Young friends celebrating with sparklersWe covered firework laws several times in the past but it’s always a good reminder as we approach the Fourth of July weekend where fireworks are more than likely in your plans. Below are Texas’ top 10 firework laws you should consider before lighting the fuse. Remember though, laws may vary county to county.

And, don’t forget that any County Commissioners Court in Texas can issue a burn ban prohibiting burning of any kind – including fireworks anywhere in that county, whether within the incorporated city limits or not. Because sparklers burn at approximately 2000 degrees Fahrenheit, they count as fireworks / fire as well.

Continue Reading An Oldie but a Goodie: A Friendly Reminder About Firework Laws in Texas

Love LetterOn Valentine’s Day, Zack takes Kelly, his high school sweetheart who goes to a different college, to the Max for a romantic dinner.  At the end of the meal Zack says, “Kelly, I want us to promise each other that after college we’ll both move back to Bayside and get married.  Will you marry me?”  Kelly responds, “Oh Zack, that’s wonderful!  I love you so much and I promise.”  Delighted, Zack puts the engagement ring on Kelly’s finger and says, “That’s great Kelly!  Now there’s one more thing – I spent every dime I made working last summer on this ring.  Will you promise me that if we don’t get married after college you’ll return this ring?”  Kelly writes on her napkin “I promise to return my engagement ring if we don’t get married after college,” signs her name and gives it to Zack.


Two years later, Kelly decides to take make a surprise visit to Zack’s school one weekend.  When she arrives she finds Zack at a party kissing another woman.  “You two-timing slime ball!  We’re through and never getting married,” Kelly tells him.  Zack asks for the ring back and Kelly refuses.  Three months later Zack sues Kelly for the ring.  He still has Kelly’s napkin from Valentine’s Day.  Does he have a good case even though he’s a pig? 

Written Promises Around Engagements Are Enforceable

We covered this topic many years ago under a different fact scenario and the law has not changed since then.  Zack is entitled to the ring. Kelly promised in writing to return the ring if they did not get married after college.  Importantly, Kelly’s written promise was not conditioned on who broke off the engagement or why it was broken off.  Thus, Zack gets the ring although his actions caused Kelly to call off the engagement.

What if Kelly Didn’t Give Zack the Napkin?

Kelly probably gets to keep the ring because it was Zack’s fault that the engagement ended, even though Kelly called it off.  In the absence of an enforceable written agreement, Texas follows the conditional gift rule, which requires Kelly (the donee) to return the ring to Zack (the donor) if Kelly is at fault in terminating the engagement.  But, Texas courts allow the donee to keep the ring if the donee can prove that there was a justified reason for calling off the engagement.  Zack’s cheating should be enough, absent other facts.

Tilting the Scales in Your Favor

While some people might find the conditional gift rule offensive, other people may see it as a reasonable approach.  Regardless, it’s important to remember that if you have significant assets you are bringing into a new marriage, you may want to consult with an attorney about whether you should have a prenuptial agreement in place in case the marriage does not work out.

Sure, fireworks are fun, but it’s important to be cautious and careful. We covered firework laws in the 2008 and 2014, but a few things have changed. Below are Texas’ top 10 firework laws you need to be aware of before lighting the fuse. Remember though, laws may vary county to county.

