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What is an Allen Charge?

In most jurisdictions, jury verdicts in a criminal trial must be unanimous, but what happens if deliberations stall or break down? If the jury sends a note saying they are deadlocked, the judge can give them a strongly worded instruction urging them to keep going and to try harder to reach a verdict.

This instruction is known as an Allen charge, also called a Dynamite Charge. In this article, we explain the Allen charge and why this supplemental jury instruction is used to encourage a verdict, as well as the potential consequences and controversies surrounding its application.

Allen Charge

The Role of the Allen Charge, or Dynamite Charge, in Jury Deliberations

A jury in a criminal trial in most jurisdictions, including New York and Texas, must be unanimous as to its verdict. This means all 12 jurors must agree on each count as to the defendant being guilty or not guilty? So what happens when a jury cannot agree?

Well, the easy answer is the trial ends with a mistrial based on a hung jury. There is, however, a step that routinely takes place in most jurisdictions before a mistrial is granted based on a jury not being able to make a unanimous decision, and that is the Allen Charge.

Origins of the Allen Charge or Dynamite Charge

The term “Allen Charge” originates from the 1896 U.S. Supreme Court case Allen v. United States. In this case, the Supreme Court upheld the practice of judges giving supplemental instructions to encourage juries to reach a unanimous verdict.

Purpose and Function of the Allen Charge

The main goal of an Allen Charge is to urge jurors to re-examine their positions and work towards a consensus. It reminds jurors of their duty to deliberate with an open mind, considering the views of other jurors, and to strive to reach a unanimous decision, if possible, without compromising their honest convictions.

It’s basically asking the jurors in the minority opinion to evaluate their positions carefully. The jurors are reminded that whatever they do they should not violate their own conscience.

#AllenCharge #DynamiteCharge #TrumpHushMoneyTrial #VersusTexas

Key Elements of an Allen Charge

Typically, an Allen charge includes the following elements:

  • Reminder of Duty: Jurors are reminded of their duty to try to reach a unanimous decision.
  • Encouragement to Deliberate: Jurors are encouraged to re-examine their own views and consider the opinions of their fellow jurors.
  • Respect for Convictions: Jurors are instructed not to surrender their honest beliefs solely to achieve a consensus.
  • Reassurance that no juror should abandon their honest convictions solely to reach a verdict. An emphasis is placed on the duty to reach a unanimous decision if possible, without compromising individual judgment and conscience.

Example of an Allen Charge

 

Members of the Jury:

I am going to ask that you continue your deliberations in an effort to agree upon a verdict and dispose of this case; and I have a few additional comments I would like for you to consider as you do so.

This is an important case. The trial has been expensive in time, effort, money, and emotional strain to both the defense and the prosecution. If you should fail to agree upon a verdict, the case will be left open and may have to be tried again. Obviously, another trial would only serve to increase the cost to both sides, and there is no reason to believe that the case can be tried again by either side any better or more exhaustively than it has been tried before you.

Any future jury must be selected in the same manner and from the same source as you were chosen, and there is no reason to believe that the case could ever be submitted to twelve men and women more conscientious, more impartial, or more competent to decide it, or that more or
clearer evidence could be produced.

If a substantial majority of your number are in favor of a conviction, those of you who disagree should reconsider whether your doubt is a reasonable one since it appears to make no effective impression upon the minds of the others. On the other hand, if a majority or even a lesser number of you are in favor of an acquittal, the rest of you should ask yourselves again, and most thoughtfully, whether you should accept the weight and sufficiency of evidence which fails to convince your fellow jurors beyond a reasonable doubt.

Remember at all times that no juror is expected to give up an honest belief he or she may have as to the weight or effect of the evidence; but, after full deliberation and consideration of the evidence in the case, it is your duty to agree upon a verdict if you can do so.

You must also remember that if the evidence in the case fails to establish guilt beyond a reasonable doubt the Defendant should have your unanimous verdict of Not Guilty.

You may be as leisurely in your deliberations as the occasion may require and should take all the time which you may feel is necessary…. I will ask now that you retire once again and continue your deliberations with these additional comments in mind to be applied, of course, in conjunction with all of the other instructions I have previously given to you.

Controversy and Effectiveness of the Allen Charge

The Allen charge is controversial because some see it as coercive, potentially pressuring minority jurors to conform to the majority opinion. Critics argue that it can lead to verdicts that are not truly unanimous, as jurors may change their votes due to peer pressure rather than genuine conviction. This has led to its rejection, in whole or in part, by at least 23 states.

Despite the controversy, the Allen charge is still used in federal courts and in some state courts. Its effectiveness in breaking deadlocks and securing verdicts is well-documented, but it also raises concerns about the fairness and integrity of the jury deliberation process.

Further Reading: Cristisim of the Allen Charge, Written in 1972

What if a Jury Still Can’t Reach a Verdict After an Allen Charge?

Despite their efforts, juries sometimes fail to reach a unanimous decision after lengthy deliberations, resulting in what is known as a “hung jury.” When it becomes clear that a verdict cannot be reached, the judge will declare a mistrial.

In such a case, the defendant is neither convicted nor acquitted. The prosecutor can choose to retry the case before a different jury without violating the double jeopardy clause.

In some situations, the state may decide not to retry the case and dismiss the charges. Prosecutors might also attempt to resolve the case through a plea bargain agreement.

Key Takeaways

The Allen charge is a powerful tool in the judicial system, designed to facilitate unanimous jury verdicts and prevent the need for retrials. However, its use must be carefully balanced to avoid undue pressure on jurors and ensure that verdicts are based on genuine consensus rather than coercion.

Varghese Summersett

It’s popular for young men to rush a fraternity when they arrive at college. Although hazing isn’t present in every fraternity, a culture of needing to “earn your spot” is common. This often causes older members to take advantage of or exploit younger members, creating an environment where dangerous and demeaning activities are normalized. As a result, what begins as a quest for camaraderie can quickly spiral into criminal behavior with serious legal repercussions.

Though it’s widely recognized that fraternity hazing in Texas is a sort of “right of passage,” many college students don’t understand the full scope of consequences that can occur as a result of this behavior. Hazing is a criminal violation under Texas law that can follow you far beyond college and damage the reputation of the fraternity and university.

In this article, the criminal defense attorneys at Varghese Summersett explain the law and the legal and collateral consequences of fraternity hazing in Texas. Here’s what you need to know to protect yourself and the fraternity from facing legal action for participating in hazing in the Lone Star State. 

What Constitutes Hazing in Texas?

What Constitutes Hazing in Texas? 

Under Texas state law, specifically Section 37.151 of the Texas Education Code, hazing is defined as: “any intentional, knowing, or reckless act, occurring on or off the campus of an educational institution, by one person alone or acting with others, directed against a student, for the purpose of pledging, being initiated into, affiliating with, holding office in, or maintaining membership in an organization if the act:

(A)  is any type of physical brutality, such as whipping, beating, striking, branding, electronic shocking, placing of a harmful substance on the body, or similar activity;

(B)  involves sleep deprivation, exposure to the elements, confinement in a small space, calisthenics, or other similar activity that subjects the student to an unreasonable risk of harm or that adversely affects the mental or physical health or safety of the student;

(C)  involves consumption of a food, liquid, alcoholic beverage, liquor, drug, or other substance that subjects the student to an unreasonable risk of harm or that adversely affects the mental or physical health or safety of the student;

(D)  is any activity that induces, causes, or requires the student to perform a duty or task that involves a violation of the Penal Code; or

(E)  involves coercing, the student to consume a drug or an alcoholic beverage or liquor in an amount that would lead a reasonable person to believe that the student is intoxicated, as defined by Texas law.

Fraternity Hazing in Texas

What Are Some Common Examples Of Hazing?

Hazing can take many forms, ranging from subtle coercion to extreme physical and psychological abuse. It often masquerades as tradition or team-building but can have devastating consequences for those involved. The following are some common examples of hazing:

  • Forced or coerced consumption of food, drink, alcohol, or drugs
  • Branding
  • Sleep deprivation
  • Verbal abuse
  • Threats
  • Physical abuse (such as beating or paddling)
  • Humiliation (forcing someone to wear embarrassing clothing or perform embarrassing acts)
  • Isolation from other members or activities
  • Assigning meaningless, difficult, or humiliating tasks
  • Unreasonable interference with academic work or extracurricular activities

These acts are often carried out under the guise of tradition or team-building but can lead to severe physical and emotional harm. Fraternity hazing in Texas is illegal and punishable under the law.

When is someone guilty of hazing in Texas?

When is an Individual Guilty Of Hazing? 

Under Section 37.152 of the Texas Education Code, a person commits an offense if the person: 

  1. Engages in hazing; 
  2. Solicits, encourages, directs, aids, or attempts to aid another in engaging in hazing; 
  3. Recklessly permits hazing to occur; or
  4. Has firsthand knowledge of the planning of a specific hazing incident involving a student in an educational institution, or has firsthand knowledge that a specific hazing incident has occurred, and knowingly fails to report that knowledge in writing to the dean of students or another appropriate official of the institution.

Punishment for Fraternity Hazing in Texas 

  • Failing to report hazing and hazing that does not result in serious bodily injury are both Class B misdemeanors, punishable by up to 180 days in jail and a maximum $2000 fine.
  • Hazing that results in serious bodily injury is a Class A misdemeanor,  =punishable by up to a year in jail, a fine of up to $4000, or both.
  • Hazing that causes a death is a state jail felony, punishable by six months to 2 years in a state jail facility.

Additionally, Texas state law doesn’t limit an educational institution’s right to enforce its own penalties against hazing. In other words, the college can also impose additional penalties, such as suspension or expulsion.

What Makes an Organizatin Guilty of Hazing in Texas?

What Makes an Organization Guilty of Hazing in Texas?

In Texas, organizations and institutions – such as the college or the fraternity – can also be held responsible and punished for hazing. Under Section 37.153 of the Texas Eduction Code, an organization commits an offense if the organization “condones or encourages hazing or if an officer or any combination of members, pledges, or alumni of the organization commits or assists in the commission of hazing.” An organization found guilty of hazing can be fined between $5000-$10,000.

