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Texas Justice: an analysis of the Texas Court System

Texas Justice: an analysis of the Texas Court System

In 1876 voters adopted the state of Texas’s constitution. The Constitution for the State of Texas set out amongst other things, fundamental legal rights afforded to residents, basic principles for the operation of the state government and legal system and separation of powers in the three branches including the legislative, executive and Judicial Branches. Article 5, Section 1 of the Texas Constitution is where the State derives its judicial power.

Two basic types of cases are heard in Texas courts; criminal and civil. Criminal cases are those in which someone is charged in court with having violated certain laws called criminal or penal statutes. A person who violates one of these statutes is said to have committed a crime. In Texas an act is not a crime unless, before the act occurred, the Legislature has passed a statute making the act unlawful. Civil cases are another basic type of cases which are tried in the courts of Texas. Most simply stated, civil cases involve disputes between two or more parties (usually persons or businesses) and are not criminal in nature, such as divorce cases and suits to collect debts.

In the State of Texas the Court System is divided into 5 levels, including Justice Courts, Municipal Courts, County-Level Courts, District Courts, Courts of Appeals local trial courts of limited jurisdiction. These 5 levels include local trial courts, county trial courts, state trial courts, state intermediate appellate courts and the state’s highest appellate courts. Each one of these levels is divided into multiple branches. The local trial level is divided into justice courts and municipal courts.  County-level courts are divided into constitutional county courts, statutory county courts and statutory probate courts. State trial level courts consist of district courts; next, state intermediate appellate courts which are comprised of the courts of appeals; and finally, the highest level courts are the Supreme Court and the Court of Criminal Appeals.

The lowest level courts include local trial courts of limited jurisdiction of which are Municipal Courts and Justice Courts. Municipal Courts are comprised of 926 Cities and 1,553 Judges. Their Jurisdiction is limited to criminal misdemeanors punishable by fine only and they have exclusive original jurisdiction over municipal ordinance criminal cases which is an offense that arises under a municipal ordinance is punishable by a fine not to exceed: (1) $2,000 for ordinances that govern fire safety, zoning, and public health or (2) $500 for all others; Limited civil jurisdiction and they act in a magistrate function.

Justice Courts are the other local trial courts of limited jurisdiction. They are comprised of 815 courts which hold 815 judges. These courts are established in Precincts with each county. Harris County, where I live, is divided into 8 precincts. The near county of Galveston is divided into 9 precincts and the Brazoria County is divided into 4 precincts. A case must be filed in the appropriate “Venue”. "Venue" is the proper Justice of the Peace Precinct in which the Small Claims Court may exercise its jurisdiction. As a general rule, a suit in Small Claims Court must be brought in the county and in the Justice of the Peace Precinct in which the defendant resides. If, however, the defendant has contracted to perform an obligation in a certain county, an action may be brought in the county where the obligation was to be performed.  If there is more than one Justice of the Peace within a precinct, the plaintiff may bring suit in any of the Small Claims Courts within the precinct.

The next level of courts in the state of Texas is comprised of County Trial Courts of Limited Jurisdiction. In County – Level Courts there are 508 courts and 508 judges. This level of court is divided into Constitutional County courts, which are divided into one court in each county totaling 254. There Jurisdiction includes original jurisdiction in civil actions between $200 and $10,000; Probate cases, they also have exclusive original jurisdiction over misdemeanors with fines greater than $500 or jail sentence. They also handle juvenile matters, and appeal de novo from lower courts or on the record from municipal courts of record. Additional types of courts at this level include statutory county courts and statutory probate courts. The statutory county courts are comprised of 236 which are established in 88 counties. Their jurisdiction includes all civil, criminal, original and appellate actions prescribed by law for constitutional county courts. In addition, jurisdiction over civil matters up to $200,000 some of the courts may have higher maximum jurisdiction amount. There are 18 Statutory Probate Courts which are established in 10 counties. They are limited to probate matters.

From the county level courts the next level is the courts of appeals system which is the state intermediate appellate counts. They have 44 courts and 80 different justices. They are divided into 14 regional jurisdictions and the number of judges serving on each Court is defined by statute and varies from three to thirteen. At a minimum, "each Court is presided over by a chief justice and has at least two other justices."  There are currently eighty judges authorized by statute for the fourteen Courts of Appeals. Most cases are only heard by three justices, only requiring the full slate of justices in extreme circumstances.

Depending on whether the case is Civil or Criminal in nature the case will go to either the Supreme Court or the Court of Criminal Appeals.  In regards to civil appeals the Supreme Court has final appellate jurisdiction in civil cases and juvenile cases. They have state wide jurisdiction and are comprised of 9 justices. The Justices of the Supreme Court are elected to staggered six-year terms in state-wide elections. When a vacancy arises the Governor may appoint a Justice, subject to Senate confirmation, to serve out the remainder of an unexpired term until the next general election. All members of the Court must be at least 35 years of age, a citizen of Texas, licensed to practice law in Texas, and must have practiced law (or have been a lawyer and a judge of a court of record together) for at least ten years. The justices of the Supreme Court are Chief Justice Wallace B. Jefferson, Justice Nathan L. Hecht, Justice Dale Wainwright, Justice David Medina, Justice Paul W. Green, Justice Phil Johnson, Justice Don R. Willett, Justice Eva Guzman, and Justice Debra Lehrmann. The Supreme Court of Texas is composed of a Chief Justice and eight justices. It has statewide, final appellate jurisdiction in all civil and juvenile cases. Most of the cases heard by this Court are appeals from an appellate ruling by one of the intermediate Courts of Appeals. The Supreme Court also has the authority to determine certain legal matters over which no other court has jurisdiction and to issue such orders as may be necessary to enforce its jurisdiction and to carry out the responsibilities of the Court. In regards to Criminal Cases the state’s highest appellate court is the Court of Criminal Appeals. It has final appellate jurisdiction in criminal cases, has state wide jurisdiction and is comprised of one court and 9 justices. The justices presiding are Judge Sharon Keller, Judge Lawrence E. Meyers, Judge Tom Price, Judge Paul Womack, Judge Cheryl Johnson, Judge Michael E. Keasler, Judge Barbara Parker Hervey, Judge Elsa Alcala, and Judge Cathy Cochran. 

In 1876 the Texas Constitution set out fundamental legal rights afforded to residents, basic principles for the operation of the state government and legal system and separation of powers. The judicial branch of the Texas state government is outlined in Article 5, Section 1 of the Texas Constitution. The two basic types of cases that are heard in Texas courts are criminal and civil. Each type of case has a Supreme Court. For civil cases Texas has the Supreme Court, and for criminal cases the final court of appeals is the Court of Criminal Appeals.  Texas and Oklahoma are the only 2 states that have two Courts of Last Resort for civil and criminal appeals.

References

Edwards, George C, Wattenberg, Martin, P., Linberry, Robert, L., Government in America; People, Politics, and Policy 12^th Edition (1995-2010) retrieved from Pearson Education: http://wps.ablongman.com/long_edwards_ga_12/33/8514/2179716.cw/index.html

Texas Courts Online Retrieved from http://www.courts.state.tx.us/ on 1/25/2012

Texas Politics Retrieved from http://texaspolitics.laits.utexas.edu/3_1_0.html on 1/25/2012

State Bar of Texas Retrieved from http://www.texasbar.com/am/template.cfm?section=Our_Legal_System on 1/25/2012

External and Internal Factors in Real Estate

External and Internal Factors in Real Estate

Jim Butcher

Introduction

In the real estate industry e-business, diversity, and ethics have a profound impact on the four functions of management. Communication technologies are creating dynamic changes in the world of real property transactions. It changes the way brokers must think and act with regard to everything from devising strategies to leading and inspiring agents. Real Estate is still tactical, and still strongly interpersonal and human, but now it also must happen via the Web. Diversity refers to more than skin color and gender. It is a term used to refer to all kinds of differences including religious affiliation, age, disability status, military experience, sexual orientation, economic class, educational level, and lifestyle in addition to gender, race, ethnicity, and nationality. Real Estate ethics are the moral principles and standards that direct behavior in the world of real property. E-business, diversity, and ethics have had an extreme influence on the four functions of management in the real estate industry.

E-business

E-business is creating changes in real property, making brokers think and act with regard to everything from marketing strategies to leading and encouraging agents. The internet has enabled brokers to market their product to a larger group of people, increasing sales and productivity. The use of MLS (multiple listing services) has allowed brokers to find products for their clients at the click of a button, creating an industry with the most up-to-date information about the real estate market. The internet has opened new lines of real estate marketing, such as on-line apartment locating and virtual tours for new homes, increasing productivity and sales. It has also made it possible for the Texas Real Estate Commission along with other state, and national organization to distribute information about law changes, and contract modifications. E-mail is a vital part of communication in the high pace market of today, and has made instant communication between clients and brokers possible. The use of personal organizers and cell phones has changed the face real estate, making communication instantaneous and business immediate. Cell phones as personal organizers have made planning and organizing swift, and effortless, creating efficient offices focused on productivity, complete customer satisfaction. With personal organizers, planning real estate is painless, this involves creating events to show the products listed by a broker, and “pressing the flesh”. In real estate sales and leasing, planning is the difference between success and failure, and involves creating techniques and working on sales pitches. By planning brokers are able to anticipate questions potential client may have and even address them before they arise, leading to satisfied and content customers; It especially helps in smoothly closing the deal. 

Diversity

Diversity represents more than ethnicity and gender, also referencing religious affiliation, age, disability status, military experience, sexual orientation, economic class, educational level, and lifestyle. HUD (Housing and Urban Development), and federal regulations, such as the Equal Credit Opportunity Act, influence diversity in real estate. With the growing population of Hispanic Americans in Texas, there has been a large request for bi-lingual agents to fill an increasing demand. Diversity in a sales team allows a broker to market to larger amounts of cliental, increasing profit and product marketability.    

Ethics

Real Estate ethics are the moral principles and standards that direct behavior in the world of real property. All members of the National Association of Realtors “Realtors®” adhere to the Realtor® Code of Ethics, which distinguishes a Realtor® from someone who is merely licensed by the state to sell real estate, which requires Realtor® to put their clients' welfare first at all times. The Realtor® Code of Ethics, adopted in 1913 has voluntary and became mandatory in 1924. Holding a real estate agent's or real estate broker's license does not make someone a Realtor®. Membership in the National Association of Realtors® are, entitled to use the term Realtor® on their business cards and in their marketing materials. A Realtor® is committed to continuing education, professionalism, and integrity and a majority of them participate in a local multiple listing services (MLS), which is a distinct advantage in selling a home or looking for a property. The National Association of Realtors® is one of the world's largest professional-membership organizations, and a large number of Texas’s 75,000 members belong to organizations on the local level. (Texas Association of, 2005)

Conclusion

E-business, diversity, and ethics have a profound impact on the four functions of management in the real estate industry. Communication technologies have created changes in the world of real property transactions, requiring changes in the way brokers think and act with regard to sales strategies and tactical marketing. Real Estate remains strategic and highly dependant on strongly interpersonal that must happen via the Web. Diversity, referring to not only skin color and gender but also, religious affiliation, age, disability status, military experience, sexual orientation, economic class, educational level, and lifestyle has changed the landscape of management, and leaders interact with their employees. Real Estate ethics are principles that directed behavior in the world of real property, creating a better business environment for both brokers and clients. All of these things, e-business, diversity, and ethics have profoundly effected management in the real estate industry.

