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  1. '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 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
  2. 'Briefs Filed from Both Sides with the 10th Court of Appeals Briefs were filed from both sides and on November 4, 2015, oral arguments were heard by the justices on the appeals court. Harper''s brief Andy Lucas as the State of Texas brief Lucas, as the State of Texas, essentially argued that Removal Actions are exempt from the TCPA, that the TCPA was not intended to apply to a removal action, and that the State established a clear and specific case for removal. As have mentioned elsewhere, it was entirely discretionary for Andrew Lucas to take on Darrell Best’s petition. He could have ignored it as specious and frivolous and realized Best was trampling upon the first amendment of the constitution. 158 Oral Arguments Nov 4 2015-Lucas told the 10th Court of Appeals justices that he didn''t have to pursue the case We showed up at the Waco 10th Court of Appeals early on November 4, 2015 . I had been there once before, in support of a local resident named Joelle Ogletree, so I remembered that the courtroom was spacious, with the justices sitting behind a dais at the front, and about 3‐4 rows of seats on each side. Paul’s attorneys were there, the lead attorney, Mary, had come prepared with a poster and presentation on just what the TCPA was and how this case fit the criteria. What was odd to me was that when Andy Lucas came in, instead of sitting on the other side of the room, he sat on our side, behind Mary. There was one appeal that was being heard before us, so we patiently waited for them to make their case before the court. I did not know that the justices would, besides hearing the case presented to them, be asking questions. In fact, it was wonderful that they did, because they were able to find out particulars from both Paul’s attorneys and from Andy Lucas that they would not have known in a different court venue, as, for example, Andy Lucas wouldn’t have been questioned in district court. About whether other districts paid no taxes‐ Hood County doesn’t. (In fact, a couple of the Somervell County Commissioners had previously gone to Lake Granbury Medical Center to discuss a 3rd party deal before the hospital district passed. They wanted to try to get the same no‐tax hospital district deal that Hood County has.) About 3rd party private hospitals run by business. One judge liked that. One of the most fascinating parts of the hearing was when Lucas was asked by the justices his motivations and actions regarding the petition. “Did you Have to Act On the Petition? Asked if he *had* to act on the petition. At first he said yes, and then he said no he didn’t have to Asked about why he did it. Said he was concerned that Paul was trying to harm the district (hospital?) Asked if he would have done the same if it was a drunk. He said he didn’t know. What’s absurd about that answer is that intoxication is one of the 3 valid reasons for trying to remove an elected official from office, and Lucas apparently didn’t take that seriously. Lucas threatened Harper in the hallway after the court hearing. We were standing there with Paul''s attorneys and Andy said "“I’m still going to go after Paul with a jury trial after this is over”. Arrogance. As if the appeal was a mere blip in the road that prevented him from harassing Paul some more with a jury trial. Before the Ruling, Insurance Company Required Harper to offer to settle Paul Harper put in an offer to settle May 2016 Paul was called by his attorney in May 2016 and told that the insurance company wanted to make a settlement offer to Andy Lucas. The offer was actually pretty good. The insurance company would forgo the entire amount of the lawsuit sans the 25k that Paul was owed and another 25k. Paul did not want to do it as he was certain he would win out in the Motion for Rehearing that Lucas had filed, but the insurance company said that if he didn’t, they could decide not to cover any more of the lawsuit. The offer was made, and astoundingly, Lucas turned it down. He said there was no money to pay it, and he’d ride it out. I have to think he must have thought Paul was making the offer because he thought he would lose and that gave Lucas confidence to ignore the offer. Alternatively, Somervell County was also involved in a lawsuit with Luminant over property taxes at that time, and were cutting back on other government services in response. 