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 Legal Battle Won But War Ahead

Victim got a copy of record sought, but a second
lawsuit looms over new public information request

by Ken Martin
© The Austin Bulldog 2017
Part 9 in a Series
Posted Monday August 7, 2017 11:39pm
Updated Tuesday August 8, 2017 9:51am (to link to Settlement Agreement)

David EscamillaDavid EscamillaThe public information request that gave rise to a lawsuit in which Travis County Attorney David Escamilla sued Texas Attorney General Ken Paxton has been withdrawn. And with it the litigation over whether the County Attorney must provide the document at issue, as ordered in the AG’s open records ruling.

The matter was put to rest when a Settlement Agreement was reached today that allowed the requestor to have an unredacted copy of the Deferred Prosecution Agreement (DPA) the County Attorney entered into with her abuser.

Bill AleshireBill AleshireEscamilla declined to comment until a copy of the Settlement Agreement is filed. The Austin Bulldog filed a public information request for a copy of the Agreement and it was not immediately received. (It will be linked at the bottom of this story when obtained.)“We settled,” Austin attorney Bill Aleshire of Aleshire Law PC, told The Austin Bulldog in a telephone interview late yesterday.

The agreement requires the requestor not to publish or assist anyone in publishing the DPA. “But she may give it to her attorneys, counselor, or therapist. And it can be entered into any official court proceeding,” he said.

Tara CoronadoTara CoronadoThe ability to enter a copy of the DPA into court proceeding is important because the requestor, Tara Coronado, is in a custody dispute with her abuser and former husband over whether one of her four children will be sent to an out-of-state boarding school.

At the request of her attorney in that dispute, Coronado declined to personally comment on the Settlement Agreement.

One battle won, a war ahead

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(1 vote, average 5.00 out of 5)

 Must Deferred Prosecution Deals be Secret?

County attorney denies victim of domestic
violence right to see deal her abuser got

by Ken Martin
© The Austin Bulldog 2017
Part 8 in a Series
Posted Wednesday July 5, 2017 1:59pm
Updated Wednesday July 5, 2017 2:55pm to add Coronado's statement about putting DPA online
Updated Wednesday July 5, 2017 3:40pm to strike incorrect sentence re: couldn't rely on previous determination
Updated Thursday July 6, 2017 10:08am to provide the correct blank form the county attorney uses for DPAs

The next stage in a legal battle over a prosecutor’s discretion to withhold certain records played out last Thursday in a state district court.

The Travis County Attorney’s Office and an intervenor in the county attorney’s lawsuit against the Texas Attorney General argued over which parts of the Texas Public Information Act (TPIA) would govern arguments when the matter goes to trial August 8.

Lora LivingstonLora Livingston“It’s prudent to give you a clear ruling on what’s going to trial,” Judge Lora Livingston of the 261st District Court told the attorneys at the conclusion of the hearing, after listening to nearly two hours of arguments.

On Friday, Livingston ruled that plaintiff Travis County Attorney must limit arguments in favor of withholding a Deferred Prosecution Agreement (DPA) to the same grounds the county stated when it asked the Attorney General for a ruling.

A DPA is an agreement signed by the prosecutor, the defendant and the defendant’s attorney. It sets forth conditions that if met will result in dismissal of criminal charges. (More details about DPAs later.)

In its request for a ruling from the Attorney General (AG), the county cited only what’s commonly called the “law enforcement exception” contained in Section 552.108(a)(1):

“Information held by a law enforcement agency or prosecutor that deals with the detection, investigation, or prosecution of crime is excepted from (release) if: release of the information would interfere with the detection, investigation, or prosecution of crime.”

Tim LabadieTim LabadieAt Thursday’s hearing, Assistant County Attorney Tim Labadie argued that the county had not cited other sections of the Act because previous determinations by the AG had allowed the very same DPA to be withheld.

He asked the judge for permission to claim several other exceptions set forth under Sections 552.108(a)(2), 552.103, and 552.107.

The judge denied his request.

Bill AleshireBill AleshireAttorney Bill Aleshire of Aleshire Law PC won the ruling by citing Section 552.326 which states, “the only exceptions to required disclosure … that a governmental body may raise in a suit filed under this chapter are exceptions that the governmental body properly raised before the attorney general in connection with a request for a decision regarding the matter….”