References

Thomas S. Bateman, & Scott A. Snell. (2004). Management-- The New Competitive Landscape (6th ed.) (McGraw-Hill/ Irwin, Ed.). Boston: McGraw-Hill/ Irwin. (Original work published 1990)

Texas Association of Realtors. (2005, Jan/Winter). REALTOR®  Standard Code of Ethics (REALTOR®  Standard Code of Ethics, p. all) [Electronic version]. Austin, TX: Texas Association of Realtors.

“Government With-out Limits”

“Government With-out Limits”

Jim Butcher

An Analysis of Kurt Vonnegut’s short story “Harrison Bergeron”

The society created by Kurt Vonnegut in the short story “Harrison Bergeron”, reflects different sociological theories including Marxism, and Social Darwinism. Marxism is demonstrated though the non existence of classes and the idea of ultimate equality.  Marx believed that he could study history and society and detect tendencies and the potential outcomes of social issues. His ideology hinged on his view of human nature and the assumption that human nature involves transforming nature. This is apparent in the use of handy-cap devises to “level the playing field”. For example, in the story, smart people were forced to wear devises to distract them and beautiful people were forced to wear ugly masks. Social Darwinism also plays a heavy roll by introducing the role of government as the oppressors. This is a prime example of the wealthy, influential, and powerful individuals/groups, taking precaution to not be over thrown. By limited the masses the government is able to feed their greed and control society.

The true intent of the laws in “Harrison Bergeron” is to keep the ruling class in power, which is cleverly disguised by a call for equality. By oppressing the masses the ruling class is able to exert their will on the general population.  Handy-caps are put in place to create an inferior level of comprehension and understanding, which makes the ruling class unapproachable.  For example, it would have been just as easy to bring the masses to a higher level by providing increased beauty and abilities. However it is clear that the intention is not to make people equal but limit their abilities.

Norms, values, and culture also play a role in controlling and molding society. They place additional social controls by providing punishment outside of legal system.  Rules are followed because they are seen as norms and as the popular opinion of the society. This places additional social pressure to follow them.  In addition to this there is also the possibility of punishment that is a deterrent to people. In the case of “Harrison Bergeron” people like George and Hazel (like animal conditioned to salivate at the sound of a bell) are conditioned to see this life of equality as the best and only solution for their society, 

  In the story laws are created to suppress the people. The Handy-capper General is put in place by a ruling class of individuals to show perceived order which is only oppression under the veil of equality. The illusion of equality is re-enforced by the in ability of pain and suffering, as when George, Harrison’s father, like a goldfish cannot even remember   what happens 10 seconds ago. The government creates amendments without limitations that people have to follow. You see this with the introduction of the 213 amendment in the story. They create amendments as they find new ideas and reasons to have them. In this fictional government the laws are created by a panel of people with a grand overseer who dictates the law to the Handy-capper General, who mindlessly carries out the bidding of the “counsel”.

 “Harrison Bergeron” provides examples of both law changing society and society changing law.  It is safe to assume that the story implies that society in the pursuit of equality adopted laws and amendments designed to make the people in the world equal in some kinds of ways. These amendments were made so that no one is better or less equal to another in every kind of way such as looks, size, and level of IQ. Later these laws began to change society. In this fictional world society began to change as laws per put into place. Laws created more law which changed society. This is evident in the 213 amendments that are introduced in the story.  Also the rule of many became the interest of a few that control everyone in the world and punishes those who do not listen and do not want to be equal.

In the world of “Harrison Bergeron” there is no individual that can do a job better than another.  This would be the same for the role of lawyers.   Lawyers and the legal system will be put in place as figure heads of society or as a distraction from the issues. Real justice will be dispenses summarily by the inspector general as dictated by the ruling class. In this world there is no criminal court but instead the swift justice of jury, judge, executioner appointed by the “elite”. In civil courts attorneys pay the roll of monkeys acting out a play for the viewing pleasure of the general population. 

            Vonnegut’s fictional world is an omen of thing to pass with a government that goes unchecked by the people.  This story points out that shared disinterest of the government for the lives of it constituents and the self interest that is their underlying motivation.  It also sheds light on the over-regulatory practices creating a government for the people by the government. As many see today, by presidential polls conducted, the leaders are out of touch with the people this is the same as Harrison Bergeron. Leaders of the fictional world play puppet master like gods on mount Olympus manipulating people for their own amusement.   

Big Bail-out, Big Dream?

Big Bail-out, Big Dream?

By Jim Butcher

            In today’s economy it is common to hear the words “Bail-out” and since before general elections in November 2008 the economy has been on the top of every-bodies mind. Both Republican and Democrats have different views of how an economy in recession should be cured, with opinions ranging from doing nothing to 1 trillion dollars of federal funding. All across the United States there are businesses, and State Governments asking for funds to help them on the verge of bankruptcy. Businesses include the insurance industry, mortgage industry, car industry, airline industry, credit card companies and Wall Street. Government entities include the state of California, New York, and New Jersey. Some of the issues that come up with the bail-out are jobs, fiscal responsibility, and government involvement in private industry. On the topic of jobs, issues of job lost and how higher unemployment rates will affect the economy, creating a downward spiral effect. Fiscal responsibility discusses government programs and spending habit that have lead to their current financial woes. Government involvement is private industry talks about a capitalism economy and government involvement in a capitalist economy. These concerns are the core of the bail-out plan and further discussion will lead to a greater understanding of government “big brother” type function.

            It is my firm belief that the United States Government should not to bailout the economy and should not be involved in private industry and should allow a company to fail. I also believe that by bailing-out governments and companies Americans are moving from a free capitalist economy to a restricted Marxist economy. An economy where the Government decides how Americans spend, invest, live and prosper.   Ultimately the bail-out is against all of the fundament principals of the United States and the free market system. The opposition essentially feel that it is the government’s responsibility to take care of Americans. They also feel that such a stimulus will correct the economy and solve our counties financial issues. President Elect Obama on March 27^th 2008 essentially claims that the American economy has embraced an ethics of insider training and greed and that Americans should all prosper together. President Elect Obama also talks about heavier government regulation and government involvement. Further examination of this only leads to less government involvement in private businesses and supports the idea of no Bail-out. This is a breach in the fundamental ideology of the Framers of the Constitution of the United States of America. And is a testimonial to out-of-touch leadership, big business lobbyist, wild government spending, and top heavy leadership. The Bailout is a band-aid over a gapping cut and does not cure the underlying issue.

How involved in your life should the government be? As American we have the right to make our own discussions. As the husband of a teacher and a “capitalist” American citizen, I feel that it is our right, and not small government entities, to decide what do with their lives. Freedom of expression is the fundamental ideology of American Culture; and being a society based on freedom of expression, it is essential to teach this elementary philosophy.  Forcing us to invest in failed businesses is a contradiction of American beliefs that creates more dependency on government agencies; which resembles more socialism/communism. Therefore, in a society founded on freedom of expression and not government control i.e. “socialism/communism”, Americans should have the right to make their own decisions.

I believe a cartoon by Tom Toles of the Washington Post named “Red and blue states will work together” put it best. The picture also shows the United States on the map upside down and backwards and in the center of the picture is a caricature of President Elect Obama. Uncle Sam is in front of him and he tells him we need to work together. The image potraited a certain image of chaos that made the viewer think. Is this what really needs to be fixed and are we doing it for the right reasons? The Bailout is fixing the rich and securing government jobs, under the disguise of helping the middle class people.

Here is what I mean. Congressman and Senators make 169,300.00 plus benefits per year as according to usgovinfo.about.com. There are 535 Members of congress this totals 88.382 Million dollars of salaries which they also receive a cost of living adjustment annually. There benefits include: a separate pension plan called the Civil Service Retirement System (CSRS).  Members of Congress also receive retirement and health benefits under the same plans available to other federal employees and become vested after five years of full participation. As it is for all other federal employees, congressional retirement is funded through taxes and the participants' contributions.            

They also receive a personal staff allowance which includes: “Representatives' staff allowances can be used to hire up to 18 permanent and four non-permanent aides divided between the members' Washington and district offices. Up to $75,000 of a representative's staff funds can be transferred to his or her official expense account for use in other categories, such as computer and related services. The maximum salary allowed House personal staffers in 2005 was $156,848. Senators' personal staff allowances vary with the size of the members' states. Senators may hire as many aides as they wish within their allowance; typically this ranges between 26 and 60, depending on the size of the state and the salary levels offered to the staffers.  The maximum salary allowed to Senate personal staffers in 2003 was $150,159 (1999: $132,159); for Senate legislative staffers the maximum salary in 2005 was $153,599.”

They also receive expense allowances which include: “for members, kept separate from personal staff allowances, cover domestic travel, stationery, newsletters, overseas postage, telephone and telegraph service, and other expenses in Washington and in the members' state or congressional districts.” They also receive the Franking Privilege, which allows a member to mail official letters and packages under the members' signature without charges for postage. Foreign Travel, outside employment income, domestic travel and housing expenses. When this is all said and done Americans are spending a million dollars per year per representative when the average Americans pay in the United States as according to the US Census Bureau is about $50,000.00 dollars. The $535 Million dollars per year does not include federal judges and there staffs, the president and his staff, other government officials, and state governments. 

Another example of government being out of touch is the Governor of Illinois, Rod Blagojevich. The man is making $155,600.00 per year plus benefits as according to stateline.org and was trying to sell the senate seat to the highest bidder as according the FBI reports on the subject. The State of California as of October 2 2008 requested $7 billion from the Secretary of the Treasury in letter from Governor Schwarzenegger. This is a sign that California, other states and local government spending is out of control. This becomes more apparent especially when other states like Texas and South Carolina are telling them that there spending is out of control.

            Like I said the bail-out will not fix the problem. In fact it will only make the problem worst by like Obama said create an ethic embraced an ethics of insider training and greed. Upon further examination of the issues, if the companies are not made to fail they will learn nothing and the CEO’s will make millions of dollars while and suffer no consequences for there poor choices of judgement. Instead Americans will perpetuate a country based on government intervention and freedom to do nothing. Like I stated the bail-out is a band-aid over a gaping wound. Like any other business it is best that we cut our losses, lick or wounds, and learn from our experience. The free market will create investor awareness and ultimately save us billions of dollars. In conclusion the evidence and resources referenced in the body of the paper show the most prudent action is to allow the free market to take care of itself and by allowing the basic principles of free enterprise to happen we can fix the underlying issues of greed and power rather than covering them from later generations. Freedom of expression being the fundamental ideology of American Culture and bases of society, it is essential to teach this elementary philosophy. By forcing American to support and bailout failed businesses ventures is a contradiction of American beliefs that un-minds the whole system of freedom of choice. 

