Practicing law for 32 years has taught me quite a few lessons. Most importantly, I have learned that real people need real answers that can help them navigate their lives through the maze of laws we live with today. For that very reason, I have decided to dedicate this space to answer questions about the law that matters to you.

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Date	Question
8/4/2007	My brother-in-law recently became a victim of “identity theft,” which has caused, and continues to cause, some serious problems for him and his wife. I’m afraid that I may be especially vulnerable to identity theft as I do a lot of transactions on-line (over the internet). After seeing the nightmare my brother-in-law has gone through, I need to know what I can do to protect myself. view answer
	Identity theft occurs when personal information, including such things as your name, social security number, bank account number, or credit card number, is stolen and used without your knowledge to commit fraud or other crimes. The fact that you transact business on-line does not necessarily make you any more vulnerable to identity theft. Most identity theft actually involves paper transactions or the theft of tangible items, although a sizeable portion is related to on-line transactions. Consequently, we all need to be on guard against identity theft and take appropriate precautions. An important new safeguard against identity theft is Texas’ recently expanded “security freeze” law, formally known as the Regulation of Consumer Credit Reporting Agencies Act, which will take effect on September 1, 2007. A security freeze prevents credit-reporting agencies from releasing a consumer's credit report, or any information contained in the report, without the approval of the consumer. A security freeze helps guard against identity theft in two ways. First, it prevents potential identity thieves from obtaining a treasure trove of your sensitive personal information by preventing unauthorized access to your credit report. Second, it limits the damage which can be done by an identity thief. Because most businesses will not open credit accounts without checking a consumer’s credit history first, even someone who has stolen your name, address, and social security number, will still have trouble obtaining credit in your name. Previously, Texas consumers could only request a security freeze after they had already become a victim of identity theft. Beginning on September 1, 2007, anyone who complies with the procedural requirements and is willing to pay a $10 fee can request a freeze. To request a security freeze, simply send a certified letter containing your full name, address (including any prior addresses for the past 5 years), social security number, date of birth, proof of current address (a current utility bill or phone bill is sufficient), and a copy of your driver’s license or ID card, to any of the three main credit bureaus. You can send your request to any of the following addresses: Equifax Security Freeze, P.O. Box 105788, Atlanta, GA 30348; Experian Security Freeze, P.O. Box 9554, Allen, TX 75013; or Trans Union Security Freeze, P.O. Box 6790, Fullerton, CA 92834-6790. Upon receipt of your request, the credit bureau is required to place a security freeze on your credit report within 5 business days, and the freeze will be effective for all three credit bureaus. Your credit report will still be available to government entities, as well as your existing creditors and their collection agencies. You can lift the freeze temporarily, or for a specific person or entity, by requesting that the freeze be lifted, in writing, and paying an additional fee of $10-12. If you have already been victimized by identity theft, and have filed a police report related to the theft, you can request that any fees related to your security freeze be waived. For more information regarding how to get, and lift, a security freeze, and for additional tips about how to prevent identity theft, visit the Texas Attorney General’s website at http://www.oag.state.tx.us/. Please be aware that because Texas is a community property state, an identity theft perpetrated on one spouse is likely to cause major problems for both spouses. Consequently, if you are married, both you and your spouse should consider requesting a security freeze. Placing a security freeze on your credit report will not completely eliminate the risk of being harmed by identity theft, but it is an important new weapon against identity theft which all consumers should consider. Finally, it is important to note that placing a security freeze on your credit report will not negatively impact your credit rating. hide answer
7/21/2007	Is it true that if I write my own will I do not have to have any witnesses for it to be valid? view answer
