'Can a citizen remove an elected official without the State being involved? Nope
About a month after the original petition had been filed, Andy Lucas officially took on the petition to remove Harper, with styling "State of Texas ex rel George Darrell Best v Paul Harper". This means that for all purposes, the lawsuit was now being driven by Andy Lucas, who acted/acts as a representative of the State of Texas. Again, this is because George Darrell Best had no ability to pursue the case he brought because he could NOT do so.
Anyone can put in a petition to remove someone. Freedom to petition government is an American right. If I looked out my window and saw a spaceship hovering over the yard with one of the county commissioners on the side waving him on, I could go down to the courthouse, pay a fee, and file a legal petition to remove that commissioner because I believe he was drunk when he was consorting with aliens. Now, does that mean anyone has to act on my petition? Nope. In the same vein Andy Lucas did not have to act on Darrell Best’s petition.
On October 1, 2014, however, Andy Lucas added a third, supplemental charge to the lawsuit. Darrell Best had also been doing quite a few open records requests and, upon receiving some text messages and emails, Andy Lucas had the lawsuit amended to include a 3rd charge of violation of the Texas Open Meetings Act (TOMA). adopted Darrell Best’s (2) pleadings, and an order issued that set the hearing on state’s motion for October 20, 2014. In fact, a citizen can’t just on his or her own get a hearing to remove an officer, the State must decide to accept and join. That is a discretionary action by the State; Andy Lucas could have decided to ignore it and Best would have been out his filing fees and possibly, his own attorney fees. By doing this, Andy Lucas accepted the pleadings in Best’s petition, added his own and changed the styling of the case to State of Texas ex rel George Darrell Best v Paul Reed Harper.
For some odd reason, when Darrell Best originally filed the petition for removal, and Harper was served, Lucas was listed as Best''s attorney and the petition was not in the State of Texas. Since when does the Somervell County Attorney, as represented by that position, do personal work for a resident (this was a civil case) ? (Absurdly, if one believes that is true, then we can all stop going to pay personal attorneys for any type of work, because the County Attorney will do it for us gratis).
Deciding to take on Best's petition was an entirely discretionary action by Lucas. For example, here is Ron Hankins, who was previously the county attorney talking about the prosecutorial discretion a prosecutor has to pursue a case.
Andy Lucas was not required to take on the petition. he could have turned it down. In fact, he was asked by the justices on the 10th Court of Appeals whether he had to take on the case. He said no. Then one of the justices asked him why he had done it. He said it was because he thought Harper was going to harm the district. That certainly was not any espoused reason on the petition to remove Harper, but apparently Lucas''''s personal opinion. Should a personal opinion be the reason a county attorney decides, at his or her discretion, to pursue a case?
Lucas did not do any type of research first to see if Best''''s claims were true.
Surprisingly that the idea of Harper having freedom of speech didn't preclude him from taking this on, nor did anyone approach Harper or me about who actually wrote the blog posts in question.
When Lucas came to the deposition in 2019, he was supposed to bring what was in his file regarding the case. He apparently did not keep good records.
He didn''t get original records but instead took on marked up records from Darrell Best. He didn''''t ask Somervell County Sheriff''''s Department to check into whether this had happened.
About Lucas and the Texas Open Meetings Act and Violations
Lucas, as the State of Texas, added an additional complaint, that of violating TOMA (Texas Open Meetings Act). But TOMA was not actually ever formally charged over that, and it looks like Best nor Lucas ever had the complaint investigated by law enforcement. The TOMA complaint said that a number of people violated it by talking together outside of meetings but no one other than Harper was included, so why was only Harper included in the complaint?
It was odd to me that Lucas, if he was truly concerned about this being a TOMA violation, besides not including all the people involved, and only going after Harper, didn''''t follow the law regarding violations of TOMA.
The Texas Open Meetings Handbook specifies remedies if someone is found to have violated the act, after a hearing before the judge.
The Act provides civil remedies and criminal penalties for violations of its provisions. District courts have original jurisdiction over criminal violations of the Act as misdemeanors involving official misconduct. The Act does not authorize the attorney general to enforce its provisions. However, a district attorney, criminal district attorney or county attorney may request the attorney general's assistance in prosecuting a criminal case, including one under the Act.