Why county sued the AG

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(1 vote, average 5.00 out of 5)

 Zimmerman Complaint Finally Resolved

Texas Ethics Commission took more
than two years to settle the matter

by Ken Martin
© The Austin Bulldog 2017
Posted Monday, June 26, 2017 2:33pm

Don ZimmermanDon ZimmermanAn ethics complaint against then District 6 Council Member Don Zimmerman was resolved by the Texas Ethics Commission June 12, 2017. It took the agency 28 months to get the job done.

The complaint filed February 5, 2015, alleged that Zimmerman illegally used campaign funds to pay his wife $2,000 for work she did for his 2014 council campaign.

The Texas Ethics Commission completed its consideration of the sworn complaint by entering into an Assurance of Voluntary Compliance with Zimmerman. The document states that Zimmerman acknowledges the prohibition against such expenditures, and he consented to forego adversarial evidentiary hearings and formal adjudication by the Commission.

Zimmerman escaped being fined for the infraction, common in similar cases such as In the Matter of James C. Doyal SC-31108180, because he had personally loaned $20,000 to his campaign and considered the $2,000 payment to his spouse as “partial reimbursement” for the loan.

In essence the Commission allowed Zimmerman to reclassify the campaign funds paid to his wife for her personal services as a partial repayment of a loan that he personally made to his campaign.

In a telephone interview today, Zimmerman told The Austin Bulldog that he had not been aware of the prohibition against paying his wife from campaign fund. This despite the fact that the City Clerk provides copies of applicable regulations to all candidates.

“If I had shacked up with Jennifer, then I could pay her while living in sin. That looks like marriage discrimination,” he said. “Once it was pointed out that the payment was improper, I said, “Fine, I’ll credit that payment against the loan.’ ”

Complainant dismayed

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(6 votes, average 4.17 out of 5)

 Tab for Public Records $133,000

City of Austin cost estimate for records
related to its Right of Way decisions

by Ken Martin
© The Austin Bulldog 2017
Posted Monday June 12, 2017 11:03am
Updated Tuesday June 20, 2017, 12:14pm 
to add theCity's first response to the attorney general

Golden Padlock AwardGolden Padlock AwardWell this case probably would not qualify for the Golden Padlock Award bestowed annually by Investigative Reporters and Editors. The award is designed to dishonor the most secretive publicly funded agency or person in the United States.

But on a local level in the Austin area—if anyone were keeping track—this might rank among the highest cost estimates furnished by a government agency for providing records in response to a single public information request.

Wayne DolcefinoWayne DolcefinoThe request was filed with the City of Austin by Wayne Dolcefino of Houston-based Dolcefino Consulting. Recently he survived a head-on highway wreck that might easily have been fatal. Now he’s trying to make the best of a collision between the public’s right to know and a government agency’s unyielding response.

Dolcefino is no stranger to public information fights. He is a former investigative reporter and winner of 30 Emmy Awards for his work in television and numerous other awards, according to his website. Back in the 1970s he worked at KLBJ Radio here in Austin. More recently, in Houston at KTRK-TV he headed the station’s 13 Undercover Unit at for 27 years.

Dolcefino filed a public information request six months ago and is still waiting for the information. He asked for records that he needed to investigate the “staggering right of way fees for developers trying to build new apartment complexes and office buildings,” which he says ultimately result in charging higher rents to cover the costs.

He asked for copies of three kinds of records: (1) the personnel files of 11 named employees, (2) emails sent or received after January 1, 2016, by these employees, and (3) other electronic communications covering the same period for these individuals.

A whopper of a cost estimate

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(2 votes, average 5.00 out of 5)

 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 AleshireBill 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 MorganAnne 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.”

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(3 votes, average 3.67 out of 5)

 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 AleshireBill 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 MorganAnne 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

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(1 vote, average 5.00 out of 5)

 New Public Info Procedure Questioned

City of Austin will require that emailed
requests be sent to only two addresses

by Ken Martin
© The Austin Bulldog 2017
Posted Wednesday March 15, 2017 9:18pm

The City of Austin issued a press release this morning to announce a new procedure that would take effect in three business days on March 20. It would allow requests filed under the Texas Public Information Act (TPIA) via email only to be sent to one of two addresses, one for records held by the Austin Police Department ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ) and a second for all other departments ( This e-mail address is being protected from spambots. You need JavaScript enabled to view it ).

“Requests sent to any other email at the City of Austin will not constitute an official records request. All City staff have been instructed to respond to requests and direct people to the proper email address,” the press release states.

