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About the Somervell County Assistance District passing- Sloppy and Ignored Possible Illegality of Election


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As a citizen who is trying to keep up on what is going on, but covid and other factors getting in the way, I wondered about what the fool the Somervell County Special Assistance District is, when it was passed, what it is for, etc. Did some research the last couple of weeks. 

First, this special assistance district brings in additional taxes through extra sales taxes levied through businesses and the money is put into a separate county bank account. The sales tax cannot exceed the # set by the State of Texas comptroller, and it is not a tax like property taxes but on anyone who buys anything from a county business. The supposition is that tourist businesses such as Fossil Rim would provide additional revenue, but because it's sales, also means that if I, as a citizen, go to a county business and buy something, I am not exempted from paying the additional tax. The legal code for this is at Chapter 387 County Assistance District.  This Somervell County Assistance District was placed on the ballot, approved on November 2, 2021 and results certified by Somervell County Commissioners Court, which members include Dwayne Johnson, Jeff Harris, Tammy Ray, and Wade Busch. 

Levying an additional tax required that this be on the ballot for Somervell County residents to vote on. Because the City of Glen Rose already has a sales tax that goes to the maximum and, although the City is contained within Somervell County, city residents could not vote on this because the tax would not affect them in any way. SAMPLE BALLOTS PCT 1, 2, 3, 3 GISD, 4.pdf The problem, as you see on the sample ballot at left, is that both Texas State props as well as the Somervell County Assistance District were both on the same ballott, so that if a city resident who of course lives in the county went to vote, there was nothing to indicate they could NOT vote on the Assistance District. VOTRING HISTORY FOR NOV 2, 2021 GENERAL ELECTION.pdf Notice on the list of people who voted in this election that there is no way to know how they voted, County vs City. 

But... City of Glen Rose residents  did... which made the passing of this special assistance district illegal.. Also, not good is that Somervell County apparently made no effort to speak with and coordinate efforts with the City of Glen Rose, which left the city administrator *disappointed* when he found out about what Somervell County had done, and that, because city residents should not vote on any ballot item that does not affect them, it was essentially voting to lay a burden on other people that they would not experience. Gee, that's what the colonists went to war against in early America, taxation without representation. 

Adding to this, notifying the City of Glen Rose that Somervell County was considering a special assistance district wasn't simply a nice, polite idea but was part of the law regarding formation of same.  Actually was merely a polite idea to notify the City of Glen Rose, since the proposed territory would be no part of the city territory. Really a shame, even so, that in the second smallest county in Texas, no one could be bothered to let the City know what was planned. 

 
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(b-1) If the proposed district includes any territory of a municipality, the commissioners court shall send notice by certified mail to the governing body of the municipality of the commissioners court's intent to create the district. If the municipality has created a development corporation under Chapter 504 or 505, the commissioners court shall also send the notice to the board of directors of the corporation. The commissioners court must send the notice not later than the 60th day before the date the commissioners court orders the election. The governing body of the municipality may exclude the territory of the municipality from the proposed district by sending notice by certified mail to the commissioners court of the governing body's desire to exclude the municipal territory from the district. The governing body must send the notice not later than the 45th day after the date the governing body receives notice from the commissioners court under this subsection. The territory of a municipality that is excluded under this subsection may subsequently be included in:

(1) the district in an election held under Subsection (f) with the consent of the municipality; or

(2) another district after complying with the requirements of this subsection and after an election under Subsection (f).

 

As above, Michael Leamon said the City had heard nothing from the County, so I did an open records request to the City asking for a copy of the certified letter-they had no records responsive to this request. 

When Brian Watts, who was formerly the Somervell County auditor, saw what was going on, he wrote a letter, as a taxpayer, to County Judge Danny Chambers on Nov 22, 2021

Letter to Somervell County 11.22.2021.pdf

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Good Morning, Danny

I have been doing some research on the Somervell County Assistance District which was placed on the ballot and approved on November 2 2021 and the results certified by the commissioners court on November 12, 2021. I have the following questions and I am confident you can answer them for me. 

As you are aware, the rules specifying the creation of the district are located in the Texas Local Government Code 387. Now I am not a specialist in the government code, nor am I am attorney, so forgive me for if my interpretation is too simplistic. As I do a plain reading of the code the following items stand out to me and beg clarification.

Chapter 387.003 (a-1) specific function under which the district was created on the ballot which was "Authorizing the creation of the Somervell County Assistance District and the imposition of a sales and use tax rate of two (2) percent for the purpose of financing the operations of the district", the problem is that I do not see that as a permitted purpose under $387.003(a-1) and I am hoping you have some specific authoritative statute allowing this permitted function. Can you please forward me the specific citation allowing such permitted function?

