On Andy Lucas, County Attorney, and TOMA (Texas Open Meetings Act) Violations Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas

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State of Texas ex rel Darrell Best v Paul Harper

On Andy Lucas, County Attorney, and TOMA (Texas Open Meetings Act) Violations

29 November 2019 at 6:33:59 PM

Following are  questions regarding County Attorney,  for Somervell County,  Andy Lucas's TOMA actions in the case of State of Texas ex rel Darrell Best v Paul Harper, case where the judgment ultimately went against the State of Texas. (Andy Lucas, Somervell County Attorney, acted as the representative for the State of Texas)

If Andy Lucas, as either Somervell County Attorney or acting at his discretion as the State of Texas, believed that the Texas Open Meetings Act was violated by a number of Somervell County Hospital District board members, why did he only bring action against Paul Harper and not against the other people that would have been involved in a walking quorum?  All violations of the Texas Open Meetings Act are criminal misdemeanors, with a fine and or confinement.  But none of the alleged Somervell County Hospital District board members as alleged violators of TOMA were criminally charged, including Harper. The TOMA complaint was added by Lucas after Harper engaged an attorney. Here, incidentally, in Sec. 551.143. PROHIBITED SERIES OF COMMUNICATIONS; OFFENSE; PENALTY. is what Texas law says about TOMA violations and the penalties therein; there is no penalty that calls for removing a person from office IF found to be violating TOMA..Ultimately, the superior courts ruled that Harper did not violate TOMA. 

Here is Lucas being deposed in on May 29,  2019.  Bolding and highlighting is mine. Mary Barkley and Chris Brown are Paul Harper's attorneys.