Top 10 Texas Firework Laws

  1. New for 2016: The periods for selling fireworks were expanded by the Texas Legislature.  Fireworks can now be sold from June 24th through July 4th and December 20th through January 1st.  Each county commissioner’s court can also permit firework sales for Texas Independence Day (February 25th-March 2nd), San Jacinto Day (April 16th-21st) and Memorial Day (the Wednesday before Memorial Day through Memorial Day).  If the retail fireworks store is located within 100 miles of the Texas-Mexico border, the store can also sell from May 1-5 for Cinco de May—as long as the county commissioner’s court approved the sale.
  2. texas firework lawsIt’s illegal to sell or shoot fireworks within 100 feet of a place where flammable liquids, flammable compressed gasses or fireworks are sold or stored. …seems reasonable!
  3. Despite what you may have seen in the movies, it’s illegal to shoot fireworks from or towards a motor vehicle, including boats.
  4. It’s illegal to shoot fireworks from a public roadway, public property, park, lake or U.S. Corps of Engineer Property. …would hate to set a lake on fire…
  5. The minimum age to buy or sell fireworks is generally 16 years old. Though, it should probably be closer to 26 years old.
  6. It’s illegal to shoot fireworks within 600 feet of a church, hospital, day-care center or school. Personally, I wouldn’t feel great about going into surgery with a constant barrage of fireworks outside the building.
  7. It’s illegal to shoot fireworks within city limits and, in many cities, it’s also illegal to possess them. Selling, igniting or possessing fireworks within city limits can carry hefty fines approaching $2,000. Yet, country clubs keep getting away with it.
  8. In unincorporated areas where fireworks are legal, you may only shoot off fireworks if you own property there, or if you receive written permission from a property owner. A county “burn ban” outside incorporated areas often means a prohibition against shooting fireworks. So, no blowing up the neighbor’s mailbox…without their permission!
  9. If you start a fire by shooting fireworks and it’s found to be started intentionally, you may be charged for arson. If the fire is found to be accidental, you may be subject to a fine. In either case, you could be held civilly liable for damages.
  10. Beginning January 2, 2008, bottle rockets (a.k.a. pop rockets) were banned. You know you’re addicted to fireworks if you built up a reserve supply of bottle rockets prior to the ban.

Here’s a list of fireworks shows in DFW this holiday weekend. Have a great (and safe) Independence Day!

iStock_000080152415_MediumWanting to avoid hang-ups at its annual firm holiday party, the law firm of Dewey Cheatham and Howe invited its employees, their spouses and dates, and offered everyone a complimentary Uber ride home. For those living too far away, they were offered an overnight hotel stay.

Assuming that the free ride home was a license to drink without restraint and choosing not to take his wife, Schleeze Bagg did not work the day of the party, had a couple of drinks before and imbibed to his heart’s content all evening. Rather than Uber home, Schleeze and his assistant Ladda Climbar accepted the free overnight stay. Later that night Schleeze decided to drive Ladda home. The ensuing car wreck sent them both to the hospital and the teenage couple in the other car to the morgue. Problems for DC&H?

Maybe and no. Setting aside the possible sexual harassment exposure, under Texas law DC&H owes no legal duty to prevent someone from drinking and driving … even if they are minors… or even guests… and even if the social host knows the guest is intoxicated. The offer of free lodging or a free ride home was just that, a complimentary offer to employees with no strings attached, unless the employer somehow “took responsibility” for the employee, which could have a different ending.

While DC&H may have dodged legal liability to non-employees for Schleeze Bagg’s alcohol related accident, the relaxed environment and alcohol, and allegations of sexual harassment have possible repercussions beyond legal liability – affecting PR and public perceptions of DC& H and employee morale.

Tilting the Scales in Your Favor.

Even if the company has limited or no legal exposure, actions speak louder than words when it comes to taking care of your employees and your company. Ten tips for planning and safely enjoying your company-sponsored event:

  1. Plan early and well to identify and avoid potential issues and to encourage professional behavior.
  2. Make attendance optional, and don’t take roll.
  3. Invite Spouses and dates to discourage spontaneous interludes.
  4. Celebrate after working hours with a professional bartender or servers trained to manage party goers and their intoxication, maybe even at a restaurant or bar
  5. Offer non-alcoholic beverages and plenty of food, especially if it’s sugary rather than salty.
  6. Consider offering free Uber rides home, being careful that doing so does not promote unrestrained drinking. Encourage the professional servers to assist in their use.
  7. Skip the mistletoe. It can lead to unwanted kissing or touching.
  1. Discourage overindulgence of alcohol, i.e., no “beer-drinking” contests.
  1. Discourage “after parties.”
  2. Post-Party touch base with key players to identify any potential issues and follow up.