My understanding of the boundaries which the commissioners court specifically defined under $387.003 (b) 1 is the area outside the city limits of Glen Rose. Is that accurate? Can you please provide me with the map or wording included with the order approved as listed in agenda item #5 of the commissioners court meeting on July 12, 2021 defining that boundary? 

Lastly, 387.003 (b) 2 dictates that only the voters residing inside those boundaries are allowed to vote regarding the creation of the district. My understanding is that all county voters (even those residing inside the city limits) were able to vote on this issue. As you can plainly see, this is not permitted and therefore renders this a fraudulent election and must be invalidated immediately. Even the members of the court admitted sending a letter to city residents encouraging them to vote for this district and I have heard more than one citizen say they were even told by these same commissioners that it would cost city residents nothing. I would have thought this issue alone would have caused you pause as it seems too farfetched to believe that a person could vote for a tax that would be imposed on others while not being subject themselves to the very tax being authorized. One of the complaints raised by the Stamp Act Congress in 1764 was "taxation without representation", but it appears you created "representation without taxation" when you allowed the city residents to impose a tax that they themselves were not subject to. It literally violates all reason and logic,. If any of the court members had taken 5 minutes to read the Texas Local Government Code, any of you could have avoided another unlawful action taking place under your leadership. Not a good look for someone seeking re-election to a job you seem incapable of performing in accordance with the laws of the State of Texas. 

Based on my research, once I receive the requested answers from you, I need to inform the Texas Secretary of State, the Attorney General and the Texas Comptroller to alert them to this illegal action which was placed on the ballot by you and the court and immediately freeze any sales tax collections and remittances associated with this illegal action. Hopefully you can get ahead of this and begin the embarrassing process of unwinding this tragic and unlawful election before this becomes a monumental issue involving all of these State agencies.

I look forward to hearing from you with the requested items as soon as possible. 

Regards

Brian Watts

Somervell County Taxpayer

 

So, that was on November 22, 2021 that Watts sent this latter to County Judge Danny Chambers. For reference, here is the agenda for July 12, 2021 #5 of commissioners court. on the resolution for a special election on creation of county assistance district. 

From Open Records, in image format -see screenshots of emails farther down below-bolding is mine. .

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11/4/2021 Danny Chambers phone calls Aubrey Mashburn of who is Accounts Examiner, Tax Allocation Section, Revenue Accounting Division, Texas Comptroller of Public Accounts and asks for help to ensure that the information needed to establish the Assistance District is correct. Mashburn tells him what documents and other information is needed in an email. 

11/15/2021. Chambers asks Mashburn to look the documentation for Sales Tax over to see that he is on the right track, will then go back to Commissioners Court and adopt a resolution. Says he is doing this before *I talked to the attorneys to draft the resolution*.   Also says he is main contact for information pertaining to the sales tax

11/15/2021-sends sample from attorney on the Order Creating an Assis Dist

11/16/2021- Mashburn tells Chambers that since the canvass is included, will log the documents are received. 

11/22/2021- Brian sends records request for information re: this district, including a copy of the order Chambers then sends an email to Bruce Medley of PBFCM.COM and Allison Callison, also of PBFCM.COM as well as Andy Lucas who was, before his death, county attorney for Somervell. Apparently Somervell County has a contract with this law firm. Bruce Medlay answers that "As to his first *point*, the ballot language cited is required by Loc Govt Code 387.003. There is nothing that requires a listing of specific functions on the ballot. As to his second point, I see no reason why he could not be sent a copy of the order. As to the third point, it was my understanding that the ballots would only be sent to the people outside the City. If the voting included the property owners within the City, would the measure have passed if only the voters in the District were counted? If so, I don't know if his legal conclusions are correct. Even if not, I'm unsure as to his legal conclusions. Does he own property outside the city? " Danny answered back about the Order scheduled to be voted on by the Commissioners Monday the 29th, that the Comptroller had already received the Resolution calling for election, did not find any fault finding with documents they received, and that Watts does own many rental properties inside the City and his residence is in the County. Danny also said "I will have to check with our EA, but under normal circumstances, the machines are programmed to only allow you to vote on what you are entitled to do so once you check in and place the piece of paper into the machines. 

11/29/2021 In email that includes a voice mail WAV from Tom Malone, Area Manager, Revenue Accounting Division to Mike Harrell, Supervisor Tax Allocation to Aubrey Mashburn, both Malone and Harrell say the Somervell CAD 3 election might "have some problems coming soon"

11/29/2021 Mike Harrell thanks Tom Malone for the heads up and says "I assume we sit tight until an official complaint is filed?". Malone answers him. "You don't sit tight. Tax Allocation has the election results. You process the adoption as usual"

11/29/2021 Chambers sends a message to Bruce Medley, Allison Callison and Andy Lucas, with forward to Aubrey Mashburn, that "It appears the main question is if city of Glen Rose residents could vote on the proposed District. The City held their own election for two City Council seats and liquor sales. Then, 321 of those voters came to the county election and voted on the State propositions along with the Somervell County Special Election which were all on the same ballot. I have no way of knowing of those 321, how many voted for, against, or even voted pertaining to the sales tax."

