09-FLASH-12-14-09.html

FLASH!
December 14, 2009
Alpine, Texas

Press Release

On<> Monday December 14, four cities and sixteen elected officials will file suit against Attorney General Gregg Abbot and the State of Texas seeking to have a portion of the “Texas Open Meetings Act” declared unconstitutional. The lawyers representing these elected officials and municipalities are doing so pro bono in order to allow Texas elected officials, who have been elected to speak for their constituents, the right to do just that, to speak for the citizens who elect them. As it stands now, the so called “Texas Open Meetings Acts” prevents a city councilman, a county commissioner, a member of a school board or any other elected representative (except members of the legislature who have exempted themselves from the law) from stating publically what they stand for and from speaking in public or private to express their political beliefs on issues facing them. This lawsuit does not seek protection for “backroom deals” made in “smoked filled rooms” without the public’s knowledge or input. To the contrary the constitutional right to free speech encourages the free and open exchange of ideas, and this lawsuit seeks to enforce the First Amendment right of free speech for Texas elected officials. As the lawsuit states in the “Statement of Purpose”:

<>            “Plaintiffs bring this lawsuit to confirm that the First Amendment is alive and well in Texas. We seek nothing more than to enforce freedom of speech for public officials the citizens of Texas have elected to speak for them. The current “Texas Open Meetings Act”, as interpreted by a series of poorly reasoned opinions of a series of Texas Attorneys General and Appellate Courts, prevents elected officials from doing what they are elected to do: speak in public or private on issues facing the public. We disagree with that result of “TOMA” and believe, as stated by a unanimous panel of the United States Court of Appeals for the Fifth Circuit, that “The First Amendment Protection of elected officials’ speech is full, robust, and analogous to that afforded citizens in general.” Therefore we bring this action to unshackle Texas elected officials so they can perform their duties as representatives of the citizens who elected them to speak.”

<>            There will be a press conference on the grounds of the Texas Capitol in Austin, at the south pedestrian entrance, Congress and Eleventh Street, at 1p.m. on Monday, December 14^th. (In case of foul weather, the Rotunda)

-End-

For further information contact: Dick DeGuerin at ddeguerin@aol.com Rod Ponton at rod_ponton@yahoo.com

December 14, 2009

Texas Municipal League (TML) Executive Director Responds —
Go to www.tml.org
Click on "Legislative" at top of page.
Click on "Current Legislative Update Current Issue"
Click oon "Texas Newspapers Lash Out at City Officials"
The article by TML Executive Director will appear.
URL — www.tml.org/leg_updates/legis_update_12/009_newspaper.asp

<><><>
December 3, 2009

Presumed Guilty?

By Jack D. McNamara

Former Texas Lieutenant Governor (1973-91) Bill Hobby joined the current Texas Open Meeting Act debate on November 27 with a column (“The Open Meetings Act”) in the Weatherford Democrat. The column, rather like others circulating around the state, criticizes the Texas Municipal League (TML) for fomenting a movement to bring back “the days of making backroom good ol’ boy deals in private” among their 1100 municipalities. He characterizes the idea of changing the law as “serious and troubling attempts . . .”

Backroom wheeling and dealing in Texas? Heaven forbid! Call out the Texas Rangers . . . after you get them out of the back room.

I don’t want to seem cynical but the fact of the matter is that the highly public campaign by several newspaper lobbying organizations lacks even the rudiments of candor. Neither the TML nor the Alpine plaintiffs nor their lawyers nor most of the local officials in Texas are opposed to most of the requirements of the “TOMA” (Texas Open Meetings Act).

They oppose the two rather silly criminal provisions, Sections 551.143 and 551.144. Those sections, along with an amendment in 1999 defining “deliberation,” changed the meaning of the act by criminalizing any discussion of public affairs among elected local officials unless the communication occurs in a posted, public meeting.

Criminalizes human communication in the age of the Internet, texting, twittering, cell phones and email? The idea is ludicrous and laughable. And unconstitutional as we shall see after more expensive litigation yet to come. If we don’t change the law we will have even more senseless prosecutions like that which occurred here in Alpine.

Governor Hobby unfortunately indulges in another of the rhetorical tactics used to oppose his TML adversaries. The world as we know it will end.

It appears our Texas local elected officials are the only politicians who pose such a threat to honest government.

When Bill Hobby was lieutenant governor many Texans thought themselves exceptional because unlike the U.S. Congress, Texas legislators subjected themselves to the open government laws. But the Texas House no longer holds themselves accountable to the same law as other Texans.

In 2003 the House convened early in the session to adopt rules. They exempted themselves from the criminal provisions of the TOMA by claiming the Texas Constitution’s Speech and Debate clause protected the state legislators. And then they adjourned to Austin bars to discuss the coming session with their fellow legislators and lobbyists.

Federal legislators and state legislators exempt themselves from a law which criminally prosecutes our neighbors on city councils, school boards, and hospital districts?

Take a look at the U.S. Constitution. Where are the words “freedom of information?” Or “transparency”? Those words aren’t there because statutes and laws creating such governmental mandates are very new. Lt. Gov. Hobby gives the TOMA a pedigree of “42 years,” about the same lifetime as the federal Freedom of Information Act (FOIA) passed in 1966. But FOIA is about access to government records, like the Texas Public Information Act (TPIA). In my opinion the records laws work well because they are specific and about some thing.

There is no federal open meetings act. There are two statutes, the Federal Advisory Committee Act (FACA) and the “Government in the Sunshine Act”; but both are toothless and ignored while the FOIA is in the news every day.

American government never intended the onerous Texas laws which punish the mere act of discussing political matters. The Constitutional Convention of 1787 was conducted in secret. None of the state representatives attending were permitted to publicly discuss the proceedings but of course they did anyway. The Philadelphia taverns rocked into the night as the representatives wheeled and dealed. No recorder was appointed for the meeting but we are lucky to have James Madison’s unauthorized notes. We have access to the marvelous record, the Constitution itself. We can all see it, read it and understand the words as written.

The First Amendment is about the right to speak and to assemble to “petition” redress of grievances — what lobbyists do and as the TML and the Texas Daily Newspaper Association is doing now. Only in Texas can that be made into a crime? Are our locally elected officials the worst men and women in the nation? If not, why then do we by law presume them guilty for doing what we elect them to do while the rest of us prattle and chatter on? We must not presume our officials to be guilty before they have actually done anything wrong.

Lt. Gov. Hobby gives a hint that maybe it is time to reconsider revising the law to provide for new communications devices.

Good for the guv — that is a start.

(Also published in the Big Bend Sentinel of Marfa, Texas December 3, 2009.)

December 3, 2009 (The following two columns were published in February 2007. They demonstrate conclusively that the Texas Legislature does not require itself to follow the same law which is so arbitrarily and capriciously applied to elected officials of local governments in Texas.)

Reprint
February 8, 2007

Texas Legislators and the TOMA
By Jack D. McNamara

Has anyone noticed that the Texas Legislature, who wrote the Texas Open Meetings Act (TOMA), does not bother to comply with major provisions of the statute?

Well yes, as a matter of fact.

On January 12, 2007 the House met to consider amendments to the Rules for the current 80th Session. Representative Yvonne Davis, A Democrat who represents northwest Dallas, offered Amendment 17. The amendment sought to insert the Texas Open Meetings Act into the House Rules. She drew a debate with several members who inquired how the TOMA would affect them as legislators.

Representative Davis said, “We are a body that believes in the open meetings process and certainly we ought to be able to comply with the rules that we ask other entities to.”

Representative Burt Solomons, a Carrollton Republican and the Rules Committee chairman, worried that “if you make a mistake, you may have to hire a lawyer. You may have to go see some D.A., I guess a local D.A. This (TOMA) has criminal penalties — ”

Davis responded that her amendment “just states that the House is subject to penalties that other entities are who violate open meetings rules … this (amendment) basically says that we believe in it enough that we would enforce whatever penalties we would enforce on any other public entity.”

In response to another legislator (Houston Democrat Harold Dutton) she said, “It ought to be that we are subject to those penalties that we would impose on other public entities if they violate it (TOMA).”

Later she had to tell the same legislator that he could not go to the Quorum Club with six of nine members of his committee and discuss a particular bill …, “you would probably be in violation …”

Her amendment, Representative Davis repeated, “just says that you should be subject to it, as all other public entities are.”

“We would be treating ourselves as we are treating others” by applying the TOMA to the House of Representatives, Davis said.

Representative Dutton (an attorney) persisted with specific questions concerning how a legislator would conduct himself under the TOMA and “I’m asking if you have thought about whether or not we’re going to have to change legislative procedures” under TOMA rules?

“Mr. Dutton, I’m accustomed to being treated like my constituents. So, they have to comply. I don’t know why we need to figure out what we need differently,” replied Davis.

Representative Solomons, the committee chairman, moved to table Davis’s amendment and his motion prevailed on a record vote 91-37 with the support of most Republicans and those Democrats who received good committee assignments this session.

Representative Davis’s attempt to place the Texas House under the TOMA received little attention from the Texas press but it was picked up by the blogs.

Our Representative Pete P. Gallego voted with Representative Davis on Amendment 17.

In April 2006 during the 3d Special Session of the 79th Legislature, Representative Gallego, Jim Dunnam and Garret Coleman and 17 co-authors introduced House Resolution 33 “to provide for transparency and ethical leadership in the operations of the House.”

The resolution is four single-spaced pages which go into considerable detail in proposing amendments to the House Rules. Referred to the Rules Committee, it went no further except that some parts of HR 33 were picked up and House Rules now include real-time access to amendments on the Internet and the recording of votes by members.

The only mention of “Open Meetings” in HR 33 concerns the compliance requirement of posting notices of meetings of committees (Section 551.044 Government Code). But under a section titled “Open Process-No Secret Conference Committees” the proposed resolution amending the rules says “No action or recommendation of the house conferees shall be valid unless taken at a meeting of the house conferees with a quorum of the house conferees actually present ... (our emphasis).”

No email problem there.

This is of course the detailed, convoluted, procedural maze of modern government. But it shows that our representatives are at least thinking about the problem even if they are as yet unaware of Judge Robert Junell’s opinion. Indeed there is a detectable thread of serious debate in the House since early 2003. That was the time Texans will recall, that the House majority became Republican for the first time since Reconstruction. A new majority makes new rules and the House Journal of March 25, 2003 includes the proposition (argued by Representative Terry Keel) that the House is not subject to the Open Meetings Act by authority of the Texas Constitution, Art. III, Sec. 11.

Representative Pete Gallego had made a point of order that day in an attempt to kill a bill by raising a possible violation of the Texas Constitution “because HB 4 (the bill under consideration) was derived from a meeting that violated Art III, Section 16 — ” the “open sessions” provision of the Constitution. The Speaker rejected Gallego’s point of order.

Gallego’s “violation” allegation set off a heated debate with distinctly partisan overtones, a reasonable result of the 2002 election. In the same debate, however, Gallego quoted at length a “legendary” legislative parliamentarian Bob “Big Daddy” Johnson who held the same opinion as Representative Keel that the Legislature is not subject to the TOMA. Johnson died in 1995.

By a majority of almost 3-1 the Texas House of Representatives on January 12, 2007 refused to submit themselves to the most onerous requirements of the law which all other Texans are required to observe.

Further, they have been thinking and arguing about it for at least the past four years, the period that the Democrats lost their one party total control of the state’s legislative machinery. Mostly this contentiousness is a good thing. It has certainly surfaced another cavernous contradiction in the law.