Collateral Consequences of Hazing

Collateral Consequences of Hazing in Texas 

Collateral consequences of a criminal conviction in Texas refer to the additional penalties that attach to criminal convictions. These consequences can impact various aspects of a person’s life beyond the direct penalties like fines and imprisonment. Collateral consequences of fraternity hazing in Texas can be significant and far-reaching. Here’s an overview of some potential consequences:

  1. Criminal Charges: As mentioned previously, Texas has strict laws against hazing. If a student is found guilty of fraternity hazing in Texas, they can face misdemeanor or felony charges, depending on the severity of the injury to the victim. Consequences can include fines, jail time, and a criminal record.
  2. Academic Consequences: Most universities in Texas have policies that strictly prohibit hazing. If a student is found to have violated these policies, they may face academic penalties such as suspension or expulsion. Additionally, this will remain on the student’s academic record, which will make it difficult to transfer or become employed.
  3. Loss of Scholarships and Financial Aid: Students involved in hazing may lose scholarships or financial aid, especially if the scholarships are contingent on maintaining a clean disciplinary record.
  4. Damage to Reputation: Being involved in a hazing incident can greatly damage a student’s reputation, both among peers and beyond. This can impact future employment, as employers will be hesitant to hire someone with a criminal past.
  5. Personal Liability: Students who engage in hazing activities may also face civil lawsuits from victims seeking compensation for injuries or emotional damage. This can lead to a hefty financial burden and long-term legal consequences.
  6. Impact on Future Opportunities: Hazing can affect future opportunities, including internships, job offers, and admission to graduate programs. Many employers and universities conduct background checks that will reveal a student’s record.
  7. Social Consequences: The social consequences of being involved in hazing can include exclusion from peer groups, social networks, and extracurricular activities, specifically those facilitated by the university. 

It’s important for students to understand the severity of fraternity hazing in Texas and its potential to impact all aspects of their future negatively.

Fraternity Hazing in Texas

Real Examples of Fraternity Hazing in Texas

Here are some examples of people arrested or sued for fraternity hazing in Texas:

  • In December 2022, the University of Texas at Austin disciplined the student organization “Absolute Texxas” for hazing violations, including alcohol and drug misconduct, blindfolding, kidnapping, and degrading new members through demeaning actions. While no arrests were mentioned, the organization faced sanctions.
  • In October 2021, two pledges from the Sigma Alpha Epsilon fraternity at Texas A&M University sued the fraternity for $1 million after alleging they were hazed. They claimed they were forced to do “kinesthetic activities” and had industrial-strength cleaner and other substances like raw eggs and spit poured on them, resulting in serious burns requiring skin graft surgeries.
  • In September 2018, a 19-year-old member of the Kappa Sigma fraternity at Texas Christian University was arrested for allegedly hazing pledges. He forced a pledge to chug a beer and then emptied a bottle of sprinkles into the pledge’s mouth.
  • In September 2013, 13 members of the Texas State Bobcat Marching Band were arrested and suspended for hazing incidents. While not a fraternity, this shows hazing arrests occurring on Texas college campuses.

The best criminal defense lawyers don't let a single moment define your life.
What To Do If You’re Accused Or Arrested For
Fraternity Hazing in Texas

If you have been accused of fraternity hazing in Texas, there are two things you need to do without hesitation: Refuse to talk to police or school officials without an attorney and call an experienced defense attorney as soon as possible.

  • Don’t Talk to Police or School Officials or Provide a Statement Without an Attorney

Any statements made to authorities can and will be used against you in a court of law. So keep quiet and invoke your right to an attorney. Do not make any statements or answer any questions without your attorney present. 

  • Call an Experienced Criminal Defense Attorney as Soon as Possible

If you or a loved one has been accused of fraternity hazing in Texas, it’s imperative to contact an experienced defense attorney as soon as possible. A seasoned attorney can provide guidance, protect your rights, and help build a strong defense against the charges.

They will work diligently to investigate the details of your case, challenge any evidence presented against you, and negotiate with prosecutors on your behalf. Early intervention by a skilled lawyer can make a significant difference in the outcome of your case, potentially reducing penalties or even achieving a dismissal of charges. Don’t wait—get the legal support you need to navigate this challenging time and safeguard your future.

Accused of Hazing in North Texas? Contact Us. 

If you or a loved one has been arrested for or accused of an incident related to hazing, your next call needs to be to an experienced defense attorney. We can help. Our team is made up of experienced, award-winning criminal attorneys who have a proven record of success. When your future is on the line, you want the best in your corner. Call (817) 203-2220 today.

Fort Worth Criminal Defense Lawyers

Varghese Summersett

Dozens of people gathered last week for a ribbon-cutting ceremony at Varghese Summersett’s Southlake office to celebrate the firm’s expansion to a third location.

The law firm opened its newest office at 3120 Sabre Drive on the border of Southlake and Westlake. The expansion allows the firm to provide high-caliber legal services to discerning clients in this idyllic community.

Southlake Grand Opening

“Southlake is special,” Managing Partner Benson Varghese told the crowd before the ribbon-cutting. “Some of our team members grew up in Southlake and live in Southlake. They have shared with us how unique this community is.

“Smart businesses understand that it doesn’t make sense for someone who, for example, needs a divorce to travel all the way to Fort Worth to talk to an attorney, to meet someone to discuss some of the most intimate matters in their lives and bring them their biggest problems. We’re really excited to have a physical presence here finally and to open this office.”

Benson Speaking During Ribbon Cutting

The firm’s Southlake grand opening was sponsored, in part, by the Southlake Chamber of Commerce and covered by Southlake Style magazine. Guests enjoyed a blood mary and mimosa bar from Top Shelf Tending and unique hors-d’oeuvres from Scratch Catering & Fine Foods while touring the beautifully decorated space accented by Trophy Blooms.

More than 20 local businesses attended the event, including Back to Life Chiropractic, Westin Southlake, Select Lending Services, Hulett Insurance, Curis Functional Health and Ethnos Notary. Attorney Nathan Moayyad, of Moayyard Law, won a raffle that included a gift card and luxury items from Skin RX Clinical Spa.

“It was lovely to see how Southlake community businesses support each other,” said Anna Summersett, partner at Varghese Summersett. ” We were honored to have so many people join us for our Southlake grand opening. We feel at home here.”

Bloody Mary and Mimosa Bar

About Varghese Summersett

Varghese Summersett is a premiere family law, personal injury, and criminal defense practice dedicated to helping people through life’s greatest challenges. The firm’s roster is full of experienced, award-winning attorneys committed to providing exceptional legal services. Varghese Summersett has more than a thousand 5-star Google reviews and has been named a fastest-growing company by Inc. 5000. It has also been named a “DFW Favorite,” a “Best Place to Work,” and a “Best Place for Working Parents,” among numerous other accolades.

The firm has three office locations – downtown Fort Worth, downtown Dallas, and now, Southlake. The downtown locations are close to Tarrant and Dallas county courthouses, which is convenient for our attorneys and clients when they need to appear in court. The decision to open an office in Southlake tucked away in the gorgeous Kirkwood Oaks Business Center was also strategic.

“We saw a need for high-caliber legal services in a discrete setting and wanted to be accessible to the residents of Southlake, Westlake, Trophy Club and the surrounding areas,”  Varghese said. “By establishing an office in Southlake with a high-caliber team of experienced attorneys and paralegals, we can serve clients who prefer to handle their private legal matters close to home. We are committed to providing exceptional legal representation while minimizing the impact on our clients’ personal and professional lives.”

Southlake Ribbon cutting

Varghese Summersett

Is It Illegal to Wear Headphones While Driving in Texas?

No state law in Texas makes it illegal to wear headphones while driving in Texas. There are times when you should not use a “hands-free wireless communication device,” and there could be instances where headphones might be considered hands-free wireless communication devices. While Texas law favors using such devices (as opposed to texting and driving, for instance), you should be aware of the circumstances under which you should not be using any wireless communication devices.

Legal Status of Wearing Headphones While Driving in Texas

Although Texas does not have a statute explicitly banning headphone use for drivers, it’s essential to consider the broader legal context. Texas law requires drivers to exercise due care to avoid accidents and ensure the safety of all road users. Wearing headphones might impair your ability to hear important sounds, such as emergency sirens, honking horns, or other auditory signals crucial for safe driving. You can also run into uses using a wireless communication device under most circumstances.

Implications of Wearing Headphones While Driving

Negligence in Accidents: Law enforcement might consider it a contributing factor if you are involved in an accident while wearing headphones. In such cases, you could be deemed negligent, impacting insurance claims and liability.

Hearing Emergency Vehicles: Wearing headphones can prevent you from hearing sirens from emergency vehicles, potentially leading to dangerous situations or even traffic violations if you fail to yield appropriately.

Using a Wireless Communication Device in Texas

Texas Transportation Code § 545.425 primarily addresses wireless communication devices while operating a motor vehicle. The statute prohibits using a wireless communication device to read, write, or send an electronic message while operating a motor vehicle unless the vehicle is stopped. Under Texas law, a “wireless communication device” generally refers to devices capable of receiving or transmitting text, image, or voice communications.

Headphones, particularly those used solely for listening to audio, do not inherently qualify as wireless communication devices. However, if headphones are used with a device that sends or receives communications (like a smartphone or a Bluetooth headset), their use could fall under the scope of distracted driving if they result in unsafe driving behavior. Today, many headphones connect to phones, allowing them to receive and send text messages, in addition to connecting to calls. Moreover, as smartphones advance, the capabilities of what can be done using headphones increase from using aids like Siri to being able to use AI like voice-activated ChatGPT 4o.

 Key provisions under Texas Transportation Code § 545.425

  • Drivers under 18 years of age are prohibited from using wireless communication devices while driving, even with a hands-free device, except in emergencies. A “hands-free device” refers to any equipment or feature that allows you to use your phone or other communication device without needing to hold it with your hands, except to turn it on or off.
  • Wireless communication devices are prohibited in school crossing zones unless the vehicle is stopped or a hands-free device is used.
    School bus operators are prohibited from using wireless communication devices while driving if the bus is carrying passengers, except in emergencies.

Is it Illegal to Drive with Headphones in Other States?

