The McTexLaw Email Newsletter for September, 2004

Drunk cowboys lead off the “water cooler talk” for this issue. And we’re already seeing some legislation take shape for consideration this coming Spring, after the election is [finally!] over. In the meantime, business owners have yet another new source of potential liability to watch out for, and protect against, whilst real estate purchasers will need to increase their due diligence and assess risks a bit differently in light of a new Texas Supreme Court pronouncement.

New on The McTexLaw Business Owner’s Resource Center:

Cameraphones Create Liabilities for Employers

Those little phones that also take pictures are dangerous to employers. They have the ability to create big privacy problems on the job. The wrong picture taken at the wrong time in the wrong place could violate not just state law, but federal law as well. Click the headline to read about the downside of this technology and some of the dangers it creates for business owners, and get some ideas for how to protect your business with a cameraphone policy.

New on The McTexLaw Commercial Real Estate Resource Center:

DTPA Claims are Not Like Property; They Cannot Be Assigned

One Houston Center is a 46-story skyscraper in downtown Houston, circa 1978. The exterior shell is glass, and was originally comprised of more than12,000 “Twindows”, a dual pane glass window unit manufactured by PPG Industries, Inc. When the owners sold the building in 1989, all warranties relating to the building were also transferred to the buyer. Unfortunately, 1991 saw the development of extensive problems with these Twindows, and the new owner filed a DTPA lawsuit against PPG. The jury awarded more than $4.7 in actual damages, which the trial court trebled, and to which it added more than $1.7 million in attorneys fees, to total something over $17 million. But the Texas Supremes reduced that to -0- because DTPA claims cannot be assigned, like property. Click the headline to read this very important case about what buyers and seller cannot transfer in connection with a sale of improved property. PPG Industries, Inc., v. JMB/Houston Centers Partners Limited Partnership, Case No. 01-0346, Texas Supreme Court, July 9, 2004.

EVER SEEN A ONE-HORSEPOWER CAR?

In 2002, Keith Travis and Richard Noel, both in their 40s, were riding horses in Pennsylvania, on a dark country road. Turns out they were riding away from a bar, and they were drunk. Along came a man driving a pickup truck, also cruising away from the bar. Predictably, he was also drunk. Not so predictably, he rear-ended Travis’ horse.

When the police showed up, all three men failed field sobriety tests, and all three were charged with DUI. Question was, were Travis and Noel driving a one-horsepower vehicle?

Well, the case went all the way up to the Pennsylvania Supreme Court, who just ruled this month that Pennsylvania’s drunk-driving laws do not apply to horseback riders. A horse, said the Court, is not a vehicle, as defined by state law.

But one lone justice would have ruled the other way and nailed these cowboys with those DUIs. And to prove his point, he wrote his dissenting opinion in this rhyme, mimicking the theme song of “Mr. Ed”, that beloved 1960s sitcom about–what else?–a horse:

“A horse is a horse, of course, of course,

but the Vehicle Code does not divorce

its application from, perforce,

a steed as my colleagues said.

“‘It’s not vague,’ I’ll say until I’m hoarse,

and whether a car, a truck or horse

this law applies with equal force,

and I’d reverse instead.”

STATE LEGISLATION WATCH: 2005

Don’t look now, but the Texas Legislature goes into session early next year. Here’s one issue you may see addressed. “Colonias” are unregulated subdivisions of modest homes, shacks, and trailers. In the vernacular, we often call them “shanty towns.” They usually lack running water or sewage treatment, and are typically comprised of recent Mexican immigrants or the destitute. Long have they resided along the Mexican border.

But now they can be found as far north as Dallas and Fort Worth. They are popping up all over the state on the periphery of urban areas, and the State estimates that around 1 million people reside in these colonias, state-wide.

Here’s the problem. The Texas Water Development Board has projected it would cost nearly $4 billion to provide running water and wastewater service to the “urban colonias.” And they, plus others, are looking at ways to tame this problem and keep it from getting worse.

As a result, look for legislation in this next session that will give Texas counties the power to regulate land use very similar to the sort of power that cities now have. County land use and zoning codes are a distinct future possibility. The downside here is that county zoning codes will apply to everyone, not just colonias, so for those of you who live in unincorporated areas of Texas counties, you should be ready to deal with city-style zoning and similar land use regulation.

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