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‘People v. 2011 BMW 535-I’

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McLennan County Sheriff Parnell McNamara

Story by The Legendary Jim Parks, Reporting by R.S. Gates

Waco, Texas – When emergency medical technicians responded to a fashionable Bosqueville address only a few doors from the Sheriff’s ancestral home, they found a) a woman dead from a drug overdose in the bathtub, b) a full syringe next to an empty one on the bathroom vanity, c) an emaciated addict playing his guitar in the living room of the sprawling Austin stone mansion,  and d) a late-model imported luxury car parked on the premises valued at about $60,000 new.

When they returned three days later to serve a warrant of search and arrest, they found a Professional Ordnance 223 cal.  AR-15 rifle in the trunk of the car, the magazine loaded with cartridges.

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The eyes of David Sirbasku

A magistrate charged David Sirbasku with possession of a controlled substance. A Grand Jury later indicted him for the offense and alleged in a second count that he “did there and then intentionally and knowingly take a controlled substance into the McLennan County Jail.” Arrest records show that Sirbasku, who is well over six feet tall, weighed 160 pounds when booked into jail.

Cause No. 2013-344-3 is only unusual because most people are unaware of, or unfamiliar with a provision of the Texas Code of Criminal Procedure which allows prosecutors to litigate cases styled in the name of the People of the State of Texas v.  a specified amount of cash, a piece of property personal or real, a motor vehicle, jewelry, loose diamonds, jewels, or pearls, and then seize it as contraband pending a case for asset forfeiture ancillary to a criminal offense.

It happens every day, a completely ordinary occurrence.

Federal agents stationed at international airports often rely on scanners that are able to detect the amount of cash in a person’s pockets or purse with near exactitude. Dogs are trained to detect the odor of drugs on cash.

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State of Texas v. 2011 BMW 535-I

Filed in 74th District Court as a civil case, the petition alleges that Sirbasku used the car to deliver methamphetamine and heroin to customers as a criminal enterprise. When officers quizzed him, he admitted that he sometimes allowed visitors to drive the car to the dope house to pick up more drugs, according to the information filed in the magistrate’s court.

There is no official mention of what the intended use of the .223 carbine may have been.

The criminal case has been pending at this writing for more than 500 days. A jury trial is scheduled for later in the spring following multiple continuance motions granted by the judge in Criminal District Court. The Civil District Judge has issued a final order in the forfeiture case not against Sirbasku, but against his vehicle – the 2011 BMW. Sirbasku filed an answer to the suit, but did not replevy the seizure by posting a bond; when he did not appear on the date of the hearing, the judge issued a default judgment.

Nowhere in the official record is there any documentation of an inventory of the vehicle thus seized.

There is a report of eight firearms taken out of the Sheriff’s Office evidence locker; on July 1, 2014, Deputy Michael Gates alleges the rifle is “evidence,” that it was taken from the trunk of the beamer.

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Click image for a list of seized firearms recently taken out of evidence storage at its original size

The report, which was generated on January 6, 2015, says that there are also two .22 cal. revolvers; a .22 cal. Beretta semiautomatic pistol; the .223 carbine seized from Sirbasku; a Remington Model 870 shotgun; a Glock Model 22 .40 cal. semiautomatic pistol; a Ruger .357 revolver; and a Sig Sauer P239 semiautomatic .357 cal. pistol, all of which the Sheriff’s men have similarly disposed, for one reason or the other.

Reached for comment, Sheriff McNamara said he is unaware of the matter. He said that weapons are taken out of the evidence vault, sometimes reconditioned or updated by the manufacturer, and issued to officers for their use on the job. What is there to talk about, he implied in an extensive audio interview he encouraged The Legendary not to publish. “It’s not newsworthy,” he said. Besides, it badly affects the morale of officers who are putting bad actors behind bars, risking their lives doing the job.

A check of the seizure statute, Art. 59.02(d) of the Texas Code of Criminal Procedure states, “…the owner or interest holder’s rights remain in effect during the pendency of proceedings under this chapter as if possession of the property had remained with the owner or interest holder.”

The criminal case against David Sirbasku, who on a day in 2013 allowed a homeless woman who visited him at his home to bathe in his tub after injecting herself with a lethal dose of drugs, is still pending.

To read a post filed on January 16, 2013 regarding the arrest of Sirbasku at his home, follow this link:

http://downdirtyword.blogspot.com/2013/01/there-is-in-mclennan-county-texas.html

Loss of temper leads to death of two-year-old

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495 Monthie, Waco, Texas

 The modular home situated in a grove of trees across the road from a pasture that skirts the first hole at the Connelly Air Force Base Golf Course is trim and neat, the yard well-kept.

But on the evening of February 4, 2015, the residence turned into a chamber of horrors as a 21-year-old mother knocked her two-year-old daughter to the floor “approximately 20 times, causing her to hit her head,” according to an officer’s affidavit of probable cause.

Emily Hudson, an unemployed child care worker who carries 225 pounds on her five-foot, two-inch frame, admitted the repeated attacks on her daughter to Brad Bond, an investigator at the McLennan County Sheriff’s Office.  “She told me that she stopped pushing her when she stopped breathing, ” he reported to Jail Magistrate Virgil Bain.

When paramedics arrived, little Aimee was unresponsive and showed signs of injuries to her face and bruises on her head and body. Though they rushed her to the hospital, medical authorities were unable to revive the child, and she expired. Doctors noted skull fracture as a contributing cause of death.

Mrs. Hudson also admitted punching and slapping the child several times during her short life and “offered the explanation of losing her temper as the reason,” according to Detective Bond.

Judge Bain set bond at $250,000, charging her with the first class felony of  “injury to a child causing death.” The offense carries a punishment range of not less than five years in prison, life imprisonment, or not more than 99 years confinement, as well as a $10,000 fine.

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Ignoring the Constitution

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Waco, Texas – Constitutional officers of the County of McLennan made a cut and dried decision to contravene and abrogate the Constitution of the State of Texas last week by funding an appointive position with line item funds designated to pay the salary of an elected official.

A $55,000 per year contractual slot of criminal justice analyst created out of whole cloth for former Justice of the Peace Kristi DeCluitt, to be funded by money budgeted to paying the salary of an elected official, is now a legal reality, thanks to a timely transfer of emergency funds to make up the difference in what was left over from the judge’s salary fund.

That is a direct abrogation of the concept of Article 5, Section 18(c) of the Constitution of Texas. While neoconservative thinking denies that any one person has a right to an elected office, the Constitution enacted and ratified following Reconstruction holds that a public office belongs to We the People of the State of Texas, and not to elected officials who may from time to time pull a lever or push a button to redistrict or gerrymander elected officials out of the office to which they were elected.

It’s become a fiscal pattern that has led to a shortfall in income and expenditure, one that has twice forced a tax increase to the “roll back” rate, the maximum amount possible without causing a need for a public referendum.

It’s what passes for the kind of hardheaded fiscal responsibility espoused by the GOP, the Tea Party, and the neoconservative, madding crowd in American politics.

And only one person stood up and challenged authority, called them out on their baloney. In a clear and compelling argument, the Judge of the Precinct 6 Justice Court elected to office in the year 2006 to serve a term from 2007 to 2010, spoke up.

Randall Scott Gates, self-appointed “minister of irritance,” a man expelled from the McLennan County Tea Party by its executive committee, faced in 2006 the same dilemma as Judge DeCluitt when he won the Republican primary by four votes, Precinct 6 was eliminated by redistricting and reduction of the eight existing precincts to seven, and no Democratic opposition stood in the General election.

The only difference is that there was no offer of a salary for the period of the elected office – 2007-2010 – left to run. That money, $24,000, was spent on the appointive position of Jail Magistrate newly created for Gates’ defeated opponent, the incumbent, Raymond Britton. He held that appointed office for four years, until incoming Criminal District Attorney Abel Reyna pointed out early in 2011 that as the holder of three municipal judgeships at Moody, Riesel, and Bruceville-Eddy, he was in violation of a law that dictates only one emolument for any state public office by any given office holder.

Such a deal.

One may listen to an audio report of Judge Gates’ remarks here:

One may read a previous account of County Judge Scott Felton’s explanation given in 2013 of just how these transactions are accomplished and their ultimate implications:

http://downdirtyword.blogspot.com/2013/08/county-officials-aw-shucks-their-way.html

 

Because we let them…

 

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Click image for original size

By Randall Scott Gates, Minister of Irritance

A review of the agenda for Commissioners’ Court today, revealed a curious budget amendment. First thing noted was the paperwork was devoid of any signatures. Under the former County Judge, the signature indicated the proposal had at least gotten the once over from the County Auditor and someone who took responsibility for the proposal. Unfortunately, under County Judge Scott Felton, a new level of obscurity has been added, so now the absence of signatures is pretty commonplace.

The amendment proposes to take funds allocated for the salary of an elected official and re-allocate said funds to a “new” position. It also proposes to add some money from the emergency fund.

Salaries of elected officials are a little different. At budget time, there has to be a special and separate vote setting the salaries. If some portion of their compensation increases, they also have to run a notice in the newspaper.

So, what do you say? These salaries are special for the reason that statutory requirments prevent the court from blackmailing an elected official by messing with their money. This is not completely dissimilar to the way our former governor is jammed up right now, answering a felony indictment. Also, by eliminating the funds for the elected official, they are eliminating an elected constitutional office, which is prohibited by Article 5 Sec. 18C of the Texas Constitution. Before the voters amended the Constitution, the Commissioners’ Court could eliminate Justices of the Peace and Constables on a whim. The voters went to the polls and took that authority away from the Court when they voted in favor of amending the Texas Constitution.

The Texas Attorney General has ruled the Court has almost limitless authority to modify the budget. They can move money from the fuel budget to pay for a weekend getaway at a resort hotel. The reasoning is, as long as there is a record of a budgetary amendment, the voters can pass judgment on the action of the court. It is almost limitless because there is a limitation on reserve funds. The theory is these funds were represented to have been taken from the taxpayers under the premise of an emergency fund. The AG held that an emergency has to be declared in order to use “unencumbered” funds. No emergency has been declared, but the suspicion is they screwed up when they did the redistricting, Judge Kristi DeCluitt knew it, and blackmailed the Court with the threat of a lawsuit that would expose the screw-up.

Sec. 42.033. EFFECTIVE DATE OF BOUNDARY CHANGE. (a) A change in a county election precinct boundary takes effect on the first day of the first even-numbered voting year following the voting year in which the change is ordered.

You see, the first day of the first even numbered voting year would be 1/1/16. None of the turmoil was necessary. The law is very plain and not hard to understand. See, they were prevented by law from doing what they did. They all know it but decided the voters/taxpayers are so thoroughly indifferent no one would challenge them. Three people were directly affected. Constable Danny Tate who is now the park supervisor, Justice of the Peace Belinda Summers who is now the administrative assistant to Commissioner Gibson and Justice of the Peace Kristie DeCluitt who is now the new Criminal Justice Analyst. The kicker? None of the three positions were funded in the budget.  Imagine that.

Lack of transparency  is a huge political advantage. Jonathan Gruber

Your elected officials appreciate your indifference and inattention. Minister of Irritance

“We the people…”

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Waco cops roust marijuana smokers in drunken party involving McLennan Deputies (click on image for full size) 

Waco – A clear pattern of abuse and intimidation emerges as one reads the records of investigations leaked to The Legendary by an unknown informant in the Sheriff’s Office. These records have been confirmed by public information released by open records requests.

Cpl. Kim King had no idea what her boss was talking about. She just knew he was very, very angry, according to a statement given on February 19, 2014. The day was September 5, 2013.

Lt. Chris Eubank thrust himself into her office in the personnel and training department of McLennan County Sheriff’s Office headquarters. He “threw a copy of the…Organizational Chart on my desk and asked me who my direct Supervisor was…

I told him it was him. He said ‘That’s right’ and I need to know everything that goes on in this office. He said he was tired of hearing from other people about things going on in this office (Training and Personnel). I told him I didn’t know what he was talking about and he said the Chief Deputy (Matt Cawthon) came up to him and asked him what he thought about the results of the Jail Sergeant interviews…

Eubank said he looked like a fool because he didn’t know who was promoted to Jail Sergeant.”

She explained that Jail Division Captain John Kolinek told her to inform the Chief Deputy, “so that’s what I did. Eubank said he didn’t care what department the promotion was for, that I was to always inform him first. He told me I was to always utilize my chain of command and that I had no excuse because he had just given me a copy of the organizational chart.”

Thus chastened, she recalled, “I told him I understood and from that point forward I would always notify him and I did.” Not long after, she took advantage of an opportunity to make a lateral transfer to the Jail Division to take a job as an investigator there, reporting to Captain Kolinek. From the looks of her Facebook page, Cpl. King is the proud mother of a couple of boys. She learned her profession as a Peace Officer at McLennan County Community College after serving her country in the Armed Forces.

It wasn’t the first time she had been whipsawed from pillar to post in her duties. According to a lengthy statement given by Captain Shawn Lippe on February 17, 2014, she and Cpl. Matt Cunningham had an item to discuss with him regarding a background investigation on Cody Myers, who had applied for a reserve deputy position.

Lippe found it odd to learn that Deputy Ken Witt had disqualified the applicant based on his findings at McGregor Police Department. “I found this to be very odd due to the fact that Ken had called me on my cell phone approximately 3 weeks prior and stated that he just left the McGregor Police Department and everything looked fine.”

Intrigued, he paid a visit to the Personnel and Training Department. “Visibly upset,” Cpl. King “made the statement that I had no idea what goes on down there and what all they have to put up with, with Lt. Chris Eubank…” According to their conversation, Lippe learned that “it seemed like Ken only did the backgrounds on the people that Chris (Eubank) wanted to get hired.”

Lippe believed her because Sgt. Ben Toombs had earlier “stated to me personally that Ken personally told him that he (Ken) is doing the backgrounds on people that the administration wanted to be pushed through or on people that needed to be ‘hacked’ because the administration knew he would sign off on it. Ben requested that this information be kept confidential if possible due to fear of retaliation.” There is some evidence of a quid pro quo arrangement because an applicant with previous experience at the Hewitt Police Department named Danny Powell was not hired to work at the jail. Ken Witt had been slated to handle that investigation, as well, and statements show there was confusion as to whether Cpl. King or Deputy Witt should handle the inquiry.

Cpl. King said it all started when a personnel evaluation on a rookie patrolman named Cody Blossman was changed. “At one point Chris (Eubank) came to Personnel and began screaming at her, stating that if he wanted to change Cody’s evaluation he can. Chris accused her of spreading rumors that got back to the civil attorney…”

A public information response shows that Blossman’s evaluation after 6 months on the job showed a mediocre rating of 5.6 out of a possible 10 points, nothing unusual for a new hire still learning the tricks of the trade. When the documentation was changed over Eubank’s signature, he had received a glowing 7.75 points, complete with hyperbolic and superlative descriptive comments.

Corporal Ben Burch recalled in a statement given on February 27, 2014, that on a day off, he got a call from Eubank regarding a conversation he had with another officer about Blossman’s evaluation being changed. “Another deputy had been questioned by the county attorney about the employee evaluations being changed by upper management. Lt. Eubank informed me that he thought I was ‘stirring up shit’ and that he “thought I was leaking information to the other side of the lawsuit.”

Burch referred to a federal civil suit in which nine deputies sought money damages after being dismissed or demoted by the new Sheriff, Parnell McNamara. Mike Dixon, a private attorney retained by the Commissioners’ Court advised settlement of the dispute when he learned of the entanglements of then Lt. Eubank with employees over the evaluations and TCOLE records of present and former employees. The suit was reportedly settled by an attorney retained by an errors and omissions insurance carrier, with McLennan County admitting no wrongdoing for a gross sum of $2 million, $375,000 of which was paid as a deductible from a “contingency” account of the General Fund.

Corporal Burch denied leaking any information. “Either you or Lionel are lying and the Sheriff and the Chief Deputy are pissed,” Eubank told him. “…I will find out which one of you is lying and recommend termination for whichever one of you is lying.”

“I was uncomfortable with this conversation and feared reprimand or loss of my job in spite of having been truthful with Lt. Eubank,” said Burch. “…I was asked by my superior officer to document this incident.”

The smoking gun appeared when Captain Kolinek ordered the termination of Spencer Rowell, a Jail Deputy who became involved in a drunken dispute with a trio of marijuana smokers in the parking lot of a student apartment complex near Baylor University following a beer bust in a fellow employee’s apartment. That is consistent with the original reprimand removed from the personnel file, telling how, in an intoxicated condition, he showed his badge and threatened to take legal action. Statements on Waco Police Department DASHCAM recordings, received in a public information response, support the finding.

When Cpl. King received the resulting paperwork from his supervisor, Capt. John Kolinek, she automatically submitted an electronic copy of an “F-5” General Discharge report to the state licensing board, the Texas Commission on Law Enforcement. Eubank later told her that “per the Sheriff,” she should change the document and destroy the original. She couldn’t bring herself to do that, knowing it is a criminal offense to do so. She left the paperwork with him after making a backup copy. Eubank later asserted in a notarized statement that he shredded the document. Former Chief Deputy Matt Cawthon recalls that he had agreed to allow the deputy to resign rather than be terminated, but “I didn’t agree to have his F-5 destroyed.”

In a lengthy interview process, we learned that though the elected official at a law enforcement agency may wish to change the F-5 statement of “discharge of a licensee,” the original is a permanent record and must not by law be destroyed. According to a highly placed source, “Any person who is under investigation or has been let go over alleged misconduct cannot be discharged in other than a General Discharge.”

In a statement, John Beauchamp, the general counsel of the Texas Commission on Law Enforcement (TCOLE), the state peace officer licensing authority, wrote, “Primarily, the F-5 reports exist to protect the public from gypsy cops with disreputable employment histories, and as such are used by potential employing agencies to determine a law enforcement applicant’s fitness for employment. To illustrate the seriousness of an F-5 report, a TCOLE license is automatically suspended and subject to revocation after the holder receives a second dishonorable discharge.”

A number of statements given by colleagues say that they were told “per the Sheriff” or “per the Chief” (deputy) that they should take some action to reverse a previous decision. Reached for comment, Matt Cawthon says he can recall giving no such instructions.

In an exclusive interview given previously, Eubank confidentially pointed to his patrol vehicle, a white Ford SUV with more than 200,000 miles on its odometer, and said “I’m the only Sergeant driving one of these. The others drive the new black Chevrolet Tahoes, the ones that say ‘Your safety comes first’ in gold lettering…That’s because of Matt Cawthon.”

He now works deep nights, from dusk to dawn and every other weekend, supervising a shift of between five and eight deputies on patrol duties throughout McLennan County’s sprawling rural territory.
To read previous reports from these columns, follow these links:

http://radiolegendary.com/2015/01/sheriffs-office-mole-leaks-more-records/

http://radiolegendary.com/2015/01/local-deputy-sued-in-fed-court-for-excessive-force/

http://radiolegendary.com/2015/01/deep-nights-reflection/

http://radiolegendary.com/2015/01/bad-scene-at-building-10/

http://radiolegendary.com/2015/01/the-seven-eighths-you-know-its-there/

http://radiolegendary.com/2015/01/sheriff-demurs-in-records-request/

http://radiolegendary.com/2014/12/the-converse-of-not-prostituting-the-system/

http://radiolegendary.com/2014/12/records-support-finding-k9-officer-abused-dog/

http://radiolegendary.com/2014/12/ranger-levels-claim-of-tortious-interference/

http://radiolegendary.com/2014/12/top-cops-oppose-media-job-for-ex-chief-deputy/

Everything is legal – when no one is watching

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Jonathan Gruber, Obamacare consultant, on transparency… http://youtu.be/G790p0LcgbI

By R.S. Gates, Minister of Irritation

Why have a budget?

Though no line items are to be found in the current operations budget, McLennan County Commissioners have added three positions, a Park manager at Tradinghouse Lake; a field liaison representative for a road Commissioner’s precinct, and now a Criminal Justice Analyst to serve the court system. None of these salaried positions were included in the budget for the current fiscal year; no competitive announcement for hiring was advertised.

Mike Dixon, the private attorney retained to advise the County Judge and Commissioners assured the tribunal that their actions are entirely legal. And yet, Jim Mattox held a far different opinion during his tenure as Attorney General:

Accordingly, the only limitation would arise regarding unencumbered funds. We conclude that a commissioners court does have authority in the situation that you describe to re-allocate among the various precincts, some or all of the unencumbered money from the road and bridge fund previously appropriated to specific precincts and unexpended at the end of the year.

It is true that there is an emergency fund, commonly called a contingency fund. Mattox called it a slush fund, but let’s not split hairs. This fund greatly affects the credit rating of a county. The funds are for an expense that could not be reasonably foreseen at budget time. By law, the funds do not exist to satisfy the whims of the Court. Under the law, an emergency must be declared to expend the funds. Thinking emergency? Think the explosion of the West Fertilizer Company.

The most recent addition, the contract employment of Judge Kristi DeCluitt, who resigned her position as the elected Judge of Precinct 1, Place 2 Justice Court today to become a criminal justice analyst, was the result of many discussions and meetings in executive session, in each of which case, we made multiple inquiries of the County Judge, requesting information.

Each request for public information was met with more hurdles and roadblocks, but no responsive information. The last request, which we of The Legendary made just hours before the regular Tuesday morning court session on January 27, still contained no funding information.

The Request:

This is a request for the bookmark agenda. I am also requesting information that is in the possession of the office but not yet included in the bookmark agenda. The request also covers information that is public information but the office does not want to release to the public yet.

That probably should have been sufficient, but in the words of legislative consultant Jonathan Gruber, who advised members of the U.S. House of Representatives and White House officials on how to formulate the rules and language of Obamacare, “Lack of transparency is a huge political advantage.’”

Your elected officials appreciate your indifference and inattention.

For more in-depth coverage of the shenanigans of the Court, follow these links:

http://radiolegendary.com/2015/01/one-stone-two-birds/

http://radiolegendary.com/2015/01/j-accuse/

 

 

 

 

 

J’ Accuse. . . !

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Emile Zola, writer

McLennan County Commissioners, in defiance of case law, Attorneys General Opinions, and the very Constitution of the State of Texas, have conspired to deprive their constituents of an elected official – to what end?

So, I’m officially not a judge now. Someone used to addressing me as “Judge” asked me what they should call me now. Any suggestions other than “Your Majesty?” – Judge Kristi DeCluitt, Justice of the Peace, Precinct 1, Place 2

Six Shooter Junction – In their zeal, the County Commissioners have gone to elaborate lengths to save money by eliminating two constable’s precincts, thereby reducing the number of Justice Courts by two. They redistricted the lines of demarcation, and thereby created five new precincts in which three sitting judges occupied one duly constituted court.

One judge’s term expired on December 31, 2014, but in the case of Judge Krisi DeCluitt, there was an additional two years to run on her term of office. When reducing her near $60K salary to a mere $8K did not provide sufficient incentive for the judge to vacate her office, she hired an attorney and the counter offer was a new position as an analyst bring her to near the previous salary at $55K. News reports quoted Commissioner Ben Perry alluding to a threatened lawsuit. The court made two other “new” positions for former Constable Danny Tate as the supervisor of Tradinghouse Lake, and Judge Belinda Summers as field liaison for Precinct 2 Commissioner Lester Gibson.

Judge DeCluitt chose to accept a position as a Crime Analyst serving the Court to coordinate with mental health and veterans affairs officials to create new and improved means of adjudication of cases in the special populations of the homeless mentally ill and combat veterans who suffer from their combat-related stress issues.

Sounds great, but there’s a catch. The office belongs to the people of the State of Texas, and not the elected officials, and there’s a lot of law to back that statement up.

She resigned, accepted the terms of a contract for the position at $55,000 per year with eligibility for full benefits, the right to mediation coordinated by the federal court system if her employment is terminated, and certain stipulations as to her performance and principle mode of employment. 

The problem of the retaliatory elimination of justice courts and constables through redistricting had become so frequent in its occurrence by 1983 that a special election to amend the Texas Constitution to allow a sitting judge or a constable so serving to be compensated for the remainder his term. With that comes the ultimate responsibility to remain in the office.

If a judge is removed, the public is thereby deprived by unconstitutional authority of their elected official. Thus, Tex. Const. art. V, § 18(c) thereby stripped County Commissioners’ Courts of the power to eliminate a Justice Court without due observance of the law as to, the right, authority, and duty created and conferred by law, by which, for a given period, either fixed by law, or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public.

According to the above cited Article and Subsection of the Texas Constitution, Under subsection (c), an order abolishing a precinct does not terminate the constable’s duty to serve the current term of office for which the constable was elected or appointed…

In a 2007 Attorney General’s Opinion solicited by then Chair of the House Committee on Criminal Justice, Rep. Chuy Hinojosa, Greg Abbot held that We conclude that abolishing precinct 6 did not terminate Brown’s duty under article V, section 18(c) of the constitution to serve as a constable in the new precinct in which he resided for the term to which he had been elected. Different “provisions of a Constitution which relate to the same subject-matter should be construed together and considered in the light of each other,” and effect must be given to each part. Collingsworth County v. Allred, 40 S.W.2d 13, 15 (Tex. 1931).

In a 1982 decision, Tarrant County v. Ashmore, the Supreme Court of Texas held that while article 2351½(c) was a constitutional means of removing officers from their positions, the procedures used by the Tarrant County Commissioners to accomplish that purpose in the present case were inconsistent with the officers’ property rights and rights of due process. As a result, the court held, the officers were entitled to recover from the county the salaries and benefits they would have earned had they been allowed to remain in office for their full terms. The court of appeals affirmed the judgment of the trial court. 624 S.W.2d 740. We reverse the judgments of the courts below.

In a minority opinion addressing a similar question regarding Randall Scott Gates, a candidate who won election to a Justice Court bench in an eliminated precinct at Moody, Texas, in 2006, Chief Justice Tom Gray of the 10th District Court of Appeals at Waco held that “Whoever receives the most votes wins the election.”

In a legal memorandum sought by the candidate, then District Attorney John Segrest noted that had the voters not gone to the polls and changed the law, the Ashmore  decision would have been the law of the land, “but they didn’t, and it isn’t.”

 

 

Sheriff’s office mole leaks more records

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I have listened in disgust to the lies that were spewed by Sgt. Eubanks (sic) and Cpl. Ballew during the most recent interview by the Legendary regarding this matter…Because of this, I have decided to send these documents…just in case you need more documented proof of the lies being told by Sgt. Eubank with every word uttered… anonymous source

Waco, Texas – Those who were at the meeting remember it clearly. McLennan County’s corporate attorney Mike Dixon spoke over the speakerphone during a conference call.

Sheriff Parnell McNamara and Chief Deputy Matt Cawthon had argued for fighting the allegations of a federal civil rights lawsuit in which 9 employees were either dismissed outright, or their pay and job responsibilities diminished. They alleged they were punished for backing the wrong candidate in the Republican Primary of 2012, a violation of their First Amendment right freely to speak and to associate with those of their choosing; the top management of the Sheriff’s Office differed. As at-will employees, they were no longer needed in their former capacities, working to serve retired Sheriff  Larry Lynch, and the recently-defeated opponent, former Chief Deputy Randy Plemons.

They were sure they could win the lawsuit because the plaintiff’s attorney had been able to discover certain personnel records that only served the defense interest by opening the door to a defense effort to cross examine witnesses for the plaintiffs about matters that would have otherwise been off the table.

Dixon advised County Commissioners not to do it as a “cost cutting” measure. In the conference phone call, according to anonymous sources, the lawyer gave a reason when prompted by the Sheriff. He said it was because of that “Chris Eubank s__t…” He sided with McLennan County’s defense representation supplied by the Texas Association of Counties. The settlement of $2 million, a $375,000 deductible for which was transferred from a “contingencies” line item from the General Fund, was to be considered much cheaper.

It was an enigmatic reference to we of The Legendary, until this weekend, when for the second time a deep undercover mole inside the Sheriff’s Office came forward with records that reveal in black and white exactly what “that Chris Eubank” – stuff – is all about. It shows that what Sgt. Eubank recently called a lie regarding his reportedly unauthorized disposal of a government document is actually quite true.

In the packet of information we received, the Sergeant makes a sworn, notarized statement to the effect that he did, in fact, tell an assistant who worked for him at the time  to withhold an official report of dismissal for misconduct or negligence.

In that particular transaction, he stated that he disposed of the permanent record of the event that was prepared for the state licensing bureau for peace officers, a report to the Texas Commission on Law Enforcement called a Form F-5, by shredding it. He earlier rebutted in a follow-up interview that statement, calling it a lie, when it was reported in these columns.

On 21 February 2014, he wrote in an official statement, “Later that day, Kim King brought the paperwork back up to my office and sat (sic) it on my desk and told me she did not know what to do with it. She left it on my desk. The paperwork that she left on my desk was the memorandum from Captain Kolinek with some papers either stapled or paper-clipped to it. This was the same paperwork that she had brought me earlier and said was a conflict if it was left in the file. At this time, I discarded the paperwork by shredding it.”

Former Chief Deputy Matt Cawthon, a retired Texas Ranger, has alleged his actions constitute grounds for prosecution as a felony for tampering with an official document.  Reached for comment with this new revelation, he said that he agreed with the action of allowing the employee to resign instead of facing dismissal for misconduct because it was ultimately a decision for Sheriff Parnell McNamara. However, said Cawthon, “I didn’t tell him to shred the document. That is a felony crime.”

Such documents must remain in the department’s files, he explained. There are numerous other statements included, such as the one from Capt. Shawn Lippe, who stated in writing that Cpl. King told him in the presence of then-Chief Cawthon that “when Robinson PD came to look at Spencer’s file during a background check they did not get to see the IA (internal affairs) or any of the existing reports or statements made by Waco Police during that investigation due to Chris (Sgt. Eubank) having them removed from his personnel file.” He said he feels that is corroborated by the statement given by Investigator Kirby Culp of the Hewitt Police, who told him about “the prior existence of Hewitt PD disciplinary personnel files that had been deleted by Chris Eubank upon his promotion to supervisor, which gave him access to the files and their content to be deleted.”

He further stated that Cpl. King told he and Cawthon that Eubank had told her to shred the documents, not to show them to outsiders, and get rid of them because they “no longer exist.”

“I’m not getting handcuffs put on me because of him,” Cawthon allegedly said.

This incident is said to have disgusted Capt. Steve Smith to the extent that he walked off his job at the Sheriff’s Department with the intention of turning in a resignation, stayed away for a week, then returned after the Sheriff and Cawthon persuaded him to come back to work.

It is not the only example of fellow officers complaining that Eubank intimidated them about various recommendations or lack thereof in the case of officers so disciplined or investigated, passed over the employment, or promotion.

In an evaluation, Capt. Smith stated though “Eubank has a strong work ethic,” he “has exhibited conduct that conflicts with the way this department expects supervisors to act towards subordinates. Specifically, he has tried to push through things that he wants done by threats and name dropping, and he has said and done things that have made employees fear for their job without having a basis to do so…”

The attorney Mike Dixon revised an extensive memorandum of complaint prepared by Capt. Smith, excising numerous references to violations of department policies. The new document supplied by the anonymous source is unsigned over the Captain’s typed signature.

In one case, Cpl. King, who now works as an investigator at the McLennan County Jail, told others who attended a school of instruction at a remote location with people who work at other area law enforcement agencies that she is supposed to report any unlawful orders to the top management of the department, and that even if the Sheriff of his Chief Deputy orders her to commit unlawful acts, she should tell them no.

The report is signed by Lt. Chris Eubank.

The anonymous note received late this week concludes, While I don’t always agree with your opinions, I think it is important that you have this information because you are the only outlet with the balls to expose the problems within government.

CORRECTION: We regret that a quote mistakenly identified Matt Cawthon saying he didn’t want to get handcuffs placed on him because of then-Lt. Eubank’s altering and destroying permanent employment records. The statement was actually made by Matt Cunningham, who had been assigned as Eubank’s assistant when he took the place of Cpl. Kim King, who had been reassigned to the jail as an investigator. 

In our next installment, we will examine the records of statements made by high-ranking officers, investigators and clerical staff alleging multiple similar incidents and the resulting intimidation they felt from Eubank at the time.

– The Legendary

One stone, two birds

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Six Shooter Junction – In the rambling, two-hour discussion  about what to do about one Justice of the Peace precinct with three judges, the corporate attorney batted cleanup on Tuesday morning.

Mike Dixon does legal work for the McLennan County Commissioners Court. He didn’t guide the redistricting plan that led to the messy situation of having to pay a fully qualified attorney with a years-long track record at her duties running a busy Justice Court.

That was politics.

He is taking care of the business of what to do about having to pay former Judge Kristie DeCluitt the insultingly minimal salary of $8,000 per year because she has a constitutional claim on the funds – and because the voters put her there until the year 2016 long before this tribunal of five chose to redistrict her precinct, then gave the nod to someone else when it came time to pick a loyal Republican to run unopposed in the general election.

Dixon advised they “kill two birds with one stone.”

The painfully obvious elephant in the room no one talks about is simple to behold. It’s that big, gray, smelly thing with peanuts on its breath and the long, long nose, the one over in the corner.

Though times are ridiculously hard and millions of Americans have been roaming the streets and highways homeless now for years under conditions that have driven them crazy with drugs and alcohol, turned them into criminals because they have no place to go and no prospect of finding one, the hounds have succeeded in finding a way to cut their numbers locked up in the county jail from an average of 400 per month back in 2010 to an average of 100 five years later.

How? The Mental Health-Mental Retardation officials of the State of Texas finds them through referrals by jailers and cops, judges and social workers, then arranges for substance abuse treatment, hospitalization, close community supervision – and the like.

Came the question, and it’s a hard one. Commissioner Ben Perry, an ex-cop with a head for figures, put it mildly. “If we decide tomorrow to ramp up…?”

Where will the money come from? Grants? Where? Obviously, anyone with a head for figures knows that millions more will soon come spilling out onto the streets to commit the crime of having nowhere else left to go – soon. Some say it will be sooner than you think.

The social worker answered him readily, saying the money is there, it’s just a matter of Washington cutting it loose. It always has been. One thing is for real, it costs seven times more to incarcerate a mentally ill person than it does a normie.

“It’s a huge issue…” said Tommy Thompson, “because this is not just a McLennan County issue; it’s a huge issue nationwide.” There are plans all over America to get people with nowhere left to go off the streets.

Perry did a rapid calculation and determined that at the rate events are unfolding for homeless people with a hitch in the way they think and react to reality, people with “lost lives,” that’s $2 million a year.

And then Steve Hernandez, the veterans representative, took front and center, said he’s been working on the problem of diverting from the court system veterans who had to react normally in the context of the insanity of war in order to survive – and now are labeled as crazy because they don’t seem quite normal to people who were not there and have no idea what they went through to make it home alive. How, exactly, could they ever be normal? Avanti, saith the Centurion.

Funding has always been the problem. What to do?

Pay Judge Kristie DeCluitt in the neighborhood of $50K per year – which is the approximate salary of a beginner baby lawyer hired by the DA’s office, according to Criminal District Attorney Abel Reyna, who chimed in, right on cue.

What will she do? Find the way to legally get people off the streets and out of the jails, no matter if they have problems the rest of we the people find unpleasant to behold. Before the years in law school, she took a Master’s Degree in law and health issues. It’s a personal passion of hers.

She wants a contract. They want her resignation before they will negotiate further. The upshot, they deferred all further action until they get a chance to “visit” with Judge DeCluitt. She did not return a phone call requesting a brief interview to determine her reaction.

Dixon reminded them. They created the problem. Listen to the story:

Local deputy sued in Fed Court for excessive force

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Sgt. Chris Eubank

Gatesville, TX – Jennifer Snoddy manages a condition involving chronic panic attacks with prescription medication, and when on the first day of December, 2012, she saw a suspicious person loitering at a neighbor’s house, she called the local police.

Patrolman Spencer Rowell of the Gatesville Police Department arrived in the middle of a shouting match between she and the person about whom she complained. According to a federal civil rights lawsuit, which alleges that police officers deprived she and her husband of due process of law and their civil rights, she told the suspicious person to “Shut up!” because he kept “yelling and threatening” her.

In a complaint filed November 18, 2014, in U.S. District Court at Waco, Mrs. Snoddy found “the responding officer was combative…from the beginning despite the fact that Mrs. Snoddy had called for assistance.” Rowell was employed as a jailer at the McLennan County Sheriff’s Office from January, 2013 until he either resigned or was fired in August of 2014 – the official record is unclear.

Rowell “put his hand in her face and yelled at her to stop,” the complaint states. She asked him why he did that. Rowell “unnecesssarily poked Mrs. Snoddy in the face and yelled, “I told you to shut up.”

As Officer Chris Eubank, who is now a patrol Sergeant for McLennan County Sheriff’s Office, arrived, Rowell was twisting her arm behind her back; Eubank allegedly grabbed her other arm. He once served as a Lieutenant in a division that looks after training, among other tasks, but turned in a resignation in March of last year before Sheriff Parnell McNamara persuaded him to remain employed. He then accepted a job as a sergeant in the Patrol Division, where he serves as a supervisor for “D” shift, a deep nights assignment involving 12-hour dusk to dawn work days, supervising a crew of as many as 8 men and as few as 5 on days when he is short-handed.

In the words of the federal civil rights complaint, “Despite the officer’s actions, Mrs. Snoddy did not become aggressive or hostile, but she simply continued to ask the officer why he was putting his hand in her face…

The two men threw Mrs. Snoddy onto the ground, injuring her back, and placed her in handcuffs.” Her 11-year-old son stood and watched. He ran inside and got his father out of the shower to see about his mother’s problems. Mr. Snoddy reportedly came outside “in minimal clothing,” and Eubank told him to “stop at the patrol car.” When he asked why his wife was under arrest, Eubank replied “sarcastically” that he would “find out later.”

The federal complaint alleges that’s when Eubank pulled out his TASER pistol and aimed it at Snoddy. “Without provocation and without warning,” Eubank shot Snoddy in the center of his chest and “continued holding the trigger” until the massive jolt of electrical current drove him to the ground. “Officer Eubank then stood over Mr. Snoddy, threatening to tase him again as they waited for the ambulance to arrive.” Eubank needed an Emergency Medical Technician to remove the barbed arrows embedded in Snoddy’s skin, according to the complaint.

When he got to the hospital, he found Eubank waiting for him there. He asked him why he followed the ambulance, and Eubank allegedly replied “that he was there to make sure he does not cause any trouble.”

Mrs. Snoddy claims she suffers from “two bulging discs” in her back as a result of being thrown to the ground. The officers released her at her home.

The suit alleges the officers tampered with evidence. Videotape of the arrest shows that the recording is “highly suspicious,” according to a forensic expert retained by the Snoddys to study its frames.

The expert witness reported that, “Several inconsistencies were noted. The L3 Communications Mobile Vision Recording systems are designed to automatically initiate recording upon acitvation of emergency alerts (lights, siren, etc)…The initial frame of both videos display active emergency lights on both vehicles with officers engaged with Snoddy on the ground. The fact that the video does not contain any of the events associated with the initial contact or tasing of Mr. Snoddy is highly suspicious.”

Though Police Chief Nathen Gohlke explained to attorneys conducting an investigation that the missing images were caused by “a downloading procedure that interrupted the recording,” according to the expert, “the examiner could not verify any available data or case evidence to support this claim.”

The complaint alleges a departmental violation because policy states that if any alternative to the use of the TASER may be found, officers should first try those remedies. “Here, Mr. Snoddy was already in complaince…Requesting information from law enforcement is not a cause for the excessive use of force.” Another provision demands that no TASER should be used if two or more officers are present, “unless the danger to the officers is such that physical restraint of the subject without the use of the TASER is too dangerous to the officers.”

An attorney from Beaumont, Texas, David E. Bernsen claims that excessive force may be proven to a jury by an injury “from the use of force that was clearly excessive to the need…” He further complains of an unreasonable seizure and false imprisonment without probable cause. “An arrest is a seizure…” of a person’s body. “Under the Fourth Amendment an arrest may only be made when a police officer has probable cause to believe that the person arrested has engaged in criminal conduct.”

The City of Gatesville is a co-defendant, according to Bernsen, because “The governmental entity adopted, or failed to adopt…promulgation of the policy by the City of Gatesville…with deliberate indifference to known or obvious consequences that violation of constitutional rights would occur and unconstitutional policy is the moving force behind the deprivation of the Plaintiff’s rights.”

As such, the lawsuit alleges, a violation of the couple’s Fourth Amendment rights to be safe from unreasonable seizure in the absence of a probable cause constitutes a violation of the Civil Rights Act, Title 42 of the United States Code § 1983, because the two police officers acted under color of state law and failed to establish a probable cause for their actions while altering evidence and “covering up the criminal and/or wrongful activities of Defendant Eubank and Defendant Rowell…”

The defendants have answered the complaint with the claim that they enjoy immunity from prosecution and that “…Defendants allege Plaintiffs’ own actions are the sole cause of Plaintiffs’ damages and demonstrate that Defendants’ actions are not the cause of the damages.”

If the case is tried in U.S. District Court, in their verdict, a jury will decide the question of qualified immunity as to the facts; and if they hand down a finding for the plaintiffs, assess the claims of actual money damages; pre-judgment and post-judgment interest; statutory attorney’s fees and expenses; punitive and exemplary damages against Officers Eubanks and Rowell “in an amount to be determined and as allowed by the Court;” costs of court; and “such other relief as the Court deems just and equitable including appropriate.”

Attorneys Roy L. Barrett and Joe Rivera of the Waco law firm of Nahan, Howell, Smith & Lee, PLLC, are representing the two officers and the City of Gatesville.

Local governments are covered by errors and omissions insurance to pay attorneys to defend against torte claims in the courts. Sheriff Parnell McNamara and McLennan County settled a federal lawsuit filed by 9 deputies of the department who were either dismissed, or demoted, their pay diminished, when he assumed command of the 350-person work force of professional peace officers, jailers, evidence technicians and clerks in January of 2013.

The reported settlement cost the insurance carrier $2 million in an amalgamation of damages, attorney’s fees and court costs, a $375,000 deductible of which was raised from a contingency fund of the yearly budget.