Bill AleshireBill AleshireAustin attorney Bill Aleshire of Aleshire Law PC, on behalf of The Austin Bulldog, immediately fired off a letter to the Austin City Attorney to challenge this procedure.

“I question the legality of this new procedure that may play ‘gotcha’ or delay when common folks make requests to the City for public information,” Aleshire wrote.

“First of all, what authority does the staff have to impose such rules? Under the TPIA, only the City Council can promulgate such rules, and I have been unable to locate any such recent action by Council.”

Aleshire is currently representing The Austin Bulldog in a petition to intervene in opposition to Travis County Attorney's motion, in his lawsuit against Attorney General Ken Paxton, to close the courtroom to the public and to permanently seal related exhbits, motions and responses in the case. Aleshire previously represented The Austin Bulldog in two successful lawsuits against the City of Austin to obtain public records.

City Attorney responds

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(7 votes, average 4.00 out of 5)

 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 EscamillaDavid 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 AleshireBill 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?

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(2 votes, average 5.00 out of 5)

Boards of Examiners Ripped for Backlogs

 Sunset Review rough for boards that license and regulate
professionals who play key roles in child-custody cases

by Ken Martin
© The Austin Bulldog 2016
Part 6 in a Series
Posted Friday December 16, 2016 10:39am
Sunset Advisory Commission members (left to right) are public member William Meadows; State Representatives Cindy Burkett, Dan Flynn, Richard Peña Raymond, Senfronia Thompson, and Chair Larry Gonzales; and State Senators including Vice Chair Van Taylor, Juan “Chuy” Hinojosa, Robert Nichols, Kirk Watson; and public member Allen West.Sunset Advisory Commission members (left to right) are public member William Meadows; State Representatives Cindy Burkett, Dan Flynn, Richard Peña Raymond, Senfronia Thompson, and Chair Larry Gonzales; and State Senators including Vice Chair Van Taylor, Juan “Chuy” Hinojosa, Robert Nichols, Kirk Watson; and public member Allen West.

The Austin Bulldog’s investigation of problems in family law courts involving child-custody cases includes a review of complaints against some of the professionals appointed by courts to provide related services. Specific complaints will be detailed in later installments of this ongoing series. An overarching question is why does it take two or three years to resolve complaints against these practitioners? The answer was revealed in the biennial exercise known as Sunset in Texas, which is now underway.
 
Sunset in Texas is not the romantic experience the name might imply. It’s not a time for kicking back, sipping a beer, and watching the sun dip into the chilly waters of Lake Travis. Sunset in Texas is a time for a deep and probing examination of a good portion of the 130-odd Texas governmental agencies to learn how well they are performing. It’s a time for determining whether the sun should set on their work and deciding if these agencies should fade into history.
 
Although the Sunset process for the 2016-2017 cycle is scrutinizing 25 separate agencies, this story will focus solely on the four professions whose services are utilized to varying degrees in family law cases involving child custody: Professional Counselors, Psychologists, Social Workers, and Marriage and Family Therapists.
 
Practitioners in each of these professions are licensed and regulated by a separate Texas State Boards of Examiners. Each of these boards will be abolished unless lawmakers reauthorize them in the 85th Session of the Texas Legislature that convenes January 20.
 
As with all agencies now under review, if these four are reauthorized they could be radically reformed. They could also be moved under the umbrella of a different state agency.
 
Three of these Boards of Examiners—for Professional Counselors, Social Workers, and Marriage and Family Therapists, which collectively oversee some 50,000 licensees—currently receive administrative support from the Texas Department of State Health Services (DSHS).
 
It’s apparent these three boards will not be left to continue floundering as they have been, based on the scathing review of their performance aired during a December 8 hearing of the Sunset Advisory Commission. Under the current operating procedures and with insufficient staff support from DSHS, they have not kept up with the workload. The backlog of unresolved complaints against the professionals they regulate has grown exponentially in recent years.

During Fiscal Years 2000 through 2006, the average length of time for these three boards to resolve complaints rarely exceeded 200 days. But since FY 2007 the length of time needed to resolve complaints has been rising steadily and now stands at 2.3 years for marriage and family therapists, 2.9 years for professional counselors, and 3 years for social workers.
 
These delays fail to protect the health and safety of Texans—many of whom are struggling with litigation and mental stress. The delays also soil the reputation of practitioners who may have been wrongfully accused of misconduct and would like a timely opportunity to clear their names.
 