To a major extent the Legislature complies with the posting, record-keeping and public access requirements of the law. But they do not recognize the criminal provisions or the ridiculous limitations on communications among legislators. •

(Also published by the Big Bend Sentinel of Marfa, Texas February 8, 2007.)

December 3, 2009

Reprint
February 1, 2007

The Texas Legislature’s
Immunity from TOMA
By Jack D. McNamara

Does the Texas Legislature comply with the Texas Open Meetings Act?

We have been asking this question for the past three months — ever since we read U.S. District Judge Robert Junell’s November 7, 2006 decision regarding the challenge to the constitutionality of that law by two Alpine city councilpersons, Avinash Rangra and Anna Monclova.

The answer is No, at least as it concerns the Texas House of Representatives.

On January 27 we received an answer to our question in an email from House Speaker Tom Craddick. While “the House and Senate are technically subject to the TOMA” the Open Meetings Act also “explicitly recognizes … an overriding constitutional authority to set their own rules (Article III, section 11 and sections 551.003 and 551.046 of the Texas Government Code).”

We are not the only Texans confused by the comparison of law in Alpine and law in Austin. News stories in which reporters are at least implicitly critical of Austin legislative openness abound. Our favorite remains a news story from the Austin American-Statesman online of May 25, 2005. The Legislature had just concluded the biennial budget, a $140 billion exercise. Mark Lisheron wrote that the only legislators who had any influence on the final bill were Senator Steve Ogden of the Senate Finance Committee and Representative Jim Pitts, chair of the House Appropriations Committee. The headline was “Decisions come behind closed doors at the Capitol—Backrooms still the base of power.”

The TOMA was a point of pride for open government activists in Austin in the late 1970s. One of those activists, Charles Deaton, wrote a book, The Year They Threw The Rascals Out, describing the reforming session of 1973. In 1978 the TOMA, Article 6252-17, section 2b read, “In this Act the Legislature is exercising its rule-making powers to prohibit secret meetings of the Legislature, its committees or any other bodies associated with the Legislature….” However, the section has one more phrase: “except as otherwise specifically permitted by the Constitution.”

Moreover, various authorities in the intervening years have indicated the Lege is covered by the TOMA. In 1974 Attorney General John Hill opined (Letter Advisory Opinion No. 84) that the law was “intended to cover legislative committees.”

In 1983 Attorney General Jim Mattox (JM-122) wrote that the Legislature is covered and in December 2000 the Texas Supreme Court rendered a similar decision in their opinion permitting the Texas Senate to conduct a secret ballot to determine the Senate’s presiding officer after then Lt. Governor Rick Perry vacated the office to become governor.

We asked the Travis County District Attorney if he had ever prosecuted a legislator for violation of the TOMA and he said No. There were complaints filed in 2003 after the Democratic minorities in the Senate and the House respectively bolted for Albuquerque and Ardmore, Oklahoma to prevent a quorum. The complaints pointed out rather rationally that the Democrats had to meet and communicate somehow in order to collectively as one man get out of Austin — an apparent violation of the criminal section of the TOMA for conspiring in numbers less than a quorum.

But no prosecutions resulted from the Democrats’ flight.

After discussing the question rather widely, Greg Cox of the Travis County District Attorney’s Office recommended we contact former Representative Terry Keel, an Austin criminal defense lawyer who left his seat in 2006 to run for the Court of Criminal Appeals. Keel was highly regarded in the Legislature. Mr. Keel referred us to the House Journal of January 13, 2005 — the 79th Legislature, Regular Session.

The Journal records the meetings of the House in the early days of each session. The House adopts the rules by which the members will proceed — pursuant of course to Article III, section 11 of the Texas Constitution. This year there was a heated debate over electing the Speaker. In 2005 the Journal includes a lengthy “statement” by Mr. Keel. In the first paragraph he says, “Observers should take note that the Texas Open Meetings Act is inapplicable to the Texas Legislature.”

Mr. Keel reviews the Act’s history as it relates to the Legislature, including specific legislative procedures which are common now but might be illegal under the TOMA. The paragraph concludes,

“… Thus every time a legislator meets with other legislators to secure a majority vote on an issue before a committee or the full house, that legislator would be violating the Open Meetings Act. Attempting such a misapplication of the Act leads to absurd results, given that the conduct described is universally recognized as proper and necessary for legislators in a representative democracy.”

At the conclusion of his “statement” Mr. Keel reports he has discussed these matters with the Travis County District Attorney whose opinion is consistent with Mr. Keel’s.

So there we are … except these opinions all preceded Judge Junell’s November 2006 opinion. And yes, Judge Junell sits in the Western District of Texas which includes Austin. And yes, Judge Junell was, prior to his appointment to the bench, a senior Texas legislator, chairman of the House Appropriations Committee. After presentation of the case in Pecos, the judge wrote, as a conclusion of law, that “… there is no meaningful distinction among public employees, appointed public officials, and elected public officials.”

An email from one Alpine city councilperson to another asking to set up a council meeting was therefore prosecutable, even if such an interpretation of the TOMA is “absurd” in Austin.

There is a slight disconnect here. The rules of both the House and the Senate contain many references to open government. But there are zero cases of criminal enforcement and the House Rules do not include any criminal sanctions in the 100-plus pages.

Even before Judge Junell’s decision a Bickerstaff, Heath, Smiley, Pollan, Kever and McDaniel lawyer, David Méndez, posted a lengthy article on the Web, “Special Problems Under the Open Meetings Act: Applicability of the Open Meetings Act to the Legislature” (July 2004). ”With the demise of a bipartisan culture the committees and policies for operation of the chambers will need to be reviewed and analyzed to determine how they adhere to the Open Meetings Act as the Act may represent one of many tools that can be utilized to check the power of the body.”

Representative Keel is correct. Representative democracy cannot proceed under the ridiculous strictures applied here in Alpine. The result is that we have one rule of law in Austin and another rule in the cities, counties, and school boards out in the boondocks. •

(Also published by the Big Bend Sentinel of Marfa, Texas February 1, 2007.)

December 3, 2009

Reprint
February 1, 2007

An Email from House Speaker Craddick

"1-26-07

Dear Mr. McNamara:

Whether the Texas House and Senate are subject to the Texas Open Meetings Act is a legally complicated question. The House and Senate are technically subject to the Texas Open Meetings
Act, see for example Texas Government Code section 551.001.

However, the Texas Open Meetings Act also explicitly recognizes that the House and Senate hold an overriding constitutional authority to set their own rules to govern their own legislative processes, see for example Texas Constitution Article 3, section 11, and Texas Government Code sections 551.003 and 551.046.

I strongly believe that Texas government should operate in the open for all Texans to see, and the House in its rules does strive to ensure that the House's business is done in public view, with requirements similar to those found in OMA. For example, House rules require that House Committee meetings and House floor debates are announced in advance and are conducted in public view, giving
Texans the opportunity to observe their government in action.

If I can ever be helpful to you on this or any other issue, please do not hesitate to contact me.

Sincerely,

TOM CRADDICK
Speaker"

<>
November 28, 2009

Ethics, Lobbyists and Free Speech

On November 15 a friend sent me a "commentary" article from the Austin American-Statesman by a registered but unpaid lobbyist for the Texas Daily Newspaper Association (TDNA). The article demonstrated for me the reasons for the hostility the Texas press has shown toward the effort to secure First Amendment protections for local elected officials in Texas. The commentary, "Don't let lobbyists undermine the Texas Open Meetings Act," also contained several howling errors.

The situation is very illustrative of the problems the press is enduring in the Internet Age now upon us. In a word, they are scared. I have always respected the Austin American-Statesman so I immediately emailed a comment to the editor of the editorial page Arnold Garcia.

Any press code of ethics includes at a minimum a standard of fairness which provides a right of reply for those attacked, especially when the facts asserted are wrong. Garcia and I exchanged several emails and he published the third revision along with several links to other articles related.

Well done, Mr. Garcia.

I want to emphasize that Mr. Fred Hartman is a newspaper publisher with several platforms from which he may legitimately bash anyone for anything he opposes. OF COURSE he has his First Amendment rights.`

All Avinash Rangra, Anna Monclova and other elected officials are asking for is that they have the same rights.

The article published November 25 is below.

"statesman.com

OTHER TAKES

McNamara: Texas statute shouldn't infringe
on elected officials' free speech rights

Jack D. McNamara, SPECIAL CONTRIBUTOR

Wednesday, November 25, 2009

In his Nov. 15 commentary "Don't let lobbyists undermine the Texas Open Meetings Act," special contributor Fred Hartman complains of the Texas Municipal League's efforts "continually trying to chip away at the public's right to know" and cites a lawsuit here in Alpine — "This lawsuit is being paid for by taxpayer dollars as well — outrageous."

Well, it might be objectionable if true but Hartman is wrong. The lawsuit "Rangra v. Brown" was financed by the plaintiffs, Avinash Rangra and Anna Monclova. The case was dismissed for "mootness" because Rangra's term-limits as a three term city councilman meant he no longer had "standing." The courts took so long deliberating that Rangra was out of office.

The politics of Alpine is sustained by water. More than 60% of the Brewster County population lives in or just outside the city. In April 2002 the Texas Council on Environmental Quality (TCEQ) cited the city for failing to maintain water pressure standards in the southeast sector of the city, a predominantly minority area called Pueblo Nuevo.

There ensued several rough city elections for the five council seats from 2003 through 2005. Avinash Rangra, a Sul Ross chemistry professor born in the Punjab, India became the leader of the council majority which was struggling to fix the water distribution system — and to fix Pueblo Nuevo first.

In October 2004 another councilperson elected with Rangra in 2003, Katie Elms Lawrence, sent him an email urging Rangra to contact the mayor and ask her to call a special meeting to consider hiring another engineering consultant. At the time there were four engineering entities whose bona fides were before the council.

Rangra acknowledged the email and contacted the mayor. At that time there were more than 40 hours of recorded meetings, discussions, workshops, videotapes, etc., etc. on the subject of engineering the water system. Rangra forwarded Elms's email to two other councilpersons, Anna Monclova and Manuel Payne and the council unanimously voted to retain Naismith Engineering of Austin.

The fifth councilmember, Mrs. Nancy DeWitt, obtained more than 100 of Rangra's emails and delivered them to 83rd District Attorney Frank Brown. He led a leaky, highly publicized grand jury to indict both Rangra and Elms for violation of the Texas Open Meetings Act (TOMA) Section 551.144.

They retained Dick DeGuerin of Houston and Marfa and Rod Ponton of Alpine. District Attorney Brown quickly moved to dismiss the indictments.

Brown was defeated in the March 2008 Democratic primary. Elms chose not to run for reelection in 2005. Monclova was narrowly defeated in 2006. DeWitt narrowly won reelection in 2005, then abruptly resigned and left town.

Judge Robert Junell heard the case in July 2006 in Pecos. He ruled in favor of the Texas AG and DA Frank Brown. Rangra and Monclova appealed to the 5th Circuit in December 2006. A three judge panel ruled in late April 2009 that of course elected representatives in Texas have the same First Amendment rights as anyone else. The panel reversed Judge Junell's decision and remanded the case back to him for "strict scrutiny."

The Texas Attorney General appealed for the full 5th Circuit to hear the case anew so Rangra and Monclova did too, saying in effect the decision so strongly favored their action that we might as well keep going to the U.S. Supreme Court.

The full court suddenly noticed that Rangra's third elected term had ended in May 2009. Sixteen judges then ruled the cause "moot" in a single sentence. But Judge Dennis wrote a stinging six page dissent which will confront the Texas AG or any other politically ambitious prosecutor who might try to gag a representative of the people.