11/29/2021 - Aubrey Mashburn sends message to Mike Harrell and Tom Malone "Judge Chambers, contact for Somervell CAD, called a bit earlier to ask what the next step is/what needs to be done/if there is a problem - it appears that 321 people that voted were residents of the city of Glen Rose and not just those in the county. .... there was no measure taken to separate the ballots. And of those 321 votes, of course it's unknown if they may have been for or against. ... The commissioners court was to vote and certify an order confirming creation of the district and imposing sales tax tonight, but Judge Chambers didn't want to do that if there were going to be problems with the election. 

11/20/2021 - Aubrey Mashburn to Mike Harrell and Tom Malone "I just spoke with Judge Chambers and confirmed to him that we wouldn't proceed with processing election results until the order establishing the CAD and imposing sales tax was received, and if we were then notified that an official complaint were received we would then have to pause/review/possibly not be able to invalidate the results based on the complaint and findings. He stated he would go ahead and proceed with the order at the commissioners court meeting December 13 and getting us the signed copy right after and we'll just see what happens with everything else-he'll call if something comes up before"

12/13/2021- Chambers sends order approved by Commissioners Court to Mashburn.

12/14/2021- Mashburn to Harrell and Malone. "Looks like they sent the order creating the district-I assume we could go ahead and proceed as before- I haven't heard anything regarding any complaints from SoS. Mike Harrell writes back "My understanding is we would proceed as we normally would". 

12/15/2021- Malone writes "My guess is, yes, continue to implement. But given we know there may be an objection, let's run this by Sarah Pai. "

12/16/2021- After receiving the Order via open records, Watts writes back to Danny "Please be advised on this information coupled with the fact that county residents within the City of Glen Rose were not allowed to vote in the election per the Local Government Code chapter 387.003(b)2 and therefore this *district* is non-compliant and was created fraudulently and any collection of sales taxes is not legally authorized. I have submitted this information to the Criminal Investigative Unit of the Texas Comptroller and requested that no sales tax should be remitted to Somervell County until a proper and legal election can be scheduled in the future. Perhaps you will have better success in following the required steps next time". Chambers forwards this to Mashburn. 

1/3/2022- Mashburn indicates new taxing district for Somervell County

1/5/2022 Mashburn sends spreadsheet to Chambers that shows active taxpayers within Somervell County and also a view excluding those in the City of Glen Rose. . Also indicates that the new 2% sales and use tax will become effective April 1, 2022. 

1/12/2022 - Watts sends complaint letter to Glen Hagar, Comptroller of Public Accounts. "I am writing to you to alert you to matters of grave importance to the rule of law and to possibly let  you know of a rogue employee inside your organization who may be complicit in the fraudulent collection and remittance of sales tax. On the November 2, 2021 election, Somervell County placed a proposition on the ballot to authorize the creation of a Public Assistance District in accordance with Chapter 387 of the Local Government Code. However, following the election, I alerted the County Judge that I discovered the county failed to comply with the entire chapter 387 requirements. The proposed boundaries of this County Assistance District was to circle the City of Glen Rose and to allow Somervell County to impose the 2% local option sales tax so the County could add this as a revenue stream. My investigation found that 387.003(b)2 dictates that only the voters residing inside these boundaries are allowed to vote regarding the creation of this district. My understanding is that all county voters (even those residing inside the city limits) were able to vote on this issue. As you can plainly see, that is not permitted and therefore renders this a fraudulent election and must be invalidated immediately. Even the members of the commissioners court admitted sending a letter to city residents encouraging them to vote for this district and I have heard from more than one citizen that they were even told by these same commissioners that it would cost city residents nothing. This is clearly a violation of Chapter 387. I have informed the County Judge of this error and non-compliance, and while he has not replied directly to me directly regarding this, he has stated publicly on several occasions that he is aware of the allegation of non-compliance and that "he has spoken to someone in the Comptroller's office and they are going to push this thru" and "that all they needed was a document from the commissioners court certifying the election results" and it would all be ok. I find it every disturbing that someone in your organization who is representing you is helping circumvent the statutes of the State of Texas. I would think you would be alarmed by this as well. This matter only passed by a few votes and if the margin is less than the number of ineligible voters who voted in this election, then prudence would dictate that the creation of the District is not valid and any collection of remittance of sales taxes is fraudulent" 

1/14/2022- Watts to Glen Hagar. "I wanted to follow up and provide you with more information that has been discovered. The employee of your agency that has been assisting the County Judge "push" the Somervell County Assistance District through despite the fact the election failed to completely comply with Chapter 387 of the Local Government Code is Aubrey Mashburn. This employee issued a letter to the County Judge on January 4, 2022 certifying the District will begin collecting sales taxes in April 2022 despite all parties knowing the election was not in compliance with the code since I first informed the Judge and others back in November. This measure only passed by 65 votes and most likely more than 66 voters were ineligible to vote per chapter 387. It seems that only certain portions of the Local Government Code are meant to be adhered with and those other sections can be dismissed if the local elected official and someone inside your agency decides they rather not follow all the required statutes enacted by the Texas Legislature. How sad. I will also provide this additional information to the complaints I have filed with the State Auditors office and the Texas Attorney General." 

