the child or the child's parents to make restitution for damages to other people's property in certain circumstances. A number of statutes in the Family Code insure that the basic rights of the child are protected in these proceedings, including the child's right to the assistance of an attorney.
7. Is it advisable for churches to obtain releases when they take children on trips? It is advisable if the church wishes to avoid or limit its liability from harm that might befall a child on the trip. Although insurance may cover such situations, the insurance may not cover the particular incident. Parents usually don't mind a release if the children are receiving adequate supervision and the church is engaging in reasonable activities. Members of the clergy may contact an attorney for a general release form with blanks left to insert the name of the child, the type of activity, the date of the trip, and any other pertinent information.
8. How are Texas consumers protected by state and federal laws? A number of state and federal statutes are designed to protect consumers of goods and services. The Deceptive Trade Practices Act (DTPA) is a Texas statute that is enacted to prevent "deceptive" actions and misrepresentations about goods and services. In certain circumstances, litigants can recover their attorney's fees and double their amount of damages.
The home solicitation statutes also provide consumer protection. For example, persons who buy items through home solicitation have a limited right to cancel their orders.
Texas has also enacted an unfair debt collection statute. The statute outlines guidelines and limits for persons attempting to collect debts, and is designed to prevent harassment.
A number of federal statutes are also designed to protect consumers. The Truth in Lending Law requires disclosure of certain material facts when a purchaser borrows money to buy items. The Magnuson Moss Warranty Act is a federal statute designed to preclude misrepresentations about a product's warranty. If a warranty is limited in time or coverage, it might state that the warranty is "limited."
In summary, a number of state and federal statutes are designed to protect consumers from fraud and misrepresentations. The Texas Young Lawyers Association has a handbook entitled "Texas Deceptive Trade Practices Act" that is available at a nominal cost through the address at the back of this handbook.
9. Does Texas have a truancy law? The Texas Education Code states that all children who are seven years of age or more, who are less than seven years of age and have been previously enrolled in first grade, or who have not completed the academic year in which his 16th birthday occurred, unless exempted, are required to attend public school. Exemptions exist for children in attendance in private or parochial schools, certain handicapped children, and those under unique medical treatment. Also, children within the Jewish faith can be excused for Rosh Hashanah and Yom Kippur.
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