Works Cited

Stout, David. (September 20, 2008). The Wall Street Bailout plan, Explained.

The New York Times. Retrieved 12/8/08 from

http://www.nytimes.com/2008/09/21/business/21qanda.html?_r=1

Cover, Matt. (October 31, 2008). NY, NJ Governors plead for state bailout; SC gov.

Urges Restraint. CNS News. Retrieved 12/8/08 from http://www.cnsnews.com/public/Content/Article.aspx?rsrcid=38569

Hotakaninen, Rob (December 1, 2008). States want their own federal financial bailout. McClatchy Newspapers. Retrieved on 12/8/08 from http://www.idahostatesman.com/1425/story/571171.html

Brown, Carrie Budoff (September 19, 2008) Obama Basks bailout plan. Politico. Retrieved on 12/8/08 from http://www.politico.com/news/stories/0908/13631.html.

Gandel, Stephen. (November 16, 2008). Paulson Credit Card bailout draw growing criticism. Time Magazine. Retrieved on12/8/08 from http://www.time.com/time/business/article/0,8599,1859381,00.html

http://thecaucus.blogs.nytimes.com/2008/03/27/obamas-speech-on-the-economy/

Toles, Tom. “Red and blue states will need to work together Cartoon. Washington Post. 8            December, 2007. <http://www.washingtonpost.com/wp

srv/opinions/cartoonsandvideos/toles_archive.html

Editorial Review

by Jim Butcher

Editorial Review: 

            This cartoon was designed to highlight issues regarding the changes in leadership in United States of America. The title “Okay… First Order of Business” plays off the opinion of party lines. The picture also shows the United States on the map upside down and backwards, challenges the reader to determine the meaning. Centered in this picture is a caricature of current President Elect Obama. He is in-front of Uncle Sam or a caricature of a patriot telling them we need to work together. To the bottom right in small letters is a note, “RED AND BLUE STATES WILL NEED TO WORK TOGETHER.” The whole picture portrays the globe and you can clearly see the shape of Europe, Arica, and Central America. The thing that is wrong is the position and orientation of the United States.
            The first thing I notice was the US place on the map upside down and backward. This suggests to me that the way of thinking is totally wrong contrary to what the artist feels it should be and backwards. The cartoonist creates feeling of chaos with this image. Making it seem that the new administration is going about things completely incorrect. The imagery helps tremendously with the argument and I do not feel that an argument written by the author would have been as effective without it. In another sense, the image leaves room for interpretation and is ambiguous as to the cartoonists intentions.

            The written words in the cartoon stay “Red and blue states will need to work together”. This with the caricature of President-elect Obama with a dumb look on his face implies to me that the cartoonist feels that the argument of on partisan politics with something that is not new. Also by referring to red and blue it seems to cartoonist is implying a divide otherwise he would he use the term Americans need to work together. The claim it is only half a parent in the words and the rest becoming more apparent with the picture.

            The intended audience is anyone who is concerned about the elections and how it will influence their lives. For those who understand and don’t understand politics, there is no surprise in this cartoon. I find the argument opinionated, persuasive, and very current. It is attacking the issue of people saying one thing and doing another, telling things that have been said time and time again, and dealing with issues first that don’t need to be dealt with

Works Cited

Toles, Tom. “Red and blue states will need to work together Cartoon. Washington Post. 8            December, 2007. <http://www.washingtonpost.com/wp-srv/opinions/cartoonsandvideos/toles_archive.html>.

Ad Analysis of Wilshire Homes

Ad Analysis of Wilshire Homes

by Jim Butcher

This is an analysis of an advertisement for a Wilshire Homes’ ad.  In this ad, the home builder uses language/ language placement, and imagery to transmit desired attributes they feel their homes offer.  By using these ideas, Wilshire Homes is attempting to show a monopoly on beautiful, custom, & unique homes available in their communities.

Using Toulmin’s theory, the ad vaguely shows the claim that they can give buyers a perfect fit to their living requirements.  There is bold wording that declares that client’s needs are different and so should be their homes. The grounds of this ad are both in images and words used.  The images used by the ad shows 2 different families, both well dressed, and average looking; A map of different sites around the city, and bold text with a tag-line.  All of these images are meant to show diversification, customization and quality. Even though the ad does not show any person in contact with a Wilshire Home, the creators must have felt the reader would associate these pictures and text with the product.  We are also given language in the ad telling the reader to imagine it being exactly what they want, “Your clients don’t look alike. Neither do our homes”. The third part of Toulmin’s theory, the warrant.  We are told how their homes would fit the need of the individual family.  The ad tells of how the quality of their product “will make it hard not to say “yes” ”.  It also states that they are current with the demand for new energy efficient homes and a part of large creditable organizations.   In addition to the language used, there is also an image of a map with a list of subdivision names under it on the page.  This is used to convey that they have successful locations throughout the Houston area.

In terms of overall effectiveness and persuasiveness, I feel the advertisement is vague and not very persuasive.  There are a few items in the ad that would appeal to a reader’s ethos, for example, the ad does show logos for the builders association and other creditable organizations. This reflects the writer creditability by association. In terms of logos, again we have little here that would appeal to our logical senses.  The only item in the ad which does appear to cater to the reader’s logos is a note which refers to making things different for different clients.  The use of pathos is slightly obvious, with the images different types of families and claims to individuality. 

When trying to determine a target audience, this again presents a problem, as there are pictures of families but it seems the target audience is too broad (anybody that makes 150k to 450k).  It is obvious the designers of the ad wanted to communicate feels of individuality.  However there is little that is truly persuasive about the advertisement.  I feel it would be more effective to use more imagery that conveyed their ideas, mixed with the catch phrases in the ad; using testimonials from current owners would also create more credibility. 

In this ad, Wilshire Homes is using vague and ambiguous images, surrounded by lofty claims of being unique. They do a decent job in appealing to logos but lack in ethos, and pathos.  The ad does not seem either effective, or persuasive.  I feel there are much more persuasive routes to show diversification, customization and quality in homes.

Reference:

Wilshire Homes, Custom Home Builders [advertisement]. (2008, October). Houston Realtor Magazine, October 2008, issue, p.10

The Information Highway

Technology it is a wolf in sheep’s clothing, presenting a paradox of blessings and curses neatly packaged in the forms of television, cell phones and the internet. In modern American culture only a few people have not listen to a radio, watch TV, surf the Internet, sent an email or text. These things are essential parts of society as we know it, but when too much technology becomes dangerous. This essay will extend my point of view on the dangers associated with technology and its influences on pop culture.  Other topics include: Pros and cons of technology and do the benefits out-weight the negatives.

                Today the Internet is an integral part of life and has revolutionized the world. By connecting people at the blink of an eye, it has brought lives closer in ways no one could have imagined. The internet has made it easy to stay in touch, send pictures, and reconnect with old acquaintances.  For businesses, it has given local companies the ability to market to a world-wide audience at the fraction of the cost. A great example of this is Yahoo, Google, E-bay, and the thousand other web-based companies that are now household names.  It is a platform to stay connected. An example of this is the ever-growing popularity of social-networking sites like Facebook, Myspace, and Twitter.

We are more connected than ever, but at what price? Identity theft, fraud, viruses, child predators, email scams, invasion of privacy, mass expansion of pornography, misleading information, and junk mail just to name a few.  The Internet is a playground for predators from hackers to con-artist, and individuals looking to exploit children. Internet pornography, along with blogging, and other illegitimate websites have pushed the concept of freedom of speech and expression to a whole new level. Hackers have made computers a mystery to older users. From spyware, adware, malware, shareware, freeware, pop ups, and root kits it is like learning something that changes and evolves on a daily basis. It is complicated, confusing and foreign to most people. The recent rise in identity thief has made things more complicated and confusing. Now you need to create passwords that are 8 to 10 characters long. They are required to have alpha, numeric, and special characters. Because of viruses you are required to have a firewall, viruses protection software (all other protection sold separately), and an external hard drive to store confidential information. Hackers have been using the internet to steal your information, sending program spiders to gather account information on your computer when you click on a website.

Another issue involves the use of email for the purpose of sending email scams. Foreign governments have created scams to drain your bank account dry like vampires. Theses scams include all of the following:  The "Nigerian" Email Scam, Phishing, Work-at-Home Scams, Weight Loss Claims, Foreign Lotteries, Cure-All Products, Check Overpayment Scams, Pay-in-Advance Credit Offers, Debt Relief, and Investment Schemes. If that is not enough to scare you there is an IRS scam also. 

Like the printing press to scribing, the internet has commercialized communication. Today it is common to have 10 conversations at the same time via email and text. Talking on the phone is even disappearing. Before people would meet and create relationships for business. Next the phone, made it easy to call a person and conduct business, and now email and texting has made it unnecessary to even call an individual to conduct business.  Emailing proposes an interesting problem. How do you convey emotions and meaning in the context of an email. Even emails are getting shorter with emotion cons or acronyms like lol or WTF. Children have even begun to speak in these acronyms.  For me there is nothing weirder than a child saying lol instead of laughing.   It just seems unnatural. Emailing has taken out the personal interaction that was necessary when communicating.  Now if a girl wants to break up with a guy she just sends him an email doing the act.

The Internet - Dirty Little Secrets!

The Internet - Dirty Little Secrets!

(Thoughts on the Internet and how it affects Social Interaction)

Jim Butcher

The Internet also affectionately called the “web” presents itself as a blessings and curse neatly packaged on your cell phones, net-books, laptops and desktops. Modern American culture revolves watching You-tube, surf the net, and sending emails. These things are essential and indispensable part of life as we know it, but with power is responsibility. There is an old adage that says “Knowledge is Power,” and another “absolute power corrupts absolutely”. The Net is place exploitation. It is a place of profiteering at the expense of the unknowing public.   This essay will extend my point of view on the dangers associated with Internet and its influences on pop culture.  Other topics include: Internet dating, Sexual Predators, and Social networking.

                Today the Internet has revolutionized the world by connecting people at the blink of an eye. It has brought lives closer in ways no one could have imagined and made it easy to stay in touch and reconnect with old acquaintances through social networking sites like Facebook, Myspace, and Twitter. But what is the price of this connection? Identity theft, fraud, viruses, child predators, email scams, invasion of privacy, mass expansion of pornography, misleading information, and junk mail.  The Internet is a playground for predators, hackers, and con-artist. Viruses require firewalls, viruses protection software (all other protection sold separately), and an external hard drive to store confidential information. Hackers are stealing information by sending program spiders to gather account data when you click on a website. Foreign governments have created scams to drain your bank account dry like blood thirsty vampires. These include:  The "Nigerian" Email Scam, Phishing, Work-at-Home Scams, Weight Loss Claims, Foreign Lotteries, Cure-All Products, Check Overpayment Scams, Pay-in-Advance Credit Offers, Debt Relief, Investment Schemes and even an IRS scam. 