While there isn’t a federal law specifically prohibiting the use of headphones or earbuds while driving, the legality of this practice can vary significantly from state to state. Some states outright ban the use of headphones while driving, with a few exceptions for certain types of earbuds or for single-ear headsets. Other states have more lenient regulations or no specific laws on the matter. Therefore, drivers need to familiarize themselves with their local and state laws regarding the use of headphones while operating a vehicle.

States Where Wearing Headphones is Illegal

illegal to wear headphones while driving in texasThe states that do not allow you to drive with headphones while driving are: California, Louisiana, Maryland, Minnesota, Virginia, and Washington. However, some exceptions exist within these states for certain drivers (e.g., emergency services personnel). Further, the laws regarding headphone usage are rapidly evolving, so it is important to check the specifics of each state’s law.

States Where Wearing Headphones is Illegal, With Exceptions

Several states have laws prohibiting headphones while driving, but there are specific exceptions to these rules. Here are some of those exceptions:

Using one earbud for any purpose: The use of a single earpiece is permitted in Colorado, Florida, Illinois, New York, Ohio, and Washington, D.C.

Using one earbud for phone calls: Use of a single earpiece to make or take a phone call is permitted in Georgia, Pennsylvania, and Rhode Island.

Using one earbud to improve hearing or for GPS: In Alaska, using a single earpiece to improve hearing or GPS is permitted.

Using one earbud for GPS only: A single earpiece for GPS only is permitted in Massachusetts.

It is essential to remember that these rules can be subject to change. You should always consult your state’s specific laws or regulations related to driving with headphones or earbuds. See the table below with links to each state’s laws before you drive with headphones.

States Where Wearing Headphones is Legal

In some states, there are currently no specific laws against wearing headphones or earbuds while driving. This does not necessarily mean it’s safe or recommended to drive with headphones; rather, it simply hasn’t been explicitly outlawed.

The states where it is legal to wear headphones while driving are Alabama, Arizona, Arkansas, Connecticut, Delaware, Hawaii, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, North Dakota, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, West Virginia, Wisconsin, and Wyoming.

Even if it’s not illegal, wearing headphones while driving can be a distraction. Furthermore, laws are subject to change, and while these states might not have specific restrictions now, they may in the future. Always stay updated with your local and state laws before taking a drive with headphones.

State Driving with Headphones Statute
Alabama Allowed No specific statute
Alaska Allowed No specific statute
Arizona Allowed No specific statute
Arkansas Allowed No specific statute
California Not Allowed CA Vehicle Code § 27400
Colorado Allowed No specific statute
Connecticut Allowed No specific statute
Delaware Allowed No specific statute
Florida Allowed No specific statute
Georgia Allowed No specific statute
Hawaii Not Allowed HI Statute § 291-21.5
Idaho Allowed No specific statute
Illinois Allowed No specific statute
Indiana Allowed No specific statute
Iowa Allowed No specific statute
Kansas Allowed No specific statute
Kentucky Allowed No specific statute
Louisiana Allowed No specific statute
Maine Allowed No specific statute
Maryland Allowed No specific statute
Massachusetts Not Allowed MA General Law Part I, Title XIV, Chapter 90, Section 13
Michigan Allowed No specific statute
Minnesota Allowed No specific statute
Mississippi Allowed No specific statute
Missouri Allowed No specific statute
Montana Allowed No specific statute
Nebraska Allowed No specific statute
Nevada Allowed No specific statute
New Hampshire Allowed No specific statute
New Jersey Allowed NJ Statute § 39:3-74
New Mexico Allowed No specific statute
New York Not Allowed NY Vehicle and Traffic Law § 375(24-a)
North Carolina Allowed No specific statute
North Dakota Allowed No specific statute
Ohio Allowed No specific statute
Oklahoma Allowed No specific statute
Oregon Not Allowed OR Statute § 815.232
Pennsylvania Allowed No specific statute
Rhode Island Not Allowed RI General Laws § 31-23-55
South Carolina Allowed No specific statute
South Dakota Allowed No specific statute
Tennessee Allowed No specific statute
Texas Allowed No specific statute
Utah Allowed No specific statute
Vermont Allowed No specific statute
Virginia Not Allowed VA Code § 46.2-1078
Washington Allowed No specific statute
West Virginia Allowed No specific statute
Wisconsin Allowed No specific statute
Wyoming Allowed No specific statute

Dangers of Driving With Headphones

Driving with headphones or earbuds can be a hazardous practice, primarily due to the potential distractions and the diminished ability to perceive important auditory signals from the environment. Here are some key reasons why it’s dangerous to drive with headphones:

1. Impaired Awareness: Headphones can block out important audio cues that drivers need to safely navigate the road, such as the honking of horns, the sirens of emergency vehicles, or the sounds of approaching vehicles.

2. Increased Distraction: Listening to loud music or engaging in phone conversations can become a major distraction, causing drivers to lose focus on their primary task: safe driving.

3. Delayed Reaction Time: Being engrossed in the audio from your headphones can hinder your reaction time to unexpected events on the road.

4. Potential for Higher Speeds: Some studies suggest that listening to fast-paced music can inadvertently lead drivers to increase their speed, thereby increasing the risk of accidents.

Consider the risks even if it’s legal to drive with headphones in your state. Keeping your auditory senses fully available when you’re behind the wheel is always safer.

What to Do if You Are in a Wreck With a Driver Wearing Headphones

If you find yourself in a collision with a driver who was wearing headphones, here are some steps you should take:

1. Ensure Safety: First and foremost, check your safety and the safety of others involved in the accident. If anyone is injured, call for medical help immediately.

2. Contact Authorities: Dial the local authorities or 911 to report the accident.

3. Document the Scene: If it’s safe and you’re able to do so, take photos or videos of the accident scene, including the other driver if they were visibly wearing headphones at the time of the accident.

4. Gather Witness Statements: If there were witnesses to the accident, gather their contact information for future reference. They can help support your claim that the other driver was wearing headphones.

5. Seek Legal Advice: Contact accident attorneys who specialize in traffic accidents. They can guide you on the next steps and help you navigate any necessary legal proceedings.

6. File an Insurance Claim: Contact your insurance company to inform them about the accident. Provide them with all the necessary details and documentation to support your claim.

7. Keep Record of Medical Treatments: If you’ve suffered injuries, keep track of your medical treatments and expenses. These records can be crucial when claiming compensation for your injuries.

8. Follow Up: Stay proactive in following up on your claims and legal proceedings. Be sure to reply to any correspondence and meet all deadlines.

Remember, every accident is unique, and this is a general guide. Always consult with a professional to understand your best course of action regarding what to do after an accident.

Conclusion

In conclusion, while it is not illegal to wear headphones while driving in Texas, it is not necessarily safe. The absence of a specific law does not equate to endorsement. Drivers should prioritize their safety and the safety of others by maintaining full awareness of their surroundings. Opt for hands-free alternatives and remain attentive to the road and traffic conditions. By doing so, you can enjoy your drive without compromising safety.

Varghese Summersett

Everything You Need to Know About Texas Inspection Stickers Ending in 2025

For as long as most Texans can remember, we’ve had Texas inspection stickers on our vehicles. Many of us remember the days when those stickers went on our license plate. We then moved to have two stickers inside our windshields – one for registration and the other for inspection.

At one point Texas had a second sticker for inspections
What the inspection sticker looked like in Texas.

In 2013, Texas moved to a single-sticker system that made getting your registration updated based on passing your vehicle inspection.

Texas moved to a one-sticker system
Texas moved to a single sticker following inspection and registration

In January 2025, Texas will no longer require non-commercial vehicles to undergo an annual safety inspection. Beginning next year, unless you live in one of the 17 most populated counties in Texas, you won’t have to go through an annual inspection or test. While drivers will still pay the inspection fee, the physical inspection process will be eliminated for most Texans.

What is the Texas Vehicle Inspection Program?

The Texas Vehicle Inspection Program was designed to ensure vehicles met minimum safety and emissions standards. Starting in 2025, most Texans will no longer have a safety inspection requirement, although Texans in some counties will have to complete an emissions-only test.

Inspection Requirements in Texas

Current Requirements: Vehicles must undergo an annual safety inspection.

New Law (Effective 2025): Only emissions testing is required in designated counties; safety inspections for non-commercial vehicles will no longer be necessary.

How to Obtain a Texas Inspection Sticker (Until 2025)

1. Locate an authorized inspection station.
2. Bring the required documents: vehicle registration, proof of insurance, and payment for the inspection fee.
3. Have your vehicle inspected.
4. Upon passing the inspection, receive your sticker.

Who Will Need to Complete an Emissions Test?

If you live in any of the following counties, you will still be required to get an emissions test:

  • Dallas-Fort Worth Area: Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant Counties
  • Houston-Galveston-Brazoria Area: Brazoria, Fort Bend, Galveston, Harris, and Montgomery Counties
  • Austin Area: Travis and Williamson Counties
  • El Paso Area: El Paso County
  • San Antonio Area: Bexar County (beginning on November 1, 2026)

Types of Emissions Tests

The type of emissions test your vehicle undergoes depends on its age and type. Here are the common types of emissions tests performed in Texas:

On-Board Diagnostics (OBD) Test

Applicability: For vehicles model year 1996 and newer.
Process: A scanner is connected to the vehicle’s OBD system to check for trouble codes that indicate emissions-related issues. This test can quickly identify problems with the engine, transmission, and other critical components that affect emissions.

Accelerated Simulation Mode (ASM) Test

Applicability: For vehicles model year 1995 and older.
Process: This test simulates driving conditions on a dynamometer (a set of rollers) to measure the emissions output of the vehicle while it is “driving” at various speeds and loads. It measures pollutants such as carbon monoxide, hydrocarbons, and nitrogen oxides.

Two-Speed Idle (TSI) Test

Applicability: For older vehicles or vehicles that cannot be tested using the OBD or ASM methods.
Process: The vehicle is tested at idle and a higher idle speed to measure emissions output. This test is less comprehensive but still effective for detecting major emissions issues.

Emissions Testing Process

Pre-Inspection Check: The inspector will verify that the vehicle’s check engine light is not illuminated. If it is, the vehicle will not pass the emissions test. Basic vehicle information, such as the Vehicle Identification Number (VIN), is recorded.

