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Litigation

Virden lawsuit overturns city campaign restriction

U.S, District Judge Robert Pitman of the Western District of Texas yesterday declared unconstitutional the restriction found in the Austin City Code that restricts...

Appeals court decision draws widespread condemnation

An appellate decision over a TCAD lawsuit has astounded commercial property owners and attorneys who represent them. If the Texas Supreme Court allows it...

Central Health settles Wallace lawsuit

Fired executive signs settlement agreement for $99,316 It’s not the $1 million-plus he sought but Larimen Thaddeus “Larry” Wallace has signed a Settlement Agreement with...

Lawsuit Alleges Open Meetings Violation

 Lawsuit Alleges Open Meetings Violation

Yet another instance of agenda posting
not sufficiently detailed for public notice

by Ken Martin
© The Austin Bulldog 2017
Posted Tuesday June 6, 2017 3:00pm

Potential Plaintiff to City of Austin: Like to settle instead of getting sued?

City to Plaintiff: No thank you.

The plaintiff in the latest lawsuit against the City of Austin made a settlement offer before filing the litigation and gave the City 45 days to accept one of two options: (1) Cancel the City Council’s approval given November 10, 2016, and repost with proper notice of the proposed waivers of sections of two city ordinances. Or (2) Accept an Agreed Judgment.

By not responding to the offer, the City will have to face off in court.

Bill AleshireThe lawsuit, Lake Austin Collective Inc. v. City of Austin (Cause No. D-1-GN-17-002447) was filed in Travis County District Court yesterday by Austin attorney Bill Aleshire of Aleshire Law PC.

Anne MorganCity Attorney Anne Morgan did not respond to a request for comment about the lawsuit and instead funneled a written statement through a City spokesperson: “The City of Austin appreciates having had the opportunity to review the issue before the plaintiffs filed the lawsuit, but we disagree with Mr. Aleshire’s interpretation of the Texas Open Meetings Act.

“We believe the City gave appropriate public notice about the subject matter to be discussed. In fact, the record shows that this issue had a robust public engagement process,” the statement said.

Aleshire disagrees.

“The City Attorney said the same thing about the Pilot Knob open meetings lawsuit and lost. The ‘robust’ discussion of environmental waiver the City claims occurred did not start with or ever involve the boards and commissions before the Council let the Champion developer slip those waivers (of the Lake Austin Watershed Ordinance and Hill Country Roadway Ordinances) in on third reading. Part of the robust engagement process was just trying to find out what kind of backroom deal the developer and the Council majority was cooking up.”

New Open Meeting Violation Alleged

 New Open Meeting Violation Alleged

City of Austin again accused of
insufficient notice of agenda item

>by Ken Martin
© The Austin Bulldog 2017
Posted Monday April 3, 2017 4:35pm

>Did the City of Austin violate the Texas Open Meetings Act—again?

>Bill AleshireThat’s what a lawsuit in the making alleges. A draft of the petition and an offer to settle the matter without actually filing the legal action has been conveyed to the City by Austin by attorney Bill Aleshire of Aleshire Law PC, who represents the plaintiffs.

>The draft lawsuit,Lake Austin Collective Inc. and Marisa B. Lipscher v. The City of Austin, claims that the posted Agenda Item 6 for the Austin City Council meeting of November 10, 2016, failed to adequately describe what would be voted on, that the posting omitted notice that the vote would entail waiving sections of two city ordinances.

>Anne MorganCity Attorney Anne Morgan in a phone interview toldThe Austin Bulldog,“I did get the draft lawsuit and I wrote to tell Bill Aleshire I appreciate him sending it before filing. I haven’t had a chance to talk to my client, the City Council. We take it seriously. We will look at it and move forward as appropriate.”

>The offer to settle gives the City 45 days to accept one of two options:(1) cancel its approval given November 10 and repost with proper notice of the proposed waivers. Or(2) Accept an Agreed Judgment.

>Lake Austin Collective Inc. is a Texas nonprofit filed with the Secretary of State March 17, 2017. Lipscher is the registered agent. Board members are Linda Bailey, Susan Kimbrough, and Carol Lee. All are property owners affected by the rezoning of the nearby Champion Tract.

>Aleshire said that the zoning application for the Champion Tract was not presented to the Planning Commission. Instead it was taken up by the council directly. The application initially asked for the entire tract to be rezoned.

>But in the face of a valid petition signed by 25 percent of opposing property owners, approval of the measure would have required an affirmative vote by a supermajority (three-fourths of the council members). To avoid that daunting opposition, two days before the third and final reading, the developer redrew the area to be rezoned with 205-foot setbacks from the tract’s boundaries, Aleshire said. That negated the petition and the rezoning was approved on a vote of 7-4.

>But the agenda item did not state that approval would also entail granting variances to the Lake Austin Watershed Ordinance and Hill Country Roadway Ordinance.

>(Disclosure: Bill Aleshire representedThe Austin Bulldog in two lawsuits filed in 2011 against the City of Austin for its violations of the Texas Public Information Act. He currently represents theBulldog to intervene in County Attorney David Escamilla v. Attorney General Ken Paxton, in which the county attorney seeks to close the courtroom and permanently seal all records considered in the hearing.)

Persistent pattern of violations

County Attorney Escamilla Wants to Close the Courtroom, Seal Records

 County Attorney Escamilla Wants to
Close the Courtroom, Seal Records

‘The Austin Bulldog’ intervenes to oppose
this unusual action to deny public access

by Ken Martin
© The Austin Bulldog 2017
Part 7 in a Series
Posted Friday February 25, 2017 12:21am
Updated Tuesday February 28, 2017 5:02pm to clarify Escamilla's statements (see underlined text)

David EscamillaTo keep a Deferred Prosecution Agreement (DPA) from being obtained by a victim of domestic violence — and ensure that it isn’t widely disseminated — Travis County Attorney David Escamilla has taken the extraordinary step of requesting that a hearing be held in a closed courtroom and that the related exhibits, motions, and responses to be argued in court be sealed because they might make reference to the DPA.

