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.

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.