TOMA Talk

  (http://www.ca5.uscourts.gov/opinions%5Cpub%5C06/06-50368-CV0.wpd.pdf)

  —Book IV, Chapter IV, Gulliver's Travels (1726),  by Jonathan Swift. "concerning lying and false representation"

In Memoriam General Robert Hilliard Barrow 1922 - 2008 Semper Fidelis

U.S. v. Gunville

 Stories on This Page

06-09-09   Twiddling Thumbs

06-08-09   Attaboy Rangra

06-03-09   AG Opinion GA-0717 of June 1

05-06-09   "Strict Scrutiny"

04-27-09   Rangra v. Brown Decision

04-13-09   Furor Develops Over HB 811

                       

                   









                           

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(1732-1808)
Source: Farmer’s Letters, 1767

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H.R. No. 2790

WHEREAS,  The Honorable Avinash K. Rangra concluded his service as a member of the Alpine City Council in 2009 after distinguishing himself during his six-year tenure as the representative for Ward 1; and

WHEREAS, First elected to the council in 2003, Dr. Rangra was mayor pro tem from 2003 to 2006; his efforts helped bring about many positive developments, including the resolution of a longstanding water pressure problem in Alpine and the creation of a new animal shelter and a skate park, to name but a few of his achievements; moreover, he was active in the Texas Municipal League, serving as the second vice president of Region IV and as a member of the Small Cities Advisory Council; and

WHEREAS, A native of India, Dr. Rangra came to the United States in 1962 and earned his Ph.D. at Oklahoma State University; in 1967, he joined the faculty at Sul Ross State University as a chemistry professor and has participated in many important initiatives at the university in the decades since, including his current service as the chair of the Faculty Affairs Council; and

WHEREAS, This prominent member of the community has served as president of the Southwest Texas Municipal Gas Board, and he has taken leadership roles in the Alpine Masonic Lodge and Lions Club, garnering a number of awards for his Lions activities; in all of his endeavors, he enjoys the love and support of his wife, Anjali, and their child, Amit; and

WHEREAS, Avinash Rangra has proven himself a devoted public servant and involved citizen, and he has demonstrated an admirable commitment to making Alpine an even better place to live and work; now, therefore, be it

RESOLVED, That the House of Representatives of the 81st Texas Legislature hereby honor Avinash K. Rangra for his service as a member of the Alpine City Council and extend to him sincere best wishes for the future; and, be it further

RESOLVED, That an official copy of this resolution be prepared for Dr. Rangra as an expression of high regard by the Texas House of Representatives.

 

Gallego

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June 3, 2009

(Hot off the press: A new AG's opinion concerning city councils' agenda preparation rules. The opinion cites Rangra's and Monclova's court victory at the 5th Circuit Court of Appeals in New Orleans on April 27^th.)

June 1, 2009

The Honorable Kenda Culpepper Rockwall County Criminal District Attorney Rockwall Government Center 1101 Ridge Road, Suite 105 Rockwall, Texas 75087

Opinion No. GA-0717 Re: Validity of a city charter provision that permits a majority of council members to call a special meeting (RQ-0763-GA)

Dear Ms. Culpepper:

You indicate that section 3.08 of the charter of the City of Rockwall declares that "[s]pecial meetings of the City Council shall be held at the call of the Mayor or a majority of the Council members . . . upon provision of public notice in accordance with state law." ⁽¹⁾ You inquire as to whether section 3.08 violates the Open Meetings Act, chapter 551 of the Government Code (the "Act") either facially or as it may be applied. Specifically, you ask whether "a majority of council members [may] call, without deliberating at a publicly noticed meeting . . . a special meeting of the city council without violating the Open Meetings Act." Request Letter at 1. As we have not been presented with a specific factual scenario, our analysis is necessarily limited to whether the charter provision violates the Act on its face.

The Act does not specifically address the procedures for calling a special meeting of a governmental body. However, any procedures adopted by the city council must be consistent with the Act's requirements. Under the terms of the Act, "[e]very regular, special, or called meeting of a governmental body shall be open to the public, except as provided by this chapter." Tex. Gov't Code Ann. § 551.002 (Vernon 2004). The Act defines "meeting" to include a "deliberation between a quorum of a governmental body." Id. § 551.001(4) (Vernon Supp. 2008). A "deliberation" is a "verbal exchange during a meeting between a quorum of a governmental body . . . concerning an issue within the jurisdiction of the governmental body or any public business." Id. § 551.001(2). ⁽²⁾ Because the Rockwall City Council consists of a mayor and six council members, a majority of the Council, as called for by the charter provision, also constitutes a quorum of the governmental body (Council plus Mayor) under the Act. The word "quorum" generally means "a majority of a governmental body." Id. § 551.001(6).