	That depends on what you mean by “write” your own will. If you “write” your own will entirely in your own handwriting, then you do not have to have any witnesses attest to your will, nor do you have to have the will notarized. This is what is referred to as a “holographic” will. Please be aware, however, that if any part of your will is typed, then your will is invalid without witnesses. If you “write” your will on your computer or typewriter, then you are required to have at least two witnesses attest to the will under Texas law. If you do choose to write your own holographic will you may be creating unnecessary problems for your beneficiaries since witnesses may be required to attest in court that the will is actually your handwriting. This problem can be avoided by executing a properly drafted will with a self-proving affidavit. If you have any significant assets or debts, or plan on having any in the future, you should consult with an attorney regarding the drafting of your will and other estate-planning considerations. hide answer
7/21/2007	My wife and I have recently agreed that we can no longer sustain our marriage, and are now living apart. We plan to file for divorce sometime in the next few months. I am currently renting an apartment, but a house I’m very interested in has just come on the market at a great price. I am considering buying the house with money from a trust fund which I am the sole beneficiary of, but I am concerned that if I buy the house before the divorce is final, my future ex-wife might have some claim to it. Can you talk me through these issues? view answer
	Because Texas is a community property state, your concerns regarding the purchase of the house prior to the divorce are well-founded. The general rule is that assets acquired during the marriage are community property, which means that both spouses have ownership rights in the asset. An exception to this general rule is that an asset acquired with the separate property of one spouse can maintain its characterization as separate property of that spouse, so that the other spouse has no ownership rights in the asset. The initial question you will need to address is whether the trust money you intend to use for the purchase is separate property or community property. Just because you are the sole beneficiary of the trust does not mean that the money from the trust is your separate property. If the trust was initially funded by a deposit into the trust of separate property, such as a bequest from a relative, for your benefit, then the principal amount in the trust likely began as separate property. If additional community property funds are commingled with the separate property funds in the trust, however, it can result in the entire principal amount of the trust being characterized as community property due to the difficulties involved in “tracing” the original separate property funds. Additionally, income distributed from a trust during the marriage is generally characterized as community property, even if the trust principal is separate property. Consequently, you must also determine whether the funds you will use for the purchase of the house will include any income from the trust, which can result in the “tracing” problem I mentioned above. Even income earned by the trust, but not distributed, can be considered community property depending on how the trust is structured. This is an important point which may affect assets purchased with trust distributions even after your divorce. Because this is such a complicated matter, I recommend that you consult with an attorney before taking any further action. There are some creative ways to structure the house purchase, even during the marriage, without using community property, but much will depend on the specifics of your situation. hide answer
7/7/2007	In addition to my regular salaried position working for a computer store, I have also been working as a computer consultant on the side for the past few years. I have not been meaning to avoid paying taxes for these outside earnings, and have been declaring them as miscellaneous income on my tax returns. Have I been doing the right thing in regards to this extra income? view answer
	Based on your description, it does not sound like you have been reporting your “extra” income correctly. As you have described your “side job,” it sounds like you are operating as an independent contractor. Independent contractors are generally required to pay self-employment taxes, which it does not sound like you have been doing. At your salaried position, your employer is most likely deducting your payroll taxes, which are split between employer and employee, from your paycheck. As an independent contractor in your “side job,” however, you are essentially your own employer and likely need to pay self-employment taxes on your earnings in that capacity. This is a complicated area of the law, and the “right” answer may change depending on the specifics of your situation. You should definitely consult with a tax professional, either an accountant or attorney, regarding this matter. hide answer
7/7/2007	I belong to a social club that occasionally hosts events at members’ houses. Our organization recently sent out an invitation to a party at a member’s house which stated that everyone should “bring their favorite bottle of wine” to the party. Can the host, or the club, be held liable for any harm which might occur as a result of someone who drank too much at the party? view answer
