cause no. 19355b city of ingram, texas § plaintiff § in

INGRAM LAWSUIT: Defendant’s Motion to Recuse

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CAUSE NO. 19355B

CITY OF INGRAM, TEXAS § Plaintiff § IN THE DISTRICT COURT v. § § MARK B. HENSLEY, JULIE G. § HENSLEY, MARK HENSLEY, SR. § HAWKINS WARD ENTERPRISES, § LLC, TERRY W. HISE, TWANDA § BROWN, DAVID BRITTON and § JOHN T. SHEFFIELD § Defendants § 198th JUDICIAL DISTRICT § QRO MEX CONSTRUCTION § COMPANY, INC., MARK BOSMA, § in his official capacity as City Admin. § of the City of Ingram, STEPHANIE § BRECKENRIDGE, in her official § capacity as City Secretary of the City of § Ingram, and BRANDON ROWAN, in § OF KERR COUNTY, TEXAS his official capacity as Mayor and § Presiding Officer for the City of Ingram § Third-Party Defendants §

DEFENDANT’S MOTION TO RECUSE

TO THE HONORABLE JUDGE OF SAID COURT:

Defendant John T. Sheffield files this his Defendant’s Motion to Recuse (“the Motion”)

pursuant to Rules 18a and 18b of the Texas Rules of Civil Procedure, and Canons 1 and 2 of the

Code of Judicial Conduct. Defendant respectfully seeks the recusal of the Honorable Melvin

“Rex” Emerson, 198th Judicial District Judge, from the above-styled action.

“It has been said . . . that there are few characteristics of a judiciary that are more

cherished than that of impartiality.”1 This idea, “that jurists who stand fair and impartial

between the parties who appear before them,” stretches back to ancient times. Id. Judges acting

in good faith cannot always identify their own subjective motives or biases when deciding a case.

1 Richard E. Flamm, JUDICIAL DISQUALIFICATION: RECUSAL AND DISQUALIFICATION OF JUDGES, at 109 (3d ed. ‘17)


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See Williams v. Pennsylvania, 136 S.t. 1899, 1905 (2016) (“Bias is easy to attribute to others and

difficult to discern in one self.” Indeed, it has been said that:

litigants are entitled to nothing less than the “cold neutrality of an impartial court;” that it is of primary importance that a litigant’s case be decided by an impartial and unbiased court; and that the requirement of judicial impartiality is both a fundamental principle of the administration of justice, and a necessary one if the public is to maintain confidence in the judiciary.

See Richard E. Flamm, fn1, at 109 (collecting cases). The United States Supreme Court has come to emphasize that “what degree or kind of

interest is sufficient to disqualify a judge from sitting cannot be defined with precision.” Aetna

Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986). The end result is a flexible, objective standard

intended to determine whether due process requires recusal: “The Court asks not whether the

judge is actually, subjectively biased, but whether the average judge in his position is “likely” to

be neutral, or whether there is an unconstitutional “potential for bias.” Caperton v. A.T. Massey

Coal Co., 556 U.S. 868, 881 (2009).

This motion is based on information made known to Defendant in responding to the

City’s April 3, 2020 filing of its Fourth Amended Petition adding Sheffield to the lawsuit. Prior

to his appointment to the bench, Judge Emerson was elected and served as the Kerr County

Attorney from 2005-2009; a four-year period where Plaintiff’s counsel Ilse Bailey also worked

for Kerr County under Emerson’s supervision. During his tenure as County Attorney and in

conjunction with Bailey, Kerr County worked with the City of Ingram to secure financing

required to expand the wastewater treatment system in Kerr County. Kerr County, Kerrville and

Ingram worked on regional water issues for years, leading to the County’s critical 2005

designation of Ingram as a colonia, the first domino in a sequence of events that served as the

basis for a disagreement between taxpayers and government officials over financing and

construction of the expanded wastewater collection and treatment system. The colonia

designation provided by Judge Emerson’s client on that fateful day in February 2005 was the

first of many arbitrary governmental decisions implicated in the lawsuit before the Court.

In light of the information learned by Defendant while preparing his response to

Plaintiff’s Fourth Amended Petition served upon him on April 10, 2020, and his response filed

on May 4, 2020, this motion is timely made as soon as practicable pursuant to TEX. R. CIV. P.

18(b)(a)(1) and 18(b)(1).


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I. PROCEEDINGS LEADING TO MOTION

This case involves a dispute between the City of Ingram, Texas and a number of Ingram

taxpayers concerning the alleged mismanagement of the City’s portion of the wastewater

collection and treatment system serving Ingram, Kerrville, and other areas of Kerr County; along

with the City’s mandatory connection requirement and related fees. The City’s allegations focus

upon the failure on the part of Defendant(s) to connect to the wastewater system and pay tap and

connection fees totaling $5,000 per property. Defendant has for years raised questions

surrounding the financing, construction, and administration of the system; financed through

grants and loans from the United States Department of Agriculture, the Texas Water

Development Board, and the Texas Office of Rural Community Affairs.

On April 26, 2019, Plaintiff filed its suit in 198th Judicial District Court of Kerr County

against numerous City of Ingram taxpayers, for declaratory and injunctive relief, and later

amended that petition on May 23, 2019, on June 26, 2019, on February 26, 2020, and finally

with Plaintiff’s Fourth Amended Petition filed on April 3, 2020. Exhibit 1. On February 3,

2020 the City filed its Traditional and No-Evidence Motions for Summary Judgment. Exhibit 2.

On May 13, 2020 the City filed its Verified Emergency Motion for Enforcement Pursuant to

Chapter 54 of the Texas Local Government Code. Exhibit 3 (without attachments).

Defendant’s Motion is based on evidence concerning Judge Emerson’s prior employment

as Kerr County Attorney overseeing matters germane to the instant litigation. Judge Emerson

was sworn into office on January 10, 2005. Exhibit 4. On February 28, 2005 Ingram City

Attorney Danny Edwards appeared before Mr. Emerson and the Kerr County Commissioners

Court concerning “a joint effort of actually four governmental entities trying to work together” to

secure financing for the expansion of the wastewater collection system serving Kerr County.

Exhibit 5. Ingram’s City Attorney confirmed an issue raised by Commissioner Jonathan Letz

that “the City of Kerrville, obviously, is behind this, ‘cause they’re the ones that are the ultimate

recipient of the waste.” Id. The County confirmed the designation in a letter transmitted to the

City of Ingram on March 3, 2005. Exhibit 6. At that time the cities of Ingram and Kerrville

were in fact negotiating an Interlocal Agreement for Wholesale Wastewater Service whereby

Kerrville would receive, treat and dispose of the wastewater collected by Ingram. The Interlocal

would be approved by the city councils of Kerrville and Ingram in the fall of 2005.


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The next four years of Mr. Emerson’s service would see Kerr County enter into formal

and informal agreements related to wastewater collection/treatment and the permitting,

inspection and enforcement of septic systems under the jurisdiction of the City of Ingram. In the

fall of 2006 Emerson drafted an Interlocal Agreement for Ingram and Kerr County regarding

OSSF Jurisdiction and Service. Exhibit 7. On Nov. 27, 2006 Kerr County approved the

Interlocal Agreement that Ingram’s City Attorney and the Kerr County Attorney had prepared.

Exhibit 8. In his role on the Regional Review Committee that scored applications for

Community Block Development Grants, County Judge Tinley acknowledged in January 2007

that he was prohibited from participating in the scoring of an application from the City of Ingram

due to conflict of interest rules. Exhibit 9. Ingram City Attorney Danny Edwards described the

challenge of securing funding for the expansion of the wastewater collection system by noting:

“it’s been a cooperative effort along with the County, with U.G.R.A and with the school district, the City. It’s been a – Kerrville. It’s been a – it’s really been a mutual government agreement. It’s been a long process, but we’re very pleased with the progress as much as we have. Also, I do empathize with these people who are facing having to rebuild septic systems.

Exhibit 10. In 2008 Kerr County maintained close coordination with Ingram as the design of

Phase I of the Ingram wastewater project was a topic amongst City and County officials, with

Commissioner Williams flagging a potential issue related to funding the connection of Ingram

businesses to the grant-funded wastewater system. Exhibit 11. With Emerson continuing his

role as Kerr County Attorney, the county played a key role in efforts between Kerr County and

Ingram to provide for connections to a previously-funded wastewater line that was “going to

become a dead line once the Ingram wastewater project goes into effect and actually some of the

hookups occur” and was impacting businesses not subject to mandatory connection ordinances of

Kerrville or Ingram. Exhibit 12. In 2009 Governor Perry appointed Mr. Emerson to the vacant

seat in 198th District Court of Kerr County; while Kerr County named Ilse Bailey as Interim

County Attorney. Exhibit 13. Bailey served as interim Kerr County Attorney through March

2010. Finally, Bailey oversaw the 2015 municipal prosecution (and acquittal) of John Sheffield

that led to a federal civil rights claim by Sheffield against the City and certain officials.

Sheffield’s motion is based on this evidence, discussed in greater detail below, that has

caused and will cause Judge Emerson’s impartiality in this case to be reasonably questioned.


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II. DISPOSITION OF MOTIONS TO RECUSE

This motion is presented to this Court’s consideration of two options that are prescribed

by law – options that must be exercised prior to taking any further action in this case.

[T]he respondent judge, within three business days after the motion is filed, must either: (A) sign and file with the clerk an order of recusal or disqualification; or (B) sign and file with the clerk an order referring the motion to the regional presiding judge.

TEX. R. CIV. P. 18(f)(1); see, e.g. In re Norman, 191 S.W.3d 858, 860 (Tex. App. – Houston [14th

Dist] 2006, no pet.) (recognizing that probate judge presented with motion to recuse “had a

mandatory duty either to recuse himself or to refer the recusal motion to the presiding judge” for

determination). Additionally, “[i]f a motion is filed before evidence has been offered at trial, the

respondent judge must take no further action in the case until the motion has been decided,

except for good cause stated in writing or on the record.” TEX. R. CIV. P. 18a(f)(2)(A).

Here, Defendant has filed his motion before evidence has been offered at trial, and

accordingly, the Court should not take any further action until this motion is decided. Id. In this

case, should this Court elect not to recuse itself, then Defendant respectfully requests that the

Court refer the motion to the Honorable Stephen B. Ables, Regional Presiding Judge for the

Sixth Administrative Judicial Region, to rule on the referred motion or for assignment of a judge

to rule. TEX. R. CIV. P. 18a(g)(1).

III. FACTUAL AND LEGAL BASIS FOR MOTION TO RECUSE

The legal standard for motions to recuse is set out in Rule 18b(1) of the Texas Rules of

Civil Procedure, which provides in part that “a judge must recuse himself in any proceeding in

which: (1) the judge’s impartiality might reasonably be questioned.” TEX. R. CIV. P. 18b(1). On

the issue of whether a judge’s “impartiality might reasonably be questioned,” the issue is not

whether the judge is actually biased. As the United States Supreme Court ruled in a recusal case

on which the basis of recusal was campaign contributions:

One must also take into account the judicial reforms the States have implemented to eliminate even the appearance of partiality. Almost every State – West Virginia included – has adopted the American Bar Association’s objective standard: “A judge shall avoid impropriety and the appearance of impropriety.” The ABA Model Code’s test for appearance of impropriety is “whether the conduct would create in reasonable minds a perception that the judge’s ability to


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carry out judicial responsibilities with integrity, impartiality and competence is impaired.”

Caperton v. Massey Coal, 556 U.S. 868, 888 (2009) (citations omitted).

Texas has also adopted an objective test for impropriety. See TEX. CODE JUD. CONDUCT

Canon 2 (entitled “Avoiding Impropriety and the Appearance of Impropriety in All of the

Judge’s Activities”; see Rogers v. Bradley, 909 S.W.2d 872, 874 (Tex. 1995) (stating the rule

requiring appellate judges to recuse themselves in any proceeding in which Rule 18b of the

Texas Rules of Civil Procedure requires recusal “in any proceeding in which . . .[the judge’s]

impartiality might reasonably be questioned”). Expanding on Texas’ objective standard, Justice

Gammage’s declaration of recusal in Rogers stated:

The rule does not require that the judge must have engaged in any biased or prejudicial conduct. It does require the judge to recuse if “his impartiality might reasonably be questioned,” regardless of the source or circumstances giving rise to the question of impartiality and even though the source and circumstances may be beyond the judge’s volition or control.

Rogers, 909 S.W.2d at 874.

The Texas courts of appeals have applied the same objective standard: The standard for recusal is clear. When the party moving for recusal relies on bias to claim the trial judge should be recused, the party filing the motion to recuse must show that a reasonable person, with knowledge of the circumstances, would harbor doubts as to the impartiality of the trial judge, and that the bias is of such a nature and extent that allowing the judge to serve would deny the movant’s right to receive due process of law.

In re Commitment of Winkle, 434 S.W.3d 300, 311 (Tex. App. – Beaumont 2014, pet. denied);

see also Humitech Dev. Corp. v. Perlman, 424 S.W.3d 782, 797 (Tex. App. – Dallas 2014, no

pet.) (“The test for recusal under rule [18(b)] is ‘whether a reasonable member of the public at

large, knowing all the facts in the public domain concerning the judge’s conduct, would have a

reasonable doubt that the judge is actually impartial.” (quoting Hansen v. JP Morgan Chase

Bank, NA, 346 S.W.3d 769, 776 (Tex. App. – Dallas 2011, no pet.))); Duffey v. State, 428

S.W.3d 319, 325 (Tex. App. – Texarkana 2014, no pet.) (same).

Judge Emerson served as the County Attorney for Kerr Attorney from 2005 through 2009

at the same time Plaintiff’s counsel served as Special Prosecutor for Kerr County (Bailey would

go on to be named as interim County Attorney upon Judge Emerson’s resignation from Kerr


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County. Bailey would hold this position for approximately one year before being ousted in the

next Republican Party Primary). Judge Emerson also represented the County during the time

when the County had a direct agency relationship with the City of Ingram (and other local

governmental entities) serving as their septic permitting and enforcement office, while at the

same time assisting cities like Ingram in applying for and securing grant funding for the

construction of Ingram’s portion of the wastewater system serving Kerr County. Mr. Edwards

testimony to the Commissioners Court represented the Ingram wastewater project as a joint

effort involving the cities of Ingram, Kerrville, and other local governmental entities, stating:

This has been a joint effort of actually four governmental entities trying to work together to get this grant application. . . And I’ve tried to give you the data to meet the standards for eligibility for obtaining this designation as a colonia, and that’s the first time I’ve ever had to do anything like this, so it’s kind of shooting from the hip, but I think the documentation is there to reflect the demographics of the city of Ingram from the standpoint of salary, the standard of housing that we have, et cetera et cetera. So we’re requesting the County to give us this designation, and be the fifth county government to join in trying to get this application approved.

Exhibit 5. One of the questions germane to this litigation and the potential civil penalties and

attorney’s fees sought by the City of Ingram centers on Sheffield’s contention that Ingram

misrepresented federal regulations in requesting Kerr County designate Ingram as a “colonia”

solely for the purpose of improving Ingram’s eligibility for grant funds to construct their portion

of the wastewater system. At the 2005 meeting before the Commissioners Court, the City of

Ingram’s attorney provided his interpretation of the USDA’s definition of “colonia”, whereby the

USDA’s defined objectives for the wastewater grant program are intended to “facilitate the use

of community water and waste disposal systems by the residents of colonias along the border

between the U.S. and Mexico.” Moreover, the USDA definition of colonia requires that the area

“existed and was generally recognized as a colonia before October 1, 1989.” The County’s

March 3, 2005 letter to the City of Ingram makes the conclusory and wholly unsupported

statement that Ingram “was generally recognized as a colonia before October 1, 1989” – despite

the City appearing not once in the State of Texas’ colonia reports and records prior to 2005.

Exhibit 6. Judge Emerson’s role as counsel and advocate for Kerr County during the time when

the County was “one of four governmental entities trying to work together to get [City of


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Ingram’s] grant application” for federal funds intended to serve communities along the Texas-

Mexico border squarely places the judge into the middle of the controversy; sufficient to cause a

reasonable person to question his impartiality in a proceeding that seeks (in part) to review his

former client’s 2005 designation of the City of Ingram as a colonia and the millions of dollars of

federal and state funds (and obligations) which the City of Ingram subsequently committed to.

Additionally, there are numerous witnesses who will testify in the underlying proceeding

who worked directly with Judge Emerson on wastewater issues impacting the City of Ingram

during his time with Kerr County; including Plaintiff’s counsel and special prosecutor Ilse

Bailey, City Engineer John Hewitt, and former Ingram mayors Howard Jackson and James

Salter. Mr. Hewitt was hired by Kerr County in 2009 during Emerson’s term to serve as

floodplain administrator.

The events surrounding this dispute, the genesis of which began in 2015 with the City’s

unsuccessful prosecution of Sheffield have continued to this day, generating significant public

interest within Kerr County and the surrounding communities. Multiple Texas news distributors

have published articles regarding the legal disputes arising from the City of Ingram’s wastewater

project and subsequent lawsuits filed seeking judicial review of the City’s actions. As with the

Massey case, a case with this type of profile only amplifies the ever-present concern with

maintaining the appearance of judicial impartiality. This concern stems from the recognized

need for an unimpeachable judicial system in which the public has unwavering confidence.

Richardson v. Quarterman, 537 F.3d 466, 474 (5th Cir. 2008) (quoting Potasshnick v. Port City

Construction Co., 609 F.2d 1101, 1111 95th Cir. 1980)). In Bracy v. Schomig, a federal

appeallate court noted that pertinent U.S. Supreme Court cases “tell us that ordinarily actual bias

is not required, the appearance of bias is sufficient to disqualify a judge.” Richardson v.

Quarterman, 537 F.3d 466, 477 (5th Cir. 2008) (quoting Bracy v. Schomig, 286 F.3d 406, 411

(7th Cir. 2002)). Likewise, the close working relationship between Judge Emerson, Ilse Bailey,

the City of Ingram and Kerr County have served to create an appearance that the Court is biased

in favor of the City, and what is perceived by some members of the public to be leaning in favor

of the City. For that reason alone, this Court should recuse itself from this case.

As stated above, Texas law requires that a “judge shall recuse himself in any proceeding

in which . . . his impartiality might be reasonably questioned.” Kniatt v. State of Texas, 239

S.W.3d 910, 915 (Tex. App. – Waco 2007, pet. ref’d). In determining whether a judge’s


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impartiality might be reasonably questions so as to require recusal, the proper inquiry is whether

a reasonable member of the public at large, knowing all the facts in the public domain

concerning the judge and the case, would have a reasonable doubt that the judge is actually

impartial. Burkett v. State, 196 S.W.3d 892, 896 (Tex.App. – Texarkana 2006, no pet.).

Moreover, the need for recusal is triggered when a judge displays an “attitude or state of mind so

resistant to fair and dispassionate inquiry” as to “cause a reasonable member of the public to

question the objective nature of the judge’s rulings.” Ex parte James W. Ellis, 275 S.W.3d 109,

117 (Tex. App. – Austin 2008, no pet.) (quoting Liteky v. United States, 510 U.S. 540, 557-58

(1994)).

In furtherance of the goal of avoiding the appearance of impropriety, the Code of Judicial

Conduct provides that judges “should act at all times in a manner that promotes public

confidence in the integrity and impartiality of the judiciary” and “shall not allow any relationship

to influence judicial conduct or judgment.” TEX. CODE JUD. CONDUCT Canon 2(A). Nor should

judges “lend the prestige of judicial office to advance the private interests of the judge or others;

. . . or permit others to convey the impression that they are in a special position to influence the

judge.” TEX. CODE JUD. CONDUCT Canon 2(B). Presiding over a case involving questions of fact

and law implicating official actions undertaken by the judge’s former client during the time of

his prior representation, while at the same time your former co-counsel serves as Plaintiff’s

counsel for the City of Ingram, and the Ingram city engineer was also hired by Kerr County

during Judge Emerson’s and Mrs. Bailey’s representation implicates all of these constraints on

judicial conduct.

Under the “reasonable person” standard, the integrity of the judicial process, which

depends in large measure on maintaining the public’s confidence in the impartiality of its judges,

requires that Judge Emerson be recused from further involvement in this matter.

IV. CONCLUSION AND PRAYER

Defendant respectfully requests the following relief pursuant to this motion:

(1) That the Court voluntarily recuse itself from any further participation in this case;

(2) That in the alternative, should the Court not voluntarily recuse itself in response to

the motion to recuse, that the motion to recuse be referred to the Honorable Stephen

Ables, Regional Presiding Judge for the Sixth Administrative Judicial Region, to rule

on the referred motion or for assignment of a judge to consider this motion;


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(3) That in the event a judge is assigned to consider this motion, that the assigned judge

schedule and conduct a hearing on this motion;

(4) That following any such hearing, this motion be granted and Judge Emerson be

ordered recused from any further participation in this matter; and

(5) That following such a recusal, that this case should be referred to the Honorable

Stephen Ables, Regional Presiding Judge for the Sixth Administrative Judicial

Region, for assignment of a judge to conduct further proceedings in this case.

The Defendant also requests any such other and further relief to which he may show himself to

be justly entitled.

Respectfully submitted,

The Law Office of Roger Gordon

Roger E. Gordon State Bar No. 24043697 901 South Mopac Expressway Building One, Suite 300 Austin, Texas 78746 O: (512) 636-2540 F: (512) 692-2533 [email protected]

ATTORNEY FOR DEFENDANT JOHN T. SHEFFIELD


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CERTIFICATE OF SERVICE

I do hereby certify compliance with Tex. R. Civ. P. 21. A true and correct copy of the foregoing instrument has been served on all counsel, who have appeared herein by electronic transmission to the electronic mail address on file with the electronic filing manager Rule 21a(1). If a party has not designated an electronic mail address with the electronic filing manager the party was served a true and correct copy of the foregoing instrument in person, by mail, by commercial delivery service by fax or by e-mail, or by such other manner as the Court in its discretion may direct. Rule 21a(2). Service was made on all parties as provided on May 18 2020. . Scott Tschirhart: [email protected]

Charlie Zech: [email protected]

Ilse Bailey: [email protected]

Calley Callahan: [email protected]

Roger Gordon

EXHIBIT 1

CAUSE NO. 19355B

CITY OF INGRAM, TEXAS

v.

MARK B. HENSLEY, JULIE G. HENSLEY, MARK HENSLEY, SR., HAWKINS WARD ENTERPRISES, LLC, TERRY W. HISE, TWANDA BROWN, DAVID BRITTON and JOHN T. SHEFFIELD

§ § § § § § § § § §

IN THE DISTRICT COURT

198th JUDICIAL DISTRICT

IN KERR COUNTY, TEXAS

PLAINTIFF'S FOURTH AMENDED ORIGINAL PETITION


Plaintiff, CITY OF INGRAM, TEXAS, files this Fourth Amended Original Petition

seeking declaratory relief, and asserting claims under Chapter 54 of the Texas Local

Government Code requesting injunctive relief and civil penalties against Defendants MARK

B. HENSLEY, JULIE G. HENSLEY, MARK HENSLEY, SR., HA WK.INS WARD

ENTERPRISES, LLC, TERRY W. HISE, TWANDA BROWN, DAVID BRITTON and

JOHN T. SHEFFIELD, (hereinafter collectively referred to as "Defendants"), and alleges as

follows:

I. DISCOVERY CONTROL PLAN

Plaintiff intends to conduct discovery under Level 2.

II. PARTIES

Plaintiff is the City of Ingram, Texas (hereinafter referred to as "Plaintiff' and/or the

"City") which is located in Kerr County, Texas.

Defendant MARK B. HENSLEY a/k/a MARK HENSLEY, SR., is an individual who,

on information and belief owns or is a co-owner of commercial property located at 3120

Jennifer Godwin, Deputy

Filed 4/3/2020 4:52 PMDawn Kay LantzDistrict Clerk - Kerr County, TXBy:

Junction Highway, 3122 Junction Highway and 3126 Junction Highway in Ingram, Kerr

County, Texas. Mr. Hensley has made an appearance in this action and is before the Court for

all purposes.

Defendant JULIE G. HENSLEY is an individual who, on information and belief, is a

co-owner of commercial property located at 3120 Junction Highway and 3122 Junction

Highway in Ingram, Kerr County, Texas. Ms. Hensley has made an appearance in this action

and is before the Court for all purposes.

Former Defendant ROCKY HA WK.INS was voluntarily nonsuited on February 28,

2020 and is no longer a party to this litigation.

Former Defendant DANIEL HAWKINS was voluntarily nonsuited on May 20, 2019

and is no longer a party to this litigation.

Defendant HAWKINS WARD ENTERPRISES, LLC. is a limited liability corporation

duly authorized to conduct business in the State of Texas and, on information and belief, owns

commercial property located at 3205 Junction Highway, in Ingram, Kerr County, Texas.

Defendant has filed an appearance and is before the Court for all purposes.

Defendant TERRY W. HISE is an individual who, on information and belief, owns

commercial property located at 303 Austin Street, but the legal address is 301 Carolyn Street,

W, in Ingram, Kerr County, Texas. Mr. Hise has filed an appearance and is before the Court

/ ~ r all purposes.

Former Defendant SAMUEL DEAN PIVER was voluntarily nonsuited on December

16, 2019 and is no longer a party to this litigation.

Pltf's 4th Amd Orig Pet Page2

Defendant is TWANDA BROWN is an individual who, on information and belief,

owns residential property located at 114 Washington Street in Ingram, Kerr County, Texas.

Ms. Brown has filed an appearance and is before the Court for all purposes.

Defendant DAVID BRITTON is an individual who, on information and belief, owns

commercial property located at 301 and 401 College Street in Ingram, Kerr County, Texas.

Mr. Britton has made an appearance in this action and is before the Court for all purposes.

Defendant JOHN T. SHEFFIELD is an individual who, on information and belief,

owns commercial property located at 3298 Junction Highway in Ingram, Kerr County, Texas.

Mr. Sheffield may be served by certified mail by serving him at his business address at 3298

Junction Highway, Ingram, Texas.

III. CLAIM FOR RELIEF

Plaintiff seeks monetary relief of $100,000.00 or less and non-monetary relief.

IV. VENUE

Pursuant to TEXAS CIVIL PRACTICE AND REMEDIES CODE §15.002 venue is proper in

Kerr County, Texas as all of the events involved in this claim occurred in said County.

V. FACTUAL BACKGROUND

Defendants are owners of commercial and/or residential property located within the

jurisdiction of the City as set forth above. Defendants are each in dispute with the City over

Chapter 13 of the City of Ingram Code of Ordinances and have been cited in the Ingram

Municipal Court for their violations regarding connection and/or payment of the fees required

under the Code and on information and belief, each have pied not guilty. The original cases

were dismissed by agreement of the parties. Subsequently new Complaints were filed on June

18, 2019.

Pl/f's 4th Amd Orig Pet Page3

There has been a great deal of controversy over the Ingram sanitary sewer system and

the City ordinances adopted to effectuate connection to the system. This controversy has

resulted in multiple lawsuits being filed and this declaratory judgment action is necessary to

prevent having piecemeal litigation with the potential for disparate outcomes.

The Ordinance that adopted the Code is Ordinance No. 2015-1, was approved by City

Council on May 19, 2015. A true and correct copy of Ordinance No. 2015-1 is attached as

Exhibit A. A true and correct copy of the current codification of Chapter 13 of the Utilities

Code is attached as Exhibit B and incorporated herein as if set forth fully .

Ordinance No. 2015-1 therefore expressly superseded all prior ordnances dealing with

the sanitary sewer system.

VI. DECLARATORY JUDGMENT

Plaintiff seeks a declaration pursuant to Texas Civil Practice & Remedies Code §

37.004 that Ordinance No. 2015-1 , and Chapter 13 of the City Code are valid and reasonable

exercises of the City ' s police powers.

An ordinance is presumed to be a valid and reasonable exercise of police power.

Moreover, adoption of an ordinance is final absent a clear showing that the ordinance is

arbitrary, unreasonable, and a clear abuse of discretion. Unless the presumption is rebutted,

the action is final and cannot be revised by the Court. Whether an ordinance is a reasonable

exercise of the City's police power is a question of law.

Additionally, the Legislature has provided a validation statute as Texas Local

Government Code § 51.003:

§ 51.003. Municipal Act or Proceeding Presumed Valid

(a) A governmental act or proceeding of a municipality is conclusively presumed, as of the date it occurred, to be valid and to have occurred in


accordance with all applicable statutes and ordinances if: (1) the third anniversary of the effective date of the act or proceeding has expired; and (2) a lawsuit to annul or invalidate the act or proceeding has not been filed on or before that third anniversary.

Tex. Loe. Gov't Code Ann. § 51.003.

arena:

The Texas Legislature has explicitly given the City the authority to regulate in this

(a) A municipality may: (1) provide for a sanitary sewer system; and (2) require property owners to connect to the sewer system.

(b) If an owner does not connect to the sewer system, the municipality may: (1) fix a lien against the owner's property; (2) charge the cost of the connection to the owner as a personal liability; and (3) impose a penalty on the owner.

Tex. Loe. Gov't Code 214.013. The City seeks a declaration under the Texas Uniform

Declaratory Judgment Act that Ordinance 2015-1 and Chapter 13 of the Ingram Code of

Ordinances are valid and reasonable exercises of the City's police powers consistent with the

Texas and United States Constitutions and that as such, these Ordinances and provisions are

valid and enforceable.

VII. ATTORNEYS' FEES AND COSTS

Pursuant to Texas Civil Practice & Remedies Code § 37.009, Plaintiff respectfully

requests that the Couii award to Plaintiff costs and reasonable and necessary attorneys' fees as

the Court may find to be equitable and just.

VIII. ENFORCEMENT OF CITY ORDINANCES UNDER CHAPTER 54

Texas Local Government Code § 54.012 permits a municipality in Texas to bring a

civil action to enforce ce1iain ordinances:

A municipality may bring a civil action for the enforcement of an ordinance:


( l) for the preservation of public safety, relating to the materials or methods used to construct a building or other structure or improvement, including the foundation, structural elements, electrical wiring or apparatus, plumbing and fixtures, entrances, or exits;

(5) implementing civil penalties under this subchapter for conduct classified by statute as a Class C misdemeanor;

(9) relating to point source effluent limitations or the discharge of a pollutant, other than from a non-point source, into a sewer system, including a sanitary or storm water sewer system, owned or controlled by the municipality;

(12) relating to water conservation measures, including watering restrictions.

Tex. Loe. Gov't Code§ 54.01.

Pursuant to Texas Local Government Code § 54.012 Plaintiff pleads that Chapter 54

of the Texas Local Government Code applies to Chapter 13 of the City of Ingram's Code of

Ordinances because Chapter 13 deals with the City's utilities and specifically Article 13.02

deals with the City's wastewater system. Plaintiff further pleads:

1. Defendant MARK B. HENSLEY a/k/a MARK HENSLEY, SR., is an individual who, on information and belief owns or is a co-owner of commercial property located at 3120 Junction Highway, 3122 Junction Highway and 3126 Junction Highway in Ingram, Kerr County, Texas. Defendant is in violation of the City of Ingram Code of Ordinances Sections 13.02.006, 13.02.017, 13.02.020, and 13.02.022 because he has not filed a completed application for wastewater service connection and has not paid the applicable wastewater system access fee and tap fee despite having received written notice that such service has become available. Defendant has not paid the required deposits. Defendant has not completed the required wastewater connections.

2. Defendant JULIE G. HENSLEY is an individual who, on information and belief, is a co-owner of commercial property located at 3120 Junction Highway and 3122 Junction Highway in Ingram, Kerr County, Texas. Defendant is in violation of the City of Ingram Code of Ordinances Sections 13.02.006, 13.02.017, 13.02.020, and 13.02.022 because she has not filed a completed application for wastewater service connection and has not paid the applicable wastewater system access fee and tap fee despite having received written notice that such service has become available. Defendant has not paid the required deposit. Defendant has not completed the required wastewater connections.


3. Defendant HAWKINS WARD ENTERPRISES, LLC. is a limited liability corporation duly authorized to conduct business in the State of Texas and, on infonnation and belief, owns commercial prope11y located at 3205 Junction Highway, in Ingram, Ken County, Texas. Defendant is in violation of the City of Ingram Code of Ordinances Sections 13.02.006, 13.02.017, 13.02.020, and 13.02.022 because it has not filed a completed application for wastewater service connection and has not paid the applicable wastewater system access fee and tap fee despite having received written notice that such service has become available. Defendant has not paid the required deposit. Defendant has not completed the required wastewater connections.

4. Defendant TERRY W. HISE is an individual who, on information and belief, owns commercial property located at 303 Austin Street, but the legal address is 301 Carolyn Street, W, in Ingram, Kerr County, Texas. Defendant is in violation of the City of Ingram Code of Ordinances Sections 13.02.006, 13.02.017, 13.02.020, and 13.02.022 because he has not filed a completed application for wastewater service connection and has not paid the applicable wastewater system access fee and tap fee despite having received written notice that such service has become available. Defendant has not paid the required deposit. Defendant has not completed the required wastewater connections.

5. Defendant is TWANDA BROWN is an individual who, on infonnation and belief, owns residential property located at 114 Washington Street in Ingram, Kerr County, Texas. Defendant is in violation of the City of Ingram Code of Ordinances Sections 13.02.006, 13.02.017, 13.02.020, and I 3.02.022 because she has not filed a completed application for wastewater service connection and has not paid the applicable wastewater system access fee and tap fee despite having received written notice that such service has become available. Defendant has not paid the required deposit. Defendant has not completed the required wastewater connections.

6. Defendant DAVID BRITTON is an individual who, on infonnation and belief, owns commercial property located at 301 and 401 College Street in Ingram, Kerr County, Texas. Defendant is in violation of the City of Ingram Code of Ordinances Sections 13.02.006, 13.02.017, 13.02.020, and 13.02.022 because he has not filed a completed application for wastewater service connection and has not paid the applicable wastewater system access fee and tap fee despite having received written notice that such service has become available. Defendant has not paid the required deposit. Defendant has not completed the required wastewater connections.

7. Defendant JOHN T. SHEFFIELD is an individual who, on infonnation and belief owns commercial property located at 3298 Junction Hwy in Ingram, Kerr County, Texas. Defendant is in violation of the City of Ingram Code of Ordinances Sections 13.02.006, 13.02.017, 13.02.020, and 13.02.022 because he has not filed a completed application for wastewater service connection and has not paid the applicable wastewater system access fee and tap fee despite having received written notice that such service has become available. Defendant has not paid the required deposit. Defendant has not completed the required wastewater connections.

Pltf's 4th Amd Orig Pet Page 7

Certain environmental studies and ongoing testing and monitoring demonstrate that septic

systems in Ingram Texas have been and continue to contribute to pollution, including elevated

levels of E. coli bacteria pollution on neighboring properties, and in the City's storm sewer

system which drains into the Guadalupe River. These elevated levels of E. coli bacterial

represent a continuing hazard to property owners, tourists, recreational users of the River and

the general public. As such, the City intends to seek relief in the form of injunctive relief as

provided by Section 54.016 and civil penalties as provided by Section 54.017. Defendants

have all been provided with actual notice of their violations of the City Code in the fonn of

municipal citations and specific written notice was provided to each of them, through their

attorney of record in this lawsuit.

IX. PRAYER

WHEREFORE PREMISES CONSIDERED, Plaintiff prays that Defendants MARK

B. HENSLEY, JULIE G. HENSLEY, MARK HENSLEY, SR., HAWKINS WARD

ENTERPRISES, LLC, TERRY W. HISE, TWANDA BROWN, DAVID BRITTON and

' JOHN T. SHEFFIELD be cited to appear and answer, and that the Court award the Plaintiff

relief in the form of a declaratory judgment along with injunctive relief and civil penalties

pursuant to Chapter 54 to enforce Chapter 13 of the City's Code of Ordinances and to protect

the residents of the City of Ingram, the general public and the Guadalupe River from

continuing contamination by Defendants' failing septic systems, its reasonable fees for

attorneys, expert witnesses, and other costs incurred by the Plaintiff before the Court, costs of

suit, prejudgment as well as post judgment interest and for such further and other relief, in law

and equity, to which Plaintiff may be justly entitled.

SIGNED on this the 3rd day of April 2020.


By:


Denton Navarro Rocha Bernal & Zech, PC. attorneys & couns e lors at law • r ampage l aw . com .

A Professional Corporation 2500 W. William Cannon Drive, Suite 609 Austin, Texas 78745 512/279-6431 512/279-6438 (Facsimile) [email protected] [email protected]

CHARLES E. ZECH State Bar No. 50511785 SCOTT M. TSCHIRHART State Bar No. 24013655

CITY PROSECUTOR ILSE D. BAILEY State Bar No. 01523800 117 Painted Post Ln. San Antonio, Texas 78231 (210) 449-3669 [email protected]

Attorneys for Plaintiff City of Ingram, Texas


I, the undersigned, do hereby certify and attest that on this the 3rd day of April 2020, all parties in interest listed below were served with a true and correct copy of the foregoing as indicated or by electronic mail from the Clerk of the Court.

Roger E. Gordon THE LAW OFFICE OF ROGER GORDON 901 South Mopac Expressway Austin, Texas 78746

Pltf's 4th Amd Orig Pet

Electronic Notification

Page 9

Calley D. Callahan KNOLLE, HOLCOMB, CALLAHAN & TAYLOR 13625 Ronald W. Reagan Blvd. Building One, suite 100 Cedar Park, Texas 78613

Pltf's 4'h Amd Orig Pet

CHARLES E. ZECH SCOTT M. TSCHIRHART


Page JO

ORDINANCE NO. 2015-1

AN ORDINANCE OF THE CITY OF INGRAM, TEXAS, ADOPTING AND ENACTING A NEW CODE OF ORDINANCES; PROVIDING FOR THE REPEAL OF CERTAIN ORDINANCES NOT INCLUDED THEREIN; PROVIDING A PENALTY FOR THE VIOLATION THEREOF NOT EXCEEDING $500 GENERALLY OR EXCEEDING $2,000 FOR VIOLATIONS RELATING TO FIRE SAFETY, ZONING OR PUBLIC HEALTH AND SANITATION; PROVIDING FOR THE AMENDMENT OF SUCH CODE; AND PROVIDING WHEN SUCH CODE AND TIDS ORDINANCE SHALL BECOME EFFECTIVE.

BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF INGRAM, TEXAS:

Section 1. That the Code of Ordinances of the City of Ingram, Texas, consisting of Chapters 1 through 14, each inclusive, and Appendices , is hereby adopted and enacted which shall supersede all other general and permanent ordinances of the City passed on or before September 23, 2014.

Section 2. All ordinances of a general and permanent nature enacted on or before September 23, 2014, and not included in the Code or recognized and continued in force by reference therein, are repealed.

Section 3. The repeal provided for in Section 2 hereof shall not be construed to revive any ordinance or part thereof that has been repealed by a subsequent ordinance that is repealed by this ordinance.

Section 4. Unless a differing penalty is expressly provided for within the Code, every person convicted of a general violation of any provision of the Code or any rule, ordinance, or police regulation of the City shall be punished by a fine not to exceed $2,000.00 for violations of all such rules, ordinances and police regulations that govern fire safety, zoning, or public health and sanitation, including dumping of refuse, and not exceeding $500.00 for all other violations. Each act of violation and each day upon which any such violation shall occur shall constitute a separate offense. The penalty provided by this section, unless another penalty is expressly provided, shall apply to the amendment of any Code section, whether or not such penalty is reenacted in the amendatory ordinance. In addition to the penalty prescribed above, the City may pursue other remedies such as abatement of nuisances, injunctive relief and revocation of licenses or permits.

Section 5. Additions or amendments to the Code when passed in such form as to indicate the intention of the City Council to make same a part of the Code shall be deemed to be incorporated into the Code, so that reference to the Code includes the additions and amendments.

Exhibit "A"

Section 6. Ordinances adopted after September 23, 2014 that amend or refer to ordinances that have been codified in the Code shall be construed as if they amend or refer to like provisions of the Code.

Section 7. This ordinance and the Code adopted hereby shall become effective upon final passage of this ordinance.

ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF INGRAM, TEXAS, ON THIS THE 19th DAY OF MAY, 2015.

ATTEST:

Isl Stephanie Breckenridge Stephanie Breckenridge, City Secretary

Isl James Salter James Salter, Mayor

Exhibit "A"

CHAPTER 13

UTILITIES

* ARTICLE 13.01 GENERAL PROVISIONS-

Sec. 13.01.001 Jurisdiction over electrical utility

Under the terms of V.T.C.A., Utilities Code, chapter 33, the city surrenders original jurisdiction to

regulate electrical utility rates within the municipal limits of the city to the public utility commission of the

state as provided by the laws of the state. (Ordinance 84/1106A adopted 11/6/84)

State law reference-Municipal jurisdiction over electric utility, V.T.C.A., Utilities Code, ch. 33.

ARTICLE 13.02 WASTEWATER SYSTE~

Sec. 13.02.001 Definitions

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to

them in this section, except where the context clearly indicates a different meaning:

City wastewater system. The wastewater system owned, maintained and operated by or on behalf of

the City of Ingram in order to furnish sanitary disposal services, including but not limited to its waste

treatment facilities, including pipelines, conduits, pumping stations, force mains, and all other

construction, devices, and appurtenant appliances used to transport waste, as such system may now

be constituted or as it may be hereafter improved, enlarged, or extended by construction,

reconstruction, acquisition, annexation, or otherwise.

Designated city official. A staff member of the City of Ingram who has been appointed by the Ingram city

council or city administrator to manage particular aspect(s) of the city's wastewater system.

Infiltration. The water entering a wastewater system and service connections from the ground, through

such means as, but not limited to, defective pipes, pipe joints, connections, or manhole walls. Infiltration

does not include, and is distinguished from, inflow and wastewater flow.

Inflow. The water discharged into a wastewater system from such sources as, but not limited to, roof

leaders, cellar or yard and area drains, foundation drains, cooling water discharges, drains from springs

and swampy areas, manhole covers, cross-connections from stormwaters, surface runoff, street wash

waters, or drainage. Inflow does not include, and is distinguished from , infiltration and wastewater flow.

Ingram customer classes. Classes of retail wastewater customers within the Ingram wastewater service

area having similar flow and wastewater characteristics contracting with Ingram for centralized

wastewater service. Ingram customer classes shall be identified as:

(1) Residential (one- and two-unit permanent family residences).

(2) Multifamily residential (three or more permanent family residences in one building or a complex of

Exhibit "B"

buildings under one ownership, such as apartments).

(3) Transient residential (multifamily residential with no fixed contracts and from which occupants can

"check out" whenever they wish, such as extended-stay hotels).

(4) Nonresidential (all other customers other than the above-described categories of residential

customers.

Ingram wastewater service area. The geographic region(s) or location(s) within Kerr County, Texas,

specifically identified on the map attached to Ordinance 2013-5 as exhibit B and incorporated herein for

all purposes by reference.

Nonstandard user. Any user that does not fit within the definitions provided for residential or

nonresidential user, or for some reason of physical location or other restraint a user that it would not be

practical or equitable to connect or bill for wastewater service using any of the procedures or formulae

contemplated by the standard provisions of this article.

Person. Persons, individuals, firms, partnerships, companies, corporations, and governmental entities,

whether one or more or any combination of one or more thereof.

System access fee. An initial nonrecurring fee to the customer established by the Ingram city council,

and amended from time to time, for the purpose of recovering specific costs associated with extending

the city's wastewater collection system.

Tap fee. The fee to the customer established by the Ingram city council to allow access to the collection

line.

Wastewater connection. The joining of an individual retail wastewater customer's private service lateral

to the city wastewater system. The point of connection between the city's main and the individual retail

wastewater customer's service lateral constitutes the demarcation between the customer's and the

city's ownership and responsibility, as shown in exhibit A to Ordinance 2013-5, which is attached hereto

and incorporated herein for all purposes by reference.

Wastewater flow. The wastewater delivered into a wastewater system from wastewater connections to

residential and nonresidential units. Wastewater flow does not include, and is distinguished from,

infiltration and inflow.

Wastewater service fee. The dollar amount charged by the City of Ingram to individual retail wastewater

customers within the City of Ingram's wastewater service area for the collection, transportation,

treatment, and/or disposal from the Ingram wastewater system to the City of Kerrville system.

Wye. A pre-constructed connection to the collection line.

(Ordinance 2013-5, sec. 2(01 ), adopted 9/3/13)

Sec. 13.02.002 Water meter required

Any user discharging waste from any property or premises into the wastewater system of the city that

has a private source of water supply will be r~~Sff>•it,lall a water meter of the type and standard

approved by the city for the purpose of measuring the amount of water taken into such facility. Such

meter shall be installed in a location approved by the city and accessible to employees of the city at all

times during regular business hours. The water consumption reflected by such water meter shall be the

basis for determination of the wastewater service fee provided for in this article, unless another basis for

determination of the wastewater rate for that customer has been established and approved by the

designated city official and approved by the city council. (Ordinance 2013-5, sec. 2(02), adopted 9/3/13)

Sec. 13.02.003 Adjustment of charges where portion of water is not discharged into city system

(a) Any person discharging wastewater into the city wastewater system, except a single-family

residential user, who takes water for the manufacture of a product or as cooling water, such that water

provided to his facilities is not discharged into the city wastewater system, may provide an engineering

study to document this situation. This study must be completed by a registered professional engineer

and contain a drawing illustrating the water and wastewater plumbing systems of the premises where

such a situation exists.

(b) When the city official has, as a result of a properly documented engineering study made under the

provisions of this section, determined that a portion of the water passing through the water meter(s) is

not being discharged into the city wastewater system, future billings for wastewater service shall be

adjusted to charge that customer only for the amount of metered water being discharged into the city's

wastewater system.

(c) Any future changes to the water and wastewater systems covered by the engineering study will

require prior notification and approval by the city before such changes are implemented.

(Ordinance 2013-5, sec. 2(03), adopted 9/3/13)

Sec. 13.02.004 Determination of charges where user maintains more than one source of water supply

Where a wastewater system user maintains more than one source of water supply, and only one source

produces wastewater flow discharging into the wastewater system of the city, the wastewater service

fee shall be determined by metering only that source of water supply. Failure of the owner or operator to

install the necessary approved meter will constitute an agreement and consent by such owner or

operator that the city's calculation of the total water usage, irrespective of actual discharge, will be the

basis upon which the wastewater fee will be based. (Ordinance 2013-5, sec. 2(04), adopted 9/3/13)

Sec. 13.02.005 Extension of mains

(a) Definitions. As used in this section, the following terms shall have the meanings ascribed to them

below, unless the context of their usage clearly indicates another meaning:

Construction cost. The full cost for materials and labor for construction of mains and/or service lines,

excluding the cost for surveys, easements and engineering and inspection services.

Developer. The owner or agent of the owner developing lots or tracts of property for further sale, lease,

development or redevelopment for residential or nonresidential use.

Main. Unless otherwise designated, means a Qrinqip§il P.ipe in a system of pipes for conveying Exh1b1t 18 11

water/wastewater.

Non-revenue-producing water main. A water main supplying fire sprinkling systems and other water

services for which the city receives no water revenue.

Off-site main. A water or wastewater main lying outside the tract of land that is being developed or

redeveloped.

Permittee. A person granted a permit to construct a main pursuant to this article, or, where applicable,

an individual property owner requesting permission to make a single connection to the city wastewater

system.

Public easement. An easement or right-of-way dedicated to the city or to the public, either by a recorded

plat or recorded instrument of conveyance, or acquired by condemnation, within which a main may be

constructed, maintained, and operated.

Subdivision. A tract or parcel of land subdivided into lots or tracts by a subdivision or development plat

and to be sold or leased for residential or nonresidential purposes.

Utility construction permit or permits. A permit issued pursuant to this section allowing the developer to

construct a main.

(b) Developer construction in general. All mains dedicated to the city for public use must be constructed

under either a developer contract or a utility construction permit as provided in this section. As a

condition for acceptance by the city, a main must be constructed in accordance with the following

requirements:

(1) The developer must obtain water or wastewater capacity sufficient to serve its development.

(2) An engineer registered and licensed in the state must design the main. The design must conform

to the design standards promulgated by the city. All mains must be constructed in public easements,

and the minimum diameter size for off-site mains shall be eight inches (8"), unless otherwise permitted

by the city. Plans and profiles shall be approved by the city prior to commencement of construction.

(3) The developer must obtain all required subdivision or development plat approvals required under

this section.

(4) Construction of mains estimated by the city to cost more than $25,000.00 must be guaranteed by

payment and performance bonds in the form approved by the city. Bonds must be in the amount of the

construction contract, and the city shall be an obligee for the performance bonds. The performance

bond must guarantee materials and workmanship, including surface restoration, for a period of one year

after the acceptance by the city.

(5) The developer must provide the city with original record drawings in the form prescribed by the

city.

(6) The city must inspect and approve the construction during construction and when completed.

Exhibit 118 11

(c) Construction by developers and individuals under permit.

(1) In the event there are not sufficient funds allocated or materials available for execution of a

developer contract, or the developer chooses not to execute a developer contract, the developer may

proceed to construct the main under a permit issued by the city.

(2) The city shall promulgate a permit application form. The permit application shall include the

following items:

(A) The name and address of the permittee;

(B) The location of the main or service line;

(C) A copy of any approved subdivision development plan showing the proposed development;

(D) Evidence that the permittee has obtained sufficient water and wastewater capacity for its

development;

(E) Evidence of ownership of the proposed development;

(F) An original copy of the plans and specifications prepared by an engineer registered in the state (if

not already approved when the subdivision or development plat was approved by the city); and

(G) Any additional information as may be required by the city to determine compliance under this

section.

(3) Upon submittal of a complete application (including plans and specifications already approved by

the city), valid performance and payment bonds as required under this section, and evidence that the

permittee has obtained required water and wastewater capacity for the development, the city shall grant

the permit.

(d) Requirements for construction under permit. A developer constructing a main under a utility

construction permit must comply with each requirement described in this section, including the

furnishing of performance and payment bonds executed by the contractor and its surety in the full

amount of the construction contract.

(e) Management and control. All mains constructed under a permit shall, upon acceptance by the city,

be managed, controlled, and regulated by the city, and connections therewith shall be governed and

regulated in the same manner as connections with any city utility lines. It is distinctly understood that

such mains shall be placed so as not to interfere with the construction in the streets of the city of any

other underground pipes, ducts, conduits or other structures laid on the part of the city, and the city shall

have the right to take the same up or disconnect or destroy or abandon the same when in the best

interests of the city in the discretion of the city, and the city shall be in no way responsible for any cost

or damage on account thereof. The city shall have the right to lay any main down the streets where

permittee-constructed mains run even though it may render such main(s) useless, without being in any

manner required to compensate the permittee. It is intended by these provisions merely to furnish to the

permittee a means of reimbursing himself froi:iit\Wii>r~ persons similarly situated under the rules

and regulations that may be established by the city council, and not in any manner to obligate the city to

pay or cause to be paid any sum of money on account thereof or to vest in any persons constructing

such mains any right against the city or public use.


Sec. 13.02.006 Mandatory connection; deposit

(a) Utilization of the city wastewater system is essential for the health and welfare of the city and

residents. It is therefore mandatory that any residence or nonresidential facility that discharges waste

shall be connected to the system when such is made available to such property. The wastewater

system shall be deemed to be available to any property where the closest property line is located within

two hundred feet (200') of a wastewater system lateral or main, unless such property is outside the

designated service area of the system as determined by the city and designated on a wastewater

system map on file with the city secretary.

(b) In some instances property may be within the prescribed two hundred feet (200') and not be within

the designated area. Such property owners may make application to the city for a permit for service. If,

in the opinion of the designated city official, such connection will require an engineering study to

determine the feasibility and cost for providing such service, the customer shall be required to obtain

and pay for such study, in addition to the application and other applicable fees. If the connection is

determined to be feasible by the designated city official after review of the engineering study and other

applicable information, such connection may be made; provided, however, that the property owner shall

be responsible for payment of all costs related to the engineering and construction of any service line

necessary for connection to the existing wastewater system prior to such connection being made.

Connections outside of the designated service area will be made in the sole discretion of the city.

(c) For any existing wastewater-producing facility (residential or nonresidential) not previously

connected to the wastewater system, the owner shall file a completed application for wastewater service

connection and pay the applicable fees within 90 days of receiving written notice that such service has

become available. Each applicant shall complete a wastewater connection within 90 days after the

application for service has been filed with the city. For properties with existing connections, application

for service must be made within 30 days of receiving notice from the city that service is required, as set

out in section 13.02.022.

(d) Any party requiring additional time within which to complete the application or connection to the

city's wastewater system may file a written request with the city secretary for an extension of this

timeline, setting out with particularity the particular reasons for the requested extension. Such

application for additional time shall be filed within 10 calendar days of the applicant receiving notice

from the city that the applicant is in violation of the ordinance's timeline. Such application for additional

time shall be placed on the next city council agenda, and the council may, for good cause shown,

extend the time for full connection for up to an additional 90 days.

Exhibit "B"

(e) Wastewater system customers shall be required to post a deposit with the city for each connection

as set out in the rate schedule as adopted by the city council and amended from time to time. Such

deposit is solely to secure payment of charges made for wastewater system service. From time to time,

and based on review of the amount of water usage or other measure of wastewater system usage by

the customer, such required deposit may be increased for a customer when, in the opinion of the

designated city official, it should be increased in order to protect the city for payment of charges made

pursuant to this article. Customers shall be notified upon making application for wastewater service that

a credit reference letter from another utility company showing the customer's prompt payment of utility

bills for the preceding twelve (12) months' service may be accepted in lieu of the required deposit. Upon

termination of wastewater service to a customer, the city shall apply any of the deposit on hand to any

unpaid charges of the customer, and the excess, if any, shall be returned to the customer. In the event

that the deposit is insufficient to cover the final amount due from customer, the city retains all available

remedies, civil and criminal, for collection of such remaining amount due.

(f) Deposits for wastewater service shall be held by the city for twelve (12) months from the initial date

that service is provided to a property. Upon expiration of this period, if there have been no late

payments or failures to pay the amount invoiced, such deposit shall be refunded to the customer or

applied to their account. If there are subsequent late payments or failures to pay, the city may, in the

discretion of the designated official, require the customer to pay a new deposit.


Sec. 13.02.007 Access to premises

The city shall have the right to enter at any reasonable hour any property receiving water and/or

wastewater service from the city for any purpose relating to the provision of such service. (Ordinance

2013-5, sec. 2(07), adopted 9/3/13)

Sec. 13.02.008 Interfering with city installations

No person except a duly authorized employee or representative of the city shall connect or disconnect a

customer's connection with a wastewater main, or damage, destroy, alter, or otherwise disturb any

component or part of the wastewater system owned by the city. (Ordinance 2013-5, sec. 2(08) adopted

9/3/13)

Sec. 13.02.009 Discontinuance of service for violations

The city shall have the right to discontinue water or wastewater service and apply any of the customer's

service guarantee or deposit to payment of amounts owed the city for the nonpayment of any part of

any bill, for the violation of any part of the city's plumbing code, for using a service without applying for

and signing the proper contract, or for the violation of any provisions of this article or any lawful rule of

the city. (Ordinance 2013-5, sec. 2(09), adopted 9/3/13)

Sec. 13.02.010 Payment of bills

The rates and charges fixed and prescribed in this article shall be paid by users of the city's wastewater

system upon receipt of a bill. (Ordinance 201l§ih~I,lt~Cl), adopted 9/3/13)

Sec. 13.02.011 Penalty for late payment of bill; exemption from penalty

Any user or customer of the system who does not pay the amount due before the date that a penalty is

due to be assessed shall be charged a penalty in the amount of ten percent of the current amount of

such bill. Any citizen whose sole income is received on a once-a-month basis may make written

application to the city for an exemption from the penalty. No penalty will be charged for late payments

on such exempted accounts unless they are more than 30 days past due. If an exempted account

should become delinquent to the point of termination of service twice in any 12-month period, such

exemption will be discontinued. (Ordinance 2013-5, sec. 2(11 ), adopted 9/3/13)

Sec. 13.02.012 Disconnection of service for failure to pay bill; reconnection charge

If any customer does not pay any bill in arrears and all other rates and charges due and payable within

25 days of the date of the bill, the city shall cause the customer's water service to be disconnected.

Whenever the amount past due and delinquency has been paid by such user or customer, such service

may be resumed, but there shall be a reconnection charge payable to the city in advance of such

reconnection. The reconnection charge for water service shall be not less than the actual cost to the city

for disconnecting and reconnecting water and/or sewer service. If more than one trip is necessary then

an additional charge of such reconnection fee shall be made for each trip. (Ordinance 2013-5, sec.

2( 12), adopted 9/3/13)

Sec. 13.02.013 Exemptions from deposit requirement

(a) Credit reference letter. Prior to commencement of service, the prospective customer shall provide a

credit reference letter from a prior utility company stating that their bills for at least the preceding 12

months were paid in full and on time. If such a letter cannot be provided, the prospective customer shall

make a deposit as provided in the city's current adopted fee schedule.

(b) Nonresidential customers with satisfactory credit history. If the owner of owners of a nonresidential

account have already established a satisfactory credit history with the city and the ownership is exactly

the same, the deposit may be waived by the designated city official.


Sec. 13.02.014 Forfeiture of deposit

Any person who becomes delinquent in payment of a wastewater service charge, whose service deposit

is not entirely consumed by delinquent bills, shall forfeit the balance of such deposit, if any, and such

unconsumed balance shall be applied to such delinquent wastewater charge. (Ordinance 2013-5, sec.

2(14), adopted 9/3/13)

Sec. 13.02.015 Free service or reduced rates prohibited

All customers shall be required to pay the rates established by the city council, and no reduced rates or

free wastewater service shall be provided to any such person, property or premises. (Ordinance 2013-5,

sec. 2(15), adopted 9/3/13)

Sec. 13.02.016 Calculation of monthly charge

Every consumer and user of the municipal waste~at~r §Y,ijem shall pay to the city a monthly charge for l:xh1b1t B

the use of the system, which is calculated as follows:

( 1) Basic rate components.

(A) The monthly wastewater service fee for each user not having a private water supply and/or not

metered, shall be as follows:

(i) -Monthly wastewater account maintenance fee;

(ii) Wastewater use fee;

(iii) Debt service fee;

(iv) Operation and maintenance fee; and

(v) Capital reserve fee.

(B) A monthly wastewater service fee for each user shall be paid with respect to each connection to

the wastewater system, regardless of the classification of the user and regardless of whether or not the

user's water supply is metered.

(C) The city council may change fees and rates from time to time.

(D) The monthly wastewater service fee for multifamily residential buildings such as apartments with

a single water meter shall be charged at the rate of 75% of the established monthly wastewater service

fee for all residences served by the single meter. The 25% discount represents a vacancy allowance.

(Example: To calculate the monthly fee for a 20-unit apartment building with one water meter, multiply

the established fee for one residential unit times 20, then multiply that amount times 75%.)

(2) Right to audit billings for users where water usage is not metered. Where water usage is not metered,

the city reserves the right to audit water service billings in the event of any request for a change in

wastewater use rates or in the event of any dispute concerning wastewater use charges.


Sec. 13.02.017 Tap fee

The tap fee applicable to users of the city's wastewater system shall be not less than the actual cost to

the city. (Ordinance 2013-5, sec. 2(17), adopted 9/3/13)

Sec. 13.02.018 Charge for additional trips for new service

If a request for new service is made and more than one trip by a city representative is made, an

additional fee shall be charged for each such additional trip. (Ordinance 2013-5, sec. 2(18), adopted

9/3/13)

Sec. 13.02.019 Maintenance of wastewater lines

(a) Responsibility for single-line connections. Title to all wastewater plumbing from private property to the

city service tap belongs to the property owner utilizing the city wastewater system service connection

(see exhibit A attached to Ordinance 2013-5). All wastewater plumbing shall be maintained by the

owner in intact, proper working condition. Failure to maintain such plumbing shall constitute a violation

Exhibit "B"

of this article subject to penalties provided herein.

(b) Responsibility for multi-line connections. In certain locations there may be a service line on personal

property which was installed for the purpose of providing service to more than one residential unit. Such

multi-connection service line will connect the personal residential line to the wastewater main of the city.

Additional lines from the city's multi-connection line to the individual residential connections shall be

maintained by the owner of the property.


Sec. 13.02.020 Violations; penalty

(a) In addition to all other remedies provided for in this article or other ordinances of the city, or

provided for by state law, the city shall disconnect unpermitted connections to the city mains, or may

otherwise terminate utility services as provided for elsewhere in this article or other city ordinances or by

state law. The penalty for violations of this article not otherwise specified herein shall be a fine in

accordance with the general penalty provided in section 1.01 .009 of this code; provided, however, that

no penalty shall be greater or less than that provided for the same or a similar offense under state law.

Each day that a violation occurs or is allowed to continue constitutes a separate offense.

(b) Failure of any person, after receiving proper notification, to make timely application and/or

payment for wastewater connection, or failure to complete a required wastewater connection, shall

constitute a violation of this article and shall subject that person to the penalties set out in subsection (a)

above. This sanction is in addition to, and not in lieu of, other penalties or sanctions that may be

available pursuant to other city ordinances, state law, or federal law.

(c) The suspension, revocation, cancellation, or denial of any license, permit or certificate by the city

shall not prohibit or prevent the imposition of any civil or criminal penalty. The imposition of any civil or

criminal penalty shall not prevent the suspension, revocation, cancellation, or denial of any license,

permit or certificate issued by the city.

(d) The prohibition of any act in this article, or any rule or regulation adopted hereunder, shall include

the causing, securing, aiding, or abetting of another person to do such act.

(Ordinance 2013-5, sec. 2(20), adopted 9/3/13; Ordinance adopting Code)

Sec. 13.02.021 Regulation of private sewage facilities

The Rules of Kerr County, Texas, for Private Sewage Facilities, a copy of which shall be on file in the

office of the city secretary, as they are now in effect and as they may hereafter be amended from time to

time, are hereby adopted by the city and incorporated in this section by reference as if set out at length

in this section, subject to the changes hereafter set forth to be in effect in the city, which changes shall

also be on file in the office of the city secretary. (Ordinance 2013-5, sec. 2(21 ), adopted 9/3/13)

State law reference-On-site sewage disposal systems, V.T.C.A., Health and Safety Code, ch. 366.

Sec. 13.02.022 Application for service; responsibility for payment of charges

(a) Generally: payment of fees and deposit: customer service agreement. Exhibit "B"

(1) Any person required to be connected to the city's wastewater system as provided in section

13.02.006 shall file an application for a customer service agreement with the city or the designated city

official on a form to be provided by the city. Such application shall be filed within thirty (30) days from

the date that notice is given by the city that service is available to the person's property.

(2) All affected property owners shall file an application for service prior to the beginning of new

construction, remodeling, relocation, or other alteration of a structure required to be connected to the

wastewater system, if said structure is not already connected and receiving service. Applications shall

be accompanied by the required deposit, tap fee and system access fee, as established and published

from time to time by the city. A property owner's failure to make timely application for a connection may

be deemed a violation of this article.

(3) Applicants for wastewater service shall complete and file with the city or the designated city official

a customer service agreement (contract for wastewater service) on a form to be provided by the city.

This agreement will be considered effective when the application has been completed and filed with the

city, all required fees have been paid, and the application has been approved by staff. Wastewater

service will not be provided until the application is complete and approved.

(b) Responsibility for fees for multiple living units. Where the city does not supply the source of water for

all multiple living unit connections at a property, the owner of the premises will be responsible for the

wastewater system fee, unless the owner provides individual water meters for each unit.

(c) No deductions for vacancies in apartments or duplex residences; removal of apartment or duplex unit from

service. No deductions will be made for vacancies in the application of wastewater system service fees

to apartment or duplex residences. Such units removed from service for reasons of remodeling or

abandonment may be relieved from payment of wastewater system charges if requested in writing and

sworn to by the owner. False statement(s) on such form may be prosecuted as a violation of this article

and/or as perjury under state law.


Sec. 13.02.023 Adjustment of fees for nonstandard users

When, in the opinion of the designated city official, a user or applicant for new connection to the

wastewater system does not clearly fit in a previously established category for use, or if application of

the established connection or use fees to the user or applicant for new service would be inequitable, the

designated city official may, upon written and verified application by the user, make adjustments to the

method of calculating connection or user fees. (Ordinance 2013-5, sec. 2(24 ), adopted 9/3/13)

Sec. 13.02.024 Billing

(a) Generally.

(1) Billing for wastewater system service fees shall be made to wastewater system customers of the

city on a monthly basis.

(2) All wastewater system users' bills shall ~R~ffl~n full on or before fifteen (15) days after the

date of the bill to the customer, unless said customer chooses to contest the bill, in which case the

customer must follow the procedures prescribed below in subsection (b) of this section.

(3) If a bill is not paid in full on or before fifteen (15) days after the date of the bill, a penalty of ten

percent (10%) of the bill shall be added to the amount due as a fee for late payment.

(4) If any customer shall refuse or neglect to pay fees when due for wastewater service furnished by

the city, such customer shall be sent written notice of delinquency. If such account continues to be

unpaid for 25 days from the date of the bill, service shall be terminated.

(5) Notwithstanding the provisions for late payment penalties, late fees shall not apply to state or

federal governmental entities or the city, unless provided otherwise by contract.

(6) For billing purposes, the occupant of all rental property, residential and nonresidential, shall be the

responsible party for payment of all wastewater fees. A non-occupant owner may, at the owner's

discretion, establish a wastewater account for rental property if the owner requests the same in writing,

but there shall be no more than one wastewater account registered for each connection.

(b) Adjustment of bills. In the event that a customer disputes a bill, and in the opinion of the designated

city official an adjustment to the bill is appropriate, a customer may make a request to the designated

city official for adjustment of a bill or rate or method of rate calculation. The application for rate/bill

adjustment shall be reviewed by the designated city official within five (5) working days of receipt of the

application. After review, the designated city official shall make adjustments as he finds appropriate.

(c) Continued use of wastewater system after failure to pay charges. Any person failing or refusing to pay

the charges provided for in this article, or failing or refusing to deposit the required sum in the event of a

dispute as to the amount of such charges, in the time and manner required, and who continues to

discharge waste from his property into the city's wastewater system, shall be guilty of a violation of this

article. Any conviction of a person for violating this article shall not be a bar to the city's use of any or all

applicable other civil or criminal remedies available to it for seeking compliance with this article,

including but not limited to institution of a suit for the collection of delinquent charges, an injunction to

enjoin such person from continuing to discharge waste into the wastewater system without complying

with the provisions of this article, or a suit for damages.

(d) Furnishing false information. It is a violation of this article to knowingly furnish the city with false or

fraudulent information, or to intentionally or knowingly omit information that, if known by city

representatives, would significantly change the city's decision-making in any matter related to

implementation or use of this article.

(e) Lien for delinquent charges. The city is authorized by this article, pursuant to Tex Local Government

Code sections 51.001, 51.012, 552.001 and 552.0025, to impose liens on property for the purpose of

securing payment of delinquent charges incurred by property owners as a result of providing water and

wastewater service to such property. This remedy is in addition to, and not in lieu of, other available civil

and criminal remedies. Exhibit "B"

(f) Termination of water service for nonpayment of wastewater bill. Pursuant to 30 TAC section 291.88(e),

as amended, the water company providing water service to a wastewater customer's location will

terminate water service to the location upon notice from the city that the customer's wastewater bill

payment is delinquent and undisputed.


Sec. 13.02.025 lnterlocal agreement with City of Kerrville; Kerrville requirements incorporated

(a) The provisions of this article are intended to operate in accordance with and pursuant to the

interlocal agreement (exhibit C attached to Ordinance 2013-5) between the City of Ingram and the City

of Kerrville, executed on October 25, 2005, for the purpose of allowing the City of Ingram to deliver its

wastewater to the City of Kerrville's wastewater system for acceptance, treatment and disposal by the

City of Kerrville. All provisions of this article should be interpreted, if such interpretation appears

reasonable in the opinion of the designated city official, in a manner consistent with the provisions of

this interlocal agreement, including any amendments to or extensions of such agreement.

(b) This article shall be interpreted to incorporate all City of Kerrville requirements related to

wastewater service, and shall require compliance with those requirements, where such Kerrville

requirements are not in conflict with City of Ingram ordinances and requirements.


Sec. 13.02.026 Fee schedule

(a) Sewer rates. Rates shall be established from time to time by the city council and maintained in the

offices of the city

(b) Deposits.

(1) Deposit amounts shall be established from time to time by the city council and maintained in the

offices of the city.

(2) Deposits refunded after 12 continuous months without any past due payments.

(3) A credit reference letter may be accepted in lieu of a deposit from another public utility showing

prompt payment of that utility's invoices for the preceding 12 months.

(c) Fees.

(1) New account fee: Shall be established from time to time by the city council and maintained in the

offices of the city for each account, regardless of length of service history.

(2) Returned check fee: Shall be established from time to time by the city council and maintained in

the offices of the city. If there have been two returned checks or other disallowed items for an account

during the preceding twelve (12) months, only cash, money orders, or a credit card will be accepted in

payment of the invoice.

(3) Disconnect/reconnect fee: Shall be established from time to time by the city council and

maintained in the offices of the city Exhibit "B"

(4) Accounts having been disconnected for failure to pay will be deemed to have abandoned any

credit reference letter, and will be required to pay a full deposit prior to reconnection.

(d) Terms of service.

(1) Bills are due and payable upon receipt. Any use or customer of the system who does not pay the

amount due within 15 days of the date of the bill shall be charged a penalty in the amount of ten percent

(10%) of the current amount of such bill.

(2) If the customer does not pay any bill plus late charges and any other accumulated fees and/or

charges due and payable before the 26th day after the date of the bill, service will be disconnected.

Service may be restored after payment in full of all amounts due, plus a new reconnection fee. All

required payments must be made prior to reconnection of the wastewater service.

(Ordinance 2012-9 adopted 11/6/12; Ordinance adopting Code)

Exhibit '"B'"

EXHIBIT 2

CAUSE NO. 19355B

CITY OF INGRAM, TEXAS

v.

MARK B. HENSLEY, JULIE G.

HENSLEY, MARK HENSLEY, SR.

ROCKY HAWKINS, DANIEL

HAWKINS, HAWKINS WARD

ENTERPRISES, LLC, TERRY W.

HISE, SAMUEL DEAN PIVER, AND

TWANDA BROWN

§

§

§

§

§

§

§

§

§

§

§


198TH JUDICIAL DISTRICT


PLAINTIFF CITY OF INGRAM, TEXAS' MOTION FOR SUMMARY JUDGMENT


NOW COMES, Plaintiff the CITY OF INGRAM, TEXAS ("Plaintiff' and/or the "City")

and files this it's Motion for Summary Judgment on its claims against the remaining Defendants'

MARK B. HENSLEY2, JULIE G. HENSLEY, HAWKINS WARD ENTERPRISES, LLC,

TERRY W. HISE, and TWANDA BROWN (collectively referred as "Defendants") in

accordance with Rule 166a of the Tex. R. Civ. P., and would respectfully show the Court the

following:

A. INTRODUCTION

1. Defendants are owners of commercial and/or residential property located within the

jurisdiction of the City as set forth above. Defendants are each in dispute with the City over

Chapter 13 of the City of Ingram Code of Ordinances and have been cited in the Ingram

Municipal Court for their violations regarding connection and/or payment of the fees required

1 On May 22, 2019, this Court issued an Order Granting Notice of Nonsuit against Defendant Daniel Hawkins, Only

and on December 16, 2019 issued an Order Granting Notice of Nonsuit of Defendant Samuel Dean Piver, Only. On

February 26, 2020, Defendant Rocky Hawkins, only, was voluntarily nonsuited. 2 Defendant Mark B. Hensley and Defendant Mark Hensley, Sr. are the same individual.

City's MSJ Page 1

Barbara Hardaway, Deputy

Filed 2/26/2020 3:31 PMDawn Kay LantzDistrict Clerk - Kerr County, TXBy:

under the Code and on information and belief, each have pled not guilty. The original cases

were dismissed by agreement of the parties. Subsequently new Complaints were filed on June

18, 2019. Each Complaint shows the specific part of the City of Ingram Code of Ordinances

that are alleged to have been violated relating to that individual property.

2. There has been a great deal of controversy over the Ingram sanitary sewer system and the

City ordinances adopted to effectuate connection to the system. This controversy has resulted in

multiple lawsuits being filed and a declaratory judgment action was necessary to prevent having

piecemeal litigation with the potential for disparate outcomes.

3. The Ordinance that adopted the Code is Ordinance No. 2015-1, adopted on May 19,

2015. A certified copy of Ordinance No. 2015-1 is attached as Exhibit "A." A certified copy of

Chapter 13 of the Ingram Code of Ordinances is attached as Exhibit "B." Ordinance No. 2015-1

expressly superseded all prior ordnances dealing with the sanitary sewer system.

4. This matter is not currently set for trial3.

B. SUMMARY OF THE MOTION

5. The City's Motion for Summary Judgment seeks a declaration pursuant to Texas Civil

Practice & Remedies Code§ 37.004 that Ordinance No. 2015-1 and Chapter 13 of the City Code

are valid and reasonable exercises of the City's police powers. An ordinance is presumed to be

a valid and reasonable exercise of police power. Moreover, adoption of an ordinance is final

absent a clear showing that the ordinance is arbitrary, unreasonable, and clear abuse of

discretion. Unless the presumption is rebutted, the action is final and cannot be revised by the

Court. Whether an ordinance is a reasonable exercise of the City's police power is a question of

law.

3 This cause of action was stayed due to Defendant Twanda Brown's appeal of this court's granting of the City's Plea to the Jurisdiction and dismissing her counterclaim against the City. The Fourth Court of Appeals affirmed the trial court's order and judgment on November 20, 2019 and the Mandate was issued on January 29, 2020.

City's MSJ Page 2

6. The Texas Legislature provided a validation statute as Texas Local Government Code §

51.003 to provide certainty to municipalities concerning their actions:


(a) A governmental act or proceeding of a municipality is conclusively presumed, as of the date it occurred, to be valid and to have occurred in accordance with all applicable statutes and ordinances if:

(1) the third anniversary of the effective date of the act or proceeding has expired; and (2) a lawsuit to annul or invalidate the act or proceeding has not been filed on or before that third anniversary.

Tex. Loe. Gov't Code Ann.§ 51.003 (emphasis added) .

7. The City seeks a declaration under the Texas Unifonn Declaratory Judgment Act that

Ordinance 2015-1 and Chapter 13 of the Ingram Code of Ordinances are valid and reasonable

exercises of the City's police powers consistent with the Texas and United States Constitutions

and that as such, these Ordinances and provisions are valid and enforceable.

Attorney's Fees and Costs

8. Pursuant to Texas Civil Practice & Remedies Code § 37.009, Plaintiff respectfully

requests that the Court award to Plaintiff costs and reasonable and necessary attorneys' fees as

the Court may find to be equitable and just.

C. STATEMENT OF FACTS

9. All references contained above and below are to exhibits that are contained in the

Appendix to this Motion, unless otherwise indicated. Plaintiff incorporates the matters and

evidence referred to herein by reference for all purposes.

10. The City adopted Ordinance 2015-1 on May 19, 2015. See Exhibit "A." Ordinance

2015-1 adopted and enacted the Code of Ordinances of the City of Ingram Texas, Chapters 1

through 14. ("Code of Ordinances").

City's MSJ Page 3

11. Chapter 13 of the Code of Ordinances deals with utilities and specifically Article 13 .2

deals with the City's Wastewater System. See Exhibit "B."

12. Section 13.02.006(a) of the Code of Ordinances contains a finding that:

(a) Utilization of the city wastewater system is essential for the health and welfare of the city and residents. It is therefore mandatory that any residence or nonresidential facility that discharges waste shall be connected to the system when such is made available to such property. The wastewater system shall be deemed to be available to any property where the closest property line is located within two hundred feet (200') of a wastewater system lateral or main, unless such property is outside the designated service area of the system as determined by the city and designated on a wastewater system map on file with the city secretary.

See Exhibit "B." Section 13 .02.006 provides for deposits, rate schedules, time limits for

applications and payment of fees, penalties, exemptions, calculation of monthly charges, tap

fees, penalties for violations and other matters relating to the City's wastewater system.

13. Each of the Defendants in this suit owns property that is subject to Article 13.2 in that the

properties are all either commercial, or in one case, Residential (Defendant Brown), and all have

a property line that is located within two hundred feet of a wastewater system lateral or main.

See Affidavit of Mark Bosma, Exhibit "D."

14. No lawsuit has been filed against the City oflngram seeking to annul or invalidate either

Ordinance No. 2015-1 or Chapter 13 of the Ingram Code of Ordinances between May 19, 2015

and May 19, 2018. See Affidavit of Stephanie Breckenridge, Exhibit "C." Therefore, Ordinance

No. 2015-1 and Chapter 13 are conclusively presumed to be valid as of May 19, 2015.

D. SUMMARY JUDGMENT EVIDENCE

15. In support of its Motion, the City relies upon the following attached evidence:

Exhibit "A": A certified copy of Ordinance No. 2015-1.

Exhibit "B": A certified copy of Chapter 13 of the Ingram Code of Ordinances.

City's MSJ Page 4

Exhibit "C": Affidavit of City Secretary Stephanie Breckenridge.

Exhibit "D": Affidavit of City Administrator/Designated City Official Mark Bosma.

E. TRADITIONAL MOTION FOR SUMMARY JUDGMENT

16. Plaintiff, the City of Ingram, Texas moves for summary judgment under Rule 166a(a)

("traditional") of the Texas Rules of Civil Procedure.

(a) For Claimant. A party seeking to recover upon a claim, counterclaim, or crossclaim or to obtain a declaratory judgment may, at any time after the adverse party has appeared or answered, move with or without supporting affidavits for a summary judgment in his favor upon all or any part thereof. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to amount of damages.

Tex. R. Civ. P. 166a.

17. Specifically, the City is entitled to summary judgment that Ordinance No. 2015-1 and

Chapter 13 of the Ingram Code of Ordinances are valid and enforceable acts of the City and

effective as of May 19, 2015.

18. Under the traditional standard for summary judgment, the movant has the burden to show

no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of

law. See Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Haus. Fin. Corp., 988

S.W.2d 746, 748 (Tex.1999). A plaintiff who moves for summary judgment on a claim for

declaratory relief must conclusively prove no genuine issue of material fact exists, and it is

entitled to the requested declaratory relief as a matter of law. See Schuhardt Consulting Profit

Sharing Plan v. Double Knobs Mountain Ranch, Inc., 468 S.W.3d 557, 565- 66 (Tex. App.--San

Antonio 2014, pet. denied); Indian Beach Prop. Owners' Ass'n, 222 S.W.3d 682, 699-700 (Tex.

App.-Houston [1st Dist.] 2007, no pet.).

19. The City oflngram adopted Ordinance No. 2015-1 and Chapter 13 of the Ingram Code of

Ordinances on May 19, 2015. See Exhibits "A," "B," & "C." The third anniversary of the

City's MSJ Page 5

effective date of the adoption has expired and no lawsuit to annul or invalidate Ordinance No.

2015-1 and Chapter 13 of the Ingram Code of Ordinances was filed before the third anniversary

of the adoption of these measures. See Exhibit "C".

20. The Texas Legislature has the power to ratify any act that it had the power to authorize.

See City of Murphy v. City of Parker, 932 S.W.2d 479, 481 n. 1 (Tex. 1996). Texas Local

Government Code § 5 l.003(a) is a validation statute designed to ratify acts by a city that are not

challenged in a timely manner:


(a) A governmental act or proceeding of a municipality is conclusively presumed, as of the date it occurred, to be valid and to have occurred in accordance with all applicable statutes and ordinances if:

(1) the third anniversary of the effective date of the act or proceeding has expired; and (2) a lawsuit to annul or invalidate the act or proceeding has not been filed on or before that third anniversary.

Tex. Loe. Gov't Code § 51.003(a). "Validation acts are remedial and are to be liberally

construed." Murmur Corp. v. Bd. of Adjustment of City of Dallas, 718 S.W.2d 790, 793 (Tex.

App.- Dallas 1986, writ refused NRE)(quoting Leach v. City of North Richland Hills, 627

S.W.2d 854, 858 (Tex. App.-Fort Worth 1982, no writ), see also TCI W End, Inc v. City of

Dallas, 486 S.W.3d 692, 697 (Tex. App.--Dallas 2016, pet. denied)("Validation acts are to be

liberally construed and may cure defects that do not render the ordinance unconstitutional.").

If a statute is curative or remedial in its nature, the rule is generally applied that it be given the most comprehensive and liberal construction possible. It certainly should not be given a narrow, technical construction which would defeat the very purpose for which the statute was enacted.

City of Mason v. W Tex. Utilities Co., 150 Tex. 18, 29, 237 S.W.2d 273, 280 (1951). In the

present case, under the current validation statute, the failure to file suit within three years makes

City 's MSJ Page 6

the validity of Ordinance No. 2015-1 and Chapter 13 of the Ingram Code of Ordinances

"conclusively presumed." Tex. Loe. Gov't Code § 51.003(a).

21. None of the exceptions contained in Texas Local Government Code § 51.003 have

occurred or are applicable.

22. There are no genuine issues of material fact and the City is entitled to summary judgment

that that Ordinance No. 2015-1 and Chapter 13 of the Ingram Code of Ordinances are valid and

enforceable acts of the City as a matter of law. See City of Roanoke v. Town of Westlake, 111

S.W.3d 617, 632 (Tex. App.-Fort Worth 2003, pet. denied)(trial court correctly granted

summary judgment where validation statute validated annexation); City of Alton v. City of

Mission, 164 S.W.3d 861, 871 (Tex. App.-Corpus Christi-Edinburg 2005, pet. denied);

Mayhew v. Town of Sunnyvale, 774 S.W.2d 284, 296 (Tex. App.--Dallas 1989, writ denied)

( affirming summary judgment to the extent that validation statute cured the town's alleged

violations of the Texas Zoning Enabling Act); Mantas v. City of Mansfield, No. 02-09-00315-

CV, 2011 WL 476776, at *4 (Tex. App.-Fort Worth Feb. 10, 2011, no pet.)(finding that the

"trial court did not err by granting summary judgment on the ground that those actions were

validated by section 51.003 of the local government code."); Kinkaid Sch., Inc. v. McCarthy,

833 S.W.2d 226, 232 (Tex. App.-Houston [1st Dist.] 1992, no pet.)(holding that the trial court

abused its discretion in misapplying previous version of validation statute to the facts and the

statute made the ordinance valid) .

F. NO EVIDENCE MOTION FOR SUMMARY JUDGMENT

23. Alternately, the City seeks a no-evidence motion for summary judgment pursuant to Rule

166a(i):

(i) No-Evidence Motion. After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the

City's MSJ Page 7

ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. The motion must state the elements as to which there is no evidence. The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.

Tex. R. Civ. P. 166a(i).

24. In the present case, the City is entitled to a summary judgment that Ordinance No. 2015-1

and Chapter 13 of the Ingram Code of Ordinances are valid and enforceable acts of the City as a

matter oflaw under the validation statute. See Tex. Loe. Gov't Code§ 51.003.

25. However, the validation statute contains certain exceptions and exclusions. Defendants

have not and cannot produce summary judgment evidence to raise a genuine issue of material

fact as to any of those exceptions or exclusions. These exceptions and exclusions are as follows:

(b) This section does not apply to:

(1) an act or proceeding that was void at the time it occurred; (2) an act or proceeding that, under a statute of this state or the United States, was a misdemeanor or felony at the time the act or proceeding occurred; (3) an incorporation or attempted incorporation of a municipality, or an annexation or attempted annexation of territory by a municipality, within the incorporated boundaries or extraterritorial jurisdiction of another municipality that occurred without the consent of the other municipality in violation of Chapter 42 or 43; (4) an ordinance that, at the time it was passed, was preempted by a statute of this state or the United States, including Section 1.06 or 109.57, Alcoholic Beverage Code; or (5) a matter that on the effective date of this section:

(A) is involved in litigation if the litigation ultimately results in the matter being held invalid by a final judgment of a court; or (B) has been held invalid by a final judgment of a court.

Tex. Loe. Gov't Code § 5 l .003(b ).

26. Defendants cannot produce summary judgment evidence to raise a genuine issue of

material fact that the adoption of Ordinance No. 2015-1 and Chapter 13 of the Ingram Code of

Ordinances was void at the time it occurred.

City's MSJ Page 8

27. Defendants cannot produce summary judgment evidence to raise a genume issue of


Ordinances was an act or proceeding that, under a statute of this state or the United States, was a

misdemeanor or felony at the time it occurred.



Ordinances was an incorporation or attempted incorporation of a municipality, or an annexation

or attempted annexation of territory by a municipality, within the incorporated boundaries or

extraterritorial jurisdiction of another municipality that occurred without the consent of the other

municipality in violation of Chapter 42 or 43.



Ordinances was preempted by a statute of this state or the United States, including Section 1.06

or 109.57, Alcoholic Beverage Code at the time it occurred.



Ordinances was, as of the effective date of Section 51.003 (June 19, 1999) was involved in

litigation if the litigation ultimately results in the matter being held invalid by a final judgment of

a court or (B) has been held invalid by a final judgment of a court.

31. The Court must grant summary judgment unless Defendants produce summary judgment

evidence raising a genuine issue of material fact on one or more of the exceptions and exclusions

from Tex. Loe. Gov't Code§ 51.003 .

City's MSJ Page 9

G. PRAYER

WHEREFORE PREMISES CONSIDERED, Plaintiff CITY OF INGRAM, TEXAS

prays this Court grants its Motion for Summary Judgment and declare that Ordinance No. 2015-1

and Chapter 13 of the Ingram Code of Ordinances are valid and enforceable acts of the City as a

matter of law, that the Court set a hearing or take under consideration by submission the City's

request for attorneys' fees and costs, and for such further relief to which Plaintiff RDC may be

justly entitled.

SIGNED on this 26th day of February 2020.

By:

City's MSJ


Denton Navarro Rocha Bernal & Zech, P.C. attorn e ys & couns e lors at l aw • r arnpag e l aw com

A Professional Corporation 2500 W. William Cannon Drive, Suite 609 Austin, Texas 78745 512/279-6431 512/279-6438 (Facsimile) [email protected] scott. tschirhart@ram page-a us. com

CHARLES E. ZECH State Bar No. 50511785 SCOTT M. TSCHIRHART State Bar No. 24013655

Ingram City Prosecutor ILSE D. BAILEY State Bar No. 01523800 11 7 Painted Post Ln. San Antonio, Texas 78231 (210) 449-3669 [email protected]

Attorneys for City of Ingram, Texas

Page 10


I, the undersigned, do hereby certify and attest that on this the 26th day of February 2020, all parties in interest listed below have received a true and correct copy of the foregoing as indicated or by electronic mail from the Clerk of the Court.

Roger E. Gordon The Law Office of Roger Gordon 901 South Mopac Expressway Austin, Texas 78746

Calley D. Callahan Knolle, Holcomb, Callahan & Taylor 13625 Ronald W. Reagan Blvd. Building ONE, Suite 100 Cedar Park, Texas 78613

City's MSJ

CHARLES E. ZECH SCOTT M. TSCHIRHART



Page 11

ORDINAt"1CE NO. 2015-1

AN ORDINANCE OF THE CITY OF INGRAM, TEXAS, ADOPTING AND ENACTING A NEW CODE OF ORDINANCES; PROVIDlNG FOR THE REPEAL OF CERTAIN ORDINANCES NOT JNCLUDED THEREJN; PROVIDlt"-TG A PENALTY FOR THE VIOLATION THEREOF NOT EXCEEDING $500 GENERALLY OR EXCEEDING $2,000 FOR VIOLATIONS RELATING TO FIRE SAFETY, ZONING OR PUBLIC HEALTH AND SANITATJON; PROVIDING FOR THE AlvfENDMENT Of SUCH CODE; AND PROVIDJNG WHEN SUCH CODE AND THIS ORDINANCE SHALL BECO1\1E EFFECTIVE.

BE IT ORDA1NED BY THE CITY COUNCIL OF THE CITY OF INGRAM, TEXAS:

Section 1. That the Code of Ordinances of the City of Ingram, Texas, consisting of Chapters I through 14, each inclusive, and Appendices, is hereby adopted and enacted which shall supersede all other general and permanent ordinances of the City passed on or before September 23, 2014.

Section 2. All ordinances of a general and permanent nature enacted on or before September 23, 2014, and not included in the Code or recognized and continued in force by reference therein, are repealed.

Section 3. The repeal provided for in Section 2 hereof shall not be construed to revive any ordinance or part thereof [hat has been repealed by a subsequent ordinance that is repealed by this ordinance.

Section 4. Unless a differing penalty is expressly provided for within the Code, every person convicted of a general violation of any provision of the Code or any rule, ordinance, or police regulation of the City shall be punished by a fine not to exceed $2,000.00 for violations of all such rules, ordinances and police regulations that govern fire safety, zoning, or public health and sanitation, including dumping of refuse, and not exceeding $500.00 for all other violations. Each act of violation and each day upon which any such violation shall occur shall constitute a separate offense. The penalty provided by this section, unless another penalty is expressly provided, shall apply to the amendment of any Code section, whether or not such penalty is reenacted in the amendatory ordinance. In addition to the penalty prescribed above, the City may pursue other remedies .such as abatement of nuisances , injunctive relief and revocation of licenses or permits.

Section 5. Additions or amendments to the Code when passed in such form as to indicate the intention of the City Council to make same a part of the Code shall be deemed to be incorporated into the Code, so that reference to the Code includes the additions and amendments.

Exhibit "A"

Section 6. Ordinances adopted after September 23, 2014 that amend or refer to ordinances that have been codified in the Code shall be construed as if they amend or refer to like provisions of the Code .

Section 7. This ordinance and the Code adopted hereby shall become effective upon final passage of this ordinance.

ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF INGRAM, TEXAS, ON THIS THE 19th DAY OF MAY, 2015.

ATTEST:

Isl Stephanie Breckenridge Stephanie Breckenridge, City Secretary

Exhibit "A"

Isl James Salter James Salter, Mayor

CHAPTER13

UTILITIES

ARTICLE 13.01 GENERAL PROVISIONS .......... ....... ......... ... .... .. ... ... ..... ... ............... ..... ........ 13-5 Sec. 13.01 .001 Jurisdiction over electrical utility .......... ..... ....... ............... ................... 13-5

ARTICLE 13.02 WASTEWATER SYSTEM ... ..... ..... ................................. ....................... ..... .. 13-5 Sec. 13.02.001 Sec. 13.02.002 Sec. 13 .02.003

Sec. 13 .02.004

Sec. 13.02.005 Sec. 13.02.006 Sec. 13.02.007 Sec . 13.02.008 Sec. 13.02.009 Sec. 13.02.0 lO Sec. 13.02.0 1 I Sec. 13.02.012

Sec. 13.02.013 Sec . 13.02 .0 14 Sec. 13.02.015 Sec. 13.02.016 Sec. 13.02.017 Sec. 13.02.018 Sec. 13.02.019 Sec. 13.02.020 Sec. 13.02.021 Sec. 13.02.022 Sec. I 3.02.023 Sec. 13.02.024 Sec. 13.02.025

Sec. 13.02.026

Definitions ....................... ....... ... .... ..... ... ............ ............. .......... ......... . 13-5 Water meter required ... ............ .............................. ................ ........... ... 13-7 Adjustment of charges where portion of water is not discharged

into city system ... ... ....................... ...................... ...... ........................ . 13-7 Determination of charges where user maintains more than one

source of water supply ...................................... ................................. 13-7 Extension of mains .............. ......... ...................................... ................. 13-7 Mandatory connection; deposit ................ ......... ..... ..... ... .. ................. I 3-10 Access to premises .. .. ........... ......... .. ..... ........ .. .. .. ....... .... .... ................ 13-1 l Interfering with city installations.. .. ...... . ...... ................. ..... ... ... .... ... 13-11 Discontinuance of service for violations ................................ .. ... .... .. I 3-11 Payment of bills ................................................................................. 13-11 Penalty for late payment of bill; exemption from penalty ................. 13- I 2 Disconnection of service for failure to pay bill; reconnection charge ................. .... .. .. ..................................................................... 13-12

Exemptions from deposit requirement ............ .... ...................... .. .. .... 13-12 Forfeiture of deposit ... ........ ..... .... ..... ....... ..... ................................. .... 13-12 Free service or reduced rates prohibited ................ ... .. ... ....... .... .. ....... 13-12 Calculation of monthly charge ............ .............................................. I 3-13 Wastewater system access fee and tap fee .. ................ ...... ............ ..... 13-13 Payment plans, application form and modification of payment plan 13- 13 Maintenance of wastewater lines ................ ....................................... I 3-14 Violations; penalty ................... ......................... ........................ ...... ... 13-14 Regulation of private sewage facilities .. , ........................................ 13- 14.1 Application for service; responsibility for payment of charges ......... 13-15 Adjustment of fees for nonstandard users ......................................... I 3-15 Billing .................................... .................... .. ............ ........... ..... .. ........ 13-16 Interlocal agreement with City of Kerrville ; Kerrville

requirements incorporated .............................................. ................. 13-17 Fee schedule ..................................................... ...... .. ... ....... ............... 13-17

13-1

Exhibt "B"

[Next page is 13-5.]

Supp. No. 2

Ingram Code of Ordinances Chapter 13: ll1iliries

ARTICLE 13.01 GENERAL PROVISIONS*

Sec. 13.01.001 Jurisdiction over electrical utility

Under the terms of V.T.C.A., Utilities Code, chapter 33, the city surrenders original jurisdiction to regulate electrical utility rates within the municipal limits of the city to the public utility commission of the state as provided by the laws of the state. (Ordinance 84/l 106A adopted 11/6/84)

State law reference-Municipal jurisdiction over electric utility, V.T.C.A., Utilities Code, ch. 33 .

ARTICLE 13.02 WASTEWATER SYSTEM'

Sec. 13.02.001 Definitions

The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:

City wastewater svstem. The wastewater system owned, maintained and operated by or on behalf of the City of Ingram in order to furnish sanitary disposal services, including but not limited to its waste treatment facilities, including pipelines, conduits , pumping stations, force mains, and all other construction, devices, and appurtenant appliances used to transport waste, as such system may now be constituted or as it may be hereafter improved, enlarged, or extended by construction, reconstruction, acquisition, annexation, or otherwise.

Designated citv official. A staff member of the City of Ingram who has been appointed by the Ingram city council or city administrator to manage paiticular aspect(s) of the city's wastewater system.

Infiltration. The water entering a wastewater system and service connections from the ground, through such means as, but not limited to, defective pipes, pipe joints, connections, or manhole walls. Infiltration does not include, and is distinguished from, inflow and wastewater flow.

Inflow. The water discharged into a wastewater system from such sources as, but not limited to, roof leaders, cellar or yard and area drains, foundation drains, cooling water discharges, drains from springs and swampy areas, manhole covers, cross-connections from stormwaters, surface rnnoff, street wash waters, or drainage. Inflow does not include, and is distinguished from, infiltration and wastewater flow.

Ingram customer classes. Classes of retail wastewater customers within the Ingram wastewater service area having similar flow and wastewater characteristics contracting with Ingram for centralized wastewater service. Ingram customer classes shall be identified as :

(1) Residential (one- and two-unit permanent family residences).

" State law references-Municipal utilities generally , V.T.C.A., Local Government Code, ch. 402; miscellaneous powers and duties of utilities, V.T.C.A., Utilities Code, ch. 181. 7 State law references-Provision of sanitary sewer system by municipality, V.T.C.A., Local Government Code, sec. 214.013; municipal jurisdiction over water and sewer utility rates, operations and services, V.T .C.A., Water Code, sec . 13.042.

13-5

Exhibt '"B'"

Ingram Code of Ordinances Chaprer 13: Utiliries

(2) Multifamily residential (three or more permanent family residences in one building or

a complex of buildings under one ownership, such as apartments).

(3) Transient residential (multifamily residential with no fixed contracts and from which

occupants can "check out" whenever they wish, such as extended-stay hotels).

(4) Nonresidential (all other customers other than the above-described categories of

residential customers.

Ingram wastewater service area . The geographic region(s) or location(s) within Kerr County,

Texas, specifically identified on the map attached to Ordinance 2013-5 as exhibit B and

incorporated herein for all purposes by reference.

Nonstandard user. Any user that does not fit within the definitions provided for residential or

nonresidential user, or for some reason of physical location or other restraint a user that it would

not be practical or equitable to connect or bill for wastewater service using any of the procedures

or formulae contemplated by the standard provisions of this article.

Person. Persons, individuals , firms , partnerships, companies, corporations, and governmental

entities, whether one or more or any combination of one or more thereof.

Svstem access fee. An initial nonrecurring fee to the cm;tomer established by the Ingram city

council, and amended from time to time, for the purpose of recovering specific costs associated

with extending the city ' s wastewater collection system.

Tap fee. The fee to the customer established by the Ingram city council to allow access to the

collection line.

Wastewater connection. The joining of an individual retail wastewater customer's private service

lateral to the city wastewater system. The point of connection between the city's main and the

individual retail wastewater customer's service lateral constitutes the demarcation between the

customer's and the city's ownership and responsibility, as shown in exhibit A to Ordinance 2013-

5, which is attached hereto and incorporated herein for all purposes by reference.

Wastewarer flow. The wastewater delivered into a wastewater system from wastewater

connections to residential and nonresidential units . Wastewater flow does not include, and is

distinguished from, infiltration and inflow.

Wastewater service fee. The dollar amount charged by the City of Ingram to individual retail

wastewater customers within the City of Ingram's wastewater service area for the collection,

transportation, treatment, and/or disposal from the Ingram wastewater system to the City of

Kerrville system.

Wve. A pre-constructed connection to the collection line.

(Ordinance 2013-5 , sec. 2(01), adopted 9/3/13)

13-6

Exhibt "'B"'

-

-

lngram Code of Ordinances Chapter 13: Utilities

Sec. 13.02.002 Water meter required

Any user discharging waste from any property or premises into the wastewater system of the city that has a private source of water supply will be required to install a water meter of the type and standard approved by the city for the purpose of measuring the amount of water taken into such facility. Such meter shall be installed in a location approved by the city and accessible to employees of the city at all times during regular business hours. The water consumption reflected by such water meter shall be the basis for determination of the wastewater service fee provided for in this article, unless another basis for detennination of the wastewater rate for that customer has been established and approved by the designated city official and approved by the city council. (Ordinance 2013-5, sec . 2(02), adopted 9/3/13)

Sec. 13.02.003 Adjustment of charges where portion of water is not discharged into city system

(a) Any person discharging wastewater into the city wastewater system, except a single-family residential user, who takes water for the manufacture of a product or as cooling water, such that water provided to his facilities is not discharged into the city wastewater system, may provide an engineering study to document this situation. This study must be completed by a registered professional engineer and contain a drawing illustrating the water and wastewater plumbing systems of the premises where such a situation exists.

(b) When the city official has, as a result of a properly documented engineering study made under the provisions of this section, determined that a portion of the water passing through the water meter(s) is not being discharged into the city wastewater system, future billings for wastewater service shall be adjusted to charge that customer only for the amount of metered \Valer being discharged into the city ' s wastewater system.

(c) Any future changes to the water and wastewater systems covered by the engineering study will require prior notification and approval by the city before such changes are implemented.

(Ordinance 2013-5, sec . 2(03), adopted 9/3/13)

Sec. 13.02.004 Determination of charges where user maintains more than one source of water supply

Where a wastewater system user maintains more than one source of water supply, and only one source produces wastewater flow discharging into the wastewater system of the city, the wastewater service fee shall be determined by metering only that source of water supply. Failure of the owner or operator to install the necessary approved meter will constitute an agreement and consent by such owner or operator that the city's calculation of the total water usage, irrespective of actual discharge, will be the basis upon which the wastewater fee will be based. (Ordinance 2013-5, sec. 2(04), adopted 9/3/13)

Sec. 13.02.005 Extension of mains

(a) Definitions. As used in this section, the following terms shall have the meanings ascribed to them below, unless the context of their usage clearly indicates another meaning:

Construction cost. The full cost for materials and labor for construction of mains and/or service lines, excluding the cost for surveys, easements and engineering and inspection services.

13-7

Exhibt "'B"'

Ingram Code o(Ordinances Chamer I 3: Utilities

Developer. The owner or agent of the owner developing lots or tracts of property for further sale,

lease, development or redevelopment for residential or nonresidential use.

Main . Unless otherwise designated, means a principal pipe in a system of pipes for conveying

water/wastewater.

Non-revenue-producing water main. A water main supplying fire sprinkling systems and other

water services for which the city receives no water revenue.

Off-site main. A water or wastewater main lying outside the tract of land that is being developed

or redeveloped.

Permittee. A person granted a permit to construct a ma.in pursuant to this article, or, where

applicable, an individual property owner requesting permission to make a single connection to the

city wastewater system.

Public easement. An easement or right-of-way dedicated to the city or to the public, either by a

recorded plat or recorded instrument of conveyance, or acquired by condemnation, within which

a main may be constructed, maintained, and operated .

Subdivision . A tract or parcel of land subdi vided into lots or tracts by a subdivision or

development plat and to be sold or leased for residential or nonresidential purposes.

Utilitv construction permit or permits. A permit issued pursuant to this section allowing the

developer to construct a main.

(b) Developer construction in general. All mains dedicated to the city for public use must be

constructed under either a developer contract or a utility construction permit as provided in this

section . As a condition for acceptance by the city, a main must be constmcted in accordance with

the following requirements:

(I) The developer must obtain water or wastewater capacity sufficient to serve its

development.

(2) An engineer registered and licensed in the state must design the main . The design

must conform to the design standards promulgated by the city. All mains must be

constructed in public easements, and the minimum diameter size for off-site mains

shall be eight inches (8") , unless otherwise permitted by the city. Plans and profiles

shall be approved by the city prior to commencement of construction .

(3) The developer must obtain all required subdivision or development plat approvals

required under this section.

( 4) Construction of mains estimated by the city to cost more than $25,000.00 must be

guaranteed by payment and performance bonds in the form approved by the city.

Bonds must be in the amount of the construction contract, and the city shall be an

obligee for the performance bonds. The performance bond must guarantee materials

and workmanship, including surface restoration, for a period of one year after the

acceptance by the city .

13-8

Exhibt '"B'"

-

-

Ingram Code of Ordinances Chapter 13: Utilities

(5) The developer must provide the city with original record drawings in the form prescribed by the city.

(6) The city must inspect and approve the construction during construction and when completed.

(c) Construction by developers and individuals under permit.

(1) In the event there are not sufficient funds allocated or materials available for execution of a developer contract, or the developer chooses not to execute a developer contract, the developer may proceed to construct the main under a permit issued by the city.

(2) The city shall promulgate a permit application form. The permit application shall include the following items:

(A) The name and address of the permittee;

(B) The location of the main or service line;

(C) A copy of any approved subdivision development plan showing the proposed development;

(D) Evidence that the permittee has obtained sufficient water and wastewater capacity for its development;

(E) Evidence of ownership of the proposed development;

(F) An original copy of the plans and specifications prepared by an engineer registered in the state (if not already approved when the subdivision or development plat was approved by the city); and

(G) Any additional information as may be required by the city to determine compliance under this section .

(3) Upon submittal of a complete application (including plans and specifications already approved by the city), valid performance and payment bonds as required under this section, and evidence that the permittee has obtained required water and wastewater capacity for the development, the city shall grant the permit.

(d) Requirements for construction under permit. A developer constructing a main under a utility construction permit must comply with each requirement described in this section, including the furnishing of performance and payment bonds executed by the contractor and its surety in the full amount of the construction contract.

(e) Management and control. All mains constructed under a permit shall , upon acceptance by the city, be managed, controlled, and regulated by the city, and connections therewith shall be governed and regulated in the same manner as connections with any city utility lines . It is distinctly understood that such mains shall be placed so as not to interfere with the construction in the streets of the city of any other underground pipes, ducts, conduits or other structures laid on the part of the city, and the city shall have the right to take the same up or disconnect or destroy

13-9

Exhibt .. B ..


or abandon the same when in the best interests of the city in the discretion of the city, and the city

shall be in no way responsible for any cost or damage on account thereof. The city shall have the

right to lay any main down the streets where permittee-constructed mains run even though it may

render such main(s) useless, without being in any manner required to compensate the permittee. It

is intended by these provisions merely to furnish to the permittee a means of reimbursing himself

from other private persons similarly situated under the mies and regulations that may be

established by the city council, and not in any manner to obligate the city to pay or cause to be

paid any sum of money on account thereof or to vest in any persons constructing such mains any

right against the city or public use.



(a) Utilization of the city wastewater system is essential for the health and welfare of the city

and residents. It is therefore mandatory that any residence or nonresidential facility that

discharges waste shall be connected to the system when such is made available to such property.

The wastewater system shall be deemed to be available to any property where the closest property

line is located within two hundred feet (200') of a wastewater system lateral or main, unless such

property is outside the designated service area of the system as determined by the city and

designated on a wastewater system map on file with the city secretary.

(b) In some instances property may be within the prescribed two hundred feet (200') and not be

within the designated area. Such property owners may make application to the city for a permit

for service. If, in the opinion of the designated city official, such connection will require an

engineering study to determine the feasibility and cost for providing such service, the customer

shall be required to obtain and pay for such study, in addition to the application and other

applicable fees . If the connection is determined to be feas ible by the designated city official after

review of the engineering study and other applicable information, such connection may be made;

provided, however, that the property owner shall be responsible for payment of all costs related to

the engineering and construction of any service line necessary for connection to the existing

wastewater system prior to such connection being made. Connections outside of the designated

service area will be made in the sole discretion of the city.

(c) For any existing wastewater-producing facility (residential or nonresidential) not previously

connected to the wastewater system, the owner shall file a completed application for wastewater

service connection and pay the applicable fees within 90 days of receiving written notice that

such service has become available. Each applicant shall complete a wastewater connection within

90 days after the application for service has been filed with the city. For properties with existing

connections, application for service must be made withi111 30 days of receiving notice from the

city that service is required, as set out in section 13.02.022:.

(d) Any party requiring additional time within which to complete the application or connection

to the city's wastewater system may file a written request with the city secretary for an extension

of this timeline, setting out with particularity the particular reasons for the requested extension.

Such application for additional time shall be filed within 10 calendar days of the applicant

receiving notice from the city that the applicant is in violation of the ordinance's timeline. Such

application for additional time shall be placed on the next city council agenda, and the council

may, for good cause shown, extend the time for full connection for up to an additional 90 days.

13-10

Exhibt '"B'"

--


(e) Wastewater system customers shall be required to post a deposit with the city for each connection as set out in the rate schedule as adopted by the city council and amended from time to time. Such deposit is solely to secure payment of charges made for wastewater system service. From time to time, and based on review of the amount of water usage or other measure of wastewater system usage by the customer, such required deposit may be increased for a customer when, in the opinion of the designated city official, it should be increased in order to protect the city for payment of charges made pursuant to this article. Customers shall be notified upon making application for wastewater service that a credit reference letter from another utility company showing the customer's prompt payment of utility bills for the preceding twelve (12) months' service may be accepted in lieu of the required deposit. Upon termination of wastewater service to a customer, the city shall apply any of the deposit on hand to any unpaid charges of the customer, and the excess, if any, shall be returned to the customer. In the event that the deposit is insufficient to cover the final amount due from customer, the city retains all available remedies, civil and criminal, for collection of such remaining amount due.

(f) Deposits for wastewater service shall be held by the city for twelve (12) months from the initial date that service is provided to a property. Upon expiration of this period, if there have been no late payments or failures to pay the amount invoiced, such deposit shall be refunded to the customer or applied to their account. If there are subsequent late payments or failures to pay, the city may, in the discretion of the designated official, require the customer to pay a new deposit.


Sec. 13.02.007 Access to premises

The city shall have the right to enter at any reasonable hour any property receiving water and/or wastewater service from the city for any purpose relating to the provision of such service. (Ordinance 2013-5, sec. 2(07), adopted 9/3/13)

Sec. 13.02.008 Interfering with city insta1lations

No person except a duly authorized employee or representative of the city shall connect or disconnect a customer's connection with a wastewater main, or damage, destroy, alter, or otherwise disturb any component or part of the wastewater system owned by the city. (Ordinance 2013-5, sec. 2(08) adopted 9/3/13)

Sec. 13.02.009 Discontinuance of service for violations

The city shall have the right to discontinue water or wastewater service and apply any of the customer's service guarantee or deposit to payment of amounts owed the city for the nonpayment of any part of any bill, for the violation of any part of the city's plumbing code, for using a service without applying for and signing the proper contract, or for the violation of any provisions of this article or any lawful rule of the city. (Ordinance 2013-5, sec . 2(09), adopted 9/3/13)

Sec. 13.02.010 Payment of bills

The rates and charges fixed and prescribed in this article shall be paid by users of the city's wastewater system upon receipt of a bill. (Ordinance 2013-5, sec . 2(10), adopted 9/3/13)

13-11

Exhibt "'B"'


Sec. 13.02.011 Penalty for late payment of bill; exemption from penalty

Any user or customer of the system who does not pay the amount due before the date that a

penalty is due to be assessed shall be charged a penalty in the amount of ten percent of the current

amount of such bill. Any citizen whose sole income is received on a once-a-month basis may

make written application to the city for an exemption from the penalty. No penalty will be

charged for late payments on such exempted accounts unless they are more than 30 days past due.

If an exempted account should become delinquent to the point of termination of service twice in

any 12-month period, such exemption will be discontinued. (Ordinance 2013-5, sec. 2(11),

adopted 9/3/13)

Sec. 13.02.012 Disconnection of service for failure to pay bill; reconnection charge

If any customer does not pay any bill in arrears and all other rates and charges due and payable

within 25 days of the date of the bill, the city shall cause the customer's water service to be

disconnected. ·whenever the amount past due and delinquency has been paid by such user or

customer, such service may be resumed, but there shall be a reconnection charge payable to the

city in advance of such reconnection. The reconnection charge for water service shall be not less

than the actual cost to the city for disconnecting and reco111necting water and/or sewer service. If

more than one trip is necessary then an additional charge of such reconnection fee shall be made

for each trip. (Ordinance 2013-5, sec. 2(12), adopted 9/3/13)

Sec. 13.02.013 Exemptions from deposit requiremen1t

(a) Credit reference letter. Prior to commencement of service, the prospective customer shall

provide a credit reference letter from a prior utility company stating that their bills for at least the

preceding 12 months were paid in full and on time. If such a letter cannot be provided, the

prospective customer shall make a deposit as provided in the city ' s current adopted fee schedule.

(b) Nonresidential customers with satisfactory credit history. If the owner of owners of a

nonresidential account have already established a satisfactory credit history with the city and the

ownership is exactly the same, the deposit may be waived by the designated city official.


Sec. 13.02.014 Forfeiture of deposit

Any person who becomes delinquent in payment of a wastewater service charge, whose service

deposit is not entirely consumed by delinquent bills, shall forfeit the balance of such deposit, if

any, and such unconsumed balance shall be applied to such delinquent wastewater charge.


Sec. 13.02.015 Free service or reduced rates prohibited

All customers shall be required to pay the rates established by the city council, and no reduced

rates or free wastewater service shall be provided to a.ny such person, property or premises.


13-12

Exhibt "B"

-·

Ingram Code o[Ordinances Clzaprer 13: Utili1ies

Sec. 13.02.016 Calculation of monthly charge

Every consumer and user of the municipal wastewater system shall pay to the city a monthly charge for the use of the system, which is calculated as follows:

(1) Basic rate components.

(A) The monthly wastev,;ater service fee for each user not having a private water supply and/or not metered, shall be as follows:

(i) Monthly wastewater account maintenance fee;

(ii) Wastewater use fee;

(iii) Debt service fee;

(iv) Operation and maintenance fee; and

(v) Capital reserve fee .

(B) A monthly wastewater service fee for each user shall be paid with respect to each connection to the wastewater system, regardless of the classification of the user and regardless of whether or not the user's water supply is metered.

(C) The city council may change fees and rates from time to time.

(D) The monthly wastewater service fee for multifamily residential buildings such as apartments with a single water meter shall be charged at the rate of 75% of the established month I y wastewater service fee for all residences served by the single meter. The 25 % discount represents a vacancy allowance. (Example: To calculate the monthly fee for a 20-unit apartment building with one water meter, multiply the established fee for one residential unit times 20, then multiply that amount times 75%.)

(2) Right to audit billings for users where water usa£e is not metered. Where water usage is not metered, the city reserves the right to audit water service billings in the event of any request for a change in wastewater use rates or in the event of any dispute concerning wastewater use charges.

(Ordinance 2013-5 , sec. 2(16), adopted 9/3/13)

Sec. 13.02.017 Wastewater system access fee and tap fee

The city council hereby confirms its wastewater system access fee ($3,800.00) and tap fee ($1,200.00) required for connection of nonresidential properties to the city's wastev,;ater system, previously established by unanimous council vote on October 2, 2012.

Sec. 13.02.018 Payment plans, application form and modification of payment plan

(a) The city council hereby authorizes the establishment of a payment plan for the total required fee of $5,000.00 for connecting a nonresidential building to the wastewater system.

13-13

Exhibt "B" Supp. No. 2

Ingram Code of Ordinances Chaf)ter I 3: Utilities

(b) The attached application to Ordinance 2019-4 is hereby adopted by the city council for use

in requesting a payment plan. Any resident of the city seeking to request modification of the

payment plan set out in the attached application must request that the modification be placed on

an upcoming agenda, at which time the applicant can come before council to explain the

applicant's justification for the modification. Upon a showing of good cause, the council may

amend the payment plan as it finds appropriate, including but not limited to placing some or all of

the required initial tap fee on the payment plan, or changing or reducing the required monthly

payment.

(Ordinance 2019-4 adopted 7/-/19)

Sec. 13.02.019 Maintenance of wastewater lines

(a) Responsibility for single-line connections. Title to all wastewater plumbing from private

property to the city service tap belongs to the property owner utilizing the city wastewater system

service connection (see exhibit A attached to Ordinance 20 l 3-5). All wastewater plumbing shall

be maintained by the owner in intact, proper working condition. Failure to maintain such

plumbing shall constitute a violation of this article subject to penalties provided herein.

(b) Responsibilitv for multi-line connections. In certain locations there may be a service line on

personal property which was installed for the purpose of providing service to more than one

residential unit. Such multi-connection service line will connect the personal residential line to

the wastewater main of the city. Additional lines from l[he city's multi-connection line to the

indi victual residential connections shall be maintained by the owner of the property.


Sec. 13.02.020 Violations; penalty

(a) In addition to all other remedies provided for in this article or other ordinances of the city,

or provided for by state law, the city shall disconnect unpermitted connections to the city mains,

or may otherwise terminate utility services as provided for elsewhere in this article or other city

ordinances or by state law. The penalty for violations of this article not otherwise specified herein

shall be a fine in accordance with the general penalty provided in section 1.01.009 of this code;

provided, however, that no penalty shall be greater or less than that provided for the same or a

similar offense under state law. Each day that a violation occurs or is allowed to continue

constitutes a separate offense.

(b) Failure of any person, after receiving proper notification, to make timely application and/or

payment for wastewater connection, or failure to complete a required wastewater connection,

shall constitute a violation of this article and shal I subject that person to the penalties set out in

subsection (a) above . This sanction is in addition to, and not in lieu of, other penalties or

sanctions that may be available pursuant to other city ordinances, state law, or federal law.

(c) The suspension, revocation, cancellation, or denial of any license, permit or certificate by

the city shall not prohibit or prevent the imposition of any civil or criminal penalty. The

imposition of any civil or criminal penalty shall not prevent the suspension, revocation,

cancellation, or denial of any license, permit or certificate issued by the city.

13-14

Exhibt "B" Supp. No. 2

·-

-

Ingram Code of Ordinances Chapter 13: Utili1ies

(d) The prohibition of any act in this article, or any rule or regulation adopted hereunder, shall include the causing, securing, aiding, or abetting of another person to do such act.

(Ordinance 20 I 3-5 , sec . 2(20), adopted 9/3/13 ; Ordinance adopting Code)

Sec. 13.02.021 Regulation of private sewage facilities

The Rules of Kerr County, Texas, for Private Sewage Facilities, a copy of which shall be on file in the office of the city secretary, as they are now in effect and as they may hereafter be amended from time to time, are