In a prior opinion, this office stated that "agenda preparation procedures may not involve deliberations among a quorum of members of a governmental body except in a public meeting for which notice has been posted." Tex. Att'y Gen. Op. No. DM-473 (1998) at 3. We need not, however, adopt any global statement about agenda preparation procedures, because the question before us is more narrow than that. ⁽³⁾ We are asked only to determine whether a majority of the city council may call a "special meeting" under the referenced charter provision without violating the Act.

As was the case with agenda preparation, the procedures for calling a special meeting under the charter provision may not involve deliberations among a quorum of the city council outside of a public meeting for which notice has been posted. While the charter provision appears to invite a quorum of the governmental body to engage in a prohibited exchange "concerning an issue within the jurisdiction of the governmental body or any public business," the charter provision does not necessarily mandate any deliberation among a quorum of city council members. Tex. Gov't Code Ann. § 551.001(2) (Vernon Supp. 2008). In addition, your request to us expressly assumes a call made "without deliberating at a publicly noticed meeting." Request Letter at 1. In other words, your question asks us to assume the call at issue is made without deliberation. Thus, we cannot conclude that every conceivable procedure put into place by the city council to implement section 3.08 of the charter would on its face violate the Act. As a result, we cannot determine as a matter of law that the charter provision at issue would contravene the Act.

We caution, however, that "if a member or group of members of a governmental body knowingly conspires to circumvent the [A]ct by meeting in numbers less than a quorum for the purpose of secret deliberations in violation of the [A]ct, the person or persons commit a criminal offense." ⁽⁴⁾ Tex. Att'y Gen. Op. No. DM-0473 (1998) at 3.

S U M M A R Y

We cannot conclude, as a matter of law, that a charter provision of the City of Rockwall permitting a majority of members of the city council to call a special meeting violates the Open Meetings Act on its face.

Very truly yours,

GREG ABBOTT
Attorney General of Texas

ANDREW WEBER
First Assistant Attorney General

JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel

NANCY S. FULLER
Chair, Opinion Committee

Rick Gilpin
Assistant Attorney General, Opinion Committee

Footnotes

1. Request Letter (available at http://www.texasattorneygeneral.gov).

2. In a prior opinion, we said that the Act "does not require that governmental body members be in each others' physical presence to constitute a quorum." Tex. Att'y Gen Op. No. GA-0326 (2005) at 3. Relying, inter alia, on Esperanza Peace & Justice Center v. City of San Antonio, the opinion found that the Act is applicable to a governmental body that takes action without conducting a public meeting, even though that action avoids the technical definitions of "meeting" and "deliberation." Id. at 5 (citing Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 472, 478).

3. We also need not address section 22.038(b) of the Local Government Code, which provides that "[t]he mayor may call a special meeting on the mayor's own motion or on the application of three aldermen." Tex. Loc. Gov't Code Ann. § 22.038(b) (Vernon 2008). That chapter of the Local Government Code is applicable only to a Type A general-law municipality. Id. § 22.001. The City of Rockwall is on the other hand, by virtue of its charter, a home-rule municipality.

4. In considering a claim by two elected officials that section 551.144 of the Act violates the First Amendment, the Fifth Circuit concluded that this provision is a content-based speech regulation that is subject to strict scrutiny review, and remanded the case for further proceedings in the district court. Rangra v. Brown, No. 06-51587, 2009 WL 1100611, at **1, 3 (5th Cir. Apr. 24, 2009). Although the court directed the district court to apply strict scrutiny in evaluating the elected officials' First Amendment claim, it did not invalidate section 551.144. See id.

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Home | Opinions

May 6, 2009

“Strict Scrutiny”
By Jack D. McNamara
jack@nimbynews.com/432-837-5619

The regulars for the “ain’t it awful” seminar were tense with anticipation at 5 p.m. Friday, April 24.

We routinely assemble for a few beers and political chit-chat at the venerable Railroad Blues, Alpine’s classiest honky-tonk. But this particular Friday we had rumors of real news.

Alpine City Councilor Avinash Rangra arrived and with customary restraint effused “We won!”
What Rangra won, along with his fellow City Councilor and named plaintiff Mrs. Anna Monclova, was a lawsuit challenging the constitutionality of the Texas Open Meetings Act (TOMA). A three-judge panel of the 5th Circuit Court of Appeals in New Orleans had just that day released a 17-page opinion which “reversed and remanded” U.S. District Judge Robert Junell’s dismissal of their cause in November 2006.