Penalties are, according to page 67, for the misdemeanor, 1. a fine of not less than $100 or more than $500. 2 Confinement in the county jail for not less than one month or more than six months or 3 both the find and confinement. There is no penalty to remove someone from office. In other words, if Lucas was truly concerned about an alleged TOMA violation, there was a separate action he could have taken. However, he had told the appeals court judges in the 10th circuit court of appeals, that the reason he took action was because he thought Paul was going to harm the district. That creates the appearance that he simply used a TOMA violation as a vehicle to remove Paul from office that was not related to the actual reason he wanted him removed. And note that Lucas never actually charged him with a TOMA violation, did not bring this to the sheriff's office, etc, only a charge in a removal petition that, as you see below, was shown as a big nothing.
Of interest in the TOMA handbook for 2018 on p 7, in “Noteworthy Cases Since 2016”, is
In Harper v. Best, 493 S.W.3d 105 (Tex. App.—Waco 2016, pet. granted), the Waco Court of Appeals considered an Open Meetings Act claim based on a series of text messages between Harper and a second county hospital board member, Parker, as well as a series of text messages between Harper and a third board member, Harrison.53 Both sets of text messages concerned public business of the county hospital district.54 The text messages between Harper and Parker referenced communications with a fourth board member, Eugene.55 The state argued, that because the quorum of the county hospital board was four, Harper’s reference to Eugene in communications with Parker established a walking quorum in violation of the Open Meetings Act.56 The court of appeals determined that even assuming the reference to the fourth board member established a walking quorum, the reference did not indicate that deliberations subject to the Open Meetings Act had occurred.57 The court said: “Harper mentioned in his text that he told Eugene that he had several motions but that he did not ‘get into’ the subject of those motions.”58 Because [n]othing was presented to show that an exchange occurred between Harper and Eugene about an issue within the jurisdiction of the board or any public business, particularly the issues discussed with Parker and Harrison,” the court determined that there
was no violation of the Act.
How involved was Lucas in ensuring that meetings in general were open and operated according to TOMA. Judge for yourself.
When Lucas was City of Glen Rose attorney, he ignored that a meeting took no notes, and recorded no audio. Paul attended with my camera and recorded the entire meeting, otherwise, there would have been no notes, nothing. The meeting, July 18, 2009 was posted as a special open meeting.
March 19 2010 City of Glen Rose. Signage was discussed in an executive session. 78 Where was Mr Lucas on this?
Ron Hankins, while on the Somervell County Hospital District board, violated the Texas Open Meetings Act.
Where was Mr Lucas to enforce the law? https://salon.glenrose.net/default.asp? ... k&id=12119
The Somervell County commissioners wanted to give away land, with no taxes to be gathered to a company that had no proven record of successful business, SR2O. Then judge Mike Ford arranged a special meeting to schmooze this company. Ultimately, the deal didn’t go through but it wasn’t for lack of trying. Mike Ford, then Somervell County judge, whined a commissioners that they didn’t vote his way on SR20. He said “You each
indicated to me and to Mike Clemons that you wanted to move to the due diligence phase.” Sure looks like some prodding about actions and decisions being made out of the public eye. Where was Andy Lucas to enforce OMA? https://salon.glenrose.net/default.asp? ... k&id=15128
In 2013, Mike Ford, while Somervell County Judge, didn’t allow the public to speak during a comment part of the meeting, which was posted, because he told the assembled group of citizens he already knew what they were going to say. At the same meeting, he spoke about items not on the agenda, which is a violation of TOMA. Andy
Lucas was county attorney then. https://salon.glenrose.net/default.asp? ... k&id=14919
Ron Hankins, while an elected official, violated the Texas Open Meetings Act in 2016. You can’t just up and talk about something on a whim without it being an agenda item. There was no public comment section on the agenda and yet Hankins allowed for the public to speak. Why did this not draw Andy Lucas attention?https://salon.glenrose.net/default.asp? ... k&id=16572
In 2013, Mike Ford, while Somervell County Judge, conducted a commissioners court meeting with a vague agenda in which he also inserted items that were not on the agenda. This included discussing “step in grade” and employee benefits. Why does this matter? Because the public might attend if they knew that was going to be discussed but the agenda, although saying budget workshop, only had “Review/Discuss County Purchasing Policies” listed. Misleading at best, but definitely violated TOMA. Where was Andy Lucas?