The net has also provided online dating. Per a survey conducted by the Online Publishers Association (OPA) and comScore Networks, Americans spent $500+ Million in 2005 for online dating and personals. Online dating sites include Yahoo! Personals, Match.com, and eHarmony. In general all of dating sites require personal information, before you can search the service provider's database.  There are a plethora of complications when utilizing dating sites. For example, sites like the popular eHarmony site expect individuals to subscribe "blind," which means that little or no information is available to search or preview. Most sites also keep profiles on for years after the person last logged in. This is a lame attempt to create the appearance that there are more available members than there actually are.  Both Yahoo Personals and Match.com have complaints about "bait profiles", which are ads that have been placed to attract new paying members (may not be actual daters). Spam sites for prostitution, multi-level marketing, or other personals websites will set up "fake" profiles. Even if the profile is legitimate many online dates misrepresent themselves by telling 'white lies' about their height, weight, age, or by using old and misleading photos.  This creates an inherent lack of trust with other members, even if the profiles are real.

The anonymity of the Internet creates a vial that allows trust and intimacy to develop quickly. Predators take advantage of this anonymity to build relationships with inexperienced people.  Predators find online dating sites especially attractive, because they give them an endless supply of new targets. A study, from the University of Texas Health Science Center, found that “there was a false degree of safety assumed by women looking for love on the internet, exposing them to stalking, fraud, and sexual violence”.  Offline, predators and pedophiles typically operate in isolation. However the net has given them the opportunity to communicate freely and directly with each other online. They use technology to train, encourage, and provides validation for their sick behavior. Online they share their conquests, real or make-believe, discuss ways to contact and lure potential victims, exchanging tips on seduction techniques and even tools to avoid law enforcement.  

The most common means by which sexual predators contact victims is chat rooms, instant messages and email. According to the Journal of the American Medical Association in 2001, 89% of sexual solicitations were made in either chat rooms or instant messages. Using Internet communication tools such as chat rooms, e-mail, and instant messaging can put children and adults at risk of encountering online predators.  This is especially true for teens using peer support online forums to deal with their problems. Predators look at these places to locate vulnerable victims. They will say anything to gradually seduce their targets through attention, affection, kindness, and even gifts, and often devote considerable time, money, and energy to this effort. Predators may also evaluate the people they meet online for future face-to-face contact (SCARY). The following traits are what Predators look for in both adults and children

• new to online activity and unfamiliar with netiquette

• aggressive computer users

• the type to try new, edgy activities in life

• actively seeking attention or affection

• rebellious

• isolated or lonely

• curious

• confused regarding sexual identity

• easily tricked by adults

• attracted by subcultures

Adolescents are the most vulnerable age group because they are exploring their sexuality, rebelling against parental control, and looking for relationships outside the family. The anonymity of the net gives them more opportunity to take risks online without fully comprehending the ramifications. They believe they are conscious of the dangers of predators, but in reality, they are ignorant about online relationships.  Predators often use pornography to sexually victimize people, supplying things such as web sites, photos, and sexual e-mail messages as a way to open sexual discussions with potential victims. They will even send airline tickets to entice teens to meet them in person.  

Social networking is being saturated by corporate America and is being infiltrated by businesses. For years the lines between business and informal communications has become blurred. The newer social technologies such as “tweeting” have made the line even blurrier. There have been disciplinary actions by businesses based on Facebook comments and/or pictures. Also there are issue of privacy, confidentiality and sensitive information. It is very difficult to see where the hunger for real-time social comments will lead.

Like the printing press to scribing, the internet has commercialized communication. Today it is common to have 10 conversations at the same time via email and text. It has been the catalyst of our ADD society. Even talking on the phone is slowly disappearing. Before people would meet and create relationships for business. Next the phone, made it easy to call a person and conduct business, and now email and texting has made it unnecessary to even call an individual to conduct business. The net is “Bigger, Better, & Faster” from Dial-up, to DSL/ Cable, and T1 to T3 connection.   Emailing proposes an interesting problem. How do you convey emotions and meaning in the context of an email. Even emails are getting shorter with emotion cons or acronyms like lol or WTF. Children have even begun to speak in these acronyms.  For me there is nothing weirder than a child saying lol instead of laughing.   It just seems unnatural. Emailing has taken out the personal interaction that was necessary when communicating.  Now if a girl wants to break up with a guy she just sends him an email doing the act. Online dating or Internet dating is a dating system which allows individuals, couples and groups to make contact and communicate with each other over the Internet, usually with the objective of developing a personal romantic or sexual relationship. Online dating services usually provide unmoderated matchmaking over the Internet, through the use of personal computers or cell phones.

References

Risk Factors for and Impact of Online Sexual Solicitation of Youth (2006) Retrieved May 23, 2009, from

Journal of the American Medical Association: Official Site Website:  http://jama.ama-assn.org/

Retrieved May 23, 2009, from Privacy and Security Issues in Social Networking Website:

 http://www.fastcompany.com/articles/2008/10/social-networking-security.html

Wikipedia, the free encyclopedia. Retrieved May 23, 2009, from

http://en.wikipedia.org/wiki/OnlineDating

Crossroads Readings in Social Problems 2008 K.A.Tiemann (Ed).

Fear and dread in Cyberspace (p.456-458). Pearson Custom

Publishing: Boston, MA.

Retrieved May 23, 2009, from Online predators: Help minimize the risk

http://www.microsoft.com/protect/family/guidelines/predators.mspx

Retrieved May 23, 2009, from Sexual Predators Online

http://www.protectkids.com/dangers/onlinepred.htm

The 4 Functions of Management

Introduction

            The four functions of management are a critical part in understanding how the process of management works. Planning is the first step involved in the management process.  It is preceded by organization and the final steps include both leading and controlling. All of these functions are large part of the operations of the real estate business; and interact on a day-today basis with larger and smaller companies alike.

Planning

            Planning as the first step involves creating an idea and finding out all of the information so that no stone is left unturned. Planning in the real estate business is apparent in the marketing part of the business. This involves creating events to show the products listed by a broker, and “pressing the flesh”. In real estate sales and leasing, planning is the difference between success and failure, and involves creating techniques and working on sales pitches. By planning brokers are able to anticipate questions potential client may have and even address them before they arise, leading to satisfied and content customers; It especially helps in smoothly closing the deal. 

Organization

            Organization like planning is a crucial in management, but different from planning because it is taking ideas and implementing them, allowing for graceful and smooth operations. Organization gives an edge in what is a very competitive market, making broker networking easier and sales easier to complete. In the field of commercial real estate, investors can recognize a broker’s knowledge in the subject; many brokers have been taken advantage of by well-informed investors, leading to lost commissions and perturbed clients. Organization also helps with questions clients may have, makes a broker look more professional; and by organizing information about particular markets a broker becomes an expert in a certain market, which protects from potential misrepresentations investors and tenant make.

Leading

            Leading is the part of management which make both planning and organization possible. It involves looking at the “big picture”, and making sure the overall direction of the company stays in line with a mission statement. In real estate, the majority of agents and brokers are independent contractors, who ultimately answer to themselves. This is not the case in larger firms where the concept remains in the traditional style of leadership. Leadership, in this field, involves motivating oneself to implement plans and organize files to complete a particular mission. 

Controlling

            Controlling is the final step in the management process and is the “nuts and bolts” of an operation. It involves mid level managers giving employees the tools they need to complete the job they where assigned, and dealing with the day-to day affairs, micromanagement. A traditional application for larger firms, in contrast controlling in smaller, boutique, firms controlling remains an individual broker’s decision; The broker is responsible to control the day-to-day affairs; make sure all of the necessary material are available; and execute the small tasks, which keep a company running.

Conclusion

            The four functions of management planning, organization, leadership, and control are necessary for any business to be successful. Planning and organization provide a look of professionalism and help a firm to be both proficient and efficient. Leadership and controlling is the function of taking a plan, implementing, and then managing the moving parts of the operation. In real estate much like other companies, these functions are the corner stone of management. They have provided all businesses with direction and the ability to accomplish all tasks set before them. 

“When Consultants and Clients Clash”

“When Consultants and Clients Clash”

by Jim Butcher

Newton’s laws of motion states “If a force acts upon a body, then an equal and opposite force must act upon another body “. This system theory is appropriate for the case study “When Consultants and Clients Clash”. In the case study Mr. Kellogg believes the merger will go smoothly and assures the consultant that the transition will be seamless due to the similarities in each company’s policy. Mr. Kellogg is not in management and does not check the two policies for compatibility.  The employees being interviewed give a different picture opposite of Mr. Kellogg’s view. Mr. Kellogg later hires a consultant to combine policies and procedures. From the beginning Susan has many opportunities to resolve the conflict with Mr. Kellogg. Susan had opportunities to confront the situation before it grew to such a disaster. Things start going wrong and the farther along it progress, the bigger the problem became until it there is nothing you can do to stop it.  He does not understanding of the magnitude of the task at hand and the consultant and the employees begin to rebel and push back.

Another example of system theory is the force of magnetism. In magnetism like forces repel each other. Both companies are similar and by putting them together they repel each other. In the study, there are many feelings that are misconstrued from the exterior looking in.  The consultants fail because there are too many people ordering them to do things. Communication begins to deteriorate because they have no idea what they are up against. Susan and Roussos had early warning signs and did not speak up. Their lack of communication and planning proved instrumental in their failure.

Conflict Resolution

Conflict Resolution

By Jim Butcher

Communication is an essential part of conflict and conflict resolution and is what can make a conflict destructive or constructive. Commonly communication is the idea of information transfer and the mental representations of the individual.  It entails an assortment of strategies and techniques that aid interpersonal interaction.  It is also a great way to develop an objective view of the conflict and make intentions known. Poor communication is a key factor in destructive conflicts. Accusations, profanity, defensive language, and unwillingness to listen can escalate matters beyond control. Using good communication facilitates information-sharing, engaging conversations, and understanding. When done well, conflicts are more likely to be resolved collaboratively than becoming destructive. It will allow an individual to suspend judgment of a conflict and positively impact their perception about conflict.

Good communication is the cornerstone of constructive conflict resolution and can help resolve situations by peaceful and collaborative means. Constructive conflicts encourage open discussion and permit exploration of needs, concerns, values, and interests. It also provides an opportunity to release bottled emotions and can create bonds as people spend time working together. This bond enables them to solve and negotiate other problems or changes. In a collaborative effort both parties are searching for a win-win solution, which is defined as “A solution in which the needs of all parties are satisfied”.  This is in contrast to a win-lose resolution which only one party gains.  To arrive at a win-win resolution requires clear communication and collaborative negotiation. Effective Communication can be achieved through, treating the other with respect, not interrupting, acknowledging the right to choose, speaking for ourselves, being courteous to listen, respecting confidentiality, acknowledging that it is ok to make mistakes and being an active listeners.

  Poor communication is a deciding factor of destructive conflict. Certain conditions encourage conflict escalation including perceive competition, perceive threats, manipulation, and perceive unfair highlighting of specific personal characteristics of others. Meeting any of these conditions will result in escalation and the conflict will be more difficult to resolve. Escalation can have many impacts including, feelings being undermined, cohesiveness being fractured, polarization, difficulties in seeking cooperation, differences in values emerge and causing regret.