	Generally speaking, under current Texas law, hosts who serve alcohol on their premises to their guests for free are unlikely to be held liable for any harm caused by an intoxicated guest. This general rule does not apply if alcohol is knowingly served at that party to anyone under the age of 21, in which case either the individual host or the sponsoring organization could be held civilly or criminally liable for any harm which occurred as a result. Additionally, if the individual host or representatives of the organization actively encouraged the consumption of alcohol to someone who was clearly impaired, there could be a risk of liability. Beyond the question of civil or criminal liability, however, there is the matter of being a responsible host. The responsible thing to do as a host is to not over-serve your guests, and if you suspect that one of your guests has had too much to drink, insist that they let you arrange for a safe ride home. You can take practical steps to prevent over-consumption, such as making sure that a good selection of foods and non-alcoholic beverages are readily available to your guests. We all need to act responsibly as hosts and guests, to ensure that everyone gets home safely. Also, in the future, I recommend adding the language that guests could also bring their “favorite non-alcoholic beverage” to any such future invitations. Giving guests the option to bring either wine or some non-alcoholic beverage is probably safer from a liability standpoint, and would definitely be more likely to make your non-drinking guests feel welcome. hide answer
6/23/2007	I am contemplating a real estate transaction with my cousin. In order to reduce the capital gains tax liability involved, we have discussed the possibility of my lowering the “official” sale price of the property by $12,000 and then having him give me a one-time tax-free gift of $12,000 to make up the difference. Would such an arrangement be legal, iffy, or downright illegal? view answer
	In the transaction you’ve described, the $12,000 “gift” is not a true gift for tax purposes, but should instead be included in the sales price of the property. Consequently, your capital gains tax on the sale should be calculated using the entire amount you received from your cousin in the transaction, including the $12,000 “gift.” Unfortunately, the I.R.S. does not award any points for creativity or thinking outside the box, so if your “gift” ruse was discovered, you would have to pay the additional tax plus penalties and interest, at a minimum. Further, your plan doesn’t do your cousin any favors even if it were legal, as his tax basis in the property would be $12,000 lower than it should be. You absolutely do not want to end up on Uncle Sam’s bad side. In any transaction involving significant tax implications, you should consider consulting an attorney or accountant about ways to safely and legally minimize your tax liability. hide answer
6/23/2007	I was surprised to see that my property tax appraisal jumped again this year. This increase doesn’t even make sense to me, as the appraised value of my house went down, but the value of the land my house sits on went way up. How difficult is it to fight a property tax appraisal, and is it worth the time and effort? view answer
	It’s that time of year again, when temperatures and property tax appraisals go soaring through the roof! I wrote a two-part column about this issue last year, but I’ll summarize some of that information here today as many of our readers seem to be getting hit pretty hard by their local appraisal districts again. It’s not that difficult to challenge your tax appraisal. In fact, you probably don’t need an attorney’s help unless there are special circumstances or large amounts of money involved. Only you can decide whether it’s worth your time to challenge your appraisal, but if you win you can save a significant amount of money without too much effort. Under Texas law, the appraisal on your home generally must be set at market value. That sounds simple enough, but because true market value cannot be determined without actually selling the home, in most cases the tax appraisal district is forced to try to approximate market value based on other information, such as the price of similar homes sold in your area. If this approximation results in an appraised value for your house which you feel is significantly higher than true market value, you can protest the appraisal. In order to protest the appraised value of your house, you must file your written notice of protest with the appraisal district office within 30 days of the postmarked date on your 2007 Notice of Appraised Value. The notice of protest should include your name, note that you are the owner of the property, identify the property at issue, and state that you believe the appraisal is incorrect. You can first seek to resolve the problem by informal discussions with the appraisal district, but if you are close to the 30 day deadline you should be sure to timely file your notice of protest. Once your notice of protest is filed, you will be given a hearing with the Appraisal Review Board. In preparation for the hearing, you should collect as much information as you can to bolster your claim. Start by gathering data about the appraisals of comparable homes nearby. For homes in the Brazos County Appraisal District this information can be accessed online at www.brazoscad.org. Next, talk to neighbors or real estate agents about the actual sales price of homes of similar size, age, and condition in your area. You should compare the relevant houses on a price per square foot basis. If the results of your research show that your home is priced significantly higher than market value, you should continue with the protest process and provide this information at the hearing. If you are uncertain of your ability to accomplish these tasks yourself, and if the amount at stake is significant, you may wish to consult an attorney. hide answer