The Sunset Advisory Commission Staff Report recommended that the Board of Examiners of Professional Counselors, Social Workers, and Marriage and Family Therapists all be transferred to the Texas Department of Licensing and Regulation (TDLR) by August 31, 2018.
 
In addition the staff report recommended that the boards’ complaints and ethics committees be abolished, that board members not be involved in investigating complaints, and that TDLR develops a policy for prioritizing complaints and updates enforcement plans. In addition the report calls for throwing a wider net when checking the backgrounds for licensure applicants to include fingerprints and checks for disciplinary actions taken in other states. 

Psychologist examiners board excels

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(3 votes, average 5.00 out of 5)

 A Troubled Father’s Last Chance

A mother fears he has not kicked
his addictions or changed his ways

By Ken Martin
© The Austin Bulldog 2016
Part 5 in a Series
Posted Wednesday October 26, 2016 2:23pm

This is a story about one of the 5,615 divorce cases filed in Williamson County involving children under the age of 18 during the five-year period ending December 31, 2015. It started with a divorce in 2011, involved three separate lawsuits, and culminated last month with a final order.

Jack Lumus (TxDPS)Jack Lumus (TxDPS)Jack Walton Lumus, 43, might be less than a perfect father to his five children. Four of the children were born to three women. He adopted the fifth child (his third wife’s daughter) when she was 10. Four of the children now range in age from 19 to 22. For more than two years he did not see his youngest son, now 11 (and who will not be named in this story due to his age).

From the time he was a young man Lumus led a troubled life. This story will detail many of his transgressions including multiple occasions of abusing his wife and children. His third ex-wife and two of his older children, while emotionally distraught and fearful of reprisal, testified in court to the abuses they suffered and witnessed. Yet Lumus denied these allegations in his own testimony. Was he in denial and trying to evade responsibility, or were his ex-wife and children lying, as he testified?

Today the overarching questions are whether Lumus has overcome his admitted drug and alcohol dependency, whether he is faithfully taking the medication prescribed for his bipolar disorder (also known as manic-depressive disorder), and whether he is equipped to provide love and guidance in the upbringing of the one child he has not alienated.

This story cannot provide a definitive answer as to whether Lumus is today a suitable parent. The effort is hobbled by the fact that, through his lawyer, Lumus declined to be interviewed. The many questions prepared for him will go unanswered.

Charles SullivanCharles Sullivan“My client is not going to call you back. We will do what we did in the courtroom, which is where it should be handled,” said attorney Charles Sullivan of Jones Sullivan PLLC, based in Canyon Lake.

“Get your facts straight,” Sullivan warned. “I have sued the Austin American-Statesman and New Braunfels Herald-Zeitung. (Neither newspaper could recall having been sued by Sullivan, who was licensed to practice law in May 2007.)

This story is based on police reports, criminal history files, more than 70 court records including transcripts and affidavits, and interviews with an ex-wife who says she has done what’s needed to protect her son. Given the boy’s age and that Lumus is allowed unsupervised visitations, this will remain her chief concern.

There are red flags. But only Jack Lumus knows if he is playing by the rules or he is deceiving others to get what he wants and not what’s best for the boy.

Broken relationships, bad conduct

Jack LumusJack LumusIn September 1990 at age 17 Jack Lumus enlisted in the U.S. Marine Corps Reserve, according to public records obtained from the National Personnel Records Center. A year later he went on active duty in Houston, went through boot camp in San Diego and was then transferred to Camp Pendleton, California.

Fewer than eight months into his active duty service, in April 1992, Lumus married Kimberly A. Cooley in Harris County when they were both 18, according to records maintained by the Harris County Clerk and the Texas Department of State Health Services (DSHS). (No record of their divorce was found.)

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(7 votes, average 4.29 out of 5)

 Custody Dispute Ends in Mistrial

Care of twin boys unchanged after
week-long trial in Travis County case

by Ken Martin
© The Austin Bulldog
Part 4 in a Series
Posted Tuesday May 24, 2016 2:14pm

A happy mother, Cassandra Medrano, and her attorney Jake Gilbreath, after the trial.A happy mother, Cassandra Medrano, and her attorney Jake Gilbreath, after the trial.Which parent should have the exclusive right to determine the primary residence of twin boys born to a never-married couple?

