McTexLaw McPherson and Associates Real Estate Asset Protection Law Firm Attorney

Top 10 New Laws Interesting for All the Wrong Reasons

Without any further adieu, let the insanity begin.

No. 10
At the bottom of the list is proof positive that Texas really is a whole other country. Under current law, a county with a population of less than 60,000 people can build cattle guards into the county’s public roads. But that law expressly prohibits those counties from replacing them. As you might imagine, some of those old cattle guards have now become dangers to the public. And so, to correct the shortsightedness of many years ago, this Legislature had to pass a new law allowing counties to replace or repair cattle guards on a county road. Once you start down the pathway of specific detail, it’s hard to get off it.

No. 9
Slotting in at Number 9 is HB 151. Livestock is very important here in Texas, but then so are our pets. This sets up a classic struggle of priorities when one threatens the other. Which one gets protected from the other? This session, the Legislature decided the priority, and pet owners lost.

And so now we have a new law that allows owners of livestock to protect their livestock from attacks by domestic dogs, and to make domestic dog owners more accountable for their animals’ actions.

Now, I’m not so sure they got this one right. Think about it. A dead pet is just done, no good for anything but burial or cremation. But dead livestock? As they say, “Beef: it’s what’s for dinner.” Of course, veal has only a limited market.

If you own a dog or coyote that you know is accustomed to run, worry, or kill livestock, domestic animals, or fowl, you cannot permit the dog or coyote to run at large. If it does, and it harms livestock, the owner is liable for damages, and if the dog or coyote is shot by someone witnessing it misbehave, the owner can't get any damages for its death. Now that’s a healthy dose of Texas justice.

No. 8
Number 8 on my list is HB 653. This one made the list because it’s a great example of how bizarre some laws get when they micro manage our society. At some point, the sanity is lost. Did you know that a person who washes your hair at a beauty salon/barber shop has to have a license in order to do that? They have to be at least 17, have completed the 7th grade or its equivalent, and have completed 150 clock hours in an approved beauty culture school course prescribed by the Texas Cosmetology Commission in a public school vocational program. Then, they must pass a shampooing examination and pay a $43 fee for a license that’s good for 2 years. For doing this, they get a title: “Shampoo Conditioning Specialist.” Perhaps you’ve seen their credentials on the walls of these places. I think their credentials are required to have their picture on it too, to protect against identity theft. Do you feel safer yet?

Stunningly, this has limited the ability of several to pursue a career in cosmetology. Could you see that coming? Well, the Legislature, being pro business and all, has stepped in this session with a jobs creation bill for the cosmetology industry. I’m surprised they haven’t been touting this in the press. HB 653 creates a new “Shampoo Apprentice Permit.”

This new permit allows the holder to shampoo and condition hair. They must be at least 16 years old and submit a certificate of health. The permit is only good for one year, and is non-renewable. There is no fee for the permit, nor are there any educational prerequisites. I hope your hair survives.

And that’s not all. If a Shampoo Apprentice discovers an allergy to certain shampoos, or if some other unforeseeable event causes them to leave the program after a very brief period, they won’t suffer the same sort of consequences as if they were under current law. I had no idea these folks had to carry failure around like a felon carries his conviction.

No. 7
The normally “lucky 7" is unlucky on this Top 10 list. The terrible Rhode Island nightclub disaster has had ripple effects all over the country, and SB 693 appears to be Texas’ answer to this senseless tragedy, regulating the use fo flame effects and pyrotechnics. It requires the presence of safeguards, licensed operators, and a permit from the proper local authority. This new law also contains the requirements for the operator’s license, and requires applicants for these licenses to be covered by certain kinds of liability and worker’s compensation insurance.

That anyone would need a law like this to codify what should be common sense, for the protection of the many, shows a sad state of facts. And from sad facts comes sad law, “sad” in the sense that it should be so obvious as to not be necessary.

No. 6
On a much lighter note in every way but calories, HCR 16 has now established chips and salsa as the official snack of Texas. When I first read this bill, I wondered who could be behind this. Was it Pace Picante? Could it be Frito-Lay? Does having an official state snack somehow promote local jobs or tourism? Where’s the sanity behind this?

Come to find out, this is just part of a national trend. It seems that in other states (Utah and Illinois), civics teachers decided to generate interest in the legislative process by getting their students to propose and support a bill. Rummaging around for the least offensive, most likely topic to be passed, they hit on the “state snack” idea. As a result, Illinois now has popcorn as its official state snack, while Utah got stuck with Jello. And you thought the salsa chip was a bad idea?

Here in Texas, administration at the Leo Marcell Elementary School, in Mission, Texas, got their students to propose making the salsa chip the official state snack. Anybody who’s been to the state fair will no doubt quarrel with the omission of the corny dog. But in any event, their local state representative, Kino Flores, was happy to oblige. And so salsa and chips has joined the bluebonnet, jalapeno, blue topaz and prickly pear cactus as symbols of Texas.

No. 5
Moving on to Number 5, SB 895 is here as much for its legislative history as for its substance. You can just picture what happened many years ago. Little Johnny and this 10 brothers never learned the purpose of (1) the speedometer, and (2) the brake pedal. And so they got caught speeding, again and again. His parents, frustrated at this sad state of affairs, decide to get qualified to teach a drivers education program. Needing to now close a loophole, years ago the Legislature passed a law that required the teacher to have certain credentials if the teacher was a relative of the student.

Well, this year some parent(s) wanted to be able to teach computer-based drivers education program, as in via E-mail and the Internet. So, SB 895 was introduced and in its first version, simply allowed the use of electronic communication in connection with these sorts of classes. The bill sailed through the Senate committee 9-0, the Senate itself, and the House committee 7-0. But then it hit the House floor, and Rep. Swinford offered an amendment.

