I am afraid my personal information was compromised by the Target hacking.

Many of you may worry that your personal information has been compromised by the security breach affecting 40 million Target shoppers over the holidays. As Target now tries to repair its image, it has been hit by a wave of consumer lawsuits alleging that Target was negligent in handling sensitive customer data and that, as a result, Target should be liable to its customers for various types of monetary damages. Target is also bracing itself for potential lawsuits from major banks, which had to handle claims from their customers about compromised cards. The Target card breach is the second largest in U.S. history. Target stated on December 19, 2013, that approximately 40 million credit- and debit-card accounts “may have been impacted” after being used to pay for purchases at its U.S. stores between November 27 and December 15. On its corporate website, Target tells consumers, “Even if you shopped at Target during this time frame, it doesn’t mean you are a victim of fraud. In fact, in other similar situations, there are typically low levels of actual fraud. There is no indication that PIN numbers have been compromised on affected bank issued PIN debit cards or Target debit cards. Someone cannot visit an ATM with a fraudulent debit card and withdraw cash.” In addition to the card numbers, Target revealed that card expiration dates and CVV security codes were also stolen. With this data, the hackers could use this magnetic stripe data to create counterfeit cards. Criminals can then use these fake cards to purchase gift cards, which are then used to purchase goods or to be converted back into cash.

How does this affect you? If a card is stolen and the number and the three-digit CVV code on the card actually winds up in a thief’s hands, in many cases, there will be little or no financial loss to the consumer.

For credit cards, the maximum liability that a consumer may suffer for fraudulent or unauthorized transactions under federal law is $50. Moreover, if a consumer reports the fraud within two days of learning of a card loss or theft, the consumer’s loss may be $0, and many banks that issue cards have instituted a $0 liability policy across the board.

For debit cards, federal law is a bit different. If a customer reports any fraudulent transactions within two days of learning of the loss, the loss is also capped at $50, but after that, a customer’s loss can go up to $500,and after six months, the loss may be potentially unlimited. It is a common belief that the risk of loss from stolen debit cards is greater than the risk from stolen credit cards because federal law makes a distinction between the two types of consumer liabilities. That distinction, however, in many cases, exists on paper only. Banks often use a $50 across-the-board cap for both credit cards and debit cards. Bottom line, your probable loss is actually your time and inconvenience.

If a thief uses a stolen card, a customer may find himself or herself overdrawn, without funds, and having to fill out paperwork to get their bank to credit lost funds. While consumers may suffer inconvenience and headaches in getting back funds, and in getting cards reissued. Is there a risk of identity theft? When only a card is stolen, the answer is no. Thieves can use stolen card numbers to make fraudulent purchases, but knowing a cardholder’s name and card number does not make for easy identity theft, which relies upon other identifying information such as date of birth, address, and Social Security Number.

So, what if a consumer can provide that his card was stolen, and that it led to unauthorized charges on his or her account: What might that person’s damages be? They might include (1) the cost of making calls to a bank to get a card canceled and reissued, (2) the time spent completing paperwork to get funds reinstated, and (3) perhaps some overdraft fees and possibly some minimal liability of $50. Does this make it worth suing the card issuer?

Most class-action lawsuits arising from security/data breaches involve negligence and breach of contract. Customers allege that companies like Target did not take proper care and precautions to keep data secure, and thus acted negligently. There are credit-card securities standards, known as the Payment Card Industry Data Security Standard (PCI DSS), that companies are meant to use when participating in Visa or MasterCard networks. If Target failed to use proper standards, it might be held liable. Plaintiffs may also argue that Target made an implied promise to consumers that keeping data secure was part of the bargain when it offered to take payments from its customers via a point-of-sale terminal, where customers swipe their cards. To date, Target faces around 40 lawsuits seeking class-action status as a result of the incident. The suits were filed on behalf of people who allege that their information was stolen and that Target either failed to properly secure their customer data, did not promptly notify customers of the breach, or both. More than $5 million in damages is being sought in several cases, two of which were filed in California, and one in Oregon. Data-breach lawsuits are often class actions, brought on behalf of a class of consumers whose data has been compromised by a data breach. It is often tricky, however, for consumers to get certified as a class for litigation of data breaches. In the Target case, Plaintiffs who can show their card numbers were stolen may have a clear enough case to have standing to sue as a general class of victims. But even if a plaintiff can establish standing, he or she must still succeed on the merits of the case and demonstrate a true legal harm. So, the litigation hurdle is high and individual damages for any consumer may be minimal.