Connecting the Equipment: For OBD tests, the scanner is connected to the OBD port, usually located under the dashboard. For ASM or TSI tests, the vehicle is placed on the dynamometer or tested at idle.

Running the Test: The appropriate test is conducted based on the vehicle’s specifications. For OBD, data is read from the vehicle’s computer. For ASM, the vehicle is “driven” on the dynamometer, and emissions are measured. For TSI, emissions are measured at idle.

Results and Analysis: The test results are printed out, showing whether the vehicle has passed or failed. If the vehicle fails, the printout will include diagnostic trouble codes and possible reasons for failure.

What to Do If Your Vehicle Fails the Emissions Test

Diagnostic and Repairs: Take the vehicle to a qualified mechanic to diagnose and repair the issues indicated by the test results.

Re-Testing: After repairs are made, the vehicle must be retested. Many inspection stations offer a free re-test within a certain timeframe.

Tips for Passing the Emissions Test

Regular Maintenance: Keep up with regular vehicle maintenance, including oil changes, air filter replacements, and spark plug checks.

Check Engine Light: Ensure your check engine light is off before going for the test. Address any issues that trigger this light promptly.

Drive Your Car: Drive your vehicle for at least 20 minutes before the test to ensure it is warmed up and operating at optimal efficiency.

Changes in the Fee Structure

Current Fee: $7.50 annual safety inspection fee.

New Fee (Effective 2025): $7.50 added to the annual vehicle registration fee.

Fee Allocation:

  • $3.50 to the Texas Mobility Fund
  • $2 to the state General Fund
  • $2 to the Clean Air Account

New Car Buyers: One-time fee of $16.75 at registration.

Safety Recommendations Post-2025

The Texas Department of Public Safety advises that vehicle owners should regularly inspect their vehicles even though state-mandated safety inspections will end. This includes periodic checks and professional inspections during routine maintenance.

Impact on Safety and Businesses

Safety Concerns: Eliminating the safety inspection could lead to more unsafe vehicles on the road. Regular inspections help identify and address vehicle deficiencies that could pose a risk. Issues such as bald tires, bad brakes, malfunctioning lighting, poor steering, windshield cracks, horns, mirrors, and seat belts will no longer be regulated by the state.

Business Impact: Many inspection stations, like Al’s Drive Thru Inspection in Waco, will close, affecting jobs and local economies. These businesses provide a critical service, ensuring vehicles are roadworthy.

Public Opinion

Proponents Opponents
Many drivers appreciate the convenience of not having to undergo annual inspections, despite still paying the fee. Some worry about the potential increase in unsafe vehicles on the roads.

Did You Know Child Support Arrears Prevent Vehicle Registration?

When a noncustodial parent has not made a child support payment in more than six months, the Office of the Attorney General (OAG) may ask the Department of Motor Vehicles (TxDMV) to deny the noncustodial parent’s ability to renew their vehicle registration.

How to Know if Your Registration Has Been Denied: If your registration renewal is denied, you will receive a letter from the OAG notifying you of your denial 120 days (3 months) before your registration expiration. You will also receive your registration paperwork from TxDMV, with the denial notification printed on the front.

Payment Requirements: You will need to make at least a $200 lump sum payment per delinquent child support case and enter into an arrears payment agreement to address the issue.

Conclusion

The upcoming change in Texas vehicle inspection laws marks a significant shift in the state’s approach to vehicle safety. While it may reduce drivers’ inconvenience, it also raises concerns about road safety and the economic impact on inspection businesses. For detailed advice and assistance, contact Varghese Summersett at (817) 203-2220 or online today.

Varghese Summersett

If you need legal help, it’s important to be honest and open with your attorney. That’s the only way the attorney can fully understand your unique situation and provide the best possible advice and representation. This isn’t always the easiest conversation for clients, however. They often find it difficult to share every detail of their problem with someone they just met or only know solely in a professional contest. Their reluctance to be forthcoming can stem from embarrassment, fear of criminal liability, or the belief that the details may harm their reputation or career.

This is where the attorney-client privilege comes into play.

The attorney-client privilege is a legal concept that protects the confidentiality of communications between an attorney and their client. In Texas, this privilege is governed by the Texas Rules of Evidence 503 and the Federal Rule of Evidence 501. It is meant to encourage complete honesty and trust between clients and attorneys so that they can freely discuss all relevant details without fear of it being disclosed to anyone else.

In this article, the attorneys at Varghese Summersett give an overview of the attorney-client privilege, how it works in the state of Texas, and why you should always feel safe sharing information with your legal counsel.

Understanding Attorney-Client Privilege

Understanding the Attorney-Client Privilege

The attorney-client privilege is a fundamental principle in the American legal system that encourages open and honest communication between clients and their attorneys. Here are some key points about the attorney-client privilege in Texas:

  • It is one of the oldest privileges recognized in law, intended to encourage full and frank communication between attorneys and clients for the purpose of obtaining legal advice and effective representation.
  • For the privilege to apply, there must be: 1) a communication, 2) between privileged persons (attorney and client), 3) made in confidence, and 4) for the purpose of seeking, obtaining, or providing legal assistance.
  • The communication must be made to facilitate the rendition of professional legal services, not for business advice or other purposes.
  • The privilege covers the complete communication, including both legal advice and factual information related to seeking that advice.
  • It applies to communications with the client’s representatives or agents who facilitate the attorney-client relationship, such as employees authorized to act on the legal advice.
  • The privilege can be waived if the client discloses the communication to third parties or allows third parties to be present during attorney-client communications.
  • In-house counsel communications with corporate employees authorized to act on the legal advice are generally privileged.
  • The privilege continues even after the attorney-client relationship ends.

In essence, the attorney-client privilege in Texas aims to protect the confidentiality of communications between lawyers and their clients made for the purpose of obtaining legal counsel, subject to certain conditions and limitations.

Does the Attorney-Client Privilege Apply to All Areas of Law?

Yes, the attorney-client privilege applies broadly across various areas of law, including criminal, family, and personal injury law. This privilege is fundamental in ensuring that clients can communicate candidly and securely with their attorneys about their legal issues, regardless of the specific legal context.

In criminal law, attorney-client privilege is crucial for protecting the rights of the accused. It ensures that communications between a defendant and their lawyer are confidential, promoting an honest and complete exchange of information necessary for a robust defense.

In family law, this privilege covers sensitive issues such as divorce proceedings, custody battles, and other personal matters. It helps clients feel secure in discussing deeply personal and potentially embarrassing matters without fear of public disclosure.

Similarly, in personal injury cases, attorney-client privilege allows individuals to share all relevant details about their injuries and the circumstances that led to them with their attorney. This complete disclosure is vital for building a strong case to obtain rightful compensation.

In all these scenarios, the privilege only protects communications that are intended to be confidential and are made for the purpose of obtaining or providing legal advice. Clients and lawyers alike need to maintain the confidentiality of these communications to ensure the privilege remains intact.

Attorney-Client Privilege When a Third Party is Present

The Attorney-Client Privilege When a Third Party is Present

When people are facing legal trouble, it is not uncommon for them to want to have a loved one in the meeting with their attorney. However, having a third party present during discussions with their lawyer can waive the attorney-client privilege. This means that any information disclosed in the presence of someone who is not part of the legal team will not be protected under attorney-client confidentiality.

It’s important for clients to understand that the privilege only covers private communications between the attorney and client, intended for the purpose of obtaining or providing legal advice. If confidentiality is breached by the presence of a third party, the information discussed could potentially be subject to disclosure in legal proceedings.

In other words, having a third party present during discussions with your attorney could potentially harm your case. For example, if it was a criminal case, the prosecution can potentially force the third party to reveal the contents of the conversation.

Exceptions to Attorney-Client

Exceptions to the Attorney-Client Privilege

While the attorney-client privilege in Texas is a fundamental part of legal counsel, there are important exceptions where the privilege does not apply. Understanding these exceptions is crucial for clients to navigate their interactions with legal professionals effectively.

  1. Crime-Fraud Exception: If a client seeks advice from an attorney to assist with committing a crime or fraud, the privilege is not applicable. This exception is intended to prevent abuse of the privilege by those seeking to use legal advice as a cover for illicit activities.
  2. Common Interest Exception: Though not necessarily an exception to the privilege, clients need to understand that when multiple parties are involved and sharing an attorney, the privilege still applies but can be more complicated. Each party must maintain confidentiality for the privilege to remain intact.
  3. Dispute Between Client and Attorney: If a dispute arises between the client and their attorney, such as in cases of malpractice, communications relevant to the dispute may be disclosed.
  4. Documented Communications: Only oral and written communications intended to be confidential are covered. Documents that are part of the public record or could be obtained from another source are not protected under this privilege.
  5. Death of a Client: The privilege may be lifted in cases involving a deceased client’s estate, where communications are necessary to settle disputes among potential heirs or other parties.

While the attorney-client privilege is robust in Texas, there are some exceptions that clients and attorneys must remain aware of to ensure they do not inadvertently waive the privilege. By understanding the scope and limitations of this important legal protection, clients can confidently communicate with their attorneys, knowing their conversations are kept confidential. This ultimately promotes stronger attorney-client relationships and better outcomes for legal matters.

Overall, the attorney-client privilege is a crucial aspect of our legal system, protecting the rights of clients to seek and obtain legal advice without fear of disclosure. It is a privilege that should be respected and carefully maintained by all parties involved. So, whether you are facing criminal charges or dealing with a family law matter, understanding the attorney-client privilege is key to navigating your legal proceedings effectively. With this knowledge in hand, you can confidently communicate with your attorney and work towards the best possible outcome for your case.

About Varghese Summersett

Varghese Summersett is a premier family law, criminal defense, and personal injury practice in North Texas dedicated to helping people through life’s greatest challenges. Each division is comprised of experienced, award-winning attorneys dedicated to providing outstanding service and obtaining exceptional results.

From your first call, you will realize how we are different. Our goal is to set you at ease and get to know your unique situation. By gaining a deep understanding of your challenges, we can tailor a strategy to address your specific legal needs. Call 817-203-2220 to schedule an attorney consultation.

Tough cases call for the toughest lawyers.

