Employee-At-Will : Status in Texas and Employment Agreements
Texas is an “Employee-At- Will” state which gives few rights to an employee that are not created by statute or governed by labor regulations. At-will employees can be terminated for any reason, as long as the reason is not in violation of specific statutes or is not due to failure or refusal of the employee to commit an illegal act during employment. A Texas Employment Contract is of critical importance in order to create equal rights and obligations that are enforceable. An employment contract must directly limit the employer’s right to terminate an employee without good cause (a defined term) or provide for a “term” of employment that is firm. In the employment contract the employer should unequivocally indicate that termination of the employee’s job may only occur in specific defined circumstances. The contract may also set out the terms on which a company hires an individual or an individual hires a company.
If properly prepared, this employment contract is a legally binding agreement in Texas and is enforceable in a court of law. Discretionary flexibility in changing the job terms and conditions is limited by a Texas employment agreement and the newly created legal obligations of the employer.
Many common provisions included in employment agreements are:
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Employee’s job description
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Employee’s monetary and benefits compensation
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Protection of Trade Secrets and Confidential Information
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Non-compete covenants of varied length, time and geographic location
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Prior physical exam and/or drug testing program ongoing
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Notification of Company Policies and Procedures
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Terms of Notice of Resignation and Return of Company Property
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Terms of employment and duration of employment
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Severance issues
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For cause termination
An oral employment agreement in Texas with a term less than one year in duration or an agreement which can be fully performed within one year, is generally binding. Contract terms can flow from a number of sources which may include the following:
- Verbal agreements
- Agreements in writing or document form
- Agreements required by law
- Implied – not written but mutually understood to exist
- An offer letter
- An employee handbook
- A company notice board
- Collective agreements
- Emails
- Faxes
Wrongful dismissal is a breach in the way the employee is dismissed, i.e. without being given proper notice or following the procedures as terms or rights set out in the employment contract.
In order to modify a Texas employment contract, there must be a subsequent agreement (preferably in writing) between the parties. Under certain circumstances, the employer may need to make changes to the contract because of economic circumstances. Things that might may be modified include:
- Rate of pay
- Work time
- Duties and responsibilities
- Work Location
- Correcting an error in the contract
- Disciplinary action – check disciplinary procedures to make sure this is done properly
Employees may ask for a change in a contract to:
• Improve their work environment
• Secure a raise in pay
• Secure more vacation or holiday time
• Change work hours
A breach of the contract occurs when either the employer or the employee violates a condition or term in the contract. A breach may be the result of a verbal or an oral (implied) agreement. If you think a breach of contract has occurred, it is best, generally, about absent fraud or duress, to take the problem to the employer first and attempt to work out a solution. If you decide to take legal action, remember you will need to prove financial loss in order to receive compensation. Legal counsel action may prompt the employer to counter sue, if the employer thinks it has legal ground. An employer has the legal right to sue the employee for damages just as the employee has the right to sue the employer.
Winding Up of a Business Partnership in Texas
Many substantial businesses start with a handshake. This can be a good thing or a bad thing. Some million-dollar businesses in Dallas and Collin County begin when two entrepreneurs seek a common goal without proper legal documentation to protect their investments. When profitable, oral partnerships are created, but conflicts arise and it is important to know how to successfully terminate the oral partnership.
When irrevocable discord and conflict occur within the partnership it may be necessary to “Winding Up” and properly dissolve the relationship. Some of the triggering events are as follows:
- Expiration of the period of duration, completion of an undertaking, or occurrence of a specified event that requires winding up the relationship;
- Consent of the partners or the consent of the majority-in-interest partners where the partnership is at will;
- Judicial decree requiring the winding up of the partnership;
- The sale of all or substantially all the partnership assets outside the ordinary course of business; or
- Receipt of a partner’s request to wind up a partnership at will, unless a majority-in-interest partner denies the request or agrees to continue.
A partnership agreement can limit or set specific events which require a “winding up” and eventual termination. When the partnership begins the process of “winding up” all assets will be sold, and any creditors will be paid first, followed by partners who may also be creditors. Then the remaining assets are distributed to the remaining partners according to their capital contributions and other partnership interest.
If the partners can come to a mutual agreement to sell all the assets or simply agree to dissolve the partnership, then no judicial interference or assistance is needed. This is sometimes not the case. If a partnership becomes lucrative and litigation ensues, the dissolution of a partnership may be determined by litigation in a Dallas or Collin County legal proceeding, often a very costly proceeding. It is always important to talk to an experienced attorney prior to entering a business to determine your options and set up a business formation that is suitable for the needs of your business and all individual partners or investors from the onset. The initial legal expense to create a proper written rather than oral business structure may pay dividends in the long run, likely avoiding and time-consuming, costly litigation
If you are currently in a troubled or conflicted business partnership please call the Nacol Law Firm to help you in determining your options, rights and road to resolving the conflicts.