The Austin Bulldog filed a petition February 21, 2016, to intervene and oppose the County Attorney’s petition.

Courts are rarely closed, except in some family law cases involving child custody. Honoring this principle provides transparency and accountability. It avoids courts being thought of pejoratively as a Star Chamber, the ancient English tribunal “established to ensure the fair enforcement of laws against socially and politically prominent people so powerful that ordinary courts would likely hesitate to convict them of their crimes.”

If the County Attorney’s petition is granted it would deny public access to courts, which is a cornerstone of our system of justice that is grounded in Texas law and the First Amendment, although this right is not absolute. Courts are sometimes closed to prevent dissemination of sensitive information to the public, such as matters dealing with attorney-client privilege, trade secrets, and matters of national security.

The Austin Bulldog’s motion states that the County Attorney’s petition to seal records fails to articulate — or to provide any evidence at all — of any “specific, serious and substantial interest which clearly outweighs” the presumption of openness of court records.

Bill AleshireAttorney Bill Aleshire represents the Bulldog in this matter, citing in the motion Texas Rules of Civil Procedure 76a(3), which allows non-parties who pay a filing fee to intervene as a matter of right for the limited purpose or participating in proceedings.

“Trust in any governmental activity is enhanced with transparency,” said Aleshire, a former Travis County judge and before that tax assessor-collector. “And that trust is diminished with secrecy.  Why should any deals a prosecutor makes with any defendant be concealed from the public?  Is secrecy about prosecutor deals really in the public interest?  In this day of enhanced concerns about equal justice (e.g., Black Lives Matter) does secrecy about who gets what deal from a prosecutor enhance or diminish trust and respect for the criminal justice system?”

A hearing on the matter was originally scheduled for February 22. The hearing was rescheduled for March 8 after the County Attorney learned through The Austin Bulldog’s motion and Aleshire’s e-mails to him that the county had failed to comply with the requirement to post notice with the Clerk of the Supreme Court of Texas.

Why intervene?

Big Win for Public’s Right to Know

 Big Win for Public’s Right to Know

No more hiding identities of the public officials
who do government business on private e-mails

by Ken Martin
© The Austin Bulldog 2016
Posted Monday April 11, 2016 2:09pm
Updated Tuesday April 12, 2016 10:54am (to add link to Corpus Christi Caller-Times coverage)
Updated Wednesday April 13, 2016 1:28pm (to add link to Watchdog.org Texas Bureau coverage)
Updated Thursday April 14, 2016 1:46pm (to add link to FierceGovernmentIT coverage)
Updated Wednesday April 20, 2016 3:07pm (to add link to FindLaw publication of opinion)

The 2011 City Council investigated by the county attorneyMore than five years after The Austin Bulldog filed a lawsuit against Mayor Lee Leffingwell, the other six council members, and the City of Austin, the Austin-based Third Court of Appeals on April 8, 2016, handed down a landmark legal decision. The court ruled that government officials are not “members of the public” and when they use private e-mail accounts to conduct public business they will forfeit the right to keep their e-mail addresses concealed from the public.

The Third Court’s ruling advances the public’s interest in holding government officials accountable. The decision is of vital interest in government and legal circles, and it triggered a front-page story in the Austin American-Statesman as well as articles in both the Texas Tribune and Law360.com, a national publication covering the legal industry.

The decision serves notice to elected officials and others in government service that they ought to do the public’s business through their government-issued e-mail addresses—and not hide public information by using personal accounts.

Joseph Larsen“Any time a public official uses a private e-mail account for public business—that’s highly suspect,” said Attorney Joseph Larsen, special counsel to Sedgwick Law in Houston and a board member of the Freedom of Information Foundation of Texas.

Decision will have wide impact

Daugherty’s Civil Case to Continue

 Daugherty’s Civil Case to Continue

SOS Alliance also seeks a new special prosecutor and
judge to reinstate criminal complaint against Commissioner

by Ken Martin
© 2015 The Austin Bulldog
Posted Tuesday January 5, 2016 2:15pm

Gerald DaughertyThe Save Our Springs Alliance won a victory in the form of a December 10, 2015, ruling by District Judge Stephen Yelonosky that will allow a trial on the merits in the civil case against Travis County Precinct 3 Commissioner Gerald Daugherty.

If the case goes to trial the SOS Alliance will seek to persuade the court to order Commissioner Daugherty or Travis County, or both, to change policies enacted last spring regarding retention of and access to public records.

Bill BunchBill Bunch, executive director of the SOS Alliance, told The Austin Bulldog he will seek a finding by the court that violations of the Texas Public Information Act did, in fact, occur.

Bunch said such a finding would provide a basis for changing the policies to make sure that no violations like this occur again in the future.

In the beginning the lawsuit was about whether Daugherty had properly complied with the Act by providing all records requested by the SOS Alliance May 31, 2013. In Daugherty’s deposition and a court hearing held July 13, 2015, it was clear that he had not done so, but those records are no longer available. The larger issue for the SOS Alliance was whether it could find ammunition in those records for slowing or halting plans to build State Highway 45 Southwest over the sensitive Barton Springs portion of the Edwards Aquifer.

The case for getting more records is now moot, but Bunch wants to prevent the commissioner and Travis County from ever again failing to retain public records or allowing their destruction.