Moderating behavior in a conflict opens a wide variety of tools that can be used for effective communication. Goals are a critical part of moderating behaviors in a conflict, because without goals there is no conflict. By clarifying and articulating goals, objectives become apparent. Also everybody receives a chance to explain their position to reach a mutual agreement. Active listening is another part of moderating behavior in conflict. Active listening is listening with a purpose. It occurs when the listener hears the different messages being sent, offers feed-back. Active listening require, spending more time listening than talking, letting the speaker finish before talking or responding, asking open ended questions, and focusing on what is being said. Using active listening skills can help to minimize or avoid unnecessary conflict. It can bring clarity and understanding to conversations and interactions with other people.

 Other tools include fractionation, and reframing. Fractionation and reframing are also a useful way to manage conflict.  Fractionation entails breaking a large issue into less significant parts that will be easier to address and manage. In reframing you alter the perception to a more positive view and find a constructive way to describe events. It is about “about changing the verbal presentation of an idea, concern, proposal, or question so that the party's essential interest is still expressed but unproductive language, emotion, position taking, and accusations are removed. Everybody enters into a conflict with their own interpretation of the problem, disputes, reasons, and the best to resolve it. The ultimate goal of reframing is to create a common definition of the problem acceptable to both parties and increase the potential for more collaborative and integrative solutions. Another approach to reframing is using new metaphors to describe the situation. Using metaphors that both parties relate to can help open up communication and increase understanding of the conflict and possibilities for resolution.

Negotiation is defined as “a process of communication in which the parties aim to "send a message" to the other side and influence each other”. In conflicts negotiations are affected by many different factors.  In negotiation power lies in the ability to favorably affect someone else's decision.  The perception of power and the imbalance of power significantly impact negotiations.  Balancing power helps to avoid conflict, by eliminating emotions and creating accountability. Accountability helps avoid abuse which will escalate a conflict and lead to more productive collaborative negotiations.  In competitive situation power is often perceived as threats of physical force, exertion of influence, the ability to make such threat. But making threats is a costly and dangerous way of trying to exert influence and often indicates weakness.

Designation of power is another way to balance power. The book point out that a good example of this is when society designates power to law enforcement, elected officials and teachers it states, “equal amounts of power can be very beneficial to a conflict. This is when all parties of the conflict are equal on the level of power and working together towards a common goal. Much like in the case, both groups set forth what they perceive to be the others point of view”.

Works Citied:

Wilmot, W., & Hocker, J. (2007). Interpersonal Conflict, 7^th Edition. New York,

The McGraw-Hill Companies., Inc.

Setting Goals

Ready, Aim, Fire!

Setting goals and making a networking strategy is a important piece of the puzzle that is often over looked or outright discarded.  This exercise is important to develop focus and direction which yields phenomenal results.   There are three major characteristics of a goal to keep in mind, which are represented by the word “ARMS”.

A - Appropriate

R – Reasonable/ Realistic

M – Measurable

Appropriate means that the goal is in line with your values and morals. Goals that are not in line with your purpose and personal values tend not to be completed. Instead they create friction and cause anxiety.

Reasonable/ Realistic means that the goal is obtainable. This makes the goal easier stick with. Also obtaining goals is the ultimate point behind setting them. This will help build confidence to work your way to your longer term goals.

Measurable means that there is a way to measure the success of the goal. 

On top of these characteristics goals should also be specific but at the same time flexible. Being specific in goal setting enhances the affects of the goals making it more tangible in your minds eye.  For example:

Over the next 3 months I would like to meet 10 new businesses in the Clear Lake, TX Area.  These  companies should be 1 to 5 employee's large with  1 or 2 locations and in the automotive industry. These companies include ABC company of 1234 main street., DEF company on 456 Left hand road ….(List the companies). The individuals that I would like to meet are Jim Jones from ABC company, Micheal Smith from DEF company and …. ( List the names of the individuals)

Individuals names and company information can be found on-line at chambers of commerce website, trade association website, group websites, just to name a few. Take the time to get to know your target market and niche.

The flexability comes into the equation when there are items outside of the plan. Also remember that plans need to be fluid and able to change as opportunity presents itself.

For example: Jane from GHI company was not on your list but looking to open a company in the area.

These are the Characteristics of a master networker:

Inquisitive - Able to focus attention - Willing to change - Able to Organize and Sort – Competent – Joyful - Able to suspend judgement - Self directed – Spontaneous – Creative -  Accepting – Hungry – Caring – Energetic – Self-aware – Resposible - Willing to take risks - Willing to Participate – Courageous – Intutive - Willing to be uncomfortable - Willing to laugh - Willing to Work

Developing a Purpose:

If creating goals and making plans are the micro part of the process then developing a Purpose and mission statement are the marco part. A purpose should be a reflection of your over all values/ guilding principals and should be broken down into personal and business. Developing a personal purpose is a extremely spiritual endevour and should be looked at carefully to make sure that it is inline with your core values.

The first part of the process is to discover yourself and what you are looking. A note should be made of your precieved strengths and areas of improvement along with listing type of characteristics that discribe your value system.

One set of values

Following is a sample list of values. Don't read it with the idea that it is the “right” set of values for you. Instead, Use this list as a point of departure in creating your own list.

Values: Be accountable

This means being

Honest - Reliable – Trustworthy- Dependable - Responsible

being accountable includes making and keeping agreements – operating with integrity

Value: Be Loving

This means being:

Affectionate - Dedicated – Devoted – Equitable - Accepting

Being loving includes appreciating ourselves and others – being gentle, consideratem forgiving, repectful, friendly, and courteous. It also includes being nonantagonistic, nonresistant, inclusive, understanding, compassionate, fair, and ethical.

Value: Be self-generating

This means being:

Self-responsible

The creator of our internal experiences – regardless of our external circumstances

Being self- generating includes not being a victim and not blaming others. Instead, we choose how to interpret and respond to all stimuli.

Value: Be promotive:

This means being

Nurturing – Contributing - Frugal – Helpful – Encouraging – Reasonable – Judicous – Cooperative – Appreciative

Value: Be Candid

This means being:

Honest – Authentic - Genine - Self- expressed – Frank – Outspoken – Spontaneous - Sincere - Free of Deceit - Able to avoid false modesty without arrogance – Self-Disclosing -Open about strenths and weaknesses

Value: Be detached

This means being:

Impartial - Unbiased – Experimental – Satisfied - Patient ( Not Resigned) - Open- minded - Without Destress – Adaptable – Trusting – Tolerannt - Willing to Surrender - Joyful – fun-loving, humorous, light-hearted, and happy

Detachment includes being seperate from but aware of thoughts, emotions, body, health, accomplishments, relationships, desire, commitments, possessions, values, opinions, roles, and expectations, The opposite of detachement is being addicted ( physically or emotionally), dogmatic, bigoted, absolutely certain, prejudiced, anxious, grave, or somber

Value: be aware of the possible

This means being:

Creative – Imaginative – Resourceful – Inventive – foresighted – Holistic -Visionary – Inquisitive – Audacious -  Exploring

Being aware of the possible means expecting great things of ourselves and others.

Value: Be invovled

This means being:

Committed – Participative - Focused – Enthuiastic – Enduring – Courageous – Energetic - Productive

After defining core values it is time to develop a purpose.

Purpose:

To live a life in the service of God, family and friends, assisting them with aquiring there lives goals. To be truthful, fair to all, build good will trust, and benificial to those round me.  

Personal Mission Statement:

I intend to develop myself in a positive manner and to avoid anything that will reduce my mental growth or physical Health.

I intend to develop knowledge of the mind, honesty in the hearth, and strength in the body.

I intend to develop self-dicipline inorder to bring out the best ing myself and in others.

I will use what I learn constructively and defensively. To help myself and my fellow man and never be abusive or offensive.

Businesses Mission Statement:

I will provide the quality of services at the prices that I have quoted.

I will be truthful with the clients and their referrals.

I will build goodwill and trust among clients and their referrals.

I will take responsibility for following up on the referrals I receive.

I will display a positive and supportive attitude.

I will live up to the ethical standards of my profession.

Asking the question:

Asking your self question is a great way to find answers and program for success.

Tier 1

Tier 2

Tier 3

An Analysis of two methods of Alternative Dispute Resolution

“Other Ways to Fix a Problem“

Jim Butcher

An Analysis of two methods of Alternative Dispute Resolution

                In today’s society there are alternative ways to settle legal disputes. These methods include arbitration and mediation. Arbitration is a form of alternative dispute resolution  and is a time-tested, cost effective method that generally results in a binding agreement by both parties.  It is a legal technique for the resolution of disputes outside the courts. This technique involves a third party reviews the case and imposes a decision that is legally binding for both sides. Arbitration is often used for commercial disputes, particularly international commercial transactions as according to the American Arbitration Association and not as common in consumer and employment matters. Arbitration can be voluntary or mandatory and can be either binding or non-binding. Non-binding arbitration is, on the surface, similar to mediation.  Some of the benefits include being faster than litigation in court, being cheaper and more flexible for businesses, arbitral award are generally non-public, and can be made confidential. Disadvantages include  the parties waive their rights to access the courts and have a judge or jury decide the case ; the inability to collect legal fees; inability to appeal decisions; and influence by gains of repeat business.

            Mediation is another form of alternative dispute resolution.  Unlike arbitration, mediation is not binding and a mediator has no authority to impose a settlement. It is well-suited process for parties who want to play an active role in determining the outcome through the assistance of an impartial third party. According to the AAA mediation generally consists of five phases:  Preparation , Initial Joint Session , Initial Private Sessions , Subsequent Joint and Caucus Sessions , Closing and Formalizing the Settlement.  Benefits of mediation include:  Parties driven outcome; Parties are directly engaged in the negotiation of the settlement;  A neutral third party views the dispute objectively; It can be scheduled earlier; Save time, and save money.

Work Cited:

Vago, Steven. (2009). Law and Society  (9th ed.). New Jersey: Pearson Prentice Hall

Wikipedia (2009). Citing Mediation Retrieved July 27, 2009, from

http://en.wikipedia.org/wiki/mediation

Wikipedia (2009). Citing Arbitration Retrieved July 27, 2009, from

http://en.wikipedia.org/wiki/Arbitration

American Arbitration Association (2009). Citing Arbitration Retrieved July 27, 2009, from  http://www.adr.org/

Real Estate Agent Educational Requirements

Education

A license is required in every State and the District of Columbia. Prospective brokers and agents must pass a written examination which includes questions on basic real estate transactions and the laws affecting the sale of property. In contrast to Texas’s 210 hours, most states only require candidates to complete between 30 and 90 hours of classroom instruction. To get a broker's license an individual needs between 60 and 90 hours of formal training and a specific amount of experience selling real estate, usually 1 to 3 years. Some States waive the experience requirements for the broker's license for applicants who have a bachelor's degree in real estate. State licenses typically must be renewed every 1 or 2 years with continuing education for license renewals. While Texas licensure requirements are amongst the highest in the nation, they enable real estate licenses in the state of Texas to develop and execute agreement to buy and sell property.  As a profession, real estate is demanding and the preconceived notions of:

 • I can make lots of money without working too hard.