Barkley: Are you familiar with the Open Meetings Act?
Barkley: Do you attend yearly trainings insofar as open meetings act
Lucas: No.
Barkley: What's your understanding of the procedure for handing violations of the open meetings act?
Lucas: What is the question, I'm sorry?
Barkley: What is your understanding of the procedure for handling an open meetings violation?
Lucas: Typically, there would be a complaint and the complaint could be made to law enforcement which would conduct an investigation. 
Was Lucas supposed to send complaints about TOMA violations to law enforcement? He thought that was the procedure. Back in 2010, I did an open meetings complaint about what I consdiered to be a violation of TOMA regarding the City of Glen Rose having executive sessions about signage.  The Somervell County Attorney at that point was Ron Hankins; Andy Lucas was then the City of Glen Rose attorney. Hankins told me to go file a sheriff's report. I then called up the Texas Attorney General's  hotline  to see if that's what they suggested and was told by the AG's office that I should go directly to the District Attorney's office. Since, at the time, I wasn't interested in pursuing what I believed to be a violation as a criminal case, I didn't go to the DA in Cleburne, but I did write about it despite Hankins telling me, and I did not agree,  the meeting was "No Harm, No Foul". Point is that the Somervell County Attorney at that time, rightly or wrongly, believed that the action to take was to file a complaint with the Sheriff's depart, as echoed above by now-current Somervell County Attorney Andy Lucas.
Barkley: Did law enforcement and Somervell County receive a complaint regarding Mr Harper's alleged violation of the open meetings act? 
Lucas: I don't know. I don't know the answer to that. Maybe not, I'm not sure
Barkley: If they had, would they have reported it to you? 
Lucas: I think they likely would have, yes. 
Barkley: Has law enforcement in Somervell County received a complaint with regard to violations of the open meetings act regarding any other hospital district board member? 
Lucas: Not that I can recall
Barkley: Have you in your capacity as county attorney as representative of the state taken legal action against anyone else who is a member of the Somervell County Hospital District board for a violation of the open meetings act? 
Lucas: Can you repeat the question?
Barkley: I will. Have you, in your capacity as representative of the state or representative county attorney taken any legal action against any other member of the Somervell County Hospital District board for violation of the open meetings act. 
Lucas: No. 
Barkley: Has there been any complaint regarding the county commissioners violation of the open meetings act? 
Lucas: I don't know. I'm not aware of any 
Barkley: If the Texas Open Meetings Act was violated, or you suspect that it was violated as alleged in the supplement petition, why not bring criminal proceedings against the alleged violators. 
Lucas: I thought the civil proceeding was the more appropriate form. I did not.. I was not inclined to have anybody arrested for these violations. I thought the civil suit was a better arena to raise the issue. 
Despite the fact that TOMA violations are criminal misdemeanor  procedures and that apparently Somervell County law enforcement did not nothing to investigate whether TOMA violations occurred, Lucas took it upon himself to decide that he would bring his TOMA violation charge as a civil complaint, without the benefit of any type of  police investigation first. 
Barkley: But you do acknoweldge that you as the county attorney are authorized to enforce the open meetings act via criminal procedures... at any time, as a general proposition
Lucas: As a general proposition, yes. 
Barkley: Is there a reason why you, as the county attorney, would not have been authorized to puruse criminal proceddings for a violation of TOMA in 2014? 
Lucas: No, I think I was authorized. I chose not to.
Lucas: : So this appears to be a letter to the board of diretors from the hospital's attorney Kevin Reed. 
Barkley: Okay, and I want to call your attention to the second page, first paragraph, where it says "I have also been contacted by Andy Lucas, county attorney, who has expressed strong concerns about open meetings compliance by the district." Have I read that correct.y?
Lucas: Yes. And I believe I did have a discussion with Mr Reed at some point. I believe he contacted me for some reason and we had the discussion about the open meetings violations. 
Barkley: And, what were the specific concerns about the open meetings compliance? 
Lucas: That the board members were meeting and deliberating in private outside of the open meetings. 
Barkley: Anything else?
Lucas: I think we just talked about how the board meetings were occurring and I remember Mr Reed explaining to me that there were an inexperienced board of directors and they were learning as they went. So, my purpose in speaking to Mr Reed about this was to try to prevent open meetings violations from occurring in the future. I thought it was important that the hospital district's counsel help advise the board in that regard. 
Barkley: Were the persons who you believed participated in the open meetings violations reference here, did those include, or who did those include?
Lucas: I didn't know who all it would include, I had seen the text messages from Mr Harrison and Mr Parker but I didn't know it wasn't occurring elsewhere. That was my reason for suggesting to Mr Reed that he counsel the board.
Barkley: YOu stated that the other parties to the text messages attached to the State's supplement petition which is exhibit 6  were Mr Harrison's and Mr Parker's. Is that correct?
Lucas: I believe so. 
Lucas was fine with Kevin Reed, the Somervell County Hospital District's attorney, simply counseling the board at that point and note that he already had Harrison and Parker's text messages.  And this was apparently during the time before Lucas  decided to adopt Best's petition as the State of Texas "for all purposes". 
Barkley: Did you or anyone else to your knowledge take any action against those two gentlemen insofar as alleged violations of the Texas Open Meetings Act? 
Lucas: No. Really, my thought at the time and this, this really all occurred in a short period of time. My thought was that if the case were ultimately going to be tried to a jury, then depositions of those board members would need to take place. 
This *depostions" comment is silly. Lucas could have charged all alleged violators and taken depositions of all as well.  Also, Chip Harrison testified in the final hearing in August 2019 that he was called to Lucas office, that Lucas threatened to file against him that day.  Anecdotally, Harrison told me that he believes an attorney who would have represented him had Harrison been charged, called Lucas office after that, because Lucas very shortly after decided, and told Harrison, he wasn't going to file suit against him. And yet an alleged walking quorum involves multiple people.
Lucas: We never got to that point, I don't know that we ever would have. 
Barkley: Wny not? 
Lucas: When we had the initial hearings, we, at that point I had heard testimony and seen the evidence and we had a ruling from the court, so I had more information on which to determine whether or not I thought it was a sufficient case to go to a jury trial and I wasn't certain at the time that it was. 
So, Lucas did nothing in the first place to ensure, by having the Somervell County Sheriff's Department investigate, whether this was a valid complaint or not. He did not charge, per the TOMA law, the people he alleged were violating it with a criminal violation, but just up and thought he'd bring the civil complaint tacked onto Best's petition, which he had not vetted,  to court and see if it would fly. Sounds like a rush to judgment to me
Barkley: Why did you select to target Mr Harper only for violations of TOMA
Lucas: The case was filed against Mr Harper
Oh. So this wasn't actually whether, on the face of it, 4 people were violating TOMA, had been investigated, and then were being brought to court but about adding something unsubstantiated to the removal petition that was against Harper only. Further, if this was REALLY just about TOMA, he could have, as noted above, brought a case himself, in his county attorney role,  outside of a removal petition, as a TOMA violation.  He didn't because he apparently wanted to tie his quasi -TOMA complaints to the removal petition. Was he trying to legitimize it by adding what he viewed as more weight? 
From the transcript of the hearing on August 20 2019
You see, above, that Lucas did almost no investigation nor called for an investigation by the Sheriff's department. He relied on a specious frivolous petition supplied by Best which had 2 items which, if he had bothered to look into them, would easily have been established as 0. Further, when Lucas decided to adopt the case for all purposes, he relied on materials that he did not himself verify, but instead altered-by-Best materials. 

Okay. ... "Best guess". Didn't do any type of investigation and relied on what Best said and did, without checking to see if it was even 1. My question here is, was there really NO ONE he could have gone to at that point to find out if his *best guess* was correct? He couldn't have called the State Attorney General's office? Or, as I believe he is a dues-paying member of some sort of Texas County Attorney Association, researched it through them? Is ignorance of a procedure without some outside attempt to verify all the possiblities a real excuse for *best guess*? 

This is an interesting point. Lucas knew he had very little proof in his bag. He hadn't had the charges properly investigated. He hasn't investigated what his options were in even pursuing the case, ie, that it was entirely a discretionary act on his part.  He hadn't charged the other alleged board members. He didn't file, per his own discretion,  a TOMA violation as a criminal charge, as per the law. The first hearing occurred on Oct 10, 2014.  Harper did not file an anti-slapp motion to dismiss UNTIL after that first hearing, on October 27, 2014. What did Lucas do AFTER that? Why, on January 8, 2015, he wrote up an application for a Temporay Restraining Order, buttressed with an affadavit by Ron Hankins, to try to prevent Harper from attending an upcoming board meeting. That sure does not, to my view, sound like someone who knew that he didn't have good evidence, but rather a weak and ill-informed  attempt to try to keep Harper off the board since at that point the removel suit was not going his way. 

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