I received the below letter via email yesterday. This guy has some good questions and some good insight. I wonder if anyone has answers.
Letter to DK (the useful idiot) re: your blog and the blog by the not so useful idiot
This case was filed under the Tex. Gov Code. It was filed in Dec. 2012 and the parties are The City of El Paso v. Greg Abbott, AG. It is what is called a Declaratory Judgment. The City did not like the AG’s ruling on the emails. So the City’s recourse under the Gov Code is file a Dec Action against the AG in Travis County District Court. As the original requestor of the emails, STA intervened as provided by two little provisions of the Code. Prior to the hearing, the City amended their pleadings to include what is called a plea to the jurisdiction.
A Dec Action is a statutory remedy (in this case per the Tex Civil Practice Remedies Code) in which a party (the City) has asked the appropriate Court (District Judge in Travis Co) to rule on their rights, duties, and other compliance issues regarding the AG’s ruling. (that’s important so keep that in mind) The City filed a plea to the jurisdiction, challenging Court’s subject matter jurisdiction regarding certain issues that have now arisen in the case (probably STA’s attempt to subpoena citizens living in El Paso County and their personal emails) which is problematic on several levels. The city’s position, from what I understand, is that as Intervenor STA has no standing to use this case as a means or vehicle to conduct that kind of discovery in this action, going back to the plea to the jurisdiction and the original intent of this case. Discovery is allowed in dec actions, but STA and her lawyer may be trying to go a little too far.
Ordinarily, a District Court in Travis County does not have subpoena power over citizens living in El Paso County and vice versa, (District Court subpoenas are limited to a 150 mile radius). Now the case was filed in Dec. 2012 when certain council members were still city officials, i.e. Susie Byrd and Steve Ortega, but they are not named as parties. The Court only has authority over named parties, but since the case was filed in 2012, does that somehow give the Court authority over Susie and Steve – I don’t know, but that’s one of the questions someone should be asking and I would think that either the city or intervenor will address the issue in some soon to be filed pleading if they haven’t already.
Just because this judge is putting off ruling and has said that certain depositions are quashed and or can go forward doesn’t necessarily mean much. First off, depositions can be quashed under the Tex Rules of Civil Procedure within three days of service by simply filing a motion. No judge’s ruling required, it is operation of law and they are automatically quashed. I don’t know if the City timely quashed the depositions or not. I can only see the docket not actual court filings. Susie, JW and Niland all have subpoena returns on file. That’s interesting, too. If they are technically parties, you don’t subpoena a party under Tex Rules of Civil Procedure so does that mean they are nonparties? I would assume JW and Niland can be produced by City attorneys if so ordered, but what about Byrd and Ortega?
The assertion that there was an “Order” on the depositions is a little suspect. Point is, the judge can tell people they can take depositions all day long, but if you don’t have subpoena power over them and the City has no control over certain individuals, how do you go about it? So all of the stuff people are saying about Ortega’s noncompliance could be wrong. He is also a lawyer and he knows his rights. Why would he or anyone else comply with Court orders and subpoenas that have no authority over them? Would you? So that is another issue we need clarified. Maybe that is why the judge simply postponed things maybe. That’s what judges do when they want the parties to give them the statutory and case law they need to decide an issue. Sounds like the City is gearing up there. Will the Intervenor be able to back her position, I can’t wait to see.
The letter that STA’s lawyer wrote to the Court is very interesting and highly unusual. Attorneys communicate with the Court through motions, briefs and other filed pleadings. Written communication directly to the Judge is very rarely done. By all accounts, the intervenor’s attorney made certain representations on the record to the Court based on a sworn affidavit by his client. Mistatements in an affidavit that is filed with the Court has another name, Perjury. So it seems like the attorney for intervenor was maybe trying to fix a big problem. It’s still in the record, however, and so is whatever that was said in Court last week.
So, DK you are right that STA and her lawyer put all kinds of spin on their alleged wins. Mr. Paredes is right in that the El Paso press is not covering lots of issues. If you rely on the Times, then you are thinking that the City is getting its ass kicked. One reporter seems to be getting spoon fed and she drinks the juice. The other reporter, to his credit asks questions, just not very good ones or the right ones. DK you are also closer to the truth than people like Paredes want to think. You are the only one that has pointed out certain issues and you have called certain people out for their actions. You are right that STA and her lawyer are not telling people what this case is really all about. You are right that something political could be going on with this judge who rejects JW’s affidavit as deficient but ignores the affidavit that “misrepresents” things. You are right that this same group of people have brought one frivolous, groundless lawsuit after another, at the cost of the city and tax payers.
There are many unanswered questions and some very interesting and complex legal matters that have been given no attention or analysis. Your blog got me thinking of all kinds of things I would like to see answered. Paredes just supports the 4-Names spin. I might just have to make my own open records request to the Travis County District Clerk. No one can really analyze this case without reading the actual pleadings on file.