After noting the number of alcohol related tips, you may want to ask yourself if alcohol is worth having.

Check out Gray Reed’s own Michael Kelsheimer who writes an employment blog and has tips and tricks described at Employment Law 101: Holiday Parties.

Past Related Articles.

Will Over-Serving Your Guests Ruin Your Holiday (Legally Speaking)?

The middle of the holiday season means more than just busy shopping malls.  It is also the time when many people host holiday parties.  After attending Mora Rounds’ holiday party and consuming several adult beverages, Bitu Tipsy agreed to drive her friend Shannon home.  Shannon did not know Bitu had been drinking.  Unfortunately, Bitu crashed her car into a building, sending Shannon to the hospital.  Shannon hires a lawyer, who learns that Mora kept serving Bitu even after she was clearly intoxicated.  Does Shannon have a claim against Mora?

Non-Employers are not responsible for over-served guests

Many times when people host a party at their home, one of their initial concerns is that they don’t want to over-serve any of their guests, not only for their guests’ safety but also because of a perceived potential liability to third parties.  But that perception is not reality in Texas.  A social host owes no duty to prevent someone from drinking and driving.  In fact, a social host is not liable for making alcohol available to individuals under 21, including minors.  This policy applies both to guests and to third parties – the social host owes no obligation, even if it knows the guest is intoxicated.

But employers may be responsible for their employees

While social hosts do not owe a duty, employers may owe a duty to exercise reasonable care over their intoxicated employees if the employer affirmatively exercises control over the employee.  For example, if an employer tells a noticeably intoxicated employee to leave the holiday party, the employer owes third parties the duty to exercise reasonable care to prevent the employee from causing an unreasonable risk of harm to others.  This can be done by placing the employee into a cab.  Conversely, if the employer takes no affirmative action, it has no duty to control the conduct of its employees.  Unlike social hosts, however, Texas courts conflict over whether an employer owes a duty to an intoxicated employee when the employer affirmatively exercises control over the employee.

Tilting the Scales in Your Favor

The best move you can make this holiday season is to hire a third party to serve alcohol at your party, especially a party for your employees.  Not only will it reduce (and possibly eliminate) your liability risk, but it will free you up to socialize with your guests.  Have a safe and happy holiday season!

Sure, fireworks are fun, but be cautious and careful.

Below are Texas’ Top 10 fireworks laws (but remember, laws may vary county to county) reposted from our July 2008 blog.

For a great Independence Day Parade, check out the Rotary Club of Park Cities 4th of July Parade for parade route and time.

Happy Independence Day to America, this July 4, 2014!

THE TOP TEN TEXAS FIREWORKS LAWS, HOW TO AVOID GETTING POPPED

  1. Ever notice how we don’t shoot fireworks off for Easter? Fireworks can only be sold from June 24th through July 4th and December 20th through January 1st.
  2. It is illegal to sell or shoot fireworks within 100 feet of a place where flammable liquids, flammable compressed gasses or fireworks are sold or stored. Makes sense to me!
  3. Despite what you may have seen in the movies, it is illegal to shoot fireworks from or towards a motor vehicle, including boats.
  4. It is illegal to shoot fireworks from a public roadway, public property, park, lake or U.S. Corps of Engineer Property. Would hate to set a lake on fire.
  5. The minimum age to buy or sell fireworks was recently changed from 12 to 16. Should probably be 26. Continue Reading Happy Fourth of July Weekend!

Barack Romney owns a timber and building products business. Earlier this month he mailed his employees a packet suggesting that many of the company’s more than 50,000 U.S. employees and contractors may suffer consequences of higher gasoline prices, runaway inflation, and other ills if we elect a candidate who want to “spend money on subsidies, put regulatory burdens on businesses, delay construction projects, and hinder free trade.”