In June 2009 the City of Alpine completed the redesign of the water distribution system at a cost of just over $4 million. The rejected engineer had proposed a system costing more than $10 million and never did provide sufficient water pressure for a morning shower to our Pueblo Nuevo.

Hartman says "there have been only a handful of prosecutions" — one is too many if this statute denies the free speech rights of the elected officials who represent us.

But Mr. Hartman is a vice president of "Hartman Newspapers." Who does he represent? According to your article he is also the "chairman of the Texas Daily Newspaper Association's Legislative Advisory Committee." He is a lobbyist who places his business interests above our free speech rights.

McNamara is publisher of The Nimby News."

November 12, 2009

Never Trust a Journalist
(The follwing emails were exchanged last Thursday between
Jack McNamara and Alpine Avalanche Publisher Mike Perry)

November 5, 2009, 11:11 a.m.

Cindy/Mike

I was wondering just how you would turn last week's windy disaster into a political advertisement for Mrs Beard ("Work Will Resume Soon On Our Library"). You did not disappoint.

But newspapering is also about news and the basis of news is facts, so let me ask about a few facts which might have enhanced your front page news —"unexpectedly" high winds? The forecast clearly predicted high winds. Even if it had not 35 mph winds here are not at all unusual nor do we flinch at 50 mph gusts. What other areas of Alpine were damaged?

Lengthy and effusive comments concerning an unamed insurance ''adjustor" and "structural engineer" don't make the grade for basic journalism. Who are they, by name and even more important by their business name....just in case anyone is foolish enough to hire such incompetents who put windows in to catch the wind (on the west side!) and fail to brace frame walls.

"Brewster County crews have been helping with construction..." now wait a minute. Your previous puff pieces have highlighted the great economy and savings being accomplished by using the Brewster County road crew and indeed there is a sign at the site proclaiming the work under the county's supervision. While the roads of the county suffer our road builders are building libraries.....that is bad enough but how about some news? Isn't this the same crew which failed to call the 1-800 number to verify the buried gas lines at the $220,000 fire station site?
Then when they cut the lines and forced evacuation of the next door Christian school some county official ominously cited allegations of a possible law suit while the commissioners scurried into executive session . We never leaarned who the threatening litigator was. Isn't that a worthy mission for the Avalanche?

You repeat several times the noble efforts of "volunteers" but it seems to me I only recently saw the library board prez at the Alpine City Council asking for another handout.

So come on...gimme a break.You owe us news on all the cockamamie "infrastructure" expenditures around here, not spin.Your journalism is especiallly vulnerable because you announced for Beard even before she announced.

Your obedient svt.

Jack D. McNamara, mostly retired journalist

5 November 2009

November 5, 2009, 12:25 p.m.

Jack

Good letter, good points. We'll print the letter in a prominent way. I'm fine with out (sic) reporting thus far but certainly understand that the points you're making are valid and worth bringing to our readers' attention.

I feel comfortable and confident that we have not -- and will not -- cover the upcoming county judge election in a biased manner. Both candidates are people I consider to be friends, or at least friendly acquaintances. I also think both have been strong public servants of this area. We don't intend to endorse anyone or favor anyone in this election. If you at any time decide you disagree with my assessment, please write a letter to the editor. We will publish those letters.

As you know, Cindy and I and the Avalanche are huge fans of the library campaign and the new library. And the hard-working people that have led the library campaign. That doesn't mean that we won't keep an eye on things -- nor does it mean that we won't publish all concerns of all citizens. I ask only that letters be kept as collegial as possible. (That does not mean NOT critical.)

Again, thanks for the letter. Letters such as this -- from all points of view -- are a valuable way of discussing issues within our community.

Take care. And drop by sometime just to chat; hope to see you a breakfast some time soon.

Mike

November 5, 2009, 1:38 p.m.

Mike- thanks for the well-balanced response. I think we both want the same thing.Good government and good journalism both. Indeed the two go together. Our biggest political problem around here is we too soon personalize issues and take positions which nullify our reason. Sure use it as you wish. As you can easily see I am supporting Avinash. Like Judge Beard he has a record (including an indictment) as regards the most important issues we have faced as a community.

Jack

(OBTW- as I was going to the post office I saw the whole structure is now down. I asked que pasa and the nearest working guy said they were tearing it down for salvage.)

September 16, 2009

The following statement was released by Alpine
Attorney Rod Ponton on September 14, 2009:

"To: Robert Halpern, Mike Perry, Jack McNamara

"This is what we plan to do regarding our next steps in Rangra v Brown.

"We will file a Motion for Rehearing, asking the Court to
reconsider the dismissal. We had filed a Motion to
Intervene, last Friday, with affidavits signed by four
current officeholders-- James Fitzgerald, Angie Bermudez,
and Johanna Nelson, Alpine city council, and Russell Jones,
Sugar Land city council. They each asked to intervene on
appeal, because their rights were not being vindicated by
Rangra.

We also filed a Reply Brief last Friday, pointing out that
Rangra met all the standing standards of 5th Circuit and
Supreme Court law. Our reply Brief was timely, filed 14 days
after service of the Attorney General's Brief on the
merits.

Thus, the 5th Circuit dismissed the case without obtaining
and reviewing all briefing in the case. Judge Dennis'
dissent was accurate-- it was a result oriented decision,
not based on current standing law.

We will ask the 5th Circuit to rehear the matter, so as to
be able to have all briefing before them. If they refuse, we
will ask them to dismiss the appeal, not the case. In any
event, we will return to District Court, where Rangra still
has pending damage claims for a violation of 42 USC Sec 1983. We
will add additional plaintiffs at the District Court level,
to avoid future standing problems. We will press forward.

The TOMA law is still the same. The First Amendment is
still a part of the Constitution. The problems faced by
Texas public officials are real and ongoing. The dismissal
merely delays for a year, the inevitable review of whether
TOMA violates the First Amendment. We will not stop for a
moment. The Attorney General is apparently afraid to have
TOMA reviewed on whether it violates the First Amendment,
because he was the one pushing the standing issue.

We will keep pushing
the issue until we are able to get a full 5th Circuit
review, and ultimately a Supreme Court review.

Rod"

September 12, 2009

Moot! Says the 5th Circuit
... But It Ain't Over
By Jack D. McNamara

On Thursday, September 10, the U.S. 5th Circuit Court of Appeals in New Orleans dismissed the case challenging the Texas Open Meetings Act (TOMA) for "mootness." That means a majority of the 17 judges said it is over and thereby cancelled a hearing scheduled for September 24.

The Court collectively stated this in a one-line sentence of nine words. This succinct decision probably reflects that a majority of the judges accepted the Texas Attorney General's late argument that because Avinash Rangra left the Alpine City Council on May 19, 2009 due term limits (and after being elected three times in opposed elections) neither of the named plaintiffs any longer had "standing" to challenge the constitutionality of a Texas statute governing elected municipal representatives.

There was, however, a strong dissent to the dismissal from Judge James Dennis, a member of the three-judge panel who decided for Rangra and Monclova in April.

It is an astonishing dissent and so admirable that we publish the dissent here in full.

..................

"DENNIS, Circuit Judge, dissenting:

I emphatically dissent from the majority's decision to declare this case
moot because it is incorrect, injudicious, and result-oriented.
Background

Rangra served three consecutive two-year terms (6 years) as Alpine city
council member until he was term limited (for one two-year term) at the end of
his term on May 19, 2009. During his second term, in February 2005, Rangra
was accused of exchanging emails among a quorum of council members to
schedule a council meeting. Rangra was indicted for a violation of the Texas
Open Meetings Act ("TOMA"), but that charge was later nolle prossed or
dismissed without prejudice. The district attorney warned or threatened to
bring new charges if his communications were perceived as violating TOMA
again. In September 2005, Rangra and another city council member brought
this § 1983 action for declaratory and injunctive relief, challenging the criminal
provisions of TOMA, under which they had been prosecuted, as content-based
speech regulations. The district court held that elected city council members are
entitled to no more First Amendment protection oftheir speech pursuant to their
official duties than are unelected public employees. On appeal, the panel held
(1) that elected officials are entitled to full First Amendment protection of their
speech pursuant to their official duties; (2) that the TOMA provisions at issue
are content-based restrictions on speech which must be subjected to strict
scrutiny. Thus, the panel reversed the district court judgment and remanded
the case for further proceedings. An en banc rehearing was granted and
scheduled for oral argument on September 24,2009. Recently, when this court
was notified of Rangra's leaving office on May 19, 2009, it raised the issue of
mootness sua sponte, and now dismisses the case as moot.
1

The Panel Correctly Decided That Plaintiff Has Standing And That
The Case Is Not Moot Because He Is Still Threatened By Prosecution.
The panel rejected the defendants' objection based on alleged lack of
standing and mootness. See Rangra v. Brown, 566 F.3d 515, 519-20 (5th Cir.·
2009). Because the plaintiff has once been indicted and prosecuted for an
alleged violation of the Texas Open Meetings Act and could be so prosecuted
again, the plaintiff has standing to challenge the statute and the case is not
moot. The panel's reasons were as follows:

It is well established that a credible threat of present or future criminal
prosecution will confer standing. See, e.g., Virginia v. Am. Booksellers Ass'n,
, Inc., 484 U.S. 383, 392-93, 108 S. Ct. 636, 98 L.Ed.2d 782 (1988) (holding that
the injury-in-fact requirement was met, in part, because "plaintiffs have alleged
an actual and well-founded fear that the law will be enforced against them");
Steffel v. Thompson, 415 U.S. 452, 459, 94 S. Ct. 1209, 39 L.Ed.2d 505 (1974) (
"[I]t is not necessary that [a party] first expose himself to actual arrest or
prosecution to be entitled to challenge a statute that he claims deters the
exercise of his constitutional rights."); Doe v. Bolton, 410 U.S. 179, 188-89,93 S.
Ct. 739, 35 L.Ed.2d 201 (1973). This is because a credible threat of present or
future prosecution is an injury sufficient to confer standing, even if there is no
history of past enforcement, see Bolton, 410 U.S. at 188, 93 S. Ct. 739, and a
speaker who fears prosecution may engage in self-censorship, which is itself
another injury, see Am. Booksellers, 484 U:S. at 392, 108 S. Ct. 636 ("[T]he
alleged danger of [the challenged] statute is, in large measure, one of
self-censorship."); see also Ashcroft v. ACLU, 542 U.S. 656, 670-71, 124 S. Ct.
2783, 159 L.Ed.2d 690 (2004) ("Where a prosecution is a likely possibility ...
speakers may self-censor rather than risk the perils of trial. There is a potential
for extraordinary harm and a serious chill upon protected speech.").
                                                                    2

See also Medlmmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-129, 127
S. Ct. 764, 166 L.Ed.2d 604 (2007) ("[W]here threatened action by government
is concerned, we do not require a plaintiff to expose himself to liability before
bringing suit to challenge the basis for the threat--for example, the
constitutionality of a law threatened to be enforced. The plaintiff's own action
(or inaction) in failing to violate the law eliminates the imminent threat of
prosecution, but nonetheless does not eliminate Article III jurisdiction."); Ellis
v. Dyson, 421 U.S. 426, 432, 95 S. Ct. 1691,44 L.Ed.2d 274 (1975)("[F]ederal
declaratory relief is not precluded when no state prosecution is pending and a
federal plaintiff demonstrates a genuine threat of enforcement of a disputed
state criminal statute, whether an attack is made on the constitutionality of the
statute on its face or as applied.").