Julian Nacol, Attorney
Nacol Law Firm
Texas Child Visitation Schedules that Work with a Parents Profession
Many professions create impositions on conservators making a standard possession order inapplicable and unworkable. The Court may deviate from a standard possession order if the order is inappropriate or unworkable in reference to the schedules of both the conservators and the child. Unique professions and irregular school schedules for children allow the Court to have flexibility to deviate from a standard possession order that is in the Best Interest of the Child. There are multiple ways in which the Court may depart from a standard possession order to fulfill the needs of all parties involved with the custody of the child.
First, the Family Code § 153.254 states that the Court will be allowed deference to modify the standard possession order if work schedules of either conservators or the school schedule of the child is irregular. The Court must attempt to narrowly tailor the modifications to keep the new possession order as similar to the standard possession order as possible. This instance most commonly occurs when the Managing Conservator and the Possessory Conservator cannot reach an agreement and one of the two Conservators has a unique profession such as a firefighter, police officer, or airline pilot. The working hours of these jobs allow the Court to modify the standard possession order even if both of the parties do not comply with the changes. The modifications must be made only if it is in the Best Interest of the Child.
Secondly, the standard possession order may always be modified if it is by the mutual agreement of both the Managing Conservator and Possessory Conservator. Family Code § 153.007 is the Agreed Parenting Plan Statute and allows for both parties to agree on a standard possession order for the child. This statute was passed to promote amicability in settlement for child custody issues and to give flexibility to the parents if they are willing to agree on custody terms. The Agreed Parenting Plan must be in the Best Interest of the Child for the Court to approve. If the Court grants the Agreed Parenting Plan then the Managing or Possessory Conservator will have a remedy as a matter of law for any violation of the agreement committed by either party.
Finally, both Conservators may enter into a Mediated Settlement Agreement under Family Code § 153.0071. A Mediated Settlement Agreement is the only time in which the Court will NOT look at the Best Interest of the Child when granting the custody agreement.
The Mediated Settlement Agreement § 153.0071 must be:
- In bold, underlined, and capital letters that the agreement is NOT REVOCABLE
- Signed by Both Parties to the agreement
- Signed by the lawyers (if represented) of each party
The Mediated Settlement Agreement is binding and not revocable so if the Conservators wish to go this route they must understand that what is in the agreement will be held as binding. This method can be used to modify or change a standard possession order and the Court will not look at the Best Interest of the Child regarding the agreement, unless there exists a credible threat of domestic violence.
These are the methods in which a unique possession order may be obtained to accommodate irregular schedules or working hours of both the conservators. Any possession order must be correctly drafted and all future contingencies must be accounted for. An experienced lawyer must be contacted to safeguard an individual’s custody rights of their children and to make sure that a fair custody arrangement is obtained.
Texas Condominium HOA’s and Foreclosure
A Texas condominium HOA ( Home Owner Association ) has more power than a Texas residential HOA to foreclosure on a unit. Foreclosure is a constant source of anxiety for many condominium owners that may have exiting outstanding assessment fees. If you are a condominium owner be sure to pay timely your HOA assessment fees.
An HOA may foreclose on your condominium judicially or non-judicially through a deed of trust. Read your Texas HOA By-laws carefully. The By-laws will state what power the HOA has and the notices required before the foreclosure process may be implemented. A few key things to keep in mind regarding Condominium HOA Foreclosures are:
- A Condominium HOA may foreclose if you have outstanding assessment fees;
- A Condominium HOA may not foreclose if the debt you owe is solely based on HOA fines;
- The HOA Bylaws will dictate to whether the association can foreclose on your property judicially or non-judicially;
- After a foreclosure, you will have 90-days to redeem your property from the HOA or a third-party buyer;
- The HOA must send you notice of default for any outstanding assessment fees prior to foreclosure;
If a HOA files for a judicial foreclosure on your condominium, which is utilized as a residence, then you must be given two separate notices per Texas Property Code § 52.001. First a notice of default, which gives you 20-days to cure any outstanding debt. After the notice of default, a notice of sale must be sent 21-days prior to the foreclosure sale. Both notices are mandatory for a judicial foreclosure sale.
If the notices are not properly given or if the HOA wrongfully forecloses on your condominium there is recourse. A wrongful foreclosure cause of action if successful will entitle you to monetary damages but it will be an uphill battle to regain the property if the property is sold and the 90-day redemption period has expired. It is important to know that if a foreclosure has taken place, even if wrongful, it will be difficult to recover the property, especially if a third party purchases the unit, and takes title at the foreclosure sale. It is important to realize that suing an HOA involves inherent risks. Many HOAs are not solvent and obtaining a money judgment against the association may be worthless if the HOA has no property or other assets subject to execution.
The wisest course of action is to contact a lawyer as soon as possible if you have been subjected to a wrongful foreclosure proceeding. It is far easier to stop a foreclosure during the process than it is to regain title to your property after it has been sold.
Julian Nacol, Attorney
Nacol Law Firm P.C.
Texas Senate Bill: Relating to the Powers and Duties of Texas Property Owners’ Associations
The Texas 87th Legislative Session of 2021 was an active one for Texas Planned Communities (POA/HOA) with a substantial amount of filed bills on the administration of Texas Planned Communities.