Barack’s brother Mitt Obama, who works for the Environmental Protection Agency, told his employees that “if the wrong party gains control of Congress then their federal agency could be facing a 15% budget cut and furloughs. If the right party takes control of Congress then we would be looking at a flat budget.” Can the two brothers legally do that?

Companies Can Advise Employees How to Vote.

Yes, Barack, who owns his own company, can communicate his concerns to his company employees. In its ruling on the 2010 Citizens United case, the U.S. Supreme Court held that political spending is a form of protected speech under the First Amendment and, in so ruling, overturned certain limits on political contributions. The ruling nullified Federal Election Commission rules that kept employers or unions from communicating their political opinions to their employees and held that the government may not keep corporations or unions from spending money to support or denounce individual candidates in elections. While corporations and unions may not give money directly to campaigns, they may seek to persuade the voting public through other means. However, Ohio employers take note of their state statute prohibiting employers from printing or posting any notice “that if any particular candidate is elected or defeated work in the establishment will cease in whole or in part.”

Federal Agencies May Not Advise Employees How to Vote.

On the other hand, No, Mitt, who works for the government, may not communicate his concerns to his federal agency employees. The Hatch Act restricts the political activities of governmental employees who work in connection with programs financed in whole or in part by federal loans or grants, including programs receiving financial assistance from the federal government. Generally speaking an agency employee under the Hatch Act may not engage in political activity while on duty, while wearing an official Government uniform or identifying insignia, while using a Government vehicle, while using Government property and so forth.

Tilting the Scales in Your Favor.

If you are not a federal agency affected by the Hatch Act, and you wish to communicate information about the upcoming election to your employees, we urge you to consider:

  • Weigh the Pros and Cons of Your Message – consider the impact of your message and the possible repercussions to your company’s culture
  • Inform But Don’t Pressureclearly state that the company opinion is just that, and that there is no intent to pressure employees to vote one way or the other.
  • Be Careful About the Message – while the company’s ownership has certain First Amendment rights, the First Amendment rights do not eliminate the “usual” company employment liabilities for claims of harassment based upon race, gender, sexual orientation, etc.
  • Company Harassment Policy – if political discourse in your company gets heated, consider invoking your harassment policy to remind employees of the types of behavior that are prohibited and where they can go with their complaints. If you don’t have a clearly defined company harassment policy, talk to your lawyer and consider getting one.
  • Promote Civil Discoursemake it clear in advance that gloating, victory dances or otherwise “spiking the ball in the end zone” are not acceptable. If there has been particularly lively discourse in your workplace, after the election you may want to say, “Thanks to you all for your participation in the political process, and your efforts to be civil with co-workers who may not agree with your views. Please continue your good work now that the election is over.”

Your Vote CountsGeorge W. Bush famously won the 2000 Presidential election by a mere 534 votes in Florida. But did you know that it is possible to have a tie in the U.S. Presidential Election?  With the election a day away and polls showing the candidates in a virtual tie, an interesting question arises — what would happen if President Obama and Governor Romney each received 269 of the 538 available electoral votes?

What is the Electoral College?

The Electoral College is the body of electors chosen by the voters to officially elect the President and Vice-President.  There are 538 electors, which includes 435 representatives, 100 senators and 3 electors from Washington D.C.

Is it even possible to have a Tie in the U.S. Presidential Election?

Yes, it is very possible.  In fact there are several scenarios that could play out in this election to cause a tie.

What Happens if a Tie Occurs in the Presidential Election?

In the event of an Electoral College tie, our next President would be elected by the incoming House of Representatives with, according to the 12th Amendment to the Constitution, each state able to cast just one vote.  In other words, North Dakota would have as much of a say as the Lone Star State.  As the GOP holds a majority in 33 state delegations, it is most likely that an electoral tie would mean that Romney wins the presidency.  Good news for the Republican Party, right?