The opinion was written by Judge James L. Dennis and he was joined by Judges Jacques L. Weiner, Jr. and Rhesa H. Barksdale.

Rangra was informed of the court’s actions that Friday by one of his lawyers, Rod Ponton of Alpine, who had in turn been informed by their other lawyer, Dick DeGuerin of Houston and Marfa. Ponton soon arrived at the Blues and began handing out copies of the decision to the regulars. We knew the context because we had been discussing it ever since the outrageous grand jury subpoenas and indictments of early 2005. Several of us shared Rangra’s enthusiasm because we were involved in the case. So much for journalistic objectivity.

Throughout 2003 and most of 2004 the Alpine City Council struggled with the politically intractable problem of the Alpine water distribution system. A minority of the council, the city manager and the city’s engineer at the time, a widely known and respected firm, favored a new system which would circle Alpine with 12-inch pipes and new water tanks convenient to developers needing the hydrostatic pressure from 4700 foot elevations. The majority of the council favored “fixing Alpine first,” as Councilperson Katie Elms-Lawrence often said.

In late April 2002 the Texas Council on Environmental Quality (TCEQ) measured the city’s water supply pressure on the southeast as below state standards, the result of years of demonstrable neglect of the needs of our citizens.

But the state citation was not known to the public until mid-2003 when we got the records through the Texas Public Information Act (TPIA).

                                                                                              LtCol Hugh Garrett  USAF (ret), a
                                                                                              member of the Alpine Independent
                                                                                              School District Board at the time,
                                                                                              expressing his opinion of the TOMA
                                                                                              prosecution at the Brewster County
                                                                                              Courthouse. Photo by the Alpine
                                                                                              Avalanche. [April 2005]

Alpine, frequently cited as a “best place” for various qualities, is indeed a best place for factional  and political battle. The conflict is most intense at city hall because that local government actually deals with the most controversial questions and does it with the greatest degree of democracy. Rangra and Monclova’s victory proved that average citizens can understand complex municipal problems as well as the experts, developers, lawyers and lobbyists who come to their door selling projects.

The stakes could not be higher. As the water war evolved from 2002 onward the price estimated for repairing the city’s water distribution system eventually rose to more than $11 million for the developers’ model of more tanks and big pipes girdling the city on the prairie to the north and west. There was no help offered from the county commissioners — there never is. Since 1993 the city has financed a new land-fill for the benefit of several surrounding communities in the area, a utilities extension to a new private hospital and renovation of the sewage treatment plant. In addition the city funds area recycling, the fire department, a large police department, the “municipal” airport (used by all the usual users, few of whom are city taxpayers) and a host of economic development celebrations for the tourists.

Besides taxes, the principal source of revenue for the city is the sale of water. Water for Alpine and all the surrounding customers in the suburbs comes from two sources.

Sixty-five percent comes from wells on the Jeff Davis County line in the Musquiz Creek watershed as the creek exits the mountains. That water was given to the city by the rancher/philanthropist Herbert Kokernot, Jr. in 1972. The well field is ten miles north of Alpine and was piped to the city by one of the early federal grants from the Department of Housing and Urban Development.

Thirty-five percent of the city’s water comes from wells developed in the early 1950s and which run along the route of Ranch to Market Road 1703 about three miles to the west of downtown Alpine.

In the years before World War II almost all of the city’s water came from wells in the city, most of them private. When the seven-year drought of the 1950s hit those wells dropped. The two well fields in operation now saved the city, including Sul Ross State University. Over the years the distribution system deteriorated; water meters became salted up; unauthorized taps into water lines were permitted by “good old boy” relationships. The water line coming from the west went across an area expanding with small acreage “ranchettes.” The City sought no easement for the line. Rather than seek easements, the city fathers shook hands on  the subsequent  private deals — free water, no easements (my family was once a beneficiary of one of those deals).

When the city finally reviewed these matters honestly City Attorney Rod Ponton found seventy-nine “problematic” water accounts.

Much of the Brewster County and Alpine power structure preferred that examinations of past deals not be revealed nor disclosed. But beginning with the election in 2003 of Avinash Rangra and Katie Elms-Lawrence and reinforced with the 2004 elections of Anna Monclova and Manuel Payne, the city council sought the truth as a basis of making public policy. Rangra, a science professor who was born in India, brought a rather fresh perspective to the West Texas water wars.
For our local pooh bah class of developers, lawyers, bureaucrats, beef barons, water sellers and courthouse courtiers, there can be no greater offense. Accordingly, 83rd District Attorney Frank Brown swung into action in late 2004.