For the same reasons, because the plaintiff is still exposed to prosecution
under the statute, the panel held that the plaintiff's standing still exists and the
case is not moot. See Rangra, 566 F.3d at 520; Arizonans for Official English v.
Arizona, 520 U.S. 43, 68 n. 22, 117 S. Ct. 1055, 137 L.Ed.2d 170 (1997) (a case
is not moot where "~[t]he requisite personal interest that must exist at the
commencement ofthe litigation [to give rise to standing] continue[s] throughout
its existence."'(quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388,397, 100
S. Ct. 1202,63 L.Ed.2d 479 (1980»); see also Steffel, 415 U.S. at 459,94 S. Ct. at
1215-16 (holding that "alleged threats cannot be characterized as 'imaginary or
speculative'" where petitioner was warned that continued exercise of his
constitutional rights would result in prosecution and petitioner's companion was
prosecuted for engaging in the same conduct (quoting Younger v. Harris, 401
U.S. 37, 41, 91 S. Ct. 746, 749,27 L.Ed.2d 669 (1971); Poe v. Ullman, 367 U.S.
497,508,81 S. Ct. 1752, 1758-1759,6 L.Ed.2d 989 (1961»).
                                                                    3

The Precipitous Action By The En Banc Court To Declare Mootness
Prior To Full Briefing And Oral Argument Is Incorrect, Injudicious
And Result Oriented.

The plaintiff, Rangra, left office at the end of his term on May 19, 2009
because he had served the maximum (three) consecutive two-year terms allowed
without a break. See HOME RULE CHARTER OF THE CITY OF ALPINE § 3.01(E).
However, this did not defeat his standing to challenge TOMA, to protect himself
from alleged unlawful prosecution to which he is still exposed. Thus, the
controversy created by his initial prosecution under the Act and this suit by him
to protect himself from the threat of future prosecution by challenging the
constitutionality of the Act is live, extant and not moot. The statute of
limitations for a violation under the Act is two years from the date of the
commission of the offense. See TEX. CODE CRIM. PROC. ANN. art. 12.02 (Vernon
2009). Thus, the statute of limitations will not run completely on the threat of
prosecution to Rangra until May 19, 2011. So long as the threat of prosecution
exists and Rangra maintains his constitutional challenge he is entitled to seek
protection under the First Amendment in the federal courts. See, e.g., Am.
Booksellers Ass'n, 484 U.S. at 392-93, 108 S. Ct: at 642-43; Steffel, 415 U.S. at
459,94 S. Ct. 1215-16; Bolton, 410 U.S. at 188-89, 93 S. Ct. at 745-46; Ashcroft,
542 U.S. at 670-71, 124 S. Ct. at 2794. More generally, so long as the federal
court's decision is likely to have some effect in the future, the case should not be
dismissed even though the plaintiff's primary injury has passed. In Super Tire
Engineering Co. v. McCorkle, 416 U.S. 115 (1974), "[d]uring a labor strike, the
employers whose plants were struck filed a lawsuit challenging a state law that
permitted strikers to receive public assistance through state welfare programs.
Although the strike ended before the completion of the federal court litigation,
the Court held that the case was not moot because a federal court decision could
                                                               4

substantially affect future labor-management negotiations." Erwin
Chemerinsky, Federal Jurisdiction § 2.5, at 131 (4th ed. 2003). The Court also
reasoned that the case presented a wrong capable of repetition yet evading
review. Thus, any continuing injury means that there is a live controversy.
Super Tire, 416 U.S. at 121-26. Here, Rangra continues to live under the threat
of prosecution and under the damage that was done to him by his prior
indictment and prosecution by the state government.

The only reason that has been advanced for dismissing this case prior to
the date upon which it had been set for en banc rehearing and oral argument,
is that it would overtax the judges of this court to prepare for oral argument on
both the mootness question and the merits of the appeal. This is not a valid
reason. We have often been confronted with standing and mootness challenges
just prior to en banc oral argument. To my knowledge this court has never
before dismissed an appeal set for en banc hearing so precipitously without
giving the parties full time for briefing and without hearing them fully on the
issue at oral argument. A heavy work load never justifies giving short shrift to
a case in which there is undisputed jurisdiction and an initial demonstration of
standing. That is even more.so because our regular oral argument dockets are
currently dwindling, now that we have a near full complement of sixteen active
judges and six senior judges.

Alternatively, although it is not necessary to consider any exception to the
mootness doctrine, because this case presents a live, extant controversy, this
case also fits within several of the exceptions. For instance, this controversy is
excepted from the mootness doctrine as presenting a "wrong capable ofrepetition
yet evading review." To come within this exception, Rangra is only required to
show that '''(1) the challenged action is in its duration too short to be fully
litigated prior to cessation or expiration; and (2) there is a reasonable                                                                           5

expectation that the same complaining party will be subject to the same action
again.'" Fed. Elec. Comm'n v. Wisconsin Right to Life, Inc., 661 U.s. 449, 462,
127 S. Ct. 2662, 2662, 168 L.Ed.2d 329 (2007) (quoting Spencer v. Kemna, 623
U.S. 1, 17 (1998». Rangra has done so. The duration of this litigation, now over
four years, double the length of a council term, establishes conclusively the
litigation time required greatly exceeds the period after which the claimant will
be met with a mootnessobjection. See Wis. Right to Life, Inc., 661 U.S. at 462,
127 S. Ct. at 2662 (the fact that "two blackout periods have come and gone
during the pendency of this action" showed the action evaded review); Davis v.
Fed. Elec. Comm'n, 128 S. Ct. 2769, 2769-70 (2008) (the passing of two
congressional election cycles "demonstrat[ed] that [the] claim[ was] capable of
evading review"). Further, there is also a reasonable expectation that Rangra
will be subjected to future deprivations of his constitutional rights; he was
indicted and prosecuted once; the charges were dismissed withoutprejudice; and
the district attorney threatened him with another prosecution in the future. See
Murphy v. Hunt, 466 U.S. 478, 481,102 S. Ct. 1181, 1183,71 L.Ed.2d 363 (1982)
(requiring '''a reasonable expectation that the same complaining party would be
subjected to the same action again'" (quoting Ill. Elections Ed. v. Socialist
Workers Party, 440 U.S. 173, 187,99 S. Ct. 983,991,69 L.Ed.2d 230 (1979». As
the Court has explained, thisis not a difficult showing to make - there need only
be a "reasonable probability" that the plaintiff will be subjected to the same
action. See Honig v. Doe, 484 U.S. 306, 318 n.6, 108 S. Ct. 692, 98 L.Ed.2d 686
(1988) ("We have found controversies capable of repetition based on expectations
that, while reasonable, were hardly demonstrably probable."). Rangra was
elected to three consecutive terms until he was term-limited for one term; the
Alpine voters re-elected him twice after he had been indicted and prosecuted for
violating TOMA; he filed a sworn affidavit stating his intent seek the office again
                                                                      6

when he becomes eligible to run in 2011.
                                                                * * *
This court shirks its duty under the Constitution to afford Rangra a forum
for his constitutional challenge and live controversy by dismissing his claim
without full briefing, full oral argument, and full judicial consideration and
attention.

The Supreme Court in MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118,
129 (2007) held: "[W]here threatened action by government is concerned, we do
not require a plaintiff to expose himself to liability before bringing suit to
challenge the basis for the threat-for example, the constitutionality of a law
threatened to be enforced. The plaintiffs own action (or inaction) in failing to
violate the law eliminates the imminent threat of prosecution, but nonetheless
does not eliminate Article III jurisdiction. For example, in Terrace v. Thompson,
263 U.S. 197, 44 S. Ct.. 15 (1923), the State threatened the plaintiff with
forfeiture ofhis farm, fines, and penalties ifhe entered into a lease with an alien
in violation of the State's anti-alien land law. Given this genuine threat of
enforcement, we did not require, as a prerequisite to testing the validity of the
law in a suit for injunction, that the plaintiffbet the farm, so to speak, by taking
the violative action. Id. at 216. See also, e.g., Village of Euclid v. Ambler Realty
Co., 272 U.S. 365, 47 S. Ct. 114 (1926); Ex parte Young, 209 U.S. 123, 28 S. Ct.
(1908). Likewise, in Steffel v. Thompson, 415 U.S. 452, 94 S. Ct. 1209 (1974), we
did not require the plaintiff to proceed to distribute handbills and risk actual
prosecution before he could seek a declaratory judgment regarding the
constitutionality ofa state statute prohibiting such distribution. Id. at 458-460.
As then-Justice Rehnquist put it in his concurrence, 'the declaratory judgment
procedure is an alternative to pursuit ofthe arguably illegal activity.' Id. at 480.
In each ofthese cases, the plaintiff had eliminated the imminent threat of harm
                                                                    7

by simply not doing what he claimed the right to do (enter into a lease, or
distribute handbills at the shopping center). That did not preclude
subject-matter jurisdiction because the threat-eliminating behavior was
effectively coerced. See Terrace, supra, at 215-216; Steffel, supra, at 459. The
dilemma posed by that coercion-putting the challenger to the choice between
abandoning his rights or risking prosecution-is 'a dilemma that it was the very
purpose of the Declaratory Judgment Act to ameliorate.' Abbott Laboratories v.
Gardner, 387 U.S. 136, 152, 87 S. Ct. 1507 (1967)." Id. at 128-29.

As the Supreme Court put it, Rangra did not have to "bet the farm," id.
at 129, on his right to use his email to communicate with other members of the
city council for the purpose of scheduling a routine business meeting; instead,
he took the action that the Supreme Court has approved and encouraged
citizens to take when they are threatened by criminal prosecutions they believe
to be unlawful. He filed a declaratory judgment action challenging the
constitutionality of the criminal statute as an infringement on the First
Amendment. (No one disputes that Rangra was threatened with further
prosecution when he brought this declaratory action. No one disputes that if
Rangra had continued to engage in email communications to schedule routine
business meetings and had been subjected to further prosecution continuing
throughout his term of office that this case would not be moot. No one would
contend that the State could violate Rangra's constitutional rights at will simply
by prosecuting him until the clock ran out on his term in office.) Rangra did
everything he needed to do to preserve his right to bring this constitutional
challenge to the statute. This Court's precipitous actions are in direct conflict
with the Supreme Court's well. established jurisprudence culminating in
Medimmune."
                                                                       8

August 26, 2009

Town Hall Meeting in Alpine
By Jack D. McNamara

Ciro Rodriguez, our U.S. House Representative, came to Alpine last Saturday, August 22 for a “town hall”-style meeting with his constituents here.

All across America elected Congress representatives are meeting and talking about the current Topic A — health care. This is their fall recess and there is nothing unusual about the representatives touching base with the grassroots.

But this August 2009 it is unusual because there is an organized pushback from Republicans, libertarians, and even some Democrats. To the glory of America, the forums chosen are numberless coffee shops, restaurants, social halls, schools and other locations in neighborhood America.

Representative Rodriguez was at Alexander’s Restaurant on Holland Avenue before the announced time of 1 p.m. Rodriguez said he wanted to get started and invited attendees to introduce themselves and say their pieces. A couple dozen of us were there but the room continued to fill throughout the event.

The format encouraged each attendee to stand up and state his or her concern. Rodriguez spoke afterward.The first man complained of the loss of American production capability, as did the second. Alpine journalist Andrew Suber said he thought Washington was doing “OK.”

But as Rodriguez went down the front of the audience he came to those who has come to the meeting to complain of the President’s and the Congress’s health initiative … “too fast” … “not enough input: … “abortion” … “Washington is broken, look at the debt” …

Former Brewster County Republican Chair Richard Allen said make “your” (Rodriguez’s) insurance available to everyone.