SB 1588: Effective September 1, 2021 – was the most important bill passed since multiple amendments were added to this bill including items from other failed bills. Attached are the most important changes passed in this bill:
- Architectural Review Committees & Appeals. Directors/Board Members, their spouses or other household members may not serve on architectural review committees. If an architectural modification request is denied, the denial must:
- Be provided in writing, including email
- Description for the basis of denial
- Must outline the owner’s right to appeal to the board
- Owners have 30 days to appeal, and the board has 30 days to hold a hearing. POAs must provide notice of the hearing (date, time and location) at least 10 days before the hearing date. Both sides have the right to continuance for not more than 10 days.
- Both parties permit audio recording, and the board may affirm or reverse the ACC/ARC decision
Exemption: POAs/HOAs still declarant control or with 40 or Fewer lots are exempt.
2. Violation Hearing Procedures.
- All covenant violation appeals are now made to the board only. The option to have a committee hear the appeal has been eliminated.
- Packets must be sent to the owner at least 10 days before the hearing with the evidence the association intends to introduce. Evidence can include documents, photos, communications, etc. Failure to provide this packet allows the owner the right to a 15-day postponement.
- At the hearing, the board will present its case first and the owner will have the chance to give information in response.
3. Collection Process Modifications-Effective Date: September 1, 2021
Collection notice letters (“209” notices) must now also provide an owner with 45 days to cure the delinquency rather than 30 days. Attorney fees incurred must be “reasonable”.
Before reporting delinquencies to credit reporting services, POAs/HOAs:
- Must provide notice to the owner, including a detailed report of delinquent charges owed
- Provide an opportunity for a payment plan
- Send a notice to the owner at least 30 days before reporting
- Cannot report disputed charges
- Cannot charge fees for the reporting
4. Board Meeting Notice Deadlines & Budget Restrictions-Effective Date: September 1, 2021
- Notice of any board must be provided at least 144 hours (6 days) in advance. Special meetings must have 72 hours (3 Days) of notice provided. Notices must be posted or emailed.
- The ability to amend an annual budget by less than ten percent outside of an open meeting has been eliminated. All budget changes must now be voted upon in open sessions during properly noticed meetings.
5. Bids required for 50K+ Service Contracts-Effective Date: September 1, 2021
Any service contracts for more the $50,000. Now require solicitation of bids under an established bidding process determined by the associations.
6. Justice Court Jurisdiction-Effective Date: September 1, 2021
An owner may now sue a POA/HOA for a violation of Chapter 209 in Justice Court. Note that justice courts in Texas have jurisdiction over civil matters in which the amount in controversy is not more than $20,000. Since bringing a civil suit in justice court can be on matters of less than $20k, more owners may choose to litigate with the association for Chapter 209 violations.
7. Religious Displays- Effective Date: September 1, 2021
Religious items may be displayed anywhere on the owner’s property without size restrictions. Previously, an owner could only display religious items on the entry of the dwelling and size restrictions applied.
However, an association may also adopt/enforce a policy that limits the activity if the display:
- Threatens public health or safety
- Violates a law other than a law prohibiting the display of religious speech
- Contains language, graphics, or any display that is patently offensive for reasons other than its religious content
- Is installed on property owned or maintained by the property owners’ association or on common property
- Violates a setback restriction or is attached to a traffic control device or fire hydrant
8. Swimming Pool Enclosures-Effective Date: September 1, 2021
A property owner’s association (POA) may not prevent an owner from installing a swimming pool enclosure on the owner’s property that conforms to applicable state or local safety requirements. A POA may enforce rules that govern the appearance of the enclosure; however, a POA cannot prohibit an enclosure that consists of black metal frames with transparent mesh panels.
A property owner’s association (POA) may not prevent an owner from installing a swimming pool enclosure on the owner’s property that conforms to applicable state or local safety requirements. A POA may enforce rules that govern the appearance of the enclosure; however, a POA cannot prohibit an enclosure that consists of black metal frames with transparent mesh panels.
9. Security Devices and Fences-Effective Dallas: September 1. 2021
Associations may not prevent owners from installing security measures like cameras, motion detectors, or perimeter fences on the owner’s property. However, associations may prohibit installing these measures in places other than the owner’s property and can regulate the type of fencing.
Exemption: Condominiums and mixed-use POAs are exempt.
10. Resale Certificate Fees – Effective Date: September 1, 2021
POAs may not charge more than $375 for a resale certificate and $75 for an updated resale certificate. In addition, certificates must now be provided within five business days (previously 7) after a second request is sent by certified mail. Failure to deliver the certificate within this time frame will subject the POA to liability for up to $5000 in damages in addition to court costs and attorney fees.
11. Governing Documents Must be Posted on the Website! Effective Date: September 1, 2021
POAs with 60+ lots or any POA under contract with a management company must post the current versions of the dedicatory instruments on their website and make them available to all its members.
To view the complete text of Senate Bill 1588 please click on this link.
Nacol Law Firm P.C.
Walnut Glen Tower
8044 Walnut Glen Lane #1190
Dallas, Texas 75231
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Call (972) 690-3333
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NACOL LAW FIRM P.C.
8144 Walnut Hill Lane
Suite 1190
Dallas, Texas 75231
972-690-3333
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