• I can be my own boss, working a few hours a day and spending the rest of the time at home.

• It's easy to get a real estate license. It takes little education and training compared with other fields and besides, it's inexpensive.

• I'm so bored at home. This will get me out of the house for awhile. Besides, I enjoy looking at other people's homes.

• We'll be selling our home in a year or two, and I can save the commission by listing and selling myself.

These are entirely false

Current Education Requirements

To obtain a real estate salesperson license in the state of Texas applicants are required to take 210 hours of directed training. These classes include instruction in core principles, rules of agency, and contracts. 60 of these hours are in principles of real estate which provides students with an extensive foundational understanding of real estate terminology, professional obligations, and how they apply in the an everyday application. Additionally, this course insures students will fully understand their obligations according to the rules of the Texas Real Estate Licensing Act. Additional requirements include 30 hours of law of agency, 30 hours of law of contacts, 30 hours of additional core real estate courses and 60 hours of industry acceptable credits. This college credits in business, accounting, finance, and other appropriate classes. Law of agency is designed to cover issues regarding party representation. While law of contracts discusses the parts of a real estate agreement.

The Development of Texas Real Estate Practices

“Go to Hell, I’m going to Texas”

A critical analysis of Texas Real Estate Law and how it applies to real estate licensees

The title of the paper is a variation of a quote by the Davy Crocket “You may all go to Hell, and I will go to Texas”. Since winning it independence from Mexico in 1836 Texas has always exhibited a strong belief in property owner rights. The purchase of real estate is complex and involves a robust body of laws. The state of Texas, in addition, is unique regarding the practice of law as it applies to Real Estate Licensees. Through the use of standardized forms developed by a division of Texas Real Estate Commission (TREC) known as the Broker Lawyer Committee, licensees have the ability to put together contracts and agreements that legally bind buyers and sellers in a transaction

The Texas system of licensing real estate licensees along with the formulation of promulgated forms has afforded the licensee a limited practice of law by allowing them to develop and execute legally binding documents. This system of practice varies drastic from other states and has been developed over 55 years of growth and improvement has permitted the state to rank amongst the highest in the nation for home sales and market stability. The purpose of this study is to answer the following questions: Is the system effective and what is the states view? Does this limited practice of law constitute an unlawful practice? And what are the potential pitfalls or benefits for licensees as it pertains to contract negotiation and the sales process.

This study is relevant because it illustrates the effectiveness of allowing the limited practice of law by licensed real estate professionals. Is also highlights Texas as an innovator of policies and procedures that have allowed the local economy to flourish in spite of national unrest. These policies and procedures are a beacon of light for other states to emulate. It will give valuable insight into the Texas System of Real Estate including its birth, expansion, and progress over a half century. It will also discuss the legal precedence that has molded and guided Texas Real Estate Law.  There is an old saying that goes “you can't know where you are going until you know where you have been.” This analysis will further my understanding of the foundation of laws and practices in the state of Texas. As well as instill pride and joy for being a part of this awesome and unique state.

               Through the use of standardized forms developed by a division of Texas Real Estate Commission (TREC) known as the Broker Lawyer Committee, Real estate licensees have the ability to put together contracts and agreements that legally bind buyers and sellers in a transaction without committing unauthorized practice of law. This illustrates the effectiveness of allowing the limited practice of law by licensed real estate professionals. Is also highlights Texas as an innovator of policies and procedures that have allowed the local economy to flourish in spite of national unrest. These policies and procedures are a beacon of light for other states to emulate.

Development of Texas Real Estate Practices

 The development of Texas real estate practices are enveloped in the history of this great state.  Texas has always been a strong proponent of property rights and actively boasts less restrictive land-use regulation than their counterparts on West Coast and the Pacific Northwest. Even since the Texas Revolution, Texas has exhibited a burning desire for property right. This included the rescinding of Law of April 6, 1830 which outlawed immigrants to settle in territory adjacent to their native country. This amongst other topics ignited the war between Texans and their Mexican rules. And it has had few of the infamous urban redevelopment projects that have been typical of the Northeast and Midwest. In Austin, July of 1845, legislatures began to frame a Constitution under which the Republic of Texas should become a state in the American Union. First Elected Governor for the State of Texas, J. Pinckney Henderson was a member of the Convention of 1845, was elected governor of Texas in November 1845, and took office in February 1846. Texas today has had several recent Texas Supreme Court decisions along with legislative action over the last few years to ensure that constitutionally-granted property rights are being restored to their historic place in Texas law.

Texas Independence from Mexico

The Texas Revolution began in October 1835 and ended with the battle of San Jacinto on April 21, 1836. The seeds of these differences were planted in the habits of the Anglo-American occupants of Texas and its Mexican rulers. In addition to these misunderstanding, the rulers remained convicted that the United States government made use of the colonists to cause trouble in the hope of acquiring Texas by revolution or purchase.  In a convention in 1832 and another in 1833 the colonists asked for a number of privileges and reforms including rescinding the Law of April 6, 1830 which forbids immigrants to settle in territory adjacent to their native country. At the same time, Santa Anna positioned himself to overthrow the Constitution of 1824 and establishing virtual dictatorship by remanning military posts and reorganizing the state government. This aroused bitter opposition and more friction developed as the first contingent of soldiers arrived at Anahuac in January 1835. Only a spark was necessary to set off an explosion. Stephen F. Austin way placed in command of the newly formed Texan "army".  On February 23, Santa Anna's advance force arrived in San Antonio and on March 6, 1836 was the famous battle of the Alamo. The conclusion of the struggle culminated on April 21, 1836 in the battle of San Jacinto when Sam Houston ordered his force of about 900 men forward against Santa Anna's army in the range of 1,300 men. While they were resting, Houston surprised and completely overran the enemy; the battle took only eighteen minutes. This is where the statement "Remember the Alamo!" became begin. The entire Mexican army was destroyed and Santa Anna was captured the following day while retreating. On Houston's command, Santa Anna ordered his second-in-command to withdraw all his troops from Texas. If the Mexican army had remained in Texas, it is probable that the war would have continued. Santa Anna’s life was spared and two treaties were developed, one public, and one secret. The first by its terms, Texas independence was recognized, hostilities were ended, the Mexican army was retired beyond the Rio Grande, confiscated property would be restored, and prisoners would be exchanged. The secret treaty agreed to Santa Anna's release in exchange for his promise that he would do all he could to secure within the Mexican government all the provisions of the public treaty without exception, as well as the enforcement of them. Santa Anna agreed, as was his perceived prerogative, since by destroying the Constitution of 1824 he had assumed authority over Mexican foreign policy. The remaining Mexican government refused to accept these terms, however. Nevertheless, Texas became not only a de facto state but also a de jure state in the eyes of many nations.

Texas Becomes a State

After Texas won its independence, Texans voted overwhelmingly supported annexation to the United States. Fearful of another attack by the Mexican army, along with Comanche and Apache Indians, Texas again petitioned to become a State of the U.S. After failed attempts to formalize an annexation treaty the United States Congress passed a Joint Resolution for annexing Texas. Under the agreement, Texas would keep both its public lands and its public debt. Texas would also have the power to divide into four additional states "of convenient size" in the future if it so desired, and it would deliver all military, postal, and customs facilities and authority to the United States government. In Austin, July of 1845 a convention was held to discuss the proposal. Over a period of several days, they began to frame a Constitution under which the Republic of Texas should become a state in the American Union. When all was said and done, the Convention voted to accept the United States' proposal, with only one delegate dissenting: Richard Bache, Benjamin Franklin’s grandson. The Annexation Ordinance was submitted to a popular vote in October 1845. Once approved by Texas voters, the proposed Annexation Ordinance and State Constitution were submitted to the United States Congress. The United States House and Senate, in turn, accepted the Texas state constitution in a Joint Resolution to Admit Texas as a State which was signed by the president on December 29, 1845. First Elected Governor for the State of Texas , J. Pinckney Henderson Henderson was a member of the Convention of 1845, was elected governor of Texas in November 1845, and took office in February 1846.

Texas Today and Property Rights Today

Texas has traditionally been a strong property rights state. Most Texas cities and counties have far less restrictive land-use controls than are found on the West Coast and the Pacific Northwest. And it has had few of the infamous urban redevelopment projects that have been typical of the Northeast and Midwest. Several recent Texas Supreme Court decisions along with legislative action over the last few years are reigning in excesses and helping to ensure that constitutionally-granted property rights are being restored to their historic place in Texas law. There are many areas of the Texas economy where this proved to be the case, but perhaps none more relevant than the Texas housing market. Unlike most other major urban centers, real estate process held up remarkably well in Texas. One of the main reasons for this is the relative dearth of land use controls in the state.

Indeed, the Federal Reserve Bank of Dallas put out a study showing that Houston fared better than most of the rest of the country because of its lack of zoning: Houston does not just have a larger supply of available land on its outskirts. Unlike all other large U.S. cities, Houston lacks zoning laws restricting industrial, commercial and residential construction to specific neighborhoods. So much land is available in Houston that the cost of each incremental unit rises slowly and keeps the average cost below that of more restrictive metros. Even in the face of significant population growth, this large supply keeps land prices in Houston stable, which over time contributes to lower home prices.

Indeed, Houston and other metros such as Dallas and Atlanta that have relatively more permissive development policies have lower housing prices than more restrictive places do. At $155,800, Houston's median house price is the third lowest among the 12 largest U.S. metropolitan areas and is less than half the average for these cities. Houston's median price is lower than even the national average, which includes inexpensive rural areas. In Houston, for example, minimal land use restrictions have helped create new housing opportunities that keep prices down. This may be one reason why Houston's population in hard-core poverty areas fell by 107,272 (about 48 percent) during the 1990s, one of the largest urban declines according to The Brookings Institution.

The Texas Legislature and the Texas Supreme Court have made significant improvements in property rights protections in recent years. In both cases the changes in law represent a reversal of years of erosion of the property rights of Texans. Property owners, legislators, and judges should continue to press forward to take advantage of and extend these recent gains.

Evolution of the Texas Legal System

The Texas Legal system is broad and covers an array of topics including: Foundation of Law, Structure of Law, Constitutional Law, Legislative Process, Criminal Law and Criminal Procedure. All six topics explain vital parts of US legal system and the Texas system that was modeled after it. Foundation of law explains the origins and the evolution of law though-out history.  Structure of law puts into prospective the many different legal systems in this country. Legislative process is the key to understanding how a bill becomes a law. Criminal law and criminal procedure describe the laws which govern the United States and the appropriate steps taken to enforce such laws. Through our further analysis of Foundation of Law, Constitutional Law, Criminal Law and Criminal Procedures a fundamental understanding of the Texas legal system can be achieved.

In general, law is a dynamic, ever evolving and greatly influenced by the past. Before the 18^th century there was fundamentally only two major schools of thought regarding jurisprudence called positivism and natural law. Natural law is law that is created from man’s natural condition and is referred to as “universal principles of morality and justice”.  It has been defined as “right reason in agreement with nature.”  By Cicero (106–43 B.C.) and Thomas Aquinas (1224–1274) viewed natural law as the “participation in the Eternal Law by rational creatures”. During this time it was universally thought that the Roman Catholic and Protestant God was the source of order, and justice. The best example of which is the Ten Commandments. The writers of Our Declaration of Independence asserted that “all men are created equal, that they are endowed by their Creator with certain unalienable rights that among these are Life, Liberty, and the pursuit of Happiness.” 

Natural law provides a basis upon which to judge the positive law. This is used in regards to the death penalty, abortion and euthanasia. Because of the separation of Church and state it became necessary to create laws that promote social order and stability, seek to establish justice, and determine how the government operates.  Law further developed by the influences of many other factors including, The Code of Hammurabi, Roman law, Law Merchants, and “Stare Decisis” or as translated from Latin “stand by things decided”. In the 19^th century the Historical school of Law emerged with the doctrine of Stare Decisis.  Stare Decisis has become the most sacred rule of law stating, that a judge is to apply the law as ruled in previous court decisions and not make or remake laws.  Our federal government has grown in both size and complexity representing 51 unique and different legal systems. But it remains the model for the Texas Constitution and Legal System. 

Texas Law Applicable to ULP

The inherent power to regulate the practice of law begins with the Constitution of Texas which vests the judicial power of the state in the Supreme Court. Thus, pursuant to the Courts inherent power the Court defines and regulates the practice of law through its rules and through its agency, the State Bar. The rules it has issued in this regard are called the Unauthorized Practice Rules and Consideration. It is a criminal act to violate them Section 81.101 of the Texas Government Code defines the practice of law and Section 81.102 of the Texas Government Code states who may practice law. Section 81.101 defines the practice of law as “the preparation of a pleading or other document incident to an action or special proceeding or the management of the action or proceeding on behalf of a client before a judge in court as well as a service rendered out of court, including the giving of advice or the rendering of any service requiring the use of legal skill or knowledge, such as preparing a will, contract, or other instrument, the legal effect of which under the facts and conclusions involved must be carefully determined.” Section 81.102 tells us that a person may not practice law in this state unless the person is a member of the state bar. In addition the it outlines that the supreme court may promulgate rules prescribing the procedure for limited practice of law by

•          attorneys licensed in another jurisdiction;

•          bona fide law students; and

•          unlicensed graduate students who are attending or have attended a law school approved by the supreme court.

Other rules and regulations that cover this topic include Section 83.001(a) of the Texas Government Code prohibits a "person, other than a person described in Subsection (b), may not charge or receive, either directly or indirectly, any compensation for all or any part of the preparation of a legal instrument affecting title to real property, including a deed, deed of trust, mortgage, and transfer or release of lien. Subsection (b) exempts licensed attorneys, real estate brokers or salesmen and mineral property lease transactions.

History of TREC as it Applies to Legal Education and ULP

The Texas Real Estate Commission (TREC) was created because of the public’s demand for regulation.  The Legislature's continuing intent to provide protection for the public in its dealings with real estate agents is evidenced by amendments to The Real Estate License Act in 1955, 1963, 1967, 1971, 1975, 1979, 1981, 1983, 1985, 1987, 1989, 1991, 1993, 1995, 1997, 1999, 2001, 2003, 2005, 2007, and 2009.

When TREC was created in 1955 the amendment required the applicant to pass a written examination as the only step in obtaining a license.  Over the past 55 years educational requirements have changed substantially. In 1963, 30 hours of required education was introduced. This was later increased to 90 hours in 1967 and 180 in 1975. Educational requirements or after January 1, 2002, became 270 classroom hours of “core real estate courses” (this is explained later in the report) in addition to 90 classroom hours over current law.  In September 1, 2003 these mandatory continuing education (MCE) courses required approval by the State Bar of Texas for minimum continuing legal education.

As TREC applies to ULP effective August 29, 1983, amendments to the Act changed the definition of unauthorized practice of law by a licensee was clarified and the Texas Real Estate Broker-Lawyer Committee was recreated in Section 16 of the Act in addition the Commission was authorized to require the use of approved contract forms. This is the basis of current real estate practices in the state of Texas

Current Education Requirements

To obtain a real estate salesperson license in the state of Texas applicants are required to take 210 hours of directed training. These classes include instruction in core principles, rules of agency, and contracts. 60 of these hours are in principles of real estate which provides students with an extensive foundational understanding of real estate terminology, professional obligations, and how they apply in the an everyday application. Additionally, this course insures students will fully understand their obligations according to the rules of the Texas Real Estate Licensing Act. Additional requirements include 30 hours of law of agency, 30 hours of law of contacts, 30 hours of additional core real estate courses and 60 hours of industry acceptable credits. This college credits in business, accounting, finance, and other appropriate classes. Law of agency is designed to cover issues regarding party representation. While law of contracts discusses the parts of a real estate agreement.

Texas Case Law Regarding Real Estate and ULP

            In the state of Texas there are many of cases that deal with the topic of real estate licensees and the unauthorized practice of law. One of these cases includes Brown v. Unauthorized Practice of Law Committee, 742 S.W.2d 34 (Tex. App. Dallas 1987) . In this case appellant agent entered into contracts with individuals and represented them in order to resolve their personal injury and property damage claims on a contingent fee basis. The state bar association's unauthorized practice of law committee, received several complaints with regard to Brown, and sued for practicing law without a license.  The issue that the case covered is the Unauthorized Practice of Law. The court applied rules Tex. Rev. Civ. Stat. Ann. art. 320A-1, § 19(a) (1987) and the XIV amendment of the U.S. Constitution. The court reasoned that appellant actually engaged in the contested activities because his course of conduct impliedly advised clients. Further, U.S. Const. amend. XIV's equal protection laws were not violated because, unlike appellant, claim adjusters handled undisputed and uncontested claims, were licensed by law, and adjusted claims on behalf of someone else who actually handled the claim. In conclusion, the court affirmed the declaration that appellant agent's actions constituted the practice of law and granted a permanent injunction, in favor of appellee, the state bar association's unauthorized practice of law committee. The court held that trial courts had inherent power to determine what constituted the practice of law, that appellant impliedly advised clients by his course of conduct, and that his client's claims were contested.

            Another case that involved the unauthorized practice of law is Unauthorized Practice Committee, State Bar v. Cortez, 692 S.W.2d 47 (Tex. 1985) . Petitioner, state bar unauthorized practice of law committee, brought action against Cortez, seeking to enjoin them from engaging in certain acts that constituted the unauthorized practice of law under Tex. Rev. Civ. Stat. Ann. art. 320a-1, § 19(a) (1985). The Committee of the State Bar of Texas seeks to enjoin the Cortezes from engaging in certain acts alleged to be the practice of law. The trial court rendered judgment n.o.v. for the Unauthorized Practice Committee and issued a permanent injunction against the Cortezes.  The issue in the case was the unauthorized practice of law by the Cortezes. The applicable rule is Tex. Rev. Civ. Stat. Ann. art. 320a-1, § 19(a) (1985). The Court reviewed used Tex. Rev. Civ. Stat. Ann. art. 320a-1, § 19(a) (1985) to determine if the Cortezes had in fact practiced law without a license. The court held that the trial court properly rendered judgment notwithstanding the verdict and in granting the permanent injunction against respondents. Accordingly, the judgment of the court of appeals was reversed, and the trial court judgment was affirmed. This case was used as a foundation to show how Texas uses Tex. Rev. Civ. Stat. Ann. art. 320a-1, § 19(a) (1985) to determine what is declared to be the practice of law.  This case does not however cover the question of licensees and the unauthorized practice of law. Brown v. Unauthorized Practice of Law Committee unlike Unauthorized Practice Committee, State Bar v. Cortez involves a licensee.

The State of Virginia, Real Estate and ULP

In Commonwealth v. Jones & Robins, Inc., 186 Va. 30, 41 S.E.2d 720 (1947), a real estate broker was convicted of practicing law without a license for drafting deeds, notes, deeds of trust, leases, etc. for profit in the state of Virginia. At the time Justice Holt, one of the dissenters, observed that under modern conditions neither professions nor business could function under such conditions he wrote,

“The line between what is and what is not the practice of law cannot be drawn with precision. Lawyers should be the first to recognize that between the two there is a region wherein much of what lawyers do every day in their practice may also be done by others without wrongful invasion of the lawyers’ field.”

To further illustrate his point Chief Justice Holt by comparing the practice of medicine to the practice of law used example of Nurses preparing charts, Technicians tell us the color of their blood. Exclaiming that no court, State or Federal, with or without a statute, has ever held that these instrumentalities are practicing medicine and the educational qualifications of doctors is certainly not less exacting than those required by lawyers, while public interest touching qualifications of doctors is not less vital than that which attaches to lawyers. The object, aim and purpose of a hospital, — the reason for its establishment and operation, is to render and perform medical treatment and nursing of a skilled character. It is the facility for affording the patient a higher and greater degree of nursing and medical attention than would be ordinarily possible outside of a hospital that makes it desirable. The opportunity to render such service enables a hospital to make a higher charge than a hotel or boarding house. The desirability of securing the needed service provides inducement for the patient to enter the hospital. The patient comes to the hospital for advice, aid and treatment — not to give either.

The State of New York, Real Estate and ULP

The New York State Department of State has long considered the unlawful practice of law by a real estate broker or salesperson as grounds for disciplinary action. Its interpretation of what constitutes unlawful practice has been guided by relevant provisions of the Judiciary Law and by the seminal case of Duncan & Hill Realty, Inc. v. Department of State, 62 A.D.2d 690, (4^th Dept. 1976), app dismissed, 45 N.Y.2d 821, 381 N.E.2d 608, 409 N.Y.S.2d 210 (1978). Judiciary Law §478 prohibits the practice of law by non-attorneys, the purpose of which is to protect the public from the dangers of legal representation and advice given by persons not trained, examined, and licensed for such work. Jemzura v. McCue, 45 A.D.2d 797, 357 N.Y.S.2d 167 (3^rd Dept. 1974), app dismissed 37 N.Y.2d 750, 337 N.E.2d 135, 374 N.Y.S.2d 624 (1975). Section 484 of the Judiciary Law additionally provides that “no natural person shall ask or receive, directly or indirectly, compensation for… preparing deeds, mortgages, assignments, discharges, leases or any other instruments affecting real estate… unless he has been regularly admitted to practice, as an attorney or counselor…” A violation of either of these sections is a misdemeanor. It may be prosecuted by the attorney general, or, upon leave of the supreme court, by a bar association. Additionally, should a real estate broker or salesperson be found to have engaged in such unlawful practice, the Department will take independent action against such person’s license.

In Duncan & Hill, the court upheld the Department of State’s determination that a real estate broker who was not a licensed attorney demonstrated untrustworthiness and incompetence in violation of Real Property Law §441-c, finding that, when he prepared documents that included detailed mortgage terms he had devised, he engaged in the unauthorized practice of law. The court recognized that brokers have long been permitted to draft “simple” contracts in the context of their brokerage activities. Duncan & Hill, supra, 62 A.D.2d at 696, 405 N.Y.S.2d at 342. However, the court cautioned as follows:

…the so-called “simple” contract is in reality not simple. It is often the most important legal transaction that the average person will ever undertake—the purchase of a home, and it involves very substantial legal rights which deserve the advice and guidance of a lawyer. The argument that the need for expediting such transactions justifies their consummation without reference to an attorney is specious. The protection of the interests of the parties to such contracts is sufficiently important to justify a little delay for reflection and legal advice, so as to guard against a thoughtless drafting of a hastily conceived contract. The personal interest of the broker in the transaction and the fact that he is employed by one of the opposing parties are further reasons to require that, insofar as the contract entails legal advice and draftsmanship, only a lawyer or lawyers be permitted to prepare the document to ensure the deliberate consideration and protection of the interests and rights of the parties. Duncan & Hill, supra, 62 AD2d at 701, 405 N.Y.S.2d at 345.

Recognizing the intent to protect the public to ensure that real estate brokers and salespersons do not exceed the bound of their competence and prepare documents the execution of which requires a lawyer’s scrutiny and expertise, the court went on to state:

It is for this reason that real estate brokers and agents must refrain from inserting in a real estate purchase offer or counteroffer any provision which requires the exercise of legal expertise. Thus it is not proper for such a broker to undertake to devise the detailed terms of a purchase-money mortgage or other legal terms beyond the general description of the subject property, the price and the mortgage to be assumed or given. A real estate broker may readily protect himself from a charge of unlawful practice of law by inserting in the document that it is subject to the approval of the respective attorneys for the parties. Moreover, a real estate broker or agent who uses one of the recommended purchase offer forms . . . or one recommended by a joint committee of the bar association and realtors association of his local county, who refrains from inserting provisions requiring legal expertise and who adheres to the guidelines agreed upon by the American Bar Association and the National Association of Real Estate Brokers, above noted, has no need to worry about the propriety of his conduct in such transactions. Duncan & Hill, supra, 62 AD2d at 701, 405 N.Y.S.2d at 345.

Under these circumstances, a real estate broker or salesperson who prepares a simple fill-in-the-blanks purchase and sale contract can avoid the unlawful practice of law by including in the contract a condition making it subject to approval by each party’s attorney. Alternatively, brokers and salespersons can utilize a fill-in-the-blanks form that has been approved by a joint committee of the bar association and realtors association of his or her county. Such an approved form would only require that the real estate brokers and salespersons fill in non-legal provisions such as the names of the parties, the date and location of the closing, a description of the property, the consideration for sale and any other relevant facts. The brokers and salespersons would not be permitted to develop any “legal terms”. Further, since the contract establishes significant legal rights and obligations, it should clearly and prominently indicate on its face that it is a legally binding document and clearly and prominently recommend that the parties seek advice and counsel from their lawyers prior to affixing their signature to the document.

Brokers and salespersons must refrain, even with respect to these approved contracts, from providing legal advice to their clients. Nor may they discourage the parties from seeking advice from their attorneys. Brokers and salespersons may not add provisions to the approved contracts unless they make the entire contract subject to and conditioned upon the review and approval of each party’s attorney. In addition, brokers and salespersons may prepare purchase and sale contracts, subject to the above conditions, only as an incident of the purchase and sale of real estate and may not charge a separate fee for preparation of the contract or share in the fees of attorneys for preparation or review of these contracts.

The State of Nebraska, Real Estate and ULP

The Nebraska State Bar Association and the Nebraska judiciary realized it was necessary to more clearly define the term and clarify which activities require a lawyer and what services a nonlawyer can provide to the public without crossing the line. In October of 2007, the Nebraska Supreme Court adopted formal rules to better guide lawyers and nonlawyers on the subject. The rules became effective January 1, 2008.  At first glance, it may appear that non-lawyers would be prohibited from engaging in many of the activities which real estate agents, title insurance companies and banks frequently handle during real estate transactions. The Nebraska Supreme Court adopted several Exclusions and Exceptions which recognize that it is appropriate for nonlawyers to engage in some activities which have historically been conducted by nonlawyers without any controversy.

The end result is that nonlawyers such as real estate agents, title escrow agents, bankers, etc. may continue to fill out pre-printed forms as they have historically done in standard real estate transactions. If a situation arises where a buyer or seller needs an explanation of his or her rights or the meaning of a document, then the buyer or seller should be advised to contact a lawyer. If a client asks you about his or her rights or the meaning of a legal document, you should advise the buyer or seller that you are not an attorney, and you are not allowed to give legal advice.

The Federal Government, Real Estate and ULP

The United States Department of Justice (“DOJ”) and the Federal Trade Commission (“FTC”) submit this letter in response to the solicitation for public comments by the Standing Committee on the Unlicensed Practice of Law about the performance of certain real estate closing-related activities by nonlawyers.

The Standing Committee will consider whether preparing a deed and facilitating its execution—regardless of whether such deed effects a change of ownership—is the practice of law, thus prohibiting nonlawyers from competing with lawyers to provide these services. Deeds are involved in many types of real estate transactions in Georgia, including, but not limited to the purchase and sale of property (which includes the execution of a warranty deed), mortgage transactions which take the form of a security deed in Georgia; the refinancing of mortgage loans and the creation of new security deeds for that purpose, and the obtaining of second mortgages and home equity lines of credit through deeds that secure debt. Deeds are executed in both residential and commercial transactions. Thus, an opinion such as the one under consideration by the Standing Committee, defining these activities as the practice of law, may have a very broad impact.

Consumers can benefit when nonlawyers compete to provide services that do not legitimately constitute the practice of law. Banning such competition is likely to increase closing costs and decrease convenience for Georgia consumers and businesses. As Professor Catherine Lanctot has noted, “Lawyers historically have used the unauthorized practice of law statutes to protect against perceived incursions by real estate agents, bankers, insurance adjusters, and other groups that seemed to be providing legal services.”(1) Such concerns bespeak caution when, as here, the Standing Committee is asked to define the practice of law in a way that would curb competition from lay providers in preparing and facilitating the execution of deeds. Antitrust laws and competition policy generally consider sweeping restrictions on competition harmful to consumers and justified only by a showing that the restriction is needed to prevent significant consumer injury. Because the requested opinion is likely to restrain competition while likely providing little benefit to consumers, the DOJ and the FTC urge the Standing Committee to find that preparing or facilitating the execution of a deed is not the practice of law, but instead is an activity that can be performed by lay practitioners. Alternatively, we urge the Standing Committee to render no opinion on this issue.

The DOJ and the FTC are entrusted with enforcing the federal antitrust laws. Both agencies work to promote free and unfettered competition in all sectors of the American economy. The United States Supreme Court has observed that, “ultimately, competition will produce not only lower prices but also better goods and services. ‘The heart of our national economic policy long has been faith in the value of competition.’"(2) Competition benefits consumers of both traditional manufacturing industries and services offered by the learned professions.(3) Restraining competition, in turn, can force consumers to pay increased prices or to accept goods and services of poorer quality.

Together, the DOJ and the FTC have become increasingly concerned about efforts to prevent nonlawyers from competing with attorneys in the provision of certain services through the adoption of opinions and laws by state courts and legislatures relating to the unlicensed practice of law.(4) In addressing these concerns, the DOJ and the FTC encourage competition through advocacy letters such as this one. The DOJ and the FTC have been concerned particularly about attempts to restrict nonlawyer competition in real estate closings. We have urged the American Bar Association and the States of Kentucky, Virginia, Rhode Island, and North Carolina to reject such restrictions, through letters and through an amicus curiae brief filed with the Kentucky Supreme Court in 2000 by the DOJ.(5) Moreover, the DOJ has brought suit against bar associations that have attempted to restrain competition from nonlawyers and it obtained injunctions prohibiting this conduct.(6) The FTC also has challenged anticompetitive restrictions on certain business practices of lawyers.(7) Our ongoing concern in this area has led us to submit these comments.

By including overly broad presumptions of conduct considered to be the practice of law, the potential opinion would likely reduce competition from nonlawyers. Consumers, in turn, will likely pay higher prices and face a smaller range of service options. Future growth of competition from lay providers—with the attendant likely reduction in costs and increase in service options—would be severely stunted if not eliminated. For this reason, the DOJ and the FTC urge the Standing Committee either to adopt an opinion concluding that it is not the practice of law to prepare deeds and facilitate their execution or to decline to issue any opinion at all. The Justice Department and the Federal Trade Commission appreciate this opportunity to present our views and would be pleased to address any questions or comments regarding competition policies.

Conclusion

Texas has always had strong beliefs in property owner rights and is unique regarding the practice of law as it applies to Real Estate Licensees. Through TREC developed standardized forms, licensees have the ability to put together legally binding agreements. This limited practice of law through the development of these state documents has permitted the state to rank amongst the highest in the nation for home sales and market stability.  The paper discussed valuable insight into the Texas System of Real Estate including its birth, expansion, and progress over a half century. It will also discuss the legal precedence that has molded and guided Texas Real Estate Law. 

 Texas has always exhibited a burning desire for property right. This included the rescinding of Law of April 6, 1830 which outlawed immigrants to settle in territory adjacent to their native country. This amongst other topics ignited the war between Texans and their Mexican rules. Texas today has had several recent Texas Supreme Court decisions along with legislative action over the last few years to ensure that constitutionally-granted property rights are being restored to their historic place in Texas law. A license is required in every State and the District of Columbia. Prospective brokers and agents must pass a written examination which includes questions on basic real estate transactions and the laws affecting the sale of property. In contrast to Texas’s 210 hours, most states only require candidates to complete between 30 and 90 hours of classroom instruction.

This study explored the effectiveness and states view of the system. It also answered “NO” that in the state of Texas that a limited practice of law does not constitute an unlawful practice. Highlighted was the effectiveness of allowing licensed real estate professionals to fill in agreements. This is a practice that most states are moving to following behind Texas’s lead. Texas policies and procedures are a beacon of light for other states to emulate and give valuable insight into the birth of a prosperous state. Guided by over 55 years of legal precedence, the future only seems to be getting better.

WORKS CITED

Nance, Cheryl (2003). Modern Real Estate Practices In Texas. (pp. 1-6, 12-15, 22-24, 45-63, 68-77, 82-141, 215-241). Chicago: Dearborn Real Estate Education.

REALTOR® Reference. (2007). Austin, Texas: Texas Association of REALTORS®

REALTOR® Legal Case Book. (2007). Austin, Texas: Texas Association of REALTORS®

REALTOR® Legal Article Book. (2007). Austin, Texas: Texas Association of REALTORS®

Graduate REALTOR® Institute 3. (2007). Austin, Texas: Texas Association of REALTORS®

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Retrieved May 23, 2009, from Online predators: Help minimize the risk http://www.microsoft.com/protect/family/guidelines/predators.mspx