As are all Big Bend political gatherings we had colorful attendees. Ring Huggins, a leathery fellow wearing a pony tail and a red bandana headband, introduced himself as a member of the “Terlingua Liberation Front.” He is also a county precinct chair for the Democratic Party.

You didn’t have to listen long to realize that many of the issues cited were the same. Local Republicans had widely circulated emails which echoed those circulated in constituencies all across America. The intent of the emails is to discredit the Democrats’ proposal to “reform” or change our existing healthcare system. Republican U.S. Senator Jim De Mint of South Carolina proclaims that if successful, the result will be President Obama’s “Waterloo.”

So of course the comments sometimes got a little strange. One articulate woman from Ft Davis said she was afraid as an American for the first time … afraid that her government can’t be trusted … but she knew the health system needs “repair.”

Several others were most concerned that the proposed bill includes proposals for abortions (it doesn’t). Even worse, one man feared government-funded abortions for illegal aliens — he said he got that news from the Fox network.

The Republicans clearly prevailed in the email alert. Perhaps 100 people from the Big Bend were there and Democrats and liberals were in the minority. But they were not silent.

After hearing several times from speakers that each wanted “government” to stay out of his or her health care. Barbara Walker of Alpine said, “Who do you think is paying for it (health care) now?” Leo Uher rather forcefully spoke up the call for some “facts.” He pointed out the World Health Organization ranks the U.S. far down the list in national health care quality. Number one is France, said Uher, and they spend $2500 per person. In the U.S. we spend $6200.

Representative Rodriguez then took the floor to defend the Democrats’ plan. He had hardly begun before one man in the audience said what sounded like “b.s.” to something Rodriguez said. Rodriguez immediately stopped, fixed on the man from a distance of about ten feet and said loudly, “It is not b.s.!” There was a noticeable pause but the man in the audience said nothing more nor did he stand up. Rodriguez then returned to what he had been saying with no indication of anger or agitation.

The abortion issue is being used as a wedge, he said. There is no provision in the current House bill for payments to those illegally in the U.S. We in the U.S. pay twice what is paid in other industrialized democracies along with extensive waste, fraud and abuse, a statement which supports President Obama’s assertion that the administration can craft a “revenue- neutral” bill.

The meeting was rather orderly in comparison to similar town halls in the news across the nation. Rodriguez’s facedown to the heckler was exceptional and worthy of note. Most of those attending will vote for any Republican. But Rodriguez won the 23rd District in 2006 and if effort is any measure will do so again.

The next to last speaker Saturday was a young Hispanic woman who spoke forcefully against government mandates for health insurance. This is notable because she was the only Hispanic present. Notable also because she owns a successful restaurant and has been an active Republican in the past. But she is not representative of the Hispanic vote in Brewster County. Those are usually Democratic votes.

Ciro Rodriguez waited until the end of the meeting to say that he personally was not a participant in the very excellent health insurance which members of Congress provide for themselves. He said he was covered by his wife’s policy as an employee of the San Antonio school system.

Neither the county judge nor the city’s mayor was present. Brewster County officialdom was ably represented by Sheriff Ronnie Dodson. Senior governmental officials should have been present to learn how to lead large discussions of controversial issues. •

July 29, 2009

En Banc!
By Jack D. McNamara

Yesterday, July 28, the 5th Circuit Court of Appeals in New Orleans posted a court order granting petitions by both sides in Avinash Rangra; Anna Monclova vs. Frank D. Brown, District Attorney; Greg Abbott, Texas Attorney General (No. 06-51587).

“En Banc” means as many as 17 circuit Judges will hear the appeals of the respective sides regarding the constitutionality of the Texas Open Meetings Act (TOMA). A majority of the judges voted to hear the appeals which are scheduled for oral argument the week of September 21 in New Orleans.

Under the rules of the court the order “stays” (suspends) the opinion previously released by a three-judge panel reversing and remanding the decision of Western District of Texas Judge Robert Junell. The panel had ordered Judge Junell to examine the case under the demanding standards of “strict scrutiny.” (See above.)

As an aside, this probably means the case will eventually go to the U.S. Supreme Court. The plaintiffs (Rangra and Monclova) are much stronger now than they were when this started in February 2005.

The state’s case is weaker. Frank Brown is no longer 83rd District Attorney because he was defeated in the Democratic primary of March 2008. Brown was defeated after three previously uncounted ballot boxes were “found” in the vault in the Brewster County Voting Office. When this irregularity and others (such as more votes than voters) were corrected, Brown lost by a narrow margin.

The county promptly disestablished the voting office.

Brown’s attorney, Steve Houston, next attempted to substitute the new district attorney’s name (Jesse Gonzales) for his (Frank Brown) on the court documents. The plaintiffs strenuously objected and the court denied the request. •

July 20, 2009

Death in the Desert
By Jack D. McNamara

Some time on or about June 10, an immigrant illegally in the U.S. was found dead in Big Bend National Park (BBNP) near Dugout Wells, a well known site just east of the park headquarters at Panther Junction.

The dead man was apparently part of a group of illegal immigrants and perhaps two “coyotes,” or smugglers, who may have entered the U.S. as early as June 8. Most of them made their way to a windmill at Dugout Wells where they were rescued or apprehended on June 10.

On June 11 the Marfa Sector Border Patrol office issued a press release. The release was unusually detailed and stated a Border Patrol officer/Emergency Medical Technician rendered assistance as well as evacuation of a 16-year-old girl by a Customs and Border Protection (CBP) helicopter.

Other media releases established the immigrant group was located and assisted by National Park Rangers.

At the bottom of the press release there was an extended account of a “cell-phone” call which went from the group to the Alpine Police Department (APD).

According to the Border Patrol press release the call from deep in the federal national park was then forwarded to the Pecos County Sheriff’s Office, some 100 miles distant. Described as a “911” call, the caller misidentified his location as “an hour’s walk from Fort Stockton.”

The call initiated a search on June 10 by the Pecos County Sheriff’s Office, the Brewster County Sheriff’s Office, the Texas Department of Public Safety and Border Patrol stations from Ft. Stockton, Alpine and Sanderson as well as CBP Air.

Park rangers found the surviving group at Dugout Wells and the CPB helicopter found the dead body. Rangers guarded the body overnight and he was “extracted on Thursday morning,” presumably June 11.

And presumably end of story, another tragic death in the desert, desperate people daring the “despoblado” in the murderous heat of the Big Bend summer.

But then there was a second “news release” from Border Patrol in Marfa on June 16. “Men Charged in Big Bend National Park Smuggling Case.”

Pablo Chavez-Ballegos, a 35-year-old Mexican, was charged with alien smuggling by the Alpine office of the U.S. Attorney for the Western District of Texas.

John Waters, publisher of the Big Bend Gazette, was intrigued by the lengthy press release. He wrote a Texas Public Information Act (TPIA) request to the APD for a copy of the 911 call described in the Border Patrol press release. APD Chief Russell Scown referred the request to City Attorney Rod Ponton. Ponton obtained a letter from Assistant U.S. Attorney Jay Miller which says the tape recording is part of a criminal investigation. Ponton then referred the request to the Texas Attorney General for an opinion withholding the tape.

In his July edition of the Big Bend Gazette Waters’ lead story was “Death Penalty Sought in Alleged Human Trafficking Death in National Park.” Assistant U.S. Attorney Miller confirmed his office was drafting a memo charging Chavez-Ballegos for alleged violations of 18 USC 1324.

Both the Gazette and the Nimby News have been denied access to the alleged 911 call. Paige Savoie, an Assistant Attorney General in the Open Records Division cites 1975 case Houston Chronicle Publishing Co. v. City of Houston, 531 S.W. 2nd 177 which authorizes withholding information under section 155.108 (a)(1) of the TPIA.

911 calls are usually released to the press and/or the public, especially when the caller is deceased. The most notable current example is that of pop singer Michael Jackson. The Dugout Wells call is selectively described in the Border Patrol press release but the verbatim call is not made public.

What kind of “investigation” is this? •

June 9,2009

Twiddling Thumbs
By Jack D. McNamara

Here we sit twiddling two thumbs waiting to hear from the 5th Circuit Court of Appeals — will they conduct an en banc hearing on Rangra v. Brown?

The court reversed and remanded U.S. District Court Judge Robert Junell’s November 2006 decision on April 27. There were several hugely important aspects to the decision which we discussed here on May 6, “Strict Scrutiny.” After the decision the Texas Attorney General mulled over his options and decided to seek the en banc hearing. He brought with him a couple of press lobbying organizations, the Freedom of Information Foundation of Texas and the national Reporters Committee for Freedom of the Press. In addition more than a dozen state attorneys general joined in bellowing that the First Amendment was in great danger because a three judge panel said that our elected officials have the same right to free speech as do prosecutors and editorialists. But for the moment the decision by Judges Dennis, Weiner and Barksdale stands … the case will come back to West Texas for a hearing on the issue.

Interestingly the Texas AG does not any longer refer to the legal cornerstone of Judge Junell’s decision, the 2006 Supreme Court decision in Garcetti v. Ceballos.

Nor has the Texas AG very much acknowledged the April 27 decision. In November 2006 the AG’s website resounded with press releases praising Judge Junell and proclaiming a preferred position for the freedom of speech of prosecutors and editors.

But now we have only a puny footnote in an AG opinion issued on June 1. Greg Abbott Opinion 0717 refers to the court’s three judge decision in the last footnote of an opinion for the city of Rockwall. Their city attorney asked if the city’s charter allowing a quorum of council members to call a special meeting and set the agenda was OK.

Well, yes it is, says the Texas AG, NOW somewhat belatedly. That is precisely the circumstance under which the Brewster County Courthouse Gang indicted Avinash Rangra and Katie Elms-Lawrence in 2005.

So it appears the courthouse gangs in Texas no longer have a legal cornerstone, Garcetti v. Ceballos, and some sanity has returned to those who decide if local governments may communicate and meet to solve the problems they were elected to solve.

My best guess is that the case is coming back to West Texas. Both sides have requested the en banc hearing and both sides are apparently positioned to appeal to the U.S. Supreme Court. But I think that doesn’t happen until the record is complete in accordance with what Judge Dennis in New Orleans wrote in April.

If the case comes back here we should have the opportunity to reexamine the blatantly political prosecution of Alpine city council members in late 2004 and 2005. To add substance to that examination we have posted a copy of the Texas House of Representatives’ HR 2790 commemorating the service of Avinash Rangra on the Alpine City Council for three terms. Introduced by our State Representative Pete P. Gallego, the bill was passed unanimously by the state House on June 1.