New Rules Change Procedures in Justice Court

Effective August of this year, the Supreme Court of Texas has issued new rules governing civil cases filed in justice courts after August 31, 2013. The new rules 500-510 of the Texas Rules of Civil Procedure divide justice court civil cases into four categories: small claims, debt claims, repair and remedy claims and evictions.

Historically, cases in justice courts were divided into small claims cases and justice court cases. Small claims cases typically involved civil disputes of $10,000.00 or less. However, these same cases could also be heard as a justice court case. The Texas Rules of Evidence applied to justice court cases, but not to small claims cases. Under the old rules, justice court proceedings could become quite confusing.

The new rules simplify justice courts proceedings and make the applicable rules easier to locate. General rules governing all cases will be found in rules 500-507. These rules will apply to all small claims cases, and any other case not covered by rules 508, 509, and 510 which may be filed in justice court. Small claims cases will continue to apply to any disputes over monetary sums of $10,000.00 or less. In computing the $10,000.00 amount, attorney’s fees incurred will continue to be included, while statutory interest and court costs will not. To the extent the general rules are not in conflict with rules 508, 509, and 510, they will also apply to debt claims, repair and remedy claims, and eviction claims. To the extent that rules 508, 509, or 510 conflict with the general rules, the specific rules shall control. All other rules of civil procedure and rules of evidence not included in rules 500-510 will typically not apply in justice courts. Justice Court judges enjoy the continued discretion to question witnesses or parties, summon witnesses to appear. or to allow reasonable pretrial discovery.

The new rules streamline the justice court process making the court more accessible to both attorneys and laymen alike. Even though justice courts are widely considered the people’s court, representation by competent counsel is still advised to adequately protect your individual interests.

Think you know everything about a DWI in Texas? Think again…..

Many people think a first offense DWI charge is a relatively minor infraction. A simple misdemeanor with a fine, license suspension and minimal jail time. Even with the attention given to alcohol awareness from groups like MADD, many drivers feel like there is minimal risk to driving home from dinner with drinks. However, there are some little known facts you may want to consider before having one more glass of wine with dinner.

Unlike other states, in Texas you do NOT have to be over the legal limit to be convicted of DWI. According to Texas law, any person operating a motor vehicle on state roads while intoxicated from alcohol or drugs can be guilty of DWI, whether or not the legal limit is met. Intoxicated in Texas code means a person is no longer is able to use normal mental or physical faculties, such as clear speech and balance. That being said, the legal limit in Texas is .08 and any person caught with a BAC of .08 is automatically considered DWI. This is also known as a “per se” DWI. Additionally, any person caught driving a motor vehicle with a BAC of .15 will face even more punitive consequences than someone charged with simple DWI or per se DWI. This level of alcohol in the blood will be a special concern to the court if your case is found to have other aggravating circumstances.

One such aggravating circumstance is the presence of a passenger under 15 years of age. Did you know it is a State Jail Felony if you are convicted of a DWI with a passenger under 15 years of age in Texas? Even if you’ve never been convicted of DWI or any other offense before, the fact that you are accused of DWI with a child passenger means the charge is a felony. The MINIMUM sentence for a DWI with child passenger is 180 days in a State Jail Facility. You can be facing up to 2 years in State Jail on your first offense and a $10,000 fine. You may be eligible for probation. However, because it is a DWI offense, you are not eligible for a Deferred Adjudication. This means, if you plead guilty and get probation if you’re ever asked the question, “Have you ever been convicted of a felony?” you will have to answer “YES.” This type of conviction has other long range effects, such as a loss of the right to vote or own a firearm. It could also have a significant impact on your rights as a parent if you are divorced or have a pending suit affecting the parent-child relationship.

