Text messages are quickly becoming the new frontier of debt collection communication. The Federal Trade Commission recently announced that it had settled a case against two debt-collection firms alleging that they improperly sent text messages to communicate with possible debtors. Levying a $1 million fine against two related California-based firms: National Attorney Collection Services Inc., and National Attorney Services LLC, the FTC alleged both companies sent about 1.8 million text messages over an 18-month period. These messages were sent not just to debtors, but also to purported debtors’ relatives, friends and co-workers, and even to people with no connection to the debtors. If your smart phone is not properly set up, your text messages can be shared with other members of your family plan. Imagine your child receiving a past due or collection notice from one of your creditors. What if a collection agency mistakenly identified you as a debtor because you share the same name as someone else? It is possible that your friends and associates could receive texts identifying you as a person who was not making good on your debts.

The Fair Debt Collection Practices Act regulates debt-collection action to protect consumer privacy. The Fair Debt Collection Practices Act requires collectors to say what the call or message is about, but also penalizes collectors for revealing the debt to third parties such as roommates or family members of the debtor. So if someone other than the debtor sees the text, the collector is liable. In addition to imposing a $1 million civil penalty, the settlement requires collection firms to clearly and prominently disclose that the consumer may receive collection text messages on a mobile phone number provided to the original creditor or the defendants in connection with the debt. Furthermore, the settlement requires proof the consumer has taken an additional affirmative step, such as providing a signature that indicates the consumer has agreed to receive such messages.

The Federal Communications Commission has recently amended the Telephone Consumer Protection Act to require prior express written consent for all autodialed or pre-recorded calls and texts, including those to cell phones. Under the new amendments, consumer consent must be unambiguous, meaning that the consumer must receive a “clear and conspicuous disclosure” that she will receive future calls that deliver autodialed or pre-recorded marketing messages on behalf of a specific company; that her consent is not a condition of purchase; and that she must designate a phone number at which to be reached.

While legislation is been revised to address many concerns over this new debt collection tactic, many issues such as text messaging charges being passed along to the consumer, have not been addressed. The message here is clear; do not give your consent to text messaging. The only way to avoid these potentially embarrassing or annoying messages is to refuse to grant consent. Be careful when you discuss your account with a customer service representative. At the beginning of these conversations they often give legal disclosures or request consent to certain collection procedures while they “verify” your personal information. Listen closely to what the representative asks of you. You have the choice to consent or to withhold consent. If you are in doubt, send a letter to your creditor revoking any and all consents to send account information or otherwise contact you via text messaging.


Recently the Texas Supreme Court addressed the issue of the enforceability of Mediated Settlement Agreements in the case In re Stephanie Lee, Case No. 11-0732.  In this case, the trial court refused to enter a judgment based on a Mediated Settlement Agreement because the trial court did not feel the agreement was in the best interest of the child.

The Texas Supreme Court held Family Code section 153.0071 does not authorize the trial court to “substitute its judgment for the mediated settlement agreement entered by the parties”.  Acknowledging that parents are presumed to act in their children’s best interests, Justice Lehrmann pointed to the public policy that encourages the parties to reach a peaceful agreement of their disputes and the Legislature’s choice to defer to the parties’ best interest determination.  The Court’s ruling requires trial courts to enforce these mediated agreements regardless of the trial judge’s personal opinion as to its contents.

This case was particularly challenging because the child’s father was seeking to back out of the Mediated Settlement Agreement because his ex-wife was now married to a registered sex offender.  The Mediated Settlement Agreement at issue contained specific provisions creating a five mile safety zone to protect the child from contact with the new husband.  This issue caused the Supreme Court to resolve a conflict in public policy.  At odds was the policy encouraging peaceful agreements between parties and the policy to provide a “safe, stable, and non-violent environment for the child”.

People will debate both sides of this case and obviously one would always defer in favor of protecting the child, but the Supreme Court made the wise choice in this regard.  It is easy to the let the emotional drawstring of child endangerment cloud the ultimate issue.  In this instance the parties made specific provisions to make sure the child was not exposed to harm.  The Court wisely balanced the conflicting public interests, giving due weight to the intent of the legislature and a mother’s protective instincts. The simple fact is, it is becoming more and more expensive to litigate.  When most courts are mandating mediation in lawsuits, how can you expect a client to bear the costs of mediation if the trial judge can substitute his or her judgment for the mediated agreement of the parties?  In this case, at least, wiser heads prevailed, and the Court had the courage to ignore the sensationalistic side notes to reach a decision that actually works.

Texas Gun Trusts

A Texas Gun Trust is a revocable trust formed under section 112.001 et. seq. of the Texas Property Code. The primary objective of the trust is to maintain continuity of ownership through several generations, thus avoiding unnecessary transfers upon the deaths of the grantor and some of the beneficiaries.

There are many benefits to a Texas Gun Trust:

NFA-restricted firearms are not permitted to be transported or handled by any other individual unless the registered owner is present.  However, when owned by a properly drafted gun trust, these weapons may be legally possessed by the trustee, and any beneficiary may use the firearm under the authority of, or in the presence of, the trustee. This greatly simplifies and expedites the transfer, and saves your beneficiaries from any unintended violations of the National Firearms Act.  Furthermore, these trusts are not subject to many of the application requirements of the ATF.

Many individuals choose to use a corporate entity to own their firearm collection.  However, many corporate documents are a matter of public record.  Trust documents are generally not recorded, thus protecting your family’s confidentiality.  Finally, a spendthrift clause can be used to shield a beneficiary’s interest in a trust from his or her creditors, including a spouse in a divorce proceeding or a bankruptcy trustee. Corporations do not enjoy the protection offered by a properly drafted spendthrift clause.

If your family heirlooms include firearms, particularly Title 2 weapons, you should discuss a Texas Gun Trust with a legal professional.


A new revision to the Texas Civil Practice and Remedies Code provides protection to employers who hire employees with a criminal record.  The new legislation protects an employer from liability where the sole basis for the suit is a claim that the employer was negligent in hiring or failing to supervise an employee because the employee has a criminal record.  The legislation defines employer to include contractors and subcontractors.

Under the statute, employers can still be liable if they knew or should have known the employee had been convicted of a violent offense, a sexual offense or an offense performed while performing similar duties to those for which the employee is being hired to perform.  Furthermore, the statute does not protect the employer for liability for a breach of fiduciary duty by the employee if the employee had a previous conviction of a crime involving fraud or dishonesty.  The limitations and exceptions under the new statute make sense, but the statute still affords valuable protection for an employer while encouraging the employment of individuals deserving of a second chance.