Among other accomplishments the resolution gives credit to Rangra for “his efforts helped bring about many positive developments, including the resolution of a long standing water pressure problem in Alpine …”

We are looking forward to a replay under oath of the Alpine water travesty…. “Whiskey is for drinking and water is for fighting.” •

June 8, 2009

Attaboy Rangra, Says the Texas House of Representatives

H.R. No. 2790

R E S O L U T I O N

WHEREAS, The Honorable Avinash K. Rangra concluded his service as a member of the Alpine City Council in 2009 after distinguishing himself during his six-year tenure as the representative for Ward 1; and

WHEREAS, First elected to the council in 2003, Dr. Rangra was mayor pro tem from 2003 to 2006; his efforts helped bring about many positive developments, including the resolution of a longstanding water pressure problem in Alpine and the creation of a new animal shelter and a skate park, to name but a few of his achievements; moreover, he was active in the Texas Municipal League, serving as the second vice president of Region IV and as a member of the Small Cities Advisory Council; and

WHEREAS, A native of India, Dr. Rangra came to the United States in 1962 and earned his Ph.D. at Oklahoma State University; in 1967, he joined the faculty at Sul Ross State University as a chemistry professor and has participated in many important initiatives at the university in the decades since, including his current service as the chair of the Faculty Affairs Council; and

WHEREAS, This prominent member of the community has served as president of the Southwest Texas Municipal Gas Board, and he has taken leadership roles in the Alpine Masonic Lodge and Lions Club, garnering a number of awards for his Lions activities; in all of his endeavors, he enjoys the love and support of his wife, Anjali, and their child, Amit; and

WHEREAS, Avinash Rangra has proven himself a devoted public servant and involved citizen, and he has demonstrated an admirable commitment to making Alpine an even better place to live and work; now, therefore, be it

RESOLVED, That the House of Representatives of the 81st Texas Legislature hereby honor Avinash K. Rangra for his service as a member of the Alpine City Council and extend to him sincere best wishes for the future; and, be it further

RESOLVED, That an official copy of this resolution be prepared for Dr. Rangra as an expression of high regard by the Texas House of Representatives.

Gallego

June 3, 2009

(Hot off the press: A new AG's opinion concerning city councils' agenda preparation rules. The opinion cites Rangra's and Monclova's court victory at the 5th Circuit Court of Appeals in New Orleans on April 27^th.)

June 1, 2009

The Honorable Kenda Culpepper
Rockwall County Criminal District Attorney
Rockwall Government Center
1101 Ridge Road, Suite 105
Rockwall, Texas 75087

Opinion No. GA-0717

Re: Validity of a city charter provision that permits a majority of council members to call a special meeting (RQ-0763-GA)

Dear Ms. Culpepper:

You indicate that section 3.08 of the charter of the City of Rockwall declares that "[s]pecial meetings of the City Council shall be held at the call of the Mayor or a majority of the Council members . . . upon provision of public notice in accordance with state law."⁽¹⁾ You inquire as to whether section 3.08 violates the Open Meetings Act, chapter 551 of the Government Code (the "Act") either facially or as it may be applied. Specifically, you ask whether "a majority of council members [may] call, without deliberating at a publicly noticed meeting . . . a special meeting of the city council without violating the Open Meetings Act." Request Letter at 1. As we have not been presented with a specific factual scenario, our analysis is necessarily limited to whether the charter provision violates the Act on its face.

The Act does not specifically address the procedures for calling a special meeting of a governmental body. However, any procedures adopted by the city council must be consistent with the Act's requirements. Under the terms of the Act, "[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." Tex. Gov't Code Ann. § 551.002 (Vernon 2004). The Act defines "meeting" to include a "deliberation between a quorum of a governmental body." Id. § 551.001(4) (Vernon Supp. 2008). A "deliberation" is a "verbal exchange during a meeting between a quorum of a governmental body . . . concerning an issue within the jurisdiction of the governmental body or any public business." Id. § 551.001(2).⁽²⁾ Because the Rockwall City Council consists of a mayor and six council members, a majority of the Council, as called for by the charter provision, also constitutes a quorum of the governmental body (Council plus Mayor) under the Act. The word "quorum" generally means "a majority of a governmental body." Id. § 551.001(6).

In a prior opinion, this office stated that "agenda preparation procedures may not involve deliberations among a quorum of members of a governmental body except in a public meeting for which notice has been posted." Tex. Att'y Gen. Op. No. DM-473 (1998) at 3. We need not, however, adopt any global statement about agenda preparation procedures, because the question before us is more narrow than that.⁽³⁾ We are asked only to determine whether a majority of the city council may call a "special meeting" under the referenced charter provision without violating the Act.

As was the case with agenda preparation, the procedures for calling a special meeting under the charter provision may not involve deliberations among a quorum of the city council outside of a public meeting for which notice has been posted. While the charter provision appears to invite a quorum of the governmental body to engage in a prohibited exchange "concerning an issue within the jurisdiction of the governmental body or any public business," the charter provision does not necessarily mandate any deliberation among a quorum of city council members. Tex. Gov't Code Ann. § 551.001(2) (Vernon Supp. 2008). In addition, your request to us expressly assumes a call made "without deliberating at a publicly noticed meeting." Request Letter at 1. In other words, your question asks us to assume the call at issue is made without deliberation. Thus, we cannot conclude that every conceivable procedure put into place by the city council to implement section 3.08 of the charter would on its face violate the Act. As a result, we cannot determine as a matter of law that the charter provision at issue would contravene the Act.

We caution, however, that "if a member or group of members of a governmental body knowingly conspires to circumvent the [A]ct by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the [A]ct, the person or persons commit a criminal offense."⁽⁴⁾ Tex. Att'y Gen. Op. No. DM-0473 (1998) at 3.

S U M M A R Y

We cannot conclude, as a matter of law, that a charter provision of the City of Rockwall permitting a majority of members of the city council to call a special meeting violates the Open Meetings Act on its face.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. Request Letter (available at http://www.texasattorneygeneral.gov).

2. In a prior opinion, we said that the Act "does not require that governmental body members be in each others' physical presence to constitute a quorum." Tex. Att'y Gen Op. No. GA-0326 (2005) at 3. Relying, inter alia, on Esperanza Peace & Justice Center v. City of San Antonio, the opinion found that the Act is applicable to a governmental body that takes action without conducting a public meeting, even though that action avoids the technical definitions of "meeting" and "deliberation." Id. at 5 (citing Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 472, 478).

3. We also need not address section 22.038(b) of the Local Government Code, which provides that "[t]he mayor may call a special meeting on the mayor's own motion or on the application of three aldermen." Tex. Loc. Gov't Code Ann. § 22.038(b) (Vernon 2008). That chapter of the Local Government Code is applicable only to a Type A general-law municipality. Id. § 22.001. The City of Rockwall is on the other hand, by virtue of its charter, a home-rule municipality.

4. In considering a claim by two elected officials that section 551.144 of the Act violates the First Amendment, the Fifth Circuit concluded that this provision is a content-based speech regulation that is subject to strict scrutiny review, and remanded the case for further proceedings in the district court. Rangra v. Brown, No. 06-51587, 2009 WL 1100611, at **1, 3 (5th Cir. Apr. 24, 2009). Although the court directed the district court to apply strict scrutiny in evaluating the elected officials' First Amendment claim, it did not invalidate section 551.144. See id.

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May 6, 2009

“Strict Scrutiny”
By Jack D. McNamara
jack@nimbynews.com/432-837-5619

The regulars for the “ain’t it awful” seminar were tense with anticipation at 5 p.m. Friday, April 24.

We routinely assemble for a few beers and political chit-chat at the venerable Railroad Blues, Alpine’s classiest honky-tonk. But this particular Friday we had rumors of real news.

Alpine City Councilor Avinash Rangra arrived and with customary restraint effused “We won!”
What Rangra won, along with his fellow City Councilor and named plaintiff Mrs. Anna Monclova, was a lawsuit challenging the constitutionality of the Texas Open Meetings Act (TOMA). A three-judge panel of the 5th Circuit Court of Appeals in New Orleans had just that day released a 17-page opinion which “reversed and remanded” U.S. District Judge Robert Junell’s dismissal of their cause in November 2006.

The opinion was written by Judge James L. Dennis and he was joined by Judges Jacques L. Weiner, Jr. and Rhesa H. Barksdale.

Rangra was informed of the court’s actions that Friday by one of his lawyers, Rod Ponton of Alpine, who had in turn been informed by their other lawyer, Dick DeGuerin of Houston and Marfa. Ponton soon arrived at the Blues and began handing out copies of the decision to the regulars. We knew the context because we had been discussing it ever since the outrageous grand jury subpoenas and indictments of early 2005. Several of us shared Rangra’s enthusiasm because we were involved in the case. So much for journalistic objectivity.

Garrett

Throughout 2003 and most of 2004 the Alpine City Council struggled with the politically intractable problem of the Alpine water distribution system. A minority of the council, the city manager and the city’s engineer at the time, a widely known and respected firm, favored a new system which would circle Alpine with 12-inch pipes and new water tanks convenient to developers needing the hydrostatic pressure from 4700 foot elevations. The majority of the council favored “fixing Alpine first,” as Councilperson Katie Elms-Lawrence often said.

In late April 2002 the Texas Council on Environmental Quality (TCEQ) measured the city’s water supply pressure on the southeast as below state standards, the result of years of demonstrable neglect of the needs of our citizens.

But the state citation was not known to the public until mid-2003 when we got the records through the Texas Public Information Act (TPIA).

                                                                                              LtCol Hugh Garrett USAF (ret), a
                                                                                              member of the Alpine Independent
                                                                                              School District Board at the time,
                                                                                              expressing his opinion of the TOMA
                                                                                              prosecution at the Brewster County
Courthouse. Photo by the Alpine
                                                                                              Avalanche. [April 2005]

Alpine, frequently cited as a “best place” for various qualities, is indeed a best place for factional and political battle. The conflict is most intense at city hall because that local government actually deals with the most controversial questions and does it with the greatest degree of democracy. Rangra and Monclova’s victory proved that average citizens can understand complex municipal problems as well as the experts, developers, lawyers and lobbyists who come to their door selling projects.

The stakes could not be higher. As the water war evolved from 2002 onward the price estimated for repairing the city’s water distribution system eventually rose to more than $11 million for the developers’ model of more tanks and big pipes girdling the city on the prairie to the north and west. There was no help offered from the county commissioners — there never is. Since 1993 the city has financed a new land-fill for the benefit of several surrounding communities in the area, a utilities extension to a new private hospital and renovation of the sewage treatment plant. In addition the city funds area recycling, the fire department, a large police department, the “municipal” airport (used by all the usual users, few of whom are city taxpayers) and a host of economic development celebrations for the tourists.

Besides taxes, the principal source of revenue for the city is the sale of water. Water for Alpine and all the surrounding customers in the suburbs comes from two sources.

Sixty-five percent comes from wells on the Jeff Davis County line in the Musquiz Creek watershed as the creek exits the mountains. That water was given to the city by the rancher/philanthropist Herbert Kokernot, Jr. in 1972. The well field is ten miles north of Alpine and was piped to the city by one of the early federal grants from the Department of Housing and Urban Development.

Thirty-five percent of the city’s water comes from wells developed in the early 1950s and which run along the route of Ranch to Market Road 1703 about three miles to the west of downtown Alpine.

In the years before World War II almost all of the city’s water came from wells in the city, most of them private. When the seven-year drought of the 1950s hit those wells dropped. The two well fields in operation now saved the city, including Sul Ross State University. Over the years the distribution system deteriorated; water meters became salted up; unauthorized taps into water lines were permitted by “good old boy” relationships. The water line coming from the west went across an area expanding with small acreage “ranchettes.” The City sought no easement for the line. Rather than seek easements, the city fathers shook hands on the subsequent private deals — free water, no easements (my family was once a beneficiary of one of those deals).

When the city finally reviewed these matters honestly City Attorney Rod Ponton found seventy-nine “problematic” water accounts.

Much of the Brewster County and Alpine power structure preferred that examinations of past deals not be revealed nor disclosed. But beginning with the election in 2003 of Avinash Rangra and Katie Elms-Lawrence and reinforced with the 2004 elections of Anna Monclova and Manuel Payne, the city council sought the truth as a basis of making public policy. Rangra, a science professor who was born in India, brought a rather fresh perspective to the West Texas water wars.
For our local pooh bah class of developers, lawyers, bureaucrats, beef barons, water sellers and courthouse courtiers, there can be no greater offense. Accordingly, 83rd District Attorney Frank Brown swung into action in late 2004.