That was the only question for a Travis County jury of seven men and five women. The decision was to be based solely upon what the evidence indicated would be in the best interests of the children. The boys, who were a year old when the couple separated, recently turned seven. One of them is autistic.

In this case, the jury was asked to determine whether the circumstances had materially changed since the court order of November 12, 2010, which gave the mother primary custody. The trial was initiated by the boys’ father, who pushed this case back into court in an effort to win that right.

If the jury favored the father’s request, it would then be up to the judge to decide all related matters, such as how the children’s school and medical care should be decided, how visitation rights for the non-primary parent would be handled, and how and when the children will be exchanged.

Stephen YelenoskyStephen YelenoskyThe proceedings ended in a mistrial because a sufficient number of jurors were unable to agree on a verdict. Thus, the status quo was preserved. The mother, who has been the primary custodian of the boys care for more than five years, will continue.

In this type of civil case, at least 10 of the 12 jurors must agree on a verdict. The jury was impaneled on Monday May 2, then sat through more than three days of testimony, and deliberated for a total of about eight hours, starting the morning of Friday May 6 and resumed Monday May 9. Ultimately they informed the judge that they were hopelessly deadlocked.

Judge Stephen Yelenosky of the 425th District Court declared a mistrial late Monday morning.

While this particular case involved only one set of parents and children, the themes played out in the trial—the allegations of each other’s wrongdoing—are nearly universal given the highly emotional custody battles that are fought daily in the courts of not only Travis County but also the state and nation.

In 2013, the latest year for which statewide statistics were available, there were 76,423 divorces in Texas involving 59,135 children under the age of 18. Many of these children will be pawns in litigation that plays out over many years and leaves it to the family courts to determine what is in their best interests.

Opening statements

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(3 votes, average 5.00 out of 5)

 Commissioners Respond to ‘Extortion’ Complaints

But discuss only cost of Williamson County Domestic
Relations Office, and claim need for judges to buy in

by Ken Martin
© The Austin Bulldog 2016
Part 3 in a Series
Posted Tuesday April 26, 2016 4:03pm

Lisa BirkmanLisa BirkmanAfter months of hearing from parents who claim they are being ripped off by racketeering in the family courts of Williamson County, Precinct 1 Commissioner Lisa Birkman briefed the Commissioners Court about research she had done to explore the possibility of establishing a Domestic Relations Office (DRO). That is a goal advocated by the Texas Association for Children and Families (TACF).

Birkman described the duties of the professionals who are appointed by courts to assist in making decisions about child custody. The person appointed will interview the children, parents, and others and report to the judge, she said. In Williamson and most other Texas counties the person appointed would be an attorney or other licensed professional in private practice.

She noted that the Family Code allows the Commissioners Court to establish a DRO, such as the one operated by Travis County. Among other services provided by the Travis County DRO, it has employees qualified to be appointed as guardian ad litem to advise the court on the best interests of children.

There's only a few counties that do it that way and it's expensive,” Birkman said. (Actually there are eight such counties in Texas, per the Texas Association of Domestic Relations Offices.)

Birkman cited cost figures for three DROs:

• Harris County (Houston) has 42 employees and a $3.3 million annual budget.

• Tarrant County (Fort Worth) has 83 employees and a $7.2 million budget.

• Travis County (Austin) has 51 employees and a $3.6 million budget.

“The way we do it in Williamson County, and most counties in Texas, is the parents bear the cost,” Birkman said.

Judges not yet responsive

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(7 votes, average 5.00 out of 5)

 Parents Demand Halt to ‘Extortion’

Texas Association for Children and Families and
parents demand reforms under threat of lawsuit

by Ken Martin
© The Austin Bulldog 2016
Part 2 in a Series
Posted Monday April 18, 2016 9:12pm

Williamson County Commissioners Court. Judge Dan Gattis (center) and Commissioners (left to right) Lisa Birkman, Cynthia Long, Valerie Covey, Ron MorrisonWilliamson County Commissioners Court. Judge Dan Gattis (center) and Commissioners (left to right) Lisa Birkman, Cynthia Long, Valerie Covey, Ron MorrisonTomorrow morning the Williamson County Commissioners Court is scheduled to hear yet again from the Texas Association for Children and Families (TACF) about alleged corruption. The organization claims that for years a “racketeering enterprise” has been operating right under the noses of family law courts in Williamson County, wrecking the lives of children and parents, and ruining them financially.