Varghese Summersett

How to Maximize a GEICO Insurance Claim

Whether you were struck by a driver insured with GEICO making a “third party claim” or a GEICO insured making a “first party claim,” you’ll want to know how to maximize a claim with GEICO. We wrote this article to help you maximize your claim, avoid common pitfalls, and understand what to expect from GEICO during the claims process.

Insider Insights and a Unique Perspective

One of the partners at our firm worked as an insurance adjuster before law school, so we know how insurance companies deal with claims. Of course, we have seen how claims are handled on this side as personal injury lawyers. These experiences lend themselves to the unique perspective and insider insights we share in this article.

Seeking Medical Treatment

If you were in an accident of any significance, you should get checked out by a medical professional. If there is an emergency medical response, don’t refuse to get checked out. You may not know that you’re injured or how badly you are injured immediately after an accident. We all know what cuts and breaks look like, but we don’t know what internal injuries look like or when to expect the pain from those injuries to set in. Because adrenaline is pumping immediately after an accident, you may not feel the pain right after an accident. The longer you wait for an evaluation, the more likely an insurance company will say the injury and pain is unrelated to the accident. The last thing you want is to have back pain in a week, and wait another week till things are so bad you can’t move. When you get to a medical provider, the insurance company will have some basis to say they can’t relate the pain to the accident.

As you seek medical treatment, keeping a log of who you saw and when is important. We will work to get the records, compile them, and make them understandable and persuasive. We also recommend that you keep a journal of how you feel each day and the difficult things for you to accomplish. The reality is the human mind is built to persevere and not dwell on the difficult times we got through. As a result, it may be much harder to articulate just how bad things were in three or six months unless you have written it down.

Filing an Accident Report or Blue Form in Texas

The police won’t always respond to an accident in Texas. Generally, unless someone is injured or a vehicle is completely disabled in a major thoroughfare, the police do not come out. That doesn’t mean you can’t (or shouldn’t) have an accident report documenting what happened. Here’s what you need to do when the police don’t come out to the scene of an accident.

You will want to go down to the local police department and fill out a “Blue Form” (officially called the CR-2 form). This is a self-documented accident report that provides a formal method to document the details of the accident, including the time, location, and circumstances of the crash, as well as information about the vehicles, drivers, and any damage incurred. This documentation is crucial as it serves as an official record of the incident.

When filing an insurance claim, having a Blue Form can be invaluable. Insurance companies often require official documentation of an accident to process a claim. The Blue Form serves as proof that the accident occurred and provides the insurer with detailed information needed to assess the claim. Without this form or a police report, it might be more challenging to prove the validity of your claim, potentially leading to delays or denials.

Speaking to a Lawyer

After seeking immediate medical attention, you should speak to a lawyer if you were injured in an accident. You may need to speak to an attorney sooner if you run into problems getting medical care. While you will be provided with emergency medical care if the situation warrants it, you may find going to a doctor or hospital after the fact, without an emergent issue, will result in you being turned away if you are trying to use your own medical coverage. If you’ve ever wondered why medical providers and hospitals ask if your injuries are related to an accident, it is because they don’t want to get involved with having a liability insurance provider cover the bill.

The good news is that we know local medical providers and doctors who will treat you if you’ve been in an accident and aren’t afraid of waiting for liability insurance to cover the costs. Give us a call, and we will connect you with one.

Reporting the Accident to GEICO

You can initiate a claim:

Online: File your claim through GEICO’s website. This is often the fastest and most convenient way to start your claim, as it allows you to provide all the necessary information about the accident and receive immediate confirmation.

GEICO Phone Number

By Phone: Call GEICO 24 hours a day at 800-841-3000. This option is ideal for those who prefer personal interaction or need immediate assistance and guidance from a representative.

It is important to report the accident as soon as possible, as delays can sometimes complicate the claims process or affect the outcome of your claim.

Recorded Statements with GEICO

You should speak to a lawyer before you give any statements to an insurance company.

First-Party Recorded Statements with GEICO

If you are filing a claim with your insurance company, you must provide a statement as a condition of your policy. When you give that statement, though, it might be important to discuss with your attorney.

Third-Party Recorded Statements with GEICO

If GEICO is not your insurance provider, it’s advisable to refrain from giving a recorded statement to their adjusters without consulting an attorney first. Know that as a third-party, meaning someone who is not insured with the insurer the claim is filed with, you don’t have to give a recorded statement. Even if you were to give a statement, be sure you include your lawyer. You don’t want anything you say misinterpreted to limit liability or the loss amount they pay.

GEICO’s Claim Adjustment Process

Once you’ve reported your accident, a GEICO adjuster will be assigned to your claim. The adjuster’s role is to assess the damage, review any injury claims, and determine the amount GEICO will pay. They will likely ask for the aforementioned recorded statement, documentation of the accident, loss, and injuries.

Based on this information, a GEICO adjuster will make a liability decision.

Liability Percentages Directly Affect Payouts

In Texas, which follows a modified comparative fault system, a GEICO adjuster’s liability determination can significantly impact the payout for a claim. Here are the key liability decisions a GEICO adjuster could make and how they affect payouts:

The claimant is 0% at fault: If the GEICO adjuster determines the claimant is not at fault, the claimant can recover 100% of their damages from the at-fault party’s insurance policy.

The claimant is 1-50% at fault: Under Texas’s modified comparative fault rule, if the claimant is 50% or less at fault, they can still recover damages from the other party, but their payout will be reduced proportionally to their percentage of fault. For example, if the claimant is 30% at fault, they can only recover 70% of their damages.

The claimant is 51% or more at fault: If the GEICO adjuster determines the claimant is 51% or more at fault, the claimant cannot recover any damages from the other party’s insurance. They would have to rely on their own policy for coverage, if applicable.

Denial of claim: The GEICO adjuster could also deny the claim entirely if they determine the claimant was fully at fault or if there are other grounds for denial, such as policy exclusions or lack of coverage.

Negotiating Claims with GEICO

Before a lawsuit is ever filed, there is often a negotiation period between the claimant (or their attorney) and GEICO. Understanding how GEICO negotiates can help you prepare.

Great attorneys know that there’s not a one-size-fits-all approach to insurance adjusters. It’s true that some adjusters are always going to be difficult to deal with. It is also true that other adjusters are going to be as reasonable as they can be if 1) you know how to approach them and 2) you know the information that will give them the ability to give you what you want.

Here’s how one experienced adjuster explained the job:

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We often find that asking nicely, firmly, and with incredible documentation gets exactly the result we want – particularly when they know that if “nice” doesn’t work, we won’t hesitate to file a lawsuit. For our firm, this means claims have a better chance of success in the short-term as well as in the long term. If you have a property-damage-only claim and you’re not hiring a lawyer, there’s no reason you can’t put these insights to work for yourself.
Remember, the more documentation you have, the more likely your request is going to be seen as reasonable.

Challenges with Settlement Offers

GEICO’s initial settlement offers may be lower than expected for several reasons.

Issuing Checks for Less Than Repair Value

First, particularly on property damage claims, adjusters will issue checks for less than the value of repairs. They know that some individuals will pocket the check, not make the repairs, and therefore not to get a “supplement check” for the additional costs and repairs of the actual repair.

Underestimating Injuries

Second, GEICO adjusters may underestimate or disagree with the injuries, particularly the long-term impact of injuries.

Failing to Appreciate Injuries

Third, GEICO adjusters make not understand the true nature of injuries. A rear end accident involving a vehicle equipped with a tow hitch is a perfect example of when a GEICO adjuster might not understand the extent of injuries and be tempted to say, “The claimed injuries far exceed any damage to the vehicle.”

A rear-end collision with a vehicle equipped with a trailer hitch can result in minimal visible damage to the struck vehicle, but it can significantly increase the risk of injuries to the occupants. Here’s how:

When a vehicle without a trailer hitch is rear-ended, the impact force is distributed through the rear bumper and the vehicle’s undercarriage, dissipating some of the energy before reaching the occupants. However, if the struck vehicle has a trailer hitch installed, the protruding metal hitch acts as a solid, non-deformable object that directly transfers the impact force through the vehicle’s frame. This concentrated force transfer bypasses the crumple zones and energy-absorbing structures designed to protect occupants, resulting in a more rigid “crash pulse” that is directly transmitted to the occupants. Consequently, the occupants experience a higher magnitude of force, increasing the risk of whiplash and other injuries by approximately 22% compared to vehicles without hitches. Furthermore, since the majority of the impact force is carried through the vehicle’s frame, there may be little to no visible damage to the struck vehicle’s body panels or rear bumper. This lack of apparent damage can be misleading, as it may not accurately reflect the severity of the forces experienced by the occupants.

Depreciation and Actual Cash Value

For property damage, insurers often compensate based on the actual cash value (ACV) rather than the replacement cost. ACV considers depreciation, which can significantly lower the payout, particularly for older items or vehicles, meaning the claimant may not receive enough to cover the replacement cost.

Actual Cash Value vs. Replacement Cost Value

Insurers generally pay the cost to repair the vehicle up to its ACV. If the repair cost exceeds the vehicle’s value before the accident, the vehicle is generally deemed a total loss, and the payment will be the ACV, not the cost to replace the vehicle. The claimant has the right to negotiate with the at-fault party’s insurer. If the initial compensation offer based on ACV does not cover the necessary expenses to replace or repair the damaged item to its pre-loss condition, the claimant can present arguments and evidence supporting the need for a higher amount. However, this is often limited by the terms of the at-fault party’s policy.

If you are not satisfied with the recovery amount from the at-fault party’s insurance, you may claim under your own insurance (if you have relevant coverage like collision for auto or replacement cost coverage for home/property). Your insurer might then choose to pursue subrogation to recover the amount paid from the at-fault party’s insurer.

Using Preferred Vendors

Insurers often have agreements with preferred vendors or contractors for repairs. These vendors might charge less than others, which can be beneficial for cost control but may result in lower quality repairs. Claimants are sometimes pressured to use these vendors instead of choosing ones that might offer higher quality at a higher price.

Offering Quick Settlements

Insurers might offer a quick, lump-sum settlement soon after an incident. These offers can be appealing to claimants eager to resolve the matter but might not fully compensate for all damages, especially those that manifest or are realized later, such as long-term medical issues or structural damages not initially apparent.