The developers’ councilor, Mrs. Nancy DeWitt, obtained several hundred emails Rangra had sent from his SRSU account under the Texas Public Information Act. Rangra is a chemistry professor at SRSU. Among those DA Brown selected one sent from Katie Elms-Lawrence to three other councilors on October 21, 2004. She asked Rangra to contact the mayor and set a “called” or special meeting to discuss the selection of another engineer. He did. Monclova and Payne received the email at their computers but neither replied.

Manuel Payne, the descendant of Seminole scouts, and for whom an Alpine softball field is named, doesn’t do email.

The special meeting was called. The council unanimously selected Naismith Engineering of Austin from among four current and hopeful applicants on October 25, 2004 to take a new look at the water distribution problem. The City borrowed more than $4 million through the Texas Water Development Board (TWDB) and the project is scheduled to be completed the first week in May.

DA Brown convened his grand jury in early 2005 but conducted no law enforcement investigation. The grand jury convened and immediately began leaking the names of those subpoenaed. Rangra and Elms, due to stand for reelection in May 2005, were indicted on the eve of the election. They retained Dick DeGuerin and Rod Ponton. DA Brown promptly dropped the indictment, claiming Councilman Payne had “changed” his testimony.

Rangra and Monclova sued DA Brown and Texas Attorney General Greg Abbott in federal court in Pecos, seeking declaratory and injunctive relief, “challenging as content based speech regulations the criminal provisions of the TOMA.” Judge Junell dismissed their claims, citing a 2006 U.S. Supreme Court case, Garcetti v. Ceballos. The councilors appealed. The case was argued in late January 2008.

Since then, every Friday, the boys at the Blues passionately argue this case. Most of us either are or have been public officials. While we are not a quorum of anything we often speculate about our vulnerability to a DA Brown indictment. (Only one of us ever defends Brown and the Brewster County courthouse gang.)

That indictment possibility became somewhat more improbable when Brown was defeated in the 2008 Democratic primary by Jesse Gonzales of Ft. Stockton.

Typical for Brewster County, Brown was declared the winner by a narrow margin the day after the election. But the following Monday three ballot boxes were “discovered” on the floor in the county voting administrator’s vault. Someone opened the boxes (we don’t know who) and someone counted the votes some time later and then in an official recount. Gonzales won by a small but thunderous margin.

Asked about the April 24th 5th Circuit decision case by Texas Lawyer, Brown said he hadn’t lost because the case was remanded, meaning sent back to Junell for a process known as “strict scrutiny.” That is the standard which should have been applied at every stage, of course. But we are accustomed to repeating ourselves over and over again out here on the Last Frontier—water systems, elections, court cases, etc.

In comment to the news media this week both Brown and his former assistant DA Steve Houston stubbornly insist on further litigation, perhaps to the U.S. Supreme Court;

So what does the 5th Circuit opinion mean? It means that thousands of local government officials in the 5th Circuit now have a stout shield against the attacks upon representative democracy. The TOMA is preserved; but fewer prosecutors will seek the hard work involved in preparing a prosecution which can survive the kind of challenge raised by Rangra and Monclova through their splendid defenders Ponton and DeGuerin.

“5th Circuit : Strict Scrutiny Applies to Restrictions on Officials’ Speech” by Mary Alice Robbins, Texas Lawyer (online), April 27, 2009
www.law.com/jsp/tx

“Rangra case sent back to district court” by Mike Perry, Alpine Avalanche, April 30, 2009.
www.alpineavalanche.com •

April 14, 2009
Reprint from March 8, 2007

Water Masters at Work
By Jack D. McNamara

You think water districts are not interesting? We have read through the 68 pages of the water code for groundwater districts and we discover that “directors” of the districts are “entitled to receive fees of $150 a day” and “The fees of office may not exceed $9,000 a year.”

This is almost as good as the light but well-compensated duties of county commissioners.

The Brewster County Commissioners Court voted unanimously to support HB 545, the bill currently before the Texas House of Representatives Natural Resources Committee. HB 545 is a bill “relating to the regulation of certain water wells” by the Brewster County Groundwater Conservation District. The bill removes Section 36.121 of the state Water Code as it applies to Brewster County.

That section in 1995 “grandfathered” the city of Alpine’s control of its water wells.

Two weeks ago Alpine City Attorney Rod Ponton actually read the proposed bill HB 545 and a similar companion relating to Presidio County, HB 546 (Ponton is also Presidio County Attorney). He could find no city or county official who was informed of the bills currently pending in the Legislature and authored by State Representative Pete P. Gallego.

As Ponton alerted the responsible elected officials and Representative Gallego, he stimulated a pushback from the Brewster County Groundwater District’s Chairman, Tom Beard, husband of Brewster County Judge Val Beard. The matter was placed on the Alpine City Council agenda February 20 and then postponed to March 6. Mr. Beard came to the Alpine City Council on February 20 with a lengthy “fact sheet” contesting various assertions by Ponton in emails to various citizens.

We obtained that “fact sheet” as well as a videotape of the February city council meeting last Monday along with other documents thereunto pertaining … (see, if you watch a debate involving lawyers you can pretty soon start sounding like one).

The “regulation” referred to in the bill does NOT include any commitment from the water district, the county or the legislature to help the city with the $5 million-plus in indebtedness the city has taken on in the past four years. Our water supplies secure our debt. HB 545 creates another layer of bureaucracy over the city and its obligations while taking away in some degree the city’s control of their own water.

According to Mr. Beard’s February 20 “fact sheet,”…. “The need for information —and for all water producers to be treated equally — is the only reason for this bill.” Mr. Beard explains that the volumes of data already filed with state agencies are not satisfactory to the water district and he wants his own information.

In response to City Attorney Ponton’s assurances that the city provides information voluntarily, Mr. Beard asked “When?” and said the district had asked for information a year and a half ago.

My Texas Public Information Act request to the city produced only two documents from the water district which request information. One request is very recent — January 20, 2007 — and asks location, depths, static levels, draw down and annual (or monthly) production data. City Utilities Director Cindy Williams-Hollander politely replied February 8, 2007 and promised “to get to the issues as soon as possible.”

The only other document from the water district is a letter of February 19, 2006 to Mayor Mickey Clouse which concerns drilling wells inside the city limits. Mr. Beard forwarded a copy of that letter to Mrs. Hollander on June 23, 2006.

In his “fact sheet” Mr. Beard asserts requests for information of a year and a half ago. That period of course is the Dark Ages of Alpine’s City Hall under former City Manager Karen Philippi. City administration in that time can be described as a bureaucratic black hole. It is fair to say that any complicated request from anyone would likely be destroyed or lost if inconvenient to the imperial Ms. Philippi.

Indeed, Ms. Philippi was given a full year’s tenure after a majority of the council voted to fire her. Among Ms. Philippi’s most passionate supporters was Mr. Beard’s wife, County Judge Val Beard. Judge Beard, or Mrs. Beard, inveighed mightily against the “Anti-Philippi Faction” in a front-page article in the now defunct Desert-Mountain Times on January 20, 2005. A few weeks later the leaders of the “Anti-Philippi” faction were indicted by a Brewster County grand jury, indictments subsequently dismissed. “No probable cause” was the conclusion of five state judges.

Perhaps Mr. Beard’s requested information went with Ms. Philippi? Or perhaps it is in the grand jury room in the Brewster County courthouse? Or is it possible that Mrs. Beard has it?

But we digress … somewhat.

The quest for missing and unknown Alpine water information is the sort of thing guaranteed to consume much of one’s life. Beware.

It is only in the past year or so, after the replacement of the city manager, the city attorney, the utilities director and the city secretary that Alpine has discovered any hope of competent administration.

Chapter 36 of the Texas Water Code concerns the groundwater districts. Section 36.101 says a district may make rules “limiting groundwater production based on tract size or the spacing of wells.” This and other sections empower the districts to set production limits, a matter which reasonably might concern a municipality which has to produce water for revenue to pay bad debt for boodlers — like Alpine’s Westside water line. On February 20 Mr. Beard said in his fact sheet, “The water district board does not believe in charging people (or entities) fees for producing and consuming their water from their wells. If production fees are what the City Council fears, our district is committed: We will not impose on them.”

See the value of a vigorous public debate? A reading of the bills HB 545 and HB 546 legitimately permits anyone to be concerned about further powers for the district or those who appoint the district’s directors — which is the county commissioners court. Mr. Beard has met some of those fears by asserting that his district’s only desire is for information. Mr. Beard also says unequivocally that the district will not impose production limits on the city’s water.

That means the city is not immediately bankrupt.

The Brewster County Commissioners Court is (as usual) clueless in their support of a new law which gives their appointed-not-elected-minions more power over their Alpine neighbors. Anyone who wants to control or sell the principal asset of the city of Alpine had best think cash on the barrelhead.

This is nevertheless a good debate; but the debate should have occurred before the bills were filed.

How did these bills get born without the knowledge of those who will pay the costs? •

April 14, 2009
Reprint from January 25, 2007

Water in Alpine
By Jack D. McNamara

The Legislature is in session and once again the question which bedevils Texas is on the agenda — water. A few bills are trickling in. Representative Pete P. Gallego has two concerning the Presidio and Brewster County groundwater districts (HB 546 and HB 545). Representative Senfronia Thompson of Houston has a bill “relating to the requirement that state agencies identify and address adverse human health and environmental effects on minority populations and low-income populations (HB 601).”

Perhaps she will come to southeast Alpine and ask why we cannot fix their water distribution problem.

The Alpine City Council had a proposed letter drafted by City Attorney Rod Ponton, “re: water rates for certain customers of the city of Alpine” on the January 16 agenda but the meeting was iced out. The letter is also on the current agenda.

And the Big Bend Sentinel has recently published news stories by Richard Grabman, “Special Rights for Alpine water users end with judge’s ruling” which describes the 394th district Court decision which ends the practices of a half-century — if the decision is enforced.

That of course is always the problem in Alpine. Will we pay any attention to judges, legislatures, constitutions or even the votes of a majority? Or will we revert to our outlaw past? The history is mixed.

Prior to and through World War II, the citizens of Alpine mostly got their water from their back yards. Old-timers say that when the train came you could usually find water at about 20 feet in the city’s immediate area.

After World War II the city suffered the withering seven years’ drought at the same time we started growing. GIs came to Sul Ross for the GI Bill and often stayed. The water levels in the backyard wells dropped and the anxieties of the city fathers rose. No water, no growth.

There ensued an often-frantic search for new water supplies. They searched the obvious locations, the surrounding ranchland. Over the course of about 20 years, from the mid-1950s to the mid-1970s, the city found adequate water for our growing population.

This was a period of brutal local politics and many bruises remain. The history is replete with false scents, but a reading of Dr. Clifford Casey’s account in Alpine, Texas Then and Now, the Centennial Edition of 1983 tells the tale.

The first new water supply was in due west Sunny Glen, near the bend in RM 1703, at the “Terry” well. Other wells were developed along the general line of 1703 to the north even unto the plateau, across the Sunny Glen creek. Good wells, but the water had to be gotten to Alpine. Our city fathers found surplus pipe in Del Rio, bought a truck and went after it. An eight-inch line proceeded to Alpine.

But there was one itty-bitty oversight. The city failed to obtain easements for the pipeline. What they did was trade or barter the right-of-way for the water pipe to property owners between the wellheads and the ultimate users in the city.