The court-appointed professionals named by the TACF as being involved in the alleged scheme who were reached for comment have denied any wrongdoing.

This will be the fourth time representatives of the TACF and parents have appeared in person since last December 1 to complain about alleged injustices and plead for help. Previous appearances have yielded only disclaimers that these problems are beyond the power of the Commissioners Court to remedy.

This is a last-ditch attempt to get a so-far resistant Commissioners Court to establish a Domestic Relations Office, similar to one operated in Travis County for decades. This office would provide essential services focused solely on achieving the best outcomes for Williamson County parents going through divorce and child-custody disputes.

Joseph GaleJoseph GaleJoseph Gale, TACF’s executive director, will tell commissioners that parental rights are being abused and children are being damaged by a number of professionals involved in family law cases in Williamson County, who are allegedly more interested in extracting fees than achieving the best outcomes.

TACF and these parents seek the Commissioners Court’s cooperation in initiating a remedy. If that assistance is not forthcoming by June 1, TACF says Williamson County will be named as a defendant in a lawsuit.

Gale will deliver signed letters to the Commissioners Court on behalf of TACF, four mothers, and one father. These and possibly other parents are expected to be plaintiffs if a lawsuit is necessary. The parents claim their families and their children were and are being harmed by the failure of the Commissioners Court to supervise the judges and court appointed professionals.

‘Racketeering enterprise’ alleged

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(5 votes, average 4.20 out of 5)

 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 attorneyThe 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 LarsenJoseph 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

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(11 votes, average 3.91 out of 5)

 A Tale of Two Counties

Child custody cases get help in Travis County but in
Williamson and most other counties you're on your own

by Ken Martin
© The Austin Bulldog 2016
Part 1 in a Series
Posted March 15, 2016 1:22pm

In the State of Texas in 2013 there were 76,423 divorces involving 59,135 children, according to statistics provided by the Texas Department of State Health Services’ Center for Health Statistics. Some of those divorces resulted in amicable arrangements for child custody in which the parents rose above self-interest and focused on sharing their responsibility to shepherd happy and well-adjusted children into adulthood.

But there is all too much evidence of divorce cases in which the bitterness bestowed by bickering parents pervades every aspect of their children’s lives. In those cases, money may be the least of concerns in the combat for control and custody of children borne out of love and delivered into the war zone of a contentious divorce.

Divorces are emotionally exhausting and can leave parting parents drained, both emotionally and financially. When minor children are involved, the romance may have ended but the parents remain connected to jointly look after their custody, housing, education, medical care, and emotional well-being until they come of age.

Even long after the divorce is final, the ties that bind divorced parents together over issues of child custody may fray and grow contentious.

Divorced parents may continue to struggle for control over critical issues: Where will the children live? Where they will be educated? In which extracurricular activities will they participate? What kind of medical care will they will receive? Not the least of these stressful issues is which parent will pay for these and the myriad other expenses involved in raising children?

When one parent’s behavior appears to threaten or endanger the children—or for whatever reason becomes unacceptable to the other parent—the deadlocked former mates may jump to hire lawyers and seek to air their grievances in a court of law.

The children’s welfare—the thing that should be uppermost in the minds of deadlocked parents—may get shoved aside, become a casualty of family warfare. At that point the overriding goal of looking out for the children becomes a concern for the court. The judge may choose to appoint someone to look after the best interests of the children.

Whoever’s appointed has to come in and objectively examine the circumstances and then make an informed recommendation to the court about what’s best for the children. That person is usually an attorney ad litem or a guardian ad litem. Translated from the original Latin, ad litem means “for the lawsuit.”

The key difference between the two types of ad litems is explained in an informative guide for parents published online, along with a lot of other information important to divorcing couples, by the Travis County Domestic Relations Office:

The Guardian Ad Litem, who is often a licensed professional counselor, focuses on the child's best interests in making recommendations to the court, even if that is not what the child says he or she wants (emphasis added).

An Attorney Ad Litem is appointed by the court to represent the child's best interests and wishes. However, if the child's best interests are different from the child's wishes, the Attorney Ad Litem will represent the child's wishes (emphasis added).

Typically a given custody case would involve one or the other of these kinds of ad litems and not both.

Once appointed, the ad litem will investigate, complete written reports for the court, and testify in court hearings.

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(3 votes, average 5.00 out of 5)

 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 DaughertyGerald 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 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.

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(5 votes, average 4.60 out of 5)

Auditor Alleges City Supervisor’s Misconduct

Disciplinary action hangs fire while department
director and human resources confer and decide

by Ken Martin
Additional Research by Mark Henricks
© The Austin Bulldog 2015
Posted Tuesday December 15, 2015 3:18pm
Updated Wednesday December 16, 2015 9:50am (to correct last name of Rodney Gonzales)
Updated Wednesday December 16, 2015 1:18pm (to clarify auditor interaction with Ethics Review Commission)

Eric GomezEric GomezThe report of an investigation released by the Austin City Auditor in October 2015 found evidence that Eric Leal Gomez, an environmental compliance supervisor in the Development Services Department, allegedly misused his position, misused city resources, and inappropriately entered into a business relationship with a subordinate. The report provided details for the three findings.

Gomez addressed these findings in a 10-page e-mail addressed to department management September 23, 2015. Gomez conceded that he misused his city computer and Internet access in connection with efforts to establish a private business but stated the infraction had been cured and would not be a problem going forward. He argued the other two findings were inappropriate and requested they be retracted.

Nathan WiebeNathan WiebeNathan Wiebe, chief of investigations for in the City Auditor’s Office, said that Gomez’ responses have been considered but the findings will not be retracted.

“We allow the subject of an investigation to respond in writing,” Wiebe said. “If they present evidence that may potentially affect the findings we investigate and modify the report. In cases where they have presented their side of the story but the response hasn’t changed anything, then the report goes out. In this case, he requested redaction of two findings but what you see in the final report—that’s our response.”

The auditor’s investigation of Gomez was conducted in response to an anonymous complaint, Wiebe said.

While the complaint was anonymously filed with the auditor, Gomez said, “The problem was she started bragging about turning me into the auditor, resulting in this investigation.” He named a former employee that he said he had once pursued disciplinary action against the woman for allegedly falsifying timesheets.

Still, it would be up to the auditor to investigate, substantiate the allegations, and bear the burden of proof. An investigation published by the previous auditor was discredited, the City Council issued a formal apology to the accused, and a lawsuit is pending to get the documentation that supported that flawed report.

Disciplinary action pending

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(2 votes, average 5.00 out of 5)

 Austin’s Failing Public Information System

Well-intentioned reforms were made during county attorney’s
investigation but the City’s TPIA compliance is still shaky

© The Austin Bulldog 2015
Investigative Report by Ken Martin
Part 1 in a Series
Posted Monday November 23, 2015 1:40pm

Under the fundamental philosophy of the American constitutional form of representative government that adheres to the principle that government is the servant and not the master of the people, it is the policy of this state that each person is entitled, unless otherwise expressly provided by law, at all times to complete information about the affairs of government and the official acts of public officials and employees....” —Texas Public Information Act

Major flaws in the City of Austin’s response to public information requests were exposed in The Austin Bulldog’s stories about the experiences of requestor Brian Rodgers in his lawsuit, Brian Rodgers v. City of Austin.

The City not only failed to provide the information but ignored complaints from Rodgers’ attorney, Bill Aleshire—even his final warning that litigation would ensue if the information were not provided. Then when the lawsuit did hit, the City heedlessly claimed in its original answer that the information had already been provided. During discovery that claim was proven to be patently false.

The lawsuit was settled with the City agreeing to pay Rodgers $5,000 for its poor handling of his several information requests and to avoid a motion for sanctions for its inept response to the lawsuit. That’s only about half the amount he spent to force the City to pay attention.

This article will detail how and why the City’s system for processing public information requests became what it is today. Later articles will show that what happened to Rodgers was not an isolated incident but rather an indication of systemic problems.

Big changes made but flaws remain

These problems have persisted despite numerous major initiatives.

The City created a team of senior advisors to review its practices and make recommendations to enhance compliance and oversight, and streamline the process for public information requests.

The City moved responsibility for processing public information requests to the Law Department and established within it a Public Information Request (PIR) Team whose salaries now total more than $300,000 a year.

The City committed more than $360,000 to contract for a PIR software system and provided training on the new software to more than a hundred PIR Team and departmental employees who process requests.

Despite these efforts the city has not maintained complete and consistent compliance with the TPIA and the statutory requirements and deadlines it imposes.

To appreciate the City’s current system for responding to PIRs it is necessary to first understand in more detail the major changes that have been made and the forces that necessitated these efforts.