The developers’ councilor, Mrs. Nancy DeWitt, obtained several hundred emails Rangra had sent from his SRSU account under the Texas Public Information Act. Rangra is a  chemistry professor at SRSU. Among those DA Brown selected one sent from Katie Elms-Lawrence to three other councilors on October 21, 2004. She asked Rangra to contact the mayor and set a “called” or special meeting to discuss the selection of another engineer. He did. Monclova and Payne received the email at their computers but neither replied.

Manuel Payne, the descendant of Seminole scouts, and for whom an Alpine softball field is named, doesn’t do email.

The special meeting was called. The council unanimously selected Naismith Engineering of Austin from among four current and hopeful applicants on October 25, 2004 to take a new look at the water distribution problem. The City borrowed more than $4 million through the Texas Water Development Board (TWDB) and the project is scheduled to be completed the first week in May.

DA Brown convened his grand jury in early 2005 but conducted no law enforcement investigation. The grand jury convened and immediately began leaking the names of those subpoenaed. Rangra and Elms, due to stand for reelection in May 2005, were indicted on the eve of the election. They retained Dick DeGuerin and Rod Ponton. DA Brown promptly dropped the indictment, claiming Councilman Payne had “changed” his testimony.

Rangra and Monclova sued DA Brown and Texas Attorney General Greg Abbott in federal court in Pecos, seeking declaratory and injunctive relief, “challenging as content based speech regulations the criminal provisions of the TOMA.” Judge Junell dismissed their claims, citing a 2006 U.S. Supreme Court case, Garcetti v. Ceballos. The councilors appealed. The case was argued in late January 2008.

Since then, every Friday, the boys at the Blues passionately argue this case. Most of us either are or have been public officials. While we are not a quorum of anything we often speculate about our vulnerability to a DA Brown indictment. (Only one of us ever defends Brown and the Brewster County courthouse gang.)

That indictment possibility became somewhat more improbable when Brown was defeated in the 2008 Democratic primary by Jesse Gonzales of Ft. Stockton.

Typical for Brewster County, Brown was declared the winner by a narrow margin the day after the election. But the following Monday three ballot boxes were “discovered” on the floor in the county voting administrator’s vault. Someone opened the boxes (we don’t know who) and someone counted the votes some time later and then in an official recount. Gonzales won by a small but thunderous margin.

Asked about the April 24th 5th Circuit decision case by Texas Lawyer, Brown said he hadn’t lost because the case was remanded, meaning sent back to Junell for a process known as “strict scrutiny.” That is the standard which should have been applied at every stage, of course. But we are accustomed to repeating ourselves over and over again out here on the Last Frontier—water systems, elections, court cases, etc.

In comment to the news media  this week both Brown and his former assistant DA Steve Houston stubbornly insist on further litigation, perhaps to the U.S. Supreme Court;

So what does the 5th Circuit opinion mean? It means that thousands of local government officials in the 5th Circuit now have a stout shield against the attacks upon representative democracy. The TOMA is preserved; but fewer prosecutors will seek the hard work involved in preparing a prosecution which can survive the kind of challenge raised by Rangra and Monclova through their splendid defenders Ponton and DeGuerin.

“5th Circuit : Strict Scrutiny Applies to Restrictions on Officials’ Speech” by Mary Alice Robbins, Texas Lawyer (online), April 27, 2009
www.law.com/jsp/tx

“Rangra case sent back to district court” by Mike Perry, Alpine Avalanche, April 30, 2009.
www.alpineavalanche.com •

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April 14, 2009
Reprint from March 8, 2007

Water Masters at Work
By Jack D. McNamara

You think water districts are not interesting? We have read through the 68 pages of the water code for groundwater districts and we discover that “directors” of the districts are “entitled to receive fees of $150 a day” and “The fees of office may not exceed $9,000 a year.”

This is almost as good as the light but well-compensated duties of county commissioners.

The Brewster County Commissioners Court voted unanimously to support HB 545, the bill currently before the Texas House of Representatives Natural Resources Committee. HB 545 is a bill “relating to the regulation of certain water wells” by the Brewster County Groundwater Conservation District. The bill removes Section 36.121 of the state Water Code as it applies to Brewster County.

That section in 1995 “grandfathered” the city of Alpine’s control of its water wells.

Two weeks ago Alpine City Attorney Rod Ponton actually read the proposed bill HB 545 and a similar companion relating to Presidio County, HB 546 (Ponton is also Presidio County Attorney). He could find no city or county official who was informed of the bills currently pending in the Legislature and authored by State Representative Pete P. Gallego.