There are other considerations as well. In September 2009 revisions to Chapter 724 of the Texas Transportation Code REQUIRES a police officer to draw your blood without your consent and without a warrant, if you are arrested for DWI with a passenger under 15. Furthermore, while the burden of proof in DWI Child Passenger cases is the same as a regular DWI, jurors often hold the prosecution to a lower standard because children are involved. In both regular DWI and DWI Child Passenger, intoxication is defined in exactly the same way. However, many jurors are willing to find someone in intoxicated based on less evidence in a DWI Child Passenger Case.

We make choices all the time that can have long term effects on our lives and those around us. I hope the information provided herein allows you to make a more informed choice when driving with your children. It is important to realize the risks you face before you make decisions that may be far more serious than you believe them to be.


On October 15, 2013, the U.S. Supreme Court agreed to decide exactly what constitutes an illegal “straw purchase” of a firearm under federal law. The case bringing this issue to the high court originated out of the Sixth Circuit Court of Appeals. In that case a former Virginia police officer offered to purchase a weapon for his uncle, believing that his status as a former law enforcement officer would get him a good deal from a local firearms dealer who did a substantial business with law enforcement officials. The officer spoke with several gun dealers about how to legally make such a purchase. These dealers apparently told him that any licensed firearms dealer in Pennsylvania could transfer the handgun to the uncle after it was lawfully purchased in Virginia.

Armed with this information, he purchased a pistol with $2000 in cash. As required by law, he completed Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) Form 4473. The purchaser of a firearm must answer a series of questions listed on the 4473 with a check in either a “yes” or “no” box. Question 11.a asks: Are you the actual transferee/buyer of the firearm(s) listed on this form: Warning: You are not the actual buyer if you are acquiring the firearm(s) on behalf of another person. If you are not the actual buyer, the dealer cannot transfer the firearm(s) to you. The officer checked “yes.” Three days later a check for $400 was deposited in his bank account and he transferred the pistol to his uncle through a licensed federal firearms dealer in Pennsylvania on the following day. The government considered this a straw purchase and secured an indictment for two firearms offenses: 1) making the “false and fictitious” statement on the 4473 that he was the actual buyer of the pistol in violation of 18 U.S.C. § 922(a)(6); and 2) making a “false statement with respect to information required to be kept in the records of a licensed firearms dealer” in violation of 18 U.S.C. § 924(a)(1)(A).

Federal appeals courts uniformly agree that a “straw purchase” is a sale where a person makes a purchase of a firearm claiming to be the buyer but who is actually purchasing the weapon for another person who will receive possession of it. The officer’s attorneys sought to have the indictment dismissed on the legal premise that because the officer and the uncle were both legally entitled to purchase a firearm, it could not be a straw purchase. This argument is based on the conclusions reached by the Fifth Circuit Court of Appeals in United States v. Polk, addressing the issue of whether criminal liability attaches under § 922(a)(6) if the “true purchaser” can lawfully purchase a weapon directly. Applying the “plain language” of the statute, the Fifth Circuit determined it did not, finding that the intent of § 922(a)(6) is to criminalize false statements designed to “deceive federal firearms dealers” concerning the “lawfulness of the sale;” therefore, if a true purchaser can lawfully purchase a firearm directly, then no criminal liability attaches to the person who fills out the 4473, pays for the weapon, and gives it to the true purchaser.

While the Fifth Circuit is the federal appellate court for the State of Texas, there is a split among the other circuits. Second Amendment proponents strongly believe there is nothing wrong with a relative purchasing a weapon he is legally entitled to purchase with the specific intent to sell it to a relative likewise legally entitled to purchase a weapon. The Fifth Circuit says such a purchase is legal because both parties are legally entitled to purchase and possess a firearm. The Sixth and Eleventh Circuits say these legal entitlements do not matter, that the failure to disclose the identity of the true purchaser is a criminal act. The ultimate answer will lie in how the United States Supreme Court interprets the legislative intent of Congress in passing § 922(a)(6). Until we receive their guidance, proceed with caution if you decide to purchase a firearm on behalf of a family member.