One thing is certain: these changes were not made as a result of some entrepreneurial spirit rising up spontaneously within the City bureaucracy. They were not prompted by an elected leadership that suddenly chose to seek the Holy Grail of transparency and open government.

These changes were made to amend for criminal conduct that could have landed the entire governing body in jail. In fact the City spent more than $600,000 on outside attorneys to fend off prosecution for criminal violations that led to these reforms and provide advice about how to achieve better compliance. These reforms were initiated while being investigated to convince prosecutors that the City was serious about doing better.

Turning over a new leaf

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(3 votes, average 3.67 out of 5)

 Experts Discuss Money in Politics

Diverse views on the effects of campaign finance,
the current state of regulation, and action needed

by Ken Martin
© The Austin Bulldog 2015
Posted Tuesday, November 17, 2015 10:04am

“The League of Women Voters of the United States believes that the methods of financing political campaigns should ensure the public's right to know, combat corruption and undue influence, enable candidates to compete more equitably for public office and allow maximum citizen participation in the political process....”

—League of Women Voters National Board

Panelists Kurt Hildebrand, Michael Schneider, Craig McDonald, Sara Smith, and Roger BorgeltPanelists Kurt Hildebrand, Michael Schneider, Craig McDonald, Sara Smith, and Roger BorgeltThe League of Women Voters Austin Area brought the League’s national study on Money in Politics into local focus with a Sunday afternoon panel discussion. A more politically diverse panel of five speakers would be difficult to imagine. The audience of nearly 50 people paid close attention and posed a number of questions for the panelists.

Kurt Hildebrand, chair of the Libertarian Party of Texas, said his party has taken no position on campaign finance or on money in politics, as the views of Libertarians encompass a broad range. Some believe there should be tight regulations and some believe there should be no regulation at all, he said.

“We want people to be as free as they possibly can be with equality, justice, and equal protection under the law.”

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(2 votes, average 5.00 out of 5)

 Depositions Expose Public Information Flaws

An assistant city manager who doesn’t like to write,
a public information manager who is inexperienced

by Ken Martin
© The Austin Bulldog 2015
Posted Monday November 9, 2015 3:44pm

“The City of Austin is committed to an open and transparent government. I believe this is an integral part of maintaining a vital and robust democracy.” — City Manager Marc Ott

Marc OttMarc OttOtt published this oft-repeated pledge in an April 8, 2015, memo titled “City of Austin Open Data Initiative 2.0.”

Yet, the City has failed to consistently live up to that commitment. By actual performance the City has demonstrated that it receives and routes public information requests to departments or offices thought to have the applicable records but fails to follow up and ensure compliance with the Texas Public Information Act (TPIA) Government Code Chapter 552.

Brian RodgersBrian RodgersA prime example of the City’s spotty performance was evidenced in the outcome of the lawsuit Brian Rodgers v. City of Austin. As reported November 2, 2015, by The Austin Bulldog, the City agreed to pay Rodgers $5,000 to settle the case and thereby avoid a motion for sanctions or a full-blown trial over its gross mishandling of his public information requests and its inept response to the lawsuit.

Rodgers, who spent about twice the amount he’s getting back in settling the lawsuit, considers the expense to be a good investment in his education as a civic activist. As the plaintiff he sat in on the two depositions taken in this case and observed firsthand how the public officials answered.

“I finally get to understand how the process works—I no longer have to wonder,” Rodgers told The Austin Bulldog. “It's a lack of power by public information manager, a lack of cooperation by city staff, and no one responsible to comply with the law. So it’s set up to gum up the work of activists. Justice delayed is justice denied.

“If they intentionally wanted to thwart people from getting to the root of things before the City Council decides, this will do it,” Rodgers said. “It's easily gamed.”

Although Ott’s commitment to open government, cited above, was made within the context of expanding an existing initiative to publish more of the valuable data the City collects on the City’s website—and in the process possibly reduce the number of public information requests—the City cannot achieve openness, transparency, and accountability if the public’s right to know, which is enshrined in the TPIA, is thwarted.

Bill AleshireBill AleshireTwo sworn depositions taken by Rodgers’ attorney, Bill Aleshire of Aleshire Law PC, as part of the discovery process in the lawsuit provide significant insights about the shortcomings in the City’s public information system.

(Disclosure: Aleshire has represented The Austin Bulldog in three lawsuits, two of which were TPIA actions against the City of Austin (see links to related stories below.)

Deposition of assistant city manager

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