Surveillance and Social Media Monitoring

In cases involving personal injuries, some insurers conduct surveillance or monitor the claimant’s social media profiles to find evidence that may contradict the claimed injuries. This can be used to argue that the injury is not as severe as claimed, thereby justifying a lower payout.

Legal Considerations in GEICO Claims

As you start to understand the many ways a GEICO adjuster can affect your payout, based on the assignment of liability, disputing damages and injuries, you understand how important it is to have a professional on your side fighting for a fair outcome if you have been injured. Our attorneys have the experience and track record required to get exceptional results.

The tenor also changes if the lawyer files suit against GEICO. This process does more than change the dynamics of the claim. It affects the obligations of GEICO to turn over information. The insurer also has to look at the cost of defending a lawsuit, which has at least some impact on their willingness to be reasonable. Finally, this brings in a fresh set of eyes. Perhaps you are dealing with an adjuster who was entrenched in their position. Once the claim gets to litigation, the litigation department may reach a more favorable conclusion than the claims department reached.

Call Us if You’ve Been Injured by a GEICO-Insured Driver

If you’ve been involved in a car accident with a GEICO insured, it’s crucial to understand the complexities of filing and negotiating a claim. At Varghese Summersett, we bring experience and a deep understanding of insurance dynamics. Our team is well-versed in the tactics used by insurance companies like GEICO, and we’re prepared to fight for the compensation you deserve.

We encourage you not to navigate this challenging time alone. The nuances of insurance claims, especially with large companies, can be overwhelming and intricate. By partnering with us, you ensure your rights are protected, and your claims are effectively handled. We provide the support and legal expertise necessary to secure a favorable outcome.

Remember, the initial steps you take after an accident can significantly impact the outcome of your claim. Don’t hesitate to contact us at Varghese Summersett for a consultation. Let us take the burden off your shoulders so you can focus on your recovery while we handle the legal complexities. Call us today to discuss how we can help you move forward.

Varghese Summersett

It’s every parent’s worst nightmare: the screech of tires, the shattering of glass, the sudden chaos of a car accident. In those terrifying moments, your instinct is to protect your child and ensure their safety. But what happens when the unthinkable occurs, and your child is injured in a car accident?

The panic is unparalleled, the fear overwhelming. Concerns race through your mind: What do I do now? How severe are their injuries? Will they fully recover? Who is responsible for this tragedy?

In this article, the personal injury attorneys at Varghese Summersett explain what steps you should take if your child is hurt in a car accident in Texas due to someone else’s negligence. We will also discuss how child personal injury cases differ from adult cases, and how our law firm can help you and your family during this difficult time.

  Child Hurt in a Car Accident

Child Hurt in a Car Accident? Take These Steps.

  1. Ensure Safety: Your child’s safety is paramount. If your child is injured in a car accident in Texas, immediately move the vehicle to a safe location away from traffic if possible. Assess their condition and call 911 for emergency medical assistance.
  2. Document the Scene: If it’s safe, gather information about the accident scene. Take photos of the vehicles involved, any visible injuries to your child, and any relevant road conditions or signage. Collect contact information from witnesses and exchange insurance information with the other driver(s).
  3. Seek Medical Attention Immediately: Even if your child’s injuries seem minor, it’s crucial to seek medical attention promptly. Some injuries, such as concussions or internal injuries, may not be immediately apparent but can have serious consequences if left untreated. Keep detailed records of all medical evaluations, appointments, treatments, and expenses.
  4. Report the Accident: Under Texas law, specifically Transportation Code Section 550.026, you are required to report any car accident that results in injury, death, or property damage exceeding $1,000 to authorities. Be sure to file a report with the appropriate law enforcement agency as soon as possible.
  5. Contact an Experienced Personal Injury Attorney: Dealing with the aftermath of a car accident involving a child can be overwhelming. By consulting with a knowledgeable personal injury attorney, you can ensure that your child’s rights are protected and that the responsible party is held accountable.

At Varghese Summersett, our legal team has vast experience handling child personal injury cases in Texas. We understand the unique challenges and complexities involved in these cases and are dedicated to advocating for your child’s and your family’s best interests. Let us handle the legal complexities so you can focus on your child’s recovery.

If your child has been hurt in a car accident in Texas, don’t wait to seek help. Contact us today for a compassionate consultation and take the first step toward securing the justice and compensation your child deserves.

How Adult and Child Injury Cases Differ

How Child Personal Injury Cases Differ from Adult Cases in Texas

Child personal injury cases in Texas present unique challenges and considerations compared to adult cases. Understanding these differences is crucial for ensuring the best possible outcome for your child’s case. Here’s how child personal injury cases differ:

  • Legal Capacity: Children typically do not have the legal capacity to pursue a personal injury claim on their own. In Texas, minors under the age of 18 lack the legal capacity to file a lawsuit or settle a claim without a guardian or court-appointed representative. This means that a parent or legal guardian must act on behalf of the child throughout the legal process.
  • Statute of Limitations: The statute of limitations for filing a personal injury lawsuit in Texas is generally two years from the date of the injury. However, special rules apply to minors. In most cases, the statute of limitations does not begin to run until the child reaches the age of 18. This extended timeframe allows injured children more time to pursue compensation for their injuries.
  • Settlement Approval: Any settlement reached in a child personal injury case must be approved by a judge to ensure that it is fair and in the best interests of the child. This requirement helps protect the child from receiving inadequate compensation or being taken advantage of during the settlement process.
  • Evaluation of Damages: In child personal injury cases, damages may extend beyond medical expenses and lost wages to include compensation for future medical care, rehabilitation, and long-term effects of the injury. Since children are still growing and developing, injuries sustained in childhood may have lifelong implications that require ongoing medical treatment and support.
  • Emotional Considerations: Injuries to children can have profound emotional effects on both the child and their family. Courts may consider the emotional impact of the injury when awarding damages in a child personal injury case, including compensation for pain and suffering, mental anguish, and loss of enjoyment of life.

Navigating the complexities of child personal injury cases in Texas requires the expertise of a skilled legal team with experience in this area of law. At Varghese Summersett, we have a proven track record of successfully representing injured children and their families, and we are committed to pursuing the maximum compensation they deserve. If your child has been injured due to someone else’s negligence, don’t hesitate to contact us for a consultation. We’re here to help you through this challenging time and fight for justice on behalf of your child.

Types of Compensation Available

Types of Compensation for Your Child’s Car Accident Injuries

When your child is injured in a car accident, they may be entitled to various types of compensation to help cover their losses and expenses. In Texas, compensation for personal injury cases typically falls into three categories: economic, non-economic, and punitive damages.

  • Economic Damages: Economic damages are those that have a specific monetary value and can be easily quantified. These damages aim to compensate your child for the financial losses they have suffered due to the accident. Economic damages may include:
    • Medical Expenses: This includes past, current, and future medical bills related to your child’s injuries, such as hospitalization, surgery, medication, rehabilitation, and therapy.
    • Lost Earnings: If your child’s injuries prevent them from attending work or participating in activities that would have generated income, they may be entitled to compensation for lost wages or earning capacity. Likewise, parents can also claim compensation for their own damages related to the child’s injuries, such as lost wages from missing work and travel expenses.
    • Property Damage: If your child’s personal belongings, such as clothing, electronics, or school supplies, were damaged in the accident, they may be entitled to compensation for the cost of repairing or replacing these items.
  • Non-Economic Damages: Non-economic damages are more subjective and aim to compensate your child for the intangible losses they have experienced as a result of the accident. These damages may include:
    • Pain and Suffering: Compensation for the physical pain and discomfort your child has endured as a result of their injuries, as well as any emotional distress or mental anguish they have experienced.
    • Loss of Enjoyment of Life: Compensation for the loss of ability to participate in activities and hobbies that your child enjoyed prior to the accident, as well as any diminished quality of life they may experience in the future.
    • Loss of Consortium: In some cases, the parents of an injured child may be entitled to compensation for the loss of companionship, love, and support of their child.
  • Punitive Damages: Punitive damages are intended to punish the at-fault party for their reckless or intentional conduct and to deter similar behavior in the future. While punitive damages are less common in personal injury cases involving children, they may be awarded in cases of extreme negligence or misconduct.

At Varghese Summersett, our experienced personal injury attorneys are dedicated to helping you and your child recover the full and fair compensation you deserve. We will carefully assess the circumstances of your case, calculate the value of your child’s damages, and fight tirelessly to secure the maximum compensation available. Best of all, hiring us will not cost you anything upfront or out-of-pocket. We work on contingency, which means we only get paid after recovering compensation.

If your child has been injured in a car accident, don’t hesitate to contact us for a free consultation. We’re here to advocate for your child’s rights and help you navigate the legal process with compassion and skill.

Role of Insurance Company

Role of Insurance Company in Child Personal Injury Claims

When a child is hurt, you would expect the insurance company to want to do the right thing. The reality, however, is that insurance companies are often focused on minimizing their financial liability and protecting their bottom line. As a result, they may employ various tactics, such as offering low settlements or disputing the extent of the child’s injuries, in an attempt to pay out as little as possible. Here’s an overview of the role of the insurance company in a personal injury claim for a child.

  1. Providing Coverage and Compensation: The insurance company of the at-fault party in the accident is responsible for providing coverage and compensation for the child’s injuries and damages, up to the policy limits. This includes covering medical expenses, future care costs, pain and suffering, and other applicable damages.
  2. Investigating the Claim: The insurance company will investigate the details of the accident and the child’s injuries to determine liability and the extent of damages. They may request medical records, police reports, witness statements, and other evidence to evaluate the claim’s validity.
  3. Negotiating Settlements: If liability is established, the insurance company will typically attempt to negotiate a settlement with the child’s parent/guardian and their attorney. This usually involves offering a lump sum payment in exchange for releasing the insured party from further liability.
  4. Approving Settlements: In many Texas jurisdictions, a judge must review and approve any settlement for a child injury claim to ensure it is fair and in the child’s best interests. The insurance company’s settlement offer is subject to this court approval process.
  5. Providing Structured Settlements: If a settlement is reached, the insurance company may be required to structure the payout through an annuity or other means to safeguard the funds until the child reaches adulthood. This ensures the compensation is available when needed for future medical expenses or lost earning potential.