 

This is from July 12, 2021 Commissioners Court meeting where the commissioners voted to  commissioners voted on an order for a special election. Note that the order CLEARLY SAYS that this does not include the city. 

somervellcountyorderjuly2021.thumb.jpg.ddf087ef0cb29fb3d279ef0d42d1e920.jpg

Dwayne Johnson made the motion for this, seconded by Tammy Ray

motionjohnsonspecial.thumb.jpg.63cc023f6f2edca037f9aac3a5af5fd3.jpg

The election was scheduled for November 2 2021. On November 11, Watts wrote Chambers about the issue. The Comptroller's office was aware there were problems with the election and yet Aubrey Mashburn of the Comptroller's office told Chambers to go ahead and then if there was a complaint filed, do something. On 12/16, Watts tells Chambers he is filing an official criminal complaint with SOS. On Jan 12, he writes Heger the Comptroller and mentions that the Commissioners actually sent a letter to city residents telling them to come vote in this election. 

It's not clear to me in looking at all of this whether the Comptroller's office did anything about what is clearly an illegal election. Or maybe, as Mr Leamon told me, there is a deadline under which if you want to complain about an election, you must do so. What is disturbing about this from my point of view is that Danny Chambers knew, every commissioner voted to say that the election was ONLY for the unincorporated parts of the county, and yet apparently sent out a letter to City residents telling them to come vote. Did they not understand what this means? And once it was known for sure that city residents voted on the assistance election, Chambers should have done the right thing and have REDONE THE ELECTION to make sure it was proper and legal. He did not because his haste, apparently to get this pushed through clouded his judgement.  Since Dwayne Johnson was the one who made the motion, was he also the one that wanted the district? it is disheartening as well that, in the name of doing their job, the Comptrollers office completely glossed over the fact that this was illegal and instead hung their hat on whether someone would complain; So, the law is only to be obeyed as long as someone complains WHEN IT IS NOT FOLLOWED? But even then, as in this case, they came up with reasons to ignore valid issues. As a side note, notice again that we as county taxpayers not only paid Andy Lucas (now deceased)  as county attorney['s salary but also a more expensive legal firm. 

From the hallway in City of Glen Rose, downtown, that shows the boundaries of the City of Glen Rose versus outside the city to the county

149501983_stuff243.thumb.JPG.e1b2fdb9ed27eaad22293601c4071c39.JPG

Further, with regard to the city. The City of Glen Rose already has a sales tax within its limits and should the city decide they would like to annex land, they would not be able to extend that sales tax collection to what is now taken by an assistance district. A little disgusting that the county did not apparently make any attempt to talk to the city administrator about what they were doing so that the city would be informed. 

Seems that, at least so far as I can tell, the restitution for this illegal election is to plan to vote out people who do not care about following the law. Also, according to one of the commissioners I spoke with yesterday, the money would only be used for things such as police, fire, roads, etc. BUT

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(a-1) A district may perform the following functions in the district:

(1) the construction, maintenance, or improvement of roads or highways;

(2) the provision of law enforcement and detention services;

(3) the maintenance or improvement of libraries, museums, parks, or other recreational facilities;

(4) the provision of services that benefit the public health or welfare, including the provision of firefighting and fire prevention services; or

(5) the promotion of economic development and tourism.

 

Have to wonder if this would include maintenance of the expo, amphitheater and golf course. AND would this be an open ticket for the Somervell County Tourism/Promotions, EDC office that Kelly Harris is in charge of? Since the businesses that Somervell County runs now, which include liquor sales, are funded from the Enterprise account, and, further that this is supposed to be self-sustaining without taking money from other accounts, one hopes that the Assistance District account would not actually be earmarked FOR those businesses and tourism, etc instead of for what, at least in my opinion, is more important, roads, law enforcement, fires, etc. 

Why does this matter in this election? For one reason, and I think readers know I am not a fan of Dwayne Johnson, when anyone running for election wants to run around and brag how well the golf course is doing, when the Enterprise account was set up long before his term in office, and when there might even be the slightest possibility that actually these entities might not be self-sustaining (ie monies coming in versus monies going out ONLY from the expo, golf course, etc ) but with the backup AD account, it needs to be examined and challenged. 

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