Technically this was not “free” — except over the period of 50 years that is a lot of water, especially since there was much growth in Sunny Glen. Properties subdivided with subsequent sales and water connections were made — some free, some at city rates, and some at the city rate plus one-half.

Bad deal — though not in the original intent.

About a third of Alpine’s water still comes from that Sunny Glen field.

Two thirds comes from the Musquiz field, about 10 miles north of Alpine. Those nine wells were first purchased and then given to the city by Herbert L. Kokernot, Jr. in a complex financial deal completed in the mid-1970s. This time the water line was subsidized by the U.S. Department of Housing and Urban Development (HUD) and the Fed’s deal prohibited the kind of arrangements and bartering common to the Sunny Glen line.

Of course, a succession of Alpine administrators and politicians ignored the rules and continued to provide free connections anyway. They even gave the free connections and water to the hangar renters who were paying only 10 cents a square foot at the municipal airport.

All of the 79 “problematic” accounts may be different in one way or another. Each must be solved on a case-by-case basis to comply with the judge’s ruling. There are some harmless deals here and some bad deals. The city, particularly the city council of 2003, must be commended for trying to solve the problem. They had to get rid of two “professional” city managers, Bill Lewis and Karen Philippi, to even survey the number of problematic accounts.

But now city hall is on the way to righteousness. We talked to City Attorney Rod Ponton for an update Tuesday —

“Back in the fifties and through the seventies the city expanded its water supply and in good faith reached agreements with property owners. They paid for right-of-way with water instead of money and thought they had good agreements. Now state law makes these agreements either void or unenforceable. The city cannot give away water because it is illegal. Judge DeHart has ruled in regard to Mrs. Emily Scown that her agreement (similar to the others) is unenforceable. This problem has been going on for a long time and the city wants to work it out in good faith with our customers. The city has to follow the law in doing so.” •

April 14, 2009
Reprint from March 15, 2007 (edited)

Spring Roundup
<>By Jack D. McNamara

State Representative Pete P. Gallego took responsibility for the failure to notify local elected officials of his water district legislation, HB 545 and HB 546. He said, “my name is on the door,” and that he was “trying to rectify a mistake” when he spoke to a gathering of county and city officials in Marfa on March 6.

Janet Grubb, administrator of both the Presidio and Jeff David County groundwater districts, echoed Gallego and took part of the “blame.” She said she “assumed” everyone was “up to snuff.”

The apology took care of the procedural issue well enough but there were many questions regarding the substance of the bills. Gallego said his intent was merely to unify the county districts in the event of another water marketer coming into the area.

Gallego said, “You all are grandfathered.” Turning to his staffers they offered the term “historical use” which generally means among the water planners that whatever we are doing we can keep doing.

City Secretary Cindy Clarke of Presidio wanted some more specificity, however, and posed a hypothetical question: “When Presidio reaches 50,000 (population) the water district will not shut us off from drilling another well?”

Gallego said No. Janet Adams said No.

Gallego concluded the session by saying that before the Marfa event he had met with Rod Ponton (a fellow who is “up on water law”) as well as Alpine City Manager Jesus “Chuy” Garcia and Alpine Ward 1 Representative Avinash Rangra. They resolved their differences and that evening the city of Alpine passed a resolution supporting the bill. On March 9, Senator Carlos Uresti filed a companion bill in the Texas Senate, SB 1895.

Representative Gallego has introduced about two dozen bills in the House as of the close of filing deadline of March 10.

Representative Gallego has another bill concerning water, HB 3477 “relating to the creation of a strategic mapping program to be administered by the Texas Water Development Board.”

Simultaneous with our thrilling little brouhaha here regarding HB 545/HB 546, the U.S. House of Representatives last week started action on renewing federal funding for water projects (HB 700 and HB 720). Funding has been suspended for perhaps 10 years. One bill will cost about $11 billion, according to the subcommittee chair, Representative Eddie Bernice Johnson of Dallas. Our Representative Ciro Rodriguez spoke in favor of the funding on the floor of the House last week.

The City of Alpine is still waiting for approval of Alpine’s water distribution plan. The city was approved exactly two years ago for a $4,860,000 loan from the Texas Water Development Board.

There was great urgency at the time because in April 2002 Alpine’s southeast sector was determined by the Texas Council on Environmental Quality (TCEQ)to have dangerously low water pressure.

Since 2002 we have spent unnecessarily $1.35 million on a new water and sewer system for the U.S. Border Patrol. We have paid several hundred thousand dollars to the middlemen bondsmen, lawyers and engineers. But you still can’t take an after-work shower in New Town.

The failure of this project to date has many causes, principally the inability of the city to overcome the obstructionists here and elsewhere. Neither Brewster County nor the expanding bureaucracy of water planners has offered a penny. Thousands of dollars in campaign contributions to U.S. Representative Henry Bonilla did not produce a single south Alpine earmark for water distribution.

Now there’s a good campaign slogan for the 2007 municipal elections — “Showers for the South Side!” •

April 13, 2009

Furor Erupts Over HB 811

“Whiskey is for drinking and water is for fighting,” observed Mark Twain.

A political firestorm has once again erupted here in Alpine concerning the control of the city’s water wells. This debate occurs at the same time as the 2009 city council elections.

Those elections have brought forth eight candidates for three seats.

One candidate, Brian Shugart, filed for election to the Ward 1 position but withdrew when duty called him to work for the FDIC (Federal Deposit Insurance Corporation) in the current bank mess.

Three candidates remain for the Ward 1 position — Angie Bermudez, Lorie Rubenser and Anita DeVries.

In Ward 3, Jim “Fitz” Fitzgerald was the only candidate to file. After the incumbent, Gerald Raun, died a few weeks ago, Fitzgerald was appointed to the office at the April 7 city council meeting.

There are three candidates for election in Ward 5 — incumbent Diana Asgeirsson, Pete Smyke and Moises Morales.

We cheerfully volunteer to publish any candidate’s comments on this issue. To that end, we have published Pete Smyke’s email April 9 below.

Water is the most important function of this city, in our humble opinion.

Pete Smyke Says — “Got Water? Think Again!”

Two bills requested by the Brewster County Underground Water Conservation District, HB 811 and SB 1737, are currently making their way through the Texas House and Senate. These bills would remove the existing protections under state law that allow Alpine to manage its own water supplies, and effectively transfer regulatory authority over Alpine's water to the Brewster County Underground Water Conservation District (BCUWCD).

These bills would give the BCUWCD the authority to set production fees and quotas on city wells, and transport and import fees on water currently produced at the Musquiz Field wells in Jeff Davis County that were deeded to Alpine by Herbert Kokernot in the 1970's.

The BCUWCD is an unelected county board with no City of Alpine representative. The district did not consult with the City of Alpine before introducing these bills, and has made no attempt to work with the city to address any concerns it has with Alpine's water use or production. (This same scenario occurred two years ago when similar bills were introduced regarding the Brewster and Presidio county water districts.)

Members of the Alpine city government are working with Rep. Gallego to amend the House bill, but it is imperative that local citizens contact their Texas House and Senate representatives to oppose transferring control of Alpine's water supplies. No one that I've spoken to in the city government is opposed to working with the BCUWCD to promote conservation and wise water use. However, having an unelected county board take control of Alpine's water without so much as a discussion is simply unacceptable.

Contact information is listed below, along with links to the bill's history, text (one sentence), and the section of the current Texas Water Code that would be deleted if the two bills pass. (Due to my limited computer skills, you may have to paste the links into your browser.)

Please contact Senator Uresti and Representative Gallego at the numbers and links listed below and ask them to stop these bills or amend them to leave control of Alpine's water resources in City of Alpine hands.

Please feel free to contact me with any questions or thoughts you might have, but please be sure to contact our State Senator and State Representative as well.

Have a Hoppy Easter!

Pete Smyke

<> 432/837-9087; politburro@sbcglobal.net

Texas State Senate Dist. 19

Senator Carlos Uresti

http://www.senate.state.tx.us/75r/senate/members/dist19/dist19.htm

Capitol Phone: (512) 463-0119

San Antonio Office Phone: (210) 932-2568

Texas House of Reps. Dist. 74

Representative Pete P. Gallego

http://www.house.state.tx.us/members/dist74/gallego.htm

Capitol Phone: (512) 463-0566

Alpine Office Phone: (432) 837-7383

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Links about HB 811:

http://www.legis.state.tx.us/tlodocs/81R/billtext/pdf/HB00811l.pdf Text of HB 811.

http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=81R&Bill=HB811 Bill History.

http://tlo2.tlc.state.tx.us/statutes/docs/WA/content/htm/wa.002.00.000036.00.htm Texas Water Code; Chapter 36

Sec. 36.121. LIMITATION ON RULEMAKING POWER OF DISTRICTS OVER WELLS IN CERTAIN COUNTIES. Except as provided by Section 36.117, a district that is created under this chapter on or after September 1, 1991, shall exempt from regulation under this chapter a well and any water produced or to be produced by a well that is located in a county that has a population of 14,000 or less if the water is to be used solely to supply a municipality that has a population of 121,000 or less and the rights to the water produced from the well are owned by a political subdivision that is not a municipality, or by a municipality that has a population of 100,000 or less, and that purchased, owned, or held rights to the water before the date on which the district was created, regardless of the date the well is drilled or the water is produced. The district may not prohibit the political subdivision or municipality from transporting produced water inside or outside the district's boundaries.

Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 966, Sec. 11.04, eff. Sept. 1, 2001.

The Nimby News Observes

The city council voted unanimously on April 7 to “oppose HB811 as originally drafted …” and to support Representative Gallego’s compromise language grandfathering the city’s wells. Those voting were Representative Avinash Rangra, Johanna Nelson, Manuel Payne (now in his third term), and Diana Asgeirsson, who is a candidate this year for reelection to a second term.

Rangra leaves office in May after three terms in accordance with the city’s home rule charter adopted in 1993.

Mayor Jerry Johnson votes only in case of a tie.

The new Ward 3 representative, Jim “Fitz” Fitzgerald has told us in several conversations that he fully supports the efforts of the current council to protect Alpine’s water supply.

The city’s minutes state City Attorney Rod Ponton, City Manager Chuy Garcia and the city’s engineers are to “take all action necessary to make sure that HB 811 protects the interests of the City.”

Copies of the minutes and the resolution were faxed to Representative Gallego and our Texas Senator Carlos Uresti and will be available online after approval at the next city council meeting, April 21.

March 19, 2009

A General Observation on the Current State of Affairs —

A great hue and cry is now raised again in the early 2009 American political system. The reasons are obvious to all.

A new Administration is in office, and a new Congress is in office. They have assumed responsibility for our government as their predecessors shuffle off, bellowing their protests all the way.

We can think of no better way to comment editorially on the circumstances than to republish a quote from Gulliver's Travels, by Jonathan Swift. Written in 1726, Swift's hero, the shipwrecked Lemuel Gulliver, was discussing with his Houynhmn master "concerning lying and false representation." The rational horse argued thus:

"that the use of speech was to make us understand one another, and to receive information of facts; now if anyone said the thing which was not, these ends were defeated; because I cannot be properly be said to understand him; and I am so far from receiving, that he leaves me worse than in ignorance; for I am led to believe a thing black when it is white, and short when it is long. And these were all the notions he had concerning that faculty of lying, so perfectly well understood, and so universally practiced among human creatures."

—Book IV, Chapter IV, Gulliver's Travels (1726),

by Jonathan Swift. "concerning lying and false representation"