Again, it’s important to understand that insurance companies aim to minimize payouts, so having an experienced attorney negotiate on the child’s behalf is crucial to obtain full and fair compensation. The attorney acts as an advocate against the insurance company’s adjusters and legal team throughout the claims process.

Child Hurt in a Car Accident in Texas? Here's What You Need to Do

How Our Legal Team Can Help.

At Varghese Summersett, we understand the overwhelming distress and uncertainty that follows when your child is injured in a car accident. Our experienced team of personal injury attorneys is here to provide the support and legal representation you need during this challenging time.

  1. Legal Guidance: We will guide you through the legal process with compassion and clarity, explaining your rights and options every step of the way. From gathering evidence to negotiating with insurance companies, we will handle all aspects of your child’s case so you can focus on their recovery.
  2. Thorough Investigation: Our team will conduct a thorough investigation into the circumstances surrounding the accident to determine liability and hold the responsible parties accountable. We will gather evidence, interview witnesses, and work with accident reconstruction experts if necessary to build a strong case.
  3. Maximizing Compensation: We will fight tirelessly to secure the maximum compensation available for your child’s injuries. This may include compensation for medical expenses, pain and suffering, emotional trauma, future medical needs, and more. We will carefully calculate the full extent of your child’s damages to ensure they receive the financial support they need to heal and move forward.
  4. Advocacy in Court: If necessary, we are prepared to take your child’s case to court to pursue justice and fair compensation. Our skilled litigators have extensive experience representing clients in personal injury trials and will advocate vigorously on behalf of your child’s best interests.
  5. Compassionate Support: Throughout the entire process, our team will provide compassionate support and personalized attention to you and your family. We understand the emotional toll that a child’s injury can take, and we are here to offer guidance, reassurance, and empathy every step of the way.

If your child has been injured in a car accident, don’t hesitate to contact us for help. Our dedicated team is committed to fighting for the rights of injured children and their families and helping them secure the compensation and justice they deserve. Contact us today for a consultation to discuss your child’s case and learn how we can assist you.

Child Hurt in a Car Accident? Contact Us.

At Varghese Summersett, we understand the heart-wrenching ordeal that parents endure when their child suffers harm due to someone else’s negligence on the road. Our legal team is here to guide you through this tumultuous time, providing the legal support and expertise you need to pursue justice for your child. We’ll fiercely advocate for your family’s rights, holding accountable those responsible for the accident and seeking the compensation necessary to cover your child’s medical expenses, ongoing care, and emotional trauma.

While we can’t erase the pain and fear you’ve experienced, we can offer you a lifeline amidst the chaos. Let us shoulder the legal burden so you can focus on what matters most: your child’s recovery. Contact us today at 817-203-2220 for a free consultation and take the first step toward healing and justice.

Child Hurt in a Car Accident in Texas? Here's What You Need to Do

Varghese Summersett

Millions of people were pulling for the marriage of Golden Bachelor Gerry Turner and his wife Theresa Nist, only to see it end in divorce after just three months of seemingly wedded bliss.

So what happened? Obviously, they are the only ones who know what went on behind closed doors, but as experienced divorce attorneys, we can make a few educated guesses. In this article, we offer three potential reasons why their public love story ended in a swift divorce. But first, here’s the backstory if you’re one of the few people on the planet who missed it.

Golden Bachelor Backstory: Gerry & Theresa’s Courtship

Gerry Turner and Theresa Nist were the first couple to get engaged and married on the reality TV show “The Golden Bachelor.” They were both in their 70s when they met on the show and got married on live television in January 2024.

However, their marriage was short-lived, as they announced their divorce just three months later in April 2024. The reasons they cited for their split were that they could not agree on where to live, as Gerry was based in Indiana while Theresa lived in New Jersey. They also cited their commitment to their respective families as a factor in their decision to divorce.  And most recently, rumors swirled that the marriage might have ended after a disagreement about cornfields. Yes, cornfields. Specifically, during a two-hour drive from the airport to Gerry’s lake house in Indiana, Teresa suggested that vast cornfields could be developed into condos, office buildings, and apartments – a vision that Gerry disagreed with.

While the news of their quick divorce was surprising and disappointing to many viewers who had hoped their relationship would last, the union was more akin to a brief engagement rather than a full marriage. They did not have time to fully merge their lives and finances, so the end of their relationship is better characterized as a breakup rather than a divorce. In fact, the divorce attorneys at Varghese Summersett venture to say that the marriage was over before it got started. Here’s three reasons why:

Golden Bachelor Divorce

1. Finding Lasting Love Through a Reality Show is Unrealistic

The glamor and drama of reality TV often create an idealized version of relationships that fails to reflect the complexities of real-life partnerships. Contestants on shows like “The Golden Bachelor” are thrust into intense environments where emotions run high, time is limited, and the pressure to make a connection is immense. In such artificial settings, it’s easy to mistake infatuation for genuine compatibility and overlook fundamental differences that could spell trouble outside the confines of the show.

While these programs promise fairy-tale endings and everlasting love, the truth is that the circumstances under which relationships form are far from ordinary. Contestants are often chosen for their entertainment value rather than their long-term compatibility, and the fast-paced nature of reality TV leaves little room for genuine connection to develop organically. As a result, couples may find themselves swept up in the excitement of the moment, only to realize later that their relationship is built on shaky foundations.

Moreover, the scrutiny and public scrutiny that accompany reality TV romances can place additional strain on fledgling relationships. Contestants must navigate not only their feelings for each other but also the expectations of viewers, producers, and the media. This intense spotlight can exacerbate existing tensions and create a distorted version of reality that makes it difficult for couples to build a strong, lasting bond.

In the case of Gerry Turner and Theresa Nist, their whirlwind romance on “The Golden Bachelor” may have seemed like a fairy tale to viewers, but the challenges they faced outside the confines of the show proved insurmountable. From geographical differences to disagreements about their future, the realities of their relationship quickly overshadowed the illusion of romance portrayed on television. Their story serves as a cautionary tale about the pitfalls of seeking lasting love in an inherently unrealistic setting.

Honeymoon Phase

2. They Never Got Out of the Honeymoon Phase

One common pitfall of swift reality show romances is the failure to transition from the initial euphoria of infatuation to the more grounded realities of a long-term partnership. In the case of Gerry and Theresa, the adrenaline-fueled rush of their televised engagement and marriage likely kept them in a perpetual state of excitement, blinding them to the challenges that lay ahead.

During the whirlwind of “The Golden Bachelor,” Gerry and Theresa were swept up in a whirlwind of romance and attention, basking in the glow of their newfound celebrity status. However, once the cameras stopped rolling and the spotlight dimmed, they were left to confront the day-to-day realities of their relationship without the buffer of reality TV magic.

Without the time and space to truly get to know each other outside the constraints of the show, Gerry and Theresa may have struggled to build a solid foundation for their marriage. The absence of mundane moments and everyday challenges that typically characterize a relationship may have left them unprepared for the inevitable conflicts and compromises that arise in any partnership.

As a result, their marriage may have remained in the honeymoon phase, characterized by passion and excitement but lacking the depth and resilience needed to weather life’s storms. Without a strong emotional connection and shared understanding, their relationship may have been destined to crumble under the weight of unmet expectations and unaddressed conflicts.

In hindsight, Gerry and Theresa’s inability to move beyond the honeymoon phase serves as a sobering reminder of the importance of building a relationship on more than just fleeting emotions and grand gestures. True love requires time, effort, and a willingness to navigate the highs and lows of life together, even when the cameras are no longer rolling.

Long Distance Relationships are Laborious

3. Long Distances Relationships are Laborious

Long-distance relationships are downright hard, often presenting challenges that test the strength and resilience of even the most committed couples. The physical separation, coupled with the emotional strain of being apart, can create significant hurdles to maintaining a healthy and thriving partnership.

Communication becomes paramount in long-distance relationships, as partners must find creative ways to stay connected despite the miles between them. However, the lack of face-to-face interaction can lead to feelings of loneliness, frustration, and insecurity, especially when important conversations are relegated to phone calls or video chats.

In long-distance relationships, boundaries can become ambiguous, especially when there’s a lack of clear plans for reunions and establishing a shared home. For Gerry and Theresa, the absence of a definitive plan likely fostered feelings of uncertainty and insecurity about their future together.

The inability to map out long-term arrangements can cast doubts on the sustainability of the relationship. Without a mutual understanding of where they’re headed, partners may struggle to commit emotionally and mentally, ultimately paving the way for relationship deterioration and eventual divorce.

Conclusion

The challenges of reality TV relationships serve as a cautionary tale about the complexities of love and the importance of nurturing genuine connections in real-life settings. While these shows may offer a glamorous facade, the realities behind the scenes are far from perfect.

In order to build lasting and meaningful relationships, couples must be willing to put in the time, effort, and communication needed to navigate life’s highs and lows. And for those caught up in the excitement of a whirlwind romance, it’s important to remember that love is not just about the grand gestures and dramatic moments captured on camera, but also about the everyday moments and struggles that make a relationship truly strong.

In the end, true love cannot be manufactured or scripted – it must be nurtured and grown from a place of genuine connection and understanding. Love may begin with a fairytale, but it takes hard work and commitment to turn that fairytale into a lasting happily ever after.

Contemplating Divorce? Contact Us.

Deciding to divorce, whether you have been married three months or 30 years is never an easy decision. That’s why it’s important to have the support and guidance of experienced professionals who can help you navigate this difficult process with care and compassion.

At Varghese Summersett, we understand the complexities of divorce and are dedicated to providing personalized solutions tailored to your unique situation. We offer a range of services including mediation, collaborative divorce, and traditional litigation, allowing us to find the best approach for you. Call 817-203-2220 to schedule a consultation with an experienced North Texas divorce lawyer.

marriage is difficult

Varghese Summersett

Successfully Suing for an Inmate’s Death is No Ordinary Undertaking

If you’ve been following local news, you’ll see there have been 54 jail deaths in the last five years in Tarrant County. According to data maintained by the Texas Commission on Jail Standards, there have been 74 deaths in Tarrant County jail since 2014, and some community leaders have expressed to the Department of Justice that they believe these numbers may be underreported.