6/9/2007	My wife=s father recently passed away, and he left some rental properties to my wife in his will. These properties produce a nice stream of rental income and will likely continue to do so in the future. Is the rental income treated as community property? view answer
	Under Texas law, income from "separate property" is community property. Although the rental properties are your wife's "separate property" because she came into possession of them by inheritance, the income from that separate property becomes the property of the marriage, or "community property." If you and your wife would like for the rental income to become her separate property, and thus subject to her sole possession and control, you both can enter into a written agreement to that effect. With an attorney's help, you should be able to execute such an agreement relatively quickly and easily. hide answer
6/9/2007	My daughter was recently bitten by a neighborhood dog, and we=ve had to incur some sizeable medical bills as a result, not to mention the fact that my daughter has been significantly traumatized. While I hate to make this about money, the medical expenses have destroyed our budget and caused us some major financial problems. The dog=s owner has essentially refused to take any responsibility for his pet=s actions. Can we hold the dog=s owner responsible and get compensation for the expenses we=ve had to incur? view answer
	I am sorry for what happened to your daughter. One of the worst things about such injuries is that they are usually inflicted on those who are most vulnerable, such as children and the elderly. Depending on the circumstances, you should consider filing a suit seeking to hold the dog=s owner civilly liable. If you are successful, you can be awarded compensation for medical expenses and other items, including such items as pain and suffering. The dog=s owner can also be held criminally responsible, depending on the facts, but criminal proceedings will not allow you to recover any compensation. On a related note, the Texas legislature recently passed a new law which will strengthen existing criminal penalties for the owners of animals involved in such attacks. Texas generally follows a form of the Aone bite@ rule concerning civil liability for animal attacks, a rule which dates back to 17th century England. The rule is called the Aone bite@ rule because of the belief that the law allows a dog Aone free bite@ before its owner can be held responsible. The idea that a dog owner can=t be held responsible for a dog=s first biting incident is not entirely accurate, however. Generally speaking, a dog owner can be held civilly liable for a dog bite if: 1) the owner knew that the dog had already bitten someone previously; 2) the dog had otherwise demonstrated a dangerous propensity for biting a person; 3) the bite was caused by a violation of an applicable Aleash law;@ 4) the bite was cause by the negligence of the person handling the dog; or 5) the injury was intentionally caused by the person handling the dog. If a dog has not bitten anyone previously or otherwise shown itself to be dangerous, then the most common grounds for finding liability would be the violation of an applicable Aleash law,@ a municipal or county ordinance which prohibits animals from running loose in public. hide answer
5/26/2007	I plan to give $10,000 to my grand-daughter this August for her college graduation. This is something which I ultimately hope to do for each of my 5 grand-kids. Will I have to report these gifts to the I.R.S.? Will my grand-kids need to pay some type of gift taxes? view answer
	Generally speaking, unless you give more than $12,000 in cash or other property to your grand-kids in 2007, you will not have to report the gifts to the I.R.S. Your grand-kids should not have to report the gifts as income. You should probably tell them that they don=t need to include the gift on their tax returns, as most college kids are new to the idea of paying their own taxes. It may be useful to note that even if you were required to report a gift to the I.R.S. because of the size of the gift, no actual gift tax would be incurred until your cumulative lifetime taxable gifts exceeded the applicable exclusion amount. The amounts which can be gifted without notice to the I.R.S., and the lifetime exclusion amount, change periodically, so it=s a good idea to try to keep abreast of possible changes in the future, and you may want to consult an attorney for further guidance. hide answer

Gaines West is a partner in West, Webb, Allbritton & Gentry, P.C., which represents individuals and businesses across Texas. Please feel free to contact Gaines with your questions via email at gwest@westwebblaw.com or regular mail at 1515 Emerald Plaza Parkway, College Station, Texas 77845.