Not so fast.  If no vice-presidential candidate receives a majority of electoral votes, then the Senate would decide the winner between Joe Biden and Paul Ryan, with each senator getting one vote.  Should the Democrats retain control of the Senate (which they are expected to do), Biden would remain our Vice-President, and our Country would have a President and Vice President from different political parties!

Happy Anniversary!  Four years ago this month, we embarked upon Tilting The Scales. Even more amazing, this month we reach our 100th posting milestone!

Passion. We discovered our passion to deliver thought provoking, humorous and, hopefully, useful articles designed to assist you in your business as well as answer those nagging legal questions which you have always pondered.  After publishing 100 articles, we have learned a few things …

  1. Sex sells – Using the word “sex” in the title always gets more attention
  2. Social networking stories are always a hit
  3. Many times the truth is stranger than fiction
  4. Texas and Federal laws and regulations often lend themselves to humorous subject matter
  5. Again, “sex” really does sell! 

Now What? Mid-month posting of short, current event articles is new. The customary monthly email summary of articles will continue. Subscribe to the blog via email or RSS to see them all! 

Facebook! For those Social Media and Facebook fans, please “LIKE” our Tilting The Scales Facebook page and consider following us on Twitter (@cleveclinton).

THANK YOU! Thank you for four great years! Let’s continue this journey together as we Tilt the Scales in Your Favor.

“Biscuits” and “Gravy” are two regular, ole “toms” who represent the 45 million turkeys “condemned” to be Thanksgiving dinner this week. Specially selected for their beauty, Biscuits and Gravy were coddled, cared for, flattered and fed by the Tomfool Wattle Eco-Foods Farms for their “judgment” day. Unlike their fellow toms, Biscuits, as the representative of the condemned, and Gravy, his first alternate, will be presented to the President of the United States to be “pardoned” from their Thanksgiving dinner judgment. Then he will be swept off to spend the balance of his days at Frying Pan Park. Should the excitement of being pardoned be too great for Biscuits, then Gravy will be his stand in for the Presidential pardon.

Background. Since 1947 the National Turkey Federation and the Poultry and Egg National board give a turkey to the President of the United States at a White House ceremony. Except in 1963 when President Kennedy said about his turkey, “Let’s just keep him,” Presidents were more likely to eat the turkey than grant it a reprieve. It was not until Thanksgiving 1989 that a turkey was officially pardoned by a United States President (George H.W. Bush).

Authority. Article 2, section 2 of the United States Constitution provides “[T]he President …shall have Power to Grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” To fully understand what a pardon does, first consider that when a person is convicted of a felony, in addition to facing incarceration, he loses his civil liberties – the right to vote, to serve on a jury, to own a firearm. In Texas, conviction of a felony may also prevent that person from: holding public office or any office of profit or trust, serving as the executor or administrator of an estate, holding an occupational license, receiving a Texas tuition assistance grant, or operating a currency exchange business. Living without certain rights is referred to as civil disability. A full pardon places the legal and civil status of the convicted back to where it was before the crime was committed – it’s as if the crime never took place, as far as the law is concerned.

Pardon me, too. Notable Presidential pardons include: Andrew Johnson pardoned soldiers who fought for the Confederacy during the Civil War, subject to some conditions; Patty Hearst was pardoned by Jimmy Carter for bank robberies committed while being kidnapped by the Symbionese Liberation Army; Iva Ikoku Toguri better known as “Tokyo Rose”, an American citizen convicted of treason after World War II, served 10 years in prison before a reporter exposed trumped up charges and she was pardoned by Gerald Ford; tax evader Marc Rich best known for leaving his 1040 blank to the tune of $50 million was pardoned by Bill Clinton; and Caspar Weinberger convicted of illegally conducting arms sales with Iran to fund the Contra rebel guerilla army in Nicaragua, was pardoned by George H.W. Bush.

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