Now, the restriction on who can give such a course has been changed from the simple "be a licensed driver" to "possess a valid license for the preceding three years and the license has not been suspended, revoked, or forfeited in the past three years for traffic related violations". Bet the original proponents didn't see that one coming. And such unexpected spontaneity has landed this bill just inside the top 5. Welcome to the unpredictability of the legislative process.

No. 4
Just missing a podium finish, SB 378 illustrates the powers of locals over foreigners. Perhaps it would surprise you to know that the local florist lobby has some real petal power. Apparently, in the depths of their guilt, most men must just grab the yellow pages, pick the biggest ad, make the call and place the order. Because they fail to ask “where are you located?” they are stunned when the flowers come from out of state, and the receipt includes additional delivery fees.

This one is no problem for me. Years ago I identified the florist which was physically located the closest to my wife’s office, and I set up an account there. All that contact info is in my Palm, so I’m just a few minutes away from “I’m sorry” any given time of any given day.

Others aren’t so structured, or maybe they aren’t as “sorry” as often as I am. What to do for these people who forget to ask the “location” question? Pass yet another law to save us from ourselves, which qualifies this one for our Top 10 list.

Or maybe the local florists decided they couldn’t compete with big, national, telemarketing based out-of-state rivals. In any event, SB 378 now prohibits florists from “falsely” advertising in local telephone directories and listings. Under this new law, a business that derives 50% or more of its gross income from the sale or arrangement for sale of flowers or floral arrangements may not misrepresent the geographical location of that business in the listing of the business in a telephone directory or other directory assistance database. If they do, it's a dreaded DTPA violation.

No. 3
Showing at number 3 is HB 1949. This bill is a sad commentary on our society. It grieves your heart to think we even need something like this. Education is a serious thing. It’s supposed to be about learning and equipping kids for life. For student athletes, it’s a prerequisite to professional stardom. Well, at least it used to be.

As far as school goes, we’ve all been there. We’ve studied, read, done the labs and taken the tests. At the end of a grading period, whether that be 6 weeks, a semester, quarter or whatever, the teacher assigns us a grade, usually the one we’ve earned. Problem is, often the grade that’s been earned is something less than what we wanted, or we thought we deserved, or needed for other purposes. In many of those instances, it’s the parents who are disturbed.

Well, parents (and coaches) can bring pressure to bear in an effort to “raise the grade.” And campus administrators and principals have been accomplices in helping award poor, illiterate Johnny grades he hasn’t earned, so he can do whatever in life is his apparent destiny. Destiny, you see, is something that’s just supposed to happen. It’s not earned. There’s this wonderful element of “election”, involuntary in its character. It’s something someone is entitled to no matter what.

Sadly, the apparent success by Johnny’s parents over the years has finally resulted in this new law, HB 1949. Now, by law an examination or course grade issued by a classroom teacher is final and may not be changed, unless the grade is arbitrary, erroneous, or not consistent with the school district grading policy applicable to the grade, as determined by the board of trustees of the school district in which the teacher is employed. A determination by a school district board of trustees is not subject to appeal.

This is just one more example of me being told something I thought I already knew, for its wonderful statement of the obvious it earns the number 3 spot on my list.

No. 2
HB 148 raises the question “Why do people have to be told this sort of thing is wrong?” We’ve all seen those blue “handicapped hang tags” that allow the holder to park right up next to the door. I can remember when the whole handicapped parking concept was implemented, and how much moaning and groaning it caused. I had no idea that many people always got lucky enough to park right next to the door of their favorite store.

But no matter how upset or angry I got, I never was tempted to get my own, or to make a fake, so I could park right by the door again. Apparently, some people were. And so a market has developed for fake handicap hang tags. Can you imagine? “I’ll take 500 shares of Microsoft, and a fake handicapped tag, please.” As a result, our legislature had to spend valuable time considering and passing a new law that makes it illegal to manufacture, sell, possess, or use a counterfeit handicapped hang tag. It’s a dumb crime, and so it required a dumb new law.

No. 1
And the number 1 most interesting new law for all the wrong reasons is HB 831. Continuing the trend of the last 2 new laws, how stupid do people have to be, that we require a law like this? Say you’re giving a seminar presentation and you use one of those laser pointers in your presentation. On the way home, you see some police and you decide, just for kicks, to shine the laser pointer their way. How obvious is it that shining one of those laser pointers at or on a police officer is not a wise thing to do? It’s not even respectful. Do we need a law for brainless, witless, mannerless people? And would it do any good anyway? Of course, it’s not the lecturers that bedevil the police, it’s kids who practice mischief.

Well, here’s the problem. That laser pointer mimics a sighting laser. Sighting lasers are attached to firearms. Firearms are capable of containing live ammunition. Anytime a firearm is pointed at a police officer, such that the sighting laser is on the officer, the officer rightly assumes his life is in danger. And the natural defense is to take out the holder of the sighting laser before the holder takes out the police officer. Bang, the kid’s dead. All because they were stupid enough to play a trick on the police officer. This really goes beyond stupid, down into “Dumb and Dumber” land.

I’m not so sure this law wasn’t really intended more to create a defense for our safety officers, when they shoot some half brained idiot who does this, than it was to deter this sort of behavior. I seriously doubt someone who is dumb enough to try this would have the knowledge and capability to think, “there’s a cop; I sure would like to shine this cool new laser pointer at him but if I do it’s a Class C misdemeanor, and I don’t want to get tagged with that.”

And so we end up with a law that applies to people that are most likely beyond its ability to help. I can’t imagine this law having any positive effect on someone dumb enough to try this in the first place. It will perhaps, however, help an officer who takes someone out of the gene pool for doing this, by recognizing that the officer had no real choice, once he finds out the laser was a harmless pointer and not a lethal sighting.