10th Court of Appeals Opinion April 2016 "We Agree with Harper" On April 21, 2016, the appeals court ruled in Paul’s favor on all counts and issued a judgement against the State of Texas The Judgment went against the State of Texas State of Texas Filed Motion for Rehearing in the 10th Court of Appeals May 2016 Motion for Rehearing was filed on May 2016, the 10th COA asked for a response from Harper, and State of Texas Motion for Rehearing was denied on July 13, 2016. Brief from Andy Lucas on Motion for Rehearing from the 10th court of appeals There were, besides others, two very bizarre arguments made in this brief. One is that maybe the TCPA wasn’t a legal action. The second was that “denying a citizen’s right to petition for removal of a public official is contrary to the purpose of the TCPA.” The Texas Supreme Court ruled that TCPA IS a legal action. And the issue is simply ridiculous about whether Darrell Best was denied his right to petition for removal of a public official. Of course he was entitled to do so, but Lucas did not have to choose to join his petition. Gives the appearance that perhaps behind the scenes it had already been decided to press forward by any means to try to remove Paul, regardless of whether it violated constitutional protections. Response to State’s Motion for Rehearing 10th court of appeals Paul’s attorneys main points were 1. The State Relinquished Sovereign Immunity ..................................... 1 A. State Waived Immunity from Suit When it Became a Plaintiff ..................................................................... 2 i. The County Attorney Was Not Obligated to Continue the Removal Suit ....................................................... 4 ii. State Must Be Held to Same Standards as All Other Litigants ............................................................................ 5 B. The State Waived Immunity from Liability By Failing to Plead It ...................................................................... 6 C. Governmental Entities Are Not Exempt from the TCPA ..................................................................................... 7 i. TCPA Waives Sovereign Immunity ......................................... 7 ii. The Removal Statute Should Not Limit Procedures Available to Defendants .................................................. 10 2. Remand for a Determination of Costs, Reasonable Attorneys’ Fees, and Sanctions Tacitly Concludes that Such an Award against the State is Proper ........................................ 11 3. The State’s Arguments Regarding Application of the TCPA and Preemption, if Not Waived, Lack Merit ......................... 13 A. The TCPA Applies in Any Suit in Which an Exception Does Not Apply ...................................................... 13 B. The Removal Action is a Legal Action .................................. 14 C. Preemption Does Not Apply ................................................... 16 States Reply to Harper''s Response to Motion for Rehearing 10th court of appeals A few points. The State tried to argue again that they didn’t file the removal action. Right, they didn’t file the petition of George Darrell Best, but Andrew Lucas chose to take it on as well as add an additional TOMA charge. Lucas attorneys, (for he at this point had contracted with a legal firm to represent him rather than himself) also argued that the State had sovereign immunity. Also argued that the Anti‐slapp motion by Harper didn’t ask specifically for the judgement to be against the State. Lucas attorneys wanted the 10th court of appeals to withdraw their opinion and modify judgement to remove taxation of appellate costs against the State. Andy Lucas changes the stylings of the lawsuit after he lost in 10th court of appeals I found this interesting. In every case style that included Lucas as the State of Texas, he styled the case as “The State of Texas on the relation of George Darrell Best, Plaintiff. Except for the Motion for rehearing, which was styled as if it was a case between Harper and Best The 10th Court of Appeals was not confused by this, but instead set it right in their ruling which denied State of Texas Motion to Rehear. Notice the proper style is "State of Texas ex rel George Darrell Best". Motion for Rehearing Denied by !0th Court of Appeals (bolding mine) Lucas called Harper''s Attorney After Motion for Rehearing Denied Sep 9 2016 Andy Lucas, who had already turned down a different settlement offer made before the appeals court came back with his motion for a rehearing shot down, had his own offer to make on September 9, 2016. Lucas called Paul’s attorneys . Paul rejected the below. 1. Lucas had hoped that the Texas Attorney General’s office would take on his case. They said no. 2. Although Lucas had been spending county funds on an outside attorney, Somervell County apparently told him (with no public meeting) that they weren’t going to spend any more money on that. 3. Lucas was asking if Paul would agree to just hold Best responsible and not the State of Texas. 4. Overall, Lucas said the county had no more money to spend on this. Keep in mind that this was during the time they were in a lawsuit with Luminant, who was seeking to pay significantly less property taxes and it was causing budget cuts and reductions at all levels. 5. Seemed like Lucas was fishing to see how the judgement was to be enforced, and fishing for an appropriate settlement offer. '
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