Jail Deaths in Tarrant County

You might wonder why jail deaths don’t often result in lawsuits. Lawsuits can be a powerful way to affect change. The primary reason few lawsuits are filed against counties or jails (and why fewer are successful) is sovereign immunity, which shields governments from lawsuits under most circumstances. That doesn’t mean lawsuits can’t be successful. This means you must find the perfect case to use as the driver for change. This article will discuss what it takes to sue for a jail death successfully.

This article is specific to laws in the Fifth Circuit, Texas’s federal circuit.

Wrongful Death in Jail: Understanding “1983 Claims”

42 U.S.C. § 1983 provides the basis for “1983 claims.” A Section 1983 claim is a lawsuit in which an individual can sue the government or government employees acting “under color of state law” for a civil rights violation. Section 1983 doesn’t create any new rights; it merely provides a way to enforce civil rights already established by the U.S. Constitution or other federal laws.

The acts that can give rise to a Section 1983 claim are varied and can include police brutality, excessive force, violations of freedom of speech or assembly, unreasonable search and seizure, excessive bail, racial profiling, and more.

Who can be sued under Section 1983?

Potential defendants under 1983 include police officers, prison guards, judges, public officials, and even private individuals acting on behalf of the state or local government.

Suing a Jail For the Death of a Pretrial Detainee

To establish liability under 42 U.S.C. § 1983, a plaintiff must show:

  1. an official policy (or custom), of which
  2. a policymaker can be charged with actual or constructive knowledge, and
  3. a constitutional violation whose ‘moving force’ is that policy (or custom).

A plaintiff must show that this policy was implemented with “deliberate indifference” to the known or obvious consequences that a constitutional violation would result. A “deliberate indifference” may be shown by a series or pattern of similar violations or a single incident wherein the injury suffered was “highly predictable.”

Under this theory, a jail could be sued for deaths in a jail alleging unconstitutional conditions of confinement such as:

  1. Overcrowding and understaffing of the jail
  2. Failure to properly observe and monitor detainees
  3. Denial of medical care to detainees
  4. Institutionzlition of excessive force by officers against detainees
  5. Maintain a culture of violence in the jail among detainees.

Elements to Prove a Wrongful Death in Jail

Here are the key elements that must typically be established in a Section 1983 action for wrongful death:

  1. Conduct by a Person: The defendant in a Section 1983 lawsuit must be a “person” acting under state or local law. This generally includes government officials, employees, and entities acting in an official capacity.
  2. Acting Under Color of State Law: The defendant must have acted “under color of state law” when the action occurred. This means the actions or behaviors that violated the plaintiff’s rights must be closely related to the defendant’s role as a governmental official or entity.
  3. Deprivation of Rights: The plaintiff must show that they were deprived of a constitutional right or a federal statutory right. This is the core of a Section 1983 claim, and it involves demonstrating that the defendant’s actions or inactions directly led to a violation of rights such as freedom of speech, right to due process, or protection from unreasonable searches and seizures.
  4. Causation: The plaintiff must demonstrate a direct causal link between the defendant’s action and the deprivation of constitutional or federal statutory rights. This means showing that the harm would not have occurred but for the defendant’s conduct.
  5. Damages: Finally, the plaintiff must show that they suffered some harm or damages due to the deprivation of their rights. This can include physical injury, emotional distress, loss of earnings, or other types of damages.
  6. Overcoming Sovereign Immunity: While this is not an element, you will have to overcome sovereign immunity as a practical matter. Sovereign immunity is a legal doctrine that protects governments and their agencies from being sued without their consent. To successfully bring a Section 1983 claim against certain government officials or entities, plaintiffs must navigate around sovereign immunity issues.

knowledge is power

Types of Claims for Wrongful Death in Jail

The United States Supreme Court has recognized pretrial detainees (inmates held before their cases are resolved, as opposed to inmates who have been sentenced) have both procedural and substantive due process rights under the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520 (1979). The Fifth Circuit in Flores recognized that pretrial detainee civil rights violations could give rise to two types of claims:

  • episodic-acts-or-omissions claims or
  • conditions-of-confinement claims.

Wrongful Death in Jail: Episodic Claims vs. Condition of Confinement Claims

An episodic-act-or-omission claim “faults specific jail officials for their acts or omissions” for the death. See Shepherd v. Dallas Cnty., 591 F.3d 445, 452 (5th Cir. 1997). By contrast, a conditions-of-confinement challenge is a challenge to the “general conditions, practices, rules, or restrictions of pretrial confinement.” See Estate of Henson v. Wichita Cnty., 795 F.3d 456 (2013). Conditions-of-confinement claims may challenge, for example, the number of bunks per cell, the placement of a detainee in disciplinary segregation, etc. For both claims, a plaintiff has two burdens: to show (1) that a constitutional violation occurred and (2) that a government policy was the moving force behind the violation.

Category Type of Claim Focus Legal Standard Examples
Episodic Acts or Omissions Specific acts or omissions by individuals Actions or failures to act by staff toward detainees Must show intent to harm or reckless disregard for detainee’s rights Denial of medical care for a specific condition, use of excessive force during an interrogation
Conditions of Confinement General conditions or policies affecting detainees Overall conditions or systemic issues within the facility Not reasonably related to a legitimate government objective Overcrowding, lack of sanitation, inadequate general medical care, inadequate facilities

Conditions of Confinement Claims

To prevail on a conditions-of-confinement claim, a plaintiff must show a condition, rule, restriction, or practice or sufficiently extended or pervasive acts or omissions of a jail official – that was not reasonably related to a legitimate government objective – caused the constitutional violation.

Practices that are “sufficiently extended or pervasive, or otherwise typical of extended or pervasive misconduct,” can represent official policy. Showing a pervasive pattern is a heavy burden. See Shepherd v. Dallas County, 591 F.3d 445, 452 (5th Cir. 2009). When the official policymaker knows about misconduct yet allegedly fails to take remedial action, this inaction arguably shows acquiescence to the misconduct, which could be a basis for a jury to decide that it is sufficient to show it was an official policy. See Duvall v. Dallas County, 631 F.3d 203 (5th Cir. 2011).

Episodic Acts or Omissions Claims

While conditions-of-confinement claims challenge the constitutionality of pervasive, systemic policies and customs, episodic-acts-or-omissions claims challenge the constitutionality of the way in which a policy or custom was applied by a jail official in a particular instance.

To establish liability in an episodic-act case under the Fourteenth Amendment, a detainee must show: (1) that the employee violated the pretrial detainee’s clearly established constitutional rights with subjective deliberate indifference and (2) that this violation resulted from a policy or custom adopted and maintained with objective deliberate indifference. For purposes of an episodic-acts-or-omissions claim, a jail official violates a pretrial detainee’s constitutional right to be secure in his basic human needs only when the official had subjective knowledge of a substantial risk of serious harm to the detainee and responded to that risk with deliberate indifference. This standard – deliberate indifference by a jail official to a substantial risk of serious harm – presents a high bar; negligence or even gross negligence is not enough. For example, the Fifth Circuit has established that pretrial detainees have a constitutional right, under the Due Process Clause of the Fourteenth Amendment, not to have their serious medical needs met with deliberate indifference on the part of the confining officials. Estelle v. Gamble, 429 U.S. 97, 103 (1976); Hare v. City of Corinth, 74 F.3d 633, 636 (5th Cir.1996).

Tough cases call for the toughest lawyers.

How to Overcome Sovereign Immunity

The doctrine of sovereign immunity shields a government official from civil liability for damages based upon the performance of discretionary functions if the official’s acts were objectively reasonable in light of the clearly established law. Harlow v. Fitzgerald, 457 U.S. 800. The plaintiff then has the burden ‘to rebut this defense by establishing that the official’s allegedly wrongful conduct violated clearly established law.’ Salas v. Carpenter, 980 F.2d 299, 306 (5th Cir.1992).

Step 1 in Overcoming Sovereign Immunity:

The first step in the qualified immunity analysis is to determine whether the plaintiff has alleged the violation of a clearly established federal constitutional (or federal statutory) right. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir.1998)

Step 2 in Overcoming Sovereign Immunity:

If the plaintiff has alleged a violation of federal law as the basis of the claim, the Court must then assess whether the defendant’s conduct was objectively reasonable in light of clearly established law. Hare III, 135 F.3d at 326; Pierce, 117 F.3d at 872. “Clearly established” means that the “contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson, 107 S.Ct. at 3039.

The defendant’s acts are held to be objectively reasonable unless all reasonable officials in the defendant’s circumstances would have then known that the defendant’s conduct violated the United States Constitution or the federal statute as alleged by the plaintiff.

Because qualified immunity turns only upon the objective reasonableness of the defendant’s acts, a particular defendant’s subjective state of mind has no bearing on whether that defendant is entitled to qualified immunity. An official is eligible for qualified immunity even if the official violated another’s constitutional rights.

What happens when you file a lawsuit?

You can expect the county to file a motion for summary judgment based on sovereign immunity, which is often successful at the district court level. If that happens in Texas, it takes a successful appeal to the Fifth Circuit Court of Appeals to get back on track. That is exactly what happened this year in Ford v. Anderson County, Texas, (No. 22-40559) (5th Cir. 2024). This case stemmed from the death of a jail inmate alleging the county, sheriff, and jail doctor failed to treat the inmate’s chronic illness, leading to her death, which was preventable. The district court granted summary judgment based on sovereign immunity and dismissed the claim. On appeal, the Fifth Circuit reversed the district court with regard to several claims raised.

What is the Statute of Limitations to Bring a 1983 Claim in Texas?

In Texas, 1983 claims are subject to a two-year statute of limitations under Texas Civil Practice and Remedies Code section 16.003. See Gaylor, 981 F. 2d 254, 257 (5th Cir. 1993)

Wrongful Death in Jail Cases in Texas

If you are the surviving spouse, child, and parent of an individual who died in a jail, it is critical for you to reach out to discuss the matter with an attorney. Ultimately, very high thresholds to obtain relief under Section 1983 means most deaths won’t give rise to a claim. If you believe you may have a claim that arises out of Texas, contact us for a free, no-obligation consultation at 817-203-2220.