And yet another time Ford violated TOMA and Lucas did nothing. https://salon.glenrose.net/default.asp? ... k&id=15027
In 2013, then Somervell County Hospital Authority showed a video the hospital and doctors had created to tout voting for a hospital district. Not only did this, in my mind, raise questions about who paid for this, but also why a partisan video created by both appointed board members as well as taxpayer subsidized medical personnel was being shown at a government meeting. I asked Lucas about this and he said It is my understanding that the court was unaware of the contents of the video before it was presented. It was offered as a department report. I’m sure you would have the opportunity to address the dissolution during citizens comments. First, if we are to believe that the appointed Somervell County Hospital Authority Board didn’t understand that you can''''t put political content in a department report to show at a government meeting, then perhaps the ones
in charge of them needed to prescreen their material. Otherwise, that may have set a precedent in which one an discuss political content. And, they were not simply pushing this content as part of a citizen comment but as an agenda item (the difference is in how much time one has at a citizen comment versus a presentation). In any case, this certainly showed poor judgement on the part of the appointed Somervell County Hospital Authority Board. And to mind, Lucas skirted his duty as county attorney.
Brian Watts, auditor for Somervell County, violated the Texas Open Meetings Act by meeting with commissioners outside of any posted meeting to arrange and okay a fund transfer to Somervell County Hospital District. Andy Lucas was county attorney at that time. Paul sent a complaint to the District Attorney. 85 I also heard anecdotally from one of the commissioners that at a time when Lucas thought he had lost the lawsuit against Harper, he went around to each commissioner, two by two, to tell them to expect the worst,
from his viewpoint. That sounds like a walking quorum. Also, to my knowledge, Somervell County Commissioners Court has not held even one meeting to discuss potentially the effect a loss by the State of Texas would have on finances. https://salon.glenrose.net/default.asp? ... k&id=16199
To repeat my point. If Andrew Lucas truly was concerned about Texas Open Meetings Act violations, he would have been much more scrupulous about them. Instead, as he said to the 10th court of appeals in oral arguments, he was concerned about Paul harming the hospital district, so that an observer might reasonably postulate that he was looking for a pretext to try to remove Paul from office. Plus, the other people that were included in item #3, Chip Harrison, John Parker and Eugene Brode, were not charged with violations of TOMA. Why not? By leaving them out of the action, it only spotlighted the appearance that Paul Harper was specifically and uniquely targeted for non‐valid reasons.
P.S. TOMA gets violated all the time. One might say that if it happens, say, at the Somervell County Hospital District meeting, Lucas would not know unless someone complained. But he ATTENDS the Somervell County Commissioners Court meetings.
Somervell County Commissioners Court Oct 22 2018
Somervell County Commissioners Court 25 Jun 2018
Somervell County Hospital District meeting Dec 19 2019
Did Andy Lucas confer with the State of Texas or Somervell County about the case?
Andrew Lucas adopted for all purposes Best's petition and added a complaint of his own. Best said he had gone to Lucas's office and they had taken the petition to file with the clerk. Lucas denied that.
Note that he had been listed as an attorney and not on the state of Texas on the citation for personal service for Harper BEFORE he joined the suit. Lucas is shown as the attorney for plaintiff. The appearance of the citation was that a Somervell County resident had a county attorney acting as his attorney. It wasn't until later that he specifically has himself listed as the State of Texas
He acknowledged that he was the State of Texas representative for the case.
But when was there an ex parte meeting before a judge to determine that? Lucas didn't know.
Did Lucas understand TOMA to require an investigation by police? Yes. Lucas didn't include the other people who were part of the accusation of violating TOMA through a walking quorum. No.
Did he investigate the complaint? Was the sheriff notified, asked to see if any of Best's claims or Andy's were even true? Nope.
Did he do his own collection of materials? No, he got materials from Best that Best had already marked up.
Lucas said since he acted as the State of Texas, he didn't consult with the State of Texas (state govt level) about the case. This shows that this was not only discretionary but also that this was their direct responsibility.
Lucas was also asked if he held special meetings to discuss the case with the county commissioners. I was told by someone that Lucas did what was in effect a walking quorum to tell the commissioners. Certainly the taxpayers had no opportunity to know this was going on. But Danny Chambers, the county judge knew. Lucas said he provided periodic updates to him.
Andy Lucas and the Constitution
It still startles me that Andy Lucas was so willing to trample on freedom of speech rights re: Paul. However, perhaps it shouldn't have been.
A year or so before all that, I was planning to stand at the Somervell County public library with a clipboard and a petition to sign. Of course I would not block anyone's way but I figured it was a good way to reach people as well as exercise my constitutional rights. The good women at the library were not sure if Andy Lucas needed to be checked with about it, so I called him up. I told him what I was planning to do and he told me I could not do that there because it was "county property". I said, no, it's taxpayer funded public property. I told him that he would have to arrest me. He said he'd call me back and let me know. In our next call, he told me it was fine for me to do that. OF COURSE IT WAS.
Makes me think that a prerequisite of being a county or city attorney should include a basic civics class