As Ponton alerted the responsible elected officials and Representative Gallego, he stimulated a pushback from the Brewster County Groundwater District’s Chairman, Tom Beard, husband of Brewster County Judge Val Beard. The matter was placed on the Alpine City Council agenda February 20 and then postponed to March 6. Mr. Beard came to the Alpine City Council on February 20 with a lengthy “fact sheet” contesting various assertions by Ponton in emails to various citizens.

We obtained that “fact sheet” as well as a videotape of the February city council meeting last Monday along with other documents thereunto pertaining … (see, if you watch a debate involving lawyers you can pretty soon start sounding like one).

The “regulation” referred to in the bill does NOT include any commitment from the water district, the county or the legislature to help the city with the $5 million-plus in indebtedness the city has taken on in the past four years. Our water supplies secure our debt. HB 545 creates another layer of bureaucracy over the city and its obligations while taking away in some degree the city’s control of their own water.

According to Mr. Beard’s February 20 “fact sheet,”…. “The need for information —and for all water producers to be treated equally — is the only reason for this bill.” Mr. Beard explains that the volumes of data already filed with state agencies are not satisfactory to the water district and he wants his own information.

In response to City Attorney Ponton’s assurances that the city provides information voluntarily, Mr. Beard asked “When?” and said the district had asked for information a year and a half ago.

My Texas Public Information Act request to the city produced only two documents from the water district which request information. One request is very recent — January 20, 2007 — and asks location, depths, static levels, draw down and annual (or monthly) production data. City Utilities Director Cindy Williams-Hollander politely replied February 8, 2007 and promised “to get to the issues as soon as possible.”

The only other document from the water district is a letter of February 19, 2006 to Mayor Mickey Clouse which concerns drilling wells inside the city limits. Mr. Beard forwarded a copy of that letter to Mrs. Hollander on June 23, 2006.

In his “fact sheet” Mr. Beard asserts requests for information of a year and a half ago. That period of course is the Dark Ages of Alpine’s City Hall under former City Manager Karen Philippi. City administration in that time can be described as a bureaucratic black hole. It is fair to say that any complicated request from anyone would likely be destroyed or lost if inconvenient to the imperial Ms. Philippi.

Indeed, Ms. Philippi was given a full year’s tenure after a majority of the council voted to fire her. Among Ms. Philippi’s most passionate supporters was Mr. Beard’s wife, County Judge Val Beard. Judge Beard, or Mrs. Beard, inveighed mightily against the “Anti-Philippi Faction” in a front-page article in the now defunct Desert-Mountain Times on January 20, 2005. A few weeks later the leaders of the “Anti-Philippi” faction were indicted by a Brewster County grand jury, indictments subsequently dismissed. “No probable cause” was the conclusion of five state judges.

Perhaps Mr. Beard’s requested information went with Ms. Philippi? Or perhaps it is in the grand jury room in the Brewster County courthouse? Or is it possible that Mrs. Beard has it?

But we digress … somewhat.

The quest for missing and unknown Alpine water information is the sort of thing guaranteed to consume much of one’s life. Beware.

It is only in the past year or so, after the replacement of the city manager, the city attorney, the utilities director and the city secretary that Alpine has discovered any hope of competent administration.

Chapter 36 of the Texas Water Code concerns the groundwater districts. Section 36.101 says a district may make rules “limiting groundwater production based on tract size or the spacing of wells.” This and other sections empower the districts to set production limits, a matter which reasonably might concern a municipality which has to produce water for revenue to pay bad debt for boodlers — like Alpine’s Westside water line. On February 20 Mr. Beard said in his fact sheet, “The water district board does not believe in charging people (or entities) fees for producing and consuming their water from their wells. If production fees are what the City Council fears, our district is committed: We will not impose on them.”

See the value of a vigorous public debate? A reading of the bills HB 545 and HB 546 legitimately permits anyone to be concerned about further powers for the district or those who appoint the district’s directors — which is the county commissioners court. Mr. Beard has met some of those fears by asserting that his district’s only desire is for information. Mr. Beard also says unequivocally that the district will not impose production limits on the city’s water.

That means the city is not immediately bankrupt.

The Brewster County Commissioners Court is (as usual) clueless in their support of a new law which gives their appointed-not-elected-minions more power over their Alpine neighbors. Anyone who wants to control or sell the principal asset of the city of Alpine had best think cash on the barrelhead.

This is nevertheless a good debate; but the debate should have occurred before the bills were filed.

How did these bills get born without the knowledge of those who will pay the costs? •

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April 14, 2009
Reprint from January 25, 2007

Water in Alpine
By Jack D. McNamara

The Legislature is in session and once again the question which bedevils Texas is on the agenda — water. A few bills are trickling in. Representative Pete P. Gallego has two concerning the Presidio and Brewster County groundwater districts (HB 546 and HB 545). Representative Senfronia Thompson of Houston has a bill “relating to the requirement that state agencies identify and address adverse human health and environmental effects on minority populations and low-income populations (HB 601).”

Perhaps she will come to southeast Alpine and ask why we cannot fix their water distribution problem.

The Alpine City Council had a proposed letter drafted by City Attorney Rod Ponton, “re: water rates for certain customers of the city of Alpine” on the January 16 agenda but the meeting was iced out. The letter is also on the current agenda.

And the Big Bend Sentinel has recently published news stories by Richard Grabman, “Special Rights for Alpine water users end with judge’s ruling” which describes the 394th district Court decision which ends the practices of a half-century — if the decision is enforced.

That of course is always the problem in Alpine. Will we pay any attention to judges, legislatures, constitutions or even the votes of a majority? Or will we revert to our outlaw past? The history is mixed.

Prior to and through World War II, the citizens of Alpine mostly got their water from their back yards. Old-timers say that when the train came you could usually find water at about 20 feet in the city’s immediate area.

After World War II the city suffered the withering seven years’ drought at the same time we started growing. GIs came to Sul Ross for the GI Bill and often stayed. The water levels in the backyard wells dropped and the anxieties of the city fathers rose. No water, no growth.

There ensued an often-frantic search for new water supplies. They searched the obvious locations, the surrounding ranchland. Over the course of about 20 years, from the mid-1950s to the mid-1970s, the city found adequate water for our growing population.

This was a period of brutal local politics and many bruises remain. The history is replete with false scents, but a reading of Dr. Clifford Casey’s account in Alpine, Texas Then and Now, the Centennial Edition of 1983 tells the tale.

The first new water supply was in due west Sunny Glen, near the bend in RM 1703, at the “Terry” well. Other wells were developed along the general line of 1703 to the north even unto the plateau, across the Sunny Glen creek. Good wells, but the water had to be gotten to Alpine. Our city fathers found surplus pipe in Del Rio, bought a truck and went after it. An eight-inch line proceeded to Alpine.

But there was one itty-bitty oversight. The city failed to obtain easements for the pipeline. What they did was trade or barter the right-of-way for the water pipe to property owners between the wellheads and the ultimate users in the city.

Technically this was not “free” — except over the period of 50 years that is a lot of water, especially since there was much growth in Sunny Glen. Properties subdivided with subsequent sales and water connections were made — some free, some at city rates, and some at the city rate plus one-half.

Bad deal — though not in the original intent.

About a third of Alpine’s water still comes from that Sunny Glen field.

Two thirds comes from the Musquiz field, about 10 miles north of Alpine. Those nine wells were first purchased and then given to the city by Herbert L. Kokernot, Jr. in a complex financial deal completed in the mid-1970s. This time the water line was subsidized by the U.S. Department of Housing and Urban Development (HUD) and the Fed’s deal prohibited the kind of arrangements and bartering common to the Sunny Glen line.

Of course, a succession of Alpine administrators and politicians ignored the rules and continued to provide free connections anyway. They even gave the free connections and water to the hangar renters who were paying only 10 cents a square foot at the municipal airport.

All of the 79 “problematic” accounts may be different in one way or another. Each must be solved on a case-by-case basis to comply with the judge’s ruling. There are some harmless deals here and some bad deals. The city, particularly the city council of 2003, must be commended for trying to solve the problem. They had to get rid of two “professional” city managers, Bill Lewis and Karen Philippi, to even survey the number of problematic accounts.

But now city hall is on the way to righteousness. We talked to City Attorney Rod Ponton for an update Tuesday —

“Back in the fifties and through the seventies the city expanded its water supply and in good faith reached agreements with property owners. They paid for right-of-way with water instead of money and thought they had good agreements. Now state law makes these agreements either void or unenforceable. The city cannot give away water because it is illegal. Judge DeHart has ruled in regard to Mrs. Emily Scown that her agreement (similar to the others) is unenforceable. This problem has been going on for a long time and the city wants to work it out in good faith with our customers. The city has to follow the law in doing so.” •

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April 14, 2009
Reprint from March 15, 2007 (edited)

Spring Roundup
<>By Jack D. McNamara

State Representative Pete P. Gallego took responsibility for the failure to notify local elected officials of his water district legislation, HB 545 and HB 546. He said, “my name is on the door,” and that he was “trying to rectify a mistake” when he spoke to a gathering of county and city officials in Marfa on March 6.

Janet Grubb, administrator of both the Presidio and Jeff David County groundwater districts, echoed Gallego and took part of the “blame.” She said she “assumed” everyone was “up to snuff.”

The apology took care of the procedural issue well enough but there were many questions regarding the substance of the bills. Gallego said his intent was merely to unify the county districts in the event of another water marketer coming into the area.

Gallego said, “You all are grandfathered.” Turning to his staffers they offered the term “historical use” which generally means among the water planners that whatever we are doing we can keep doing.

City Secretary Cindy Clarke of Presidio wanted some more specificity, however, and posed a hypothetical question: “When Presidio reaches 50,000 (population) the water district will not shut us off from drilling another well?”

Gallego said No. Janet Adams said No.

Gallego concluded the session by saying that before the Marfa event he had met with Rod Ponton (a fellow who is “up on water law”) as well as Alpine City Manager Jesus “Chuy” Garcia and Alpine Ward 1 Representative Avinash Rangra. They resolved their differences and that evening the city of Alpine passed a resolution supporting the bill. On March 9, Senator Carlos Uresti filed a companion bill in the Texas Senate, SB 1895.

Representative Gallego has introduced about two dozen bills in the House as of the close of filing deadline of March 10.

Representative Gallego has another bill concerning water, HB 3477 “relating to the creation of a strategic mapping program to be administered by the Texas Water Development Board.”

Simultaneous with our thrilling little brouhaha here regarding HB 545/HB 546, the U.S. House of Representatives last week started action on renewing federal funding for water projects (HB 700 and HB 720). Funding has been suspended for perhaps 10 years. One bill will cost about $11 billion, according to the subcommittee chair, Representative Eddie Bernice Johnson of Dallas. Our Representative Ciro Rodriguez spoke in favor of the funding on the floor of the House last week.

The City of Alpine is still waiting for approval of Alpine’s water distribution plan. The city was approved exactly two years ago for a $4,860,000 loan from the Texas Water Development Board.

There was great urgency at the time because in April 2002 Alpine’s southeast sector was determined by the Texas Council on Environmental Quality (TCEQ)to have dangerously low water pressure.

Since 2002 we have spent unnecessarily $1.35 million on a new water and sewer system for the U.S. Border Patrol. We have paid several hundred thousand dollars to the middlemen bondsmen, lawyers and engineers. But you still can’t take an after-work shower in New Town.

The failure of this project to date has many causes, principally the inability of the city to overcome the obstructionists here and elsewhere. Neither Brewster County nor the expanding bureaucracy of water planners has offered a penny. Thousands of dollars in campaign contributions to U.S. Representative Henry Bonilla did not produce a single south Alpine earmark for water distribution.

Now there’s a good campaign slogan for the 2007 municipal elections — “Showers for the South Side!” •

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April 13, 2009

Furor Erupts Over HB 811

“Whiskey is for drinking and water is for fighting,” observed Mark Twain.   

A political firestorm has once again erupted here in Alpine concerning the control of the city’s water wells. This debate occurs at the same time as the 2009 city council elections.

Those elections have brought forth eight candidates for three seats.

One candidate, Brian Shugart, filed for election to the Ward 1 position but withdrew when duty called him to work for the FDIC (Federal Deposit Insurance Corporation) in the current bank mess.

Three candidates remain for the Ward 1 position — Angie Bermudez, Lorie Rubenser and Anita DeVries.

In Ward 3, Jim “Fitz” Fitzgerald was the only candidate to file. After the incumbent, Gerald Raun, died a few weeks ago, Fitzgerald was appointed to the office at the April 7 city council meeting.

There are three candidates for election in Ward 5 — incumbent Diana Asgeirsson, Pete Smyke and Moises Morales.

We cheerfully volunteer to publish any candidate’s comments on this issue. To that end, we have published Pete Smyke’s email April 9 below.

Water is the most important function of this city, in our humble opinion.

Pete Smyke Says — “Got Water? Think Again!”

Two bills requested by the Brewster County Underground Water Conservation District, HB 811 and SB 1737, are currently making their way through the Texas House and Senate. These bills would remove the existing protections under state law that allow Alpine to manage its own water supplies, and effectively transfer regulatory authority over Alpine's water to the Brewster County Underground Water Conservation District (BCUWCD).

    These bills would give the BCUWCD the authority to set production fees and quotas on city wells, and transport and import fees on water currently produced at the Musquiz Field wells in Jeff Davis County that were deeded to Alpine by Herbert Kokernot in the 1970's.

    The BCUWCD is an unelected county board with no City of Alpine representative. The district did not consult with the City of Alpine before introducing these bills, and has made no attempt to work with the city to address any concerns it has with Alpine's water use or production. (This same scenario occurred two years ago when similar bills were introduced regarding the Brewster and Presidio county water districts.)

    Members of the Alpine city government are working with Rep. Gallego to amend the House bill, but it is imperative that local citizens contact their Texas House and Senate representatives to oppose transferring control of Alpine's water supplies. No one that I've spoken to in the city government is opposed to working with the BCUWCD to promote conservation and wise water use. However, having an unelected county board take control of Alpine's water without so much as a discussion is simply unacceptable.

    Contact information is listed below, along with links to the bill's history, text (one sentence), and the section of the current Texas Water Code that would be deleted if the two bills pass. (Due to my limited computer skills, you may have to paste the links into your browser.)

    Please contact Senator Uresti and Representative Gallego at the numbers and links listed below and ask them to stop these bills or amend them to leave control of Alpine's water resources in City of Alpine hands.

    Please feel free to contact me with any questions or thoughts you might have, but please be sure to contact our State Senator and State Representative as well.

    Have a Hoppy Easter!

    Pete Smyke

<>             432/837-9087;   politburro@sbcglobal.net

Texas State Senate Dist. 19

Senator Carlos Uresti

http://www.senate.state.tx.us/75r/senate/members/dist19/dist19.htm

Capitol Phone: (512) 463-0119

San Antonio Office Phone: (210) 932-2568

Texas House of Reps. Dist. 74

Representative Pete P. Gallego

http://www.house.state.tx.us/members/dist74/gallego.htm

Capitol Phone: (512) 463-0566

Alpine Office Phone: (432) 837-7383

  <>
Links about HB 811:

http://www.legis.state.tx.us/tlodocs/81R/billtext/pdf/HB00811l.pdf   Text of HB 811.

http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=81R&Bill=HB811   Bill History.

http://tlo2.tlc.state.tx.us/statutes/docs/WA/content/htm/wa.002.00.000036.00.htm   Texas Water Code; Chapter 36

Sec. 36.121.  LIMITATION ON RULEMAKING POWER OF DISTRICTS OVER WELLS IN CERTAIN COUNTIES.  Except as provided by Section 36.117, a district that is created under this chapter on or after September 1, 1991, shall exempt from regulation under this chapter a well and any water produced or to be produced by a well that is located in a county that has a population of 14,000 or less if the water is to be used solely to supply a municipality that has a population of 121,000 or less and the rights to the water produced from the well are owned by a political subdivision that is not a municipality, or by a municipality that has a population of 100,000 or less, and that purchased, owned, or held rights to the water before the date on which the district was created, regardless of the date the well is drilled or the water is produced. The district may not prohibit the political subdivision or municipality from transporting produced water inside or outside the district's boundaries.

 Added by Acts 1995, 74th Leg., ch. 933, Sec. 2, eff. Sept. 1, 1995. Amended by Acts 2001, 77th Leg., ch. 966, Sec. 11.04, eff. Sept. 1, 2001.

The Nimby News Observes

The city council voted unanimously on April 7 to “oppose HB811 as originally drafted …” and to support Representative Gallego’s compromise language grandfathering the city’s wells. Those voting were Representative Avinash Rangra, Johanna Nelson, Manuel Payne (now in his third term), and Diana Asgeirsson, who is a candidate this year for reelection to a second term.

Rangra leaves office in May after three terms in accordance with the city’s home rule charter adopted in 1993.

Mayor Jerry Johnson votes only in case of a tie.

The new Ward 3 representative, Jim “Fitz” Fitzgerald  has told us in several conversations that he fully supports the efforts of the current council to protect Alpine’s water supply.

The city’s minutes state City Attorney Rod Ponton, City Manager Chuy Garcia and the city’s engineers are to “take all action necessary to make sure that HB 811 protects the interests of the City.”

Copies of the minutes and the resolution were faxed to Representative Gallego and our Texas Senator Carlos Uresti and will be available online after approval at the next city council meeting, April 21.

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March 19, 2009

A General Observation on the Current State of Affairs — 

A great hue and cry is now raised again in the early 2009 American political system. The reasons are obvious to all. 

A new Administration is in office, and a new Congress is in office. They have assumed responsibility for our government as their predecessors shuffle off, bellowing their protests all the way.

We can think of no better way to comment editorially on the circumstances than to republish a quote from Gulliver's Travels, by Jonathan Swift. Written in 1726, Swift's hero, the shipwrecked Lemuel Gulliver, was discussing with his Houynhmn master "concerning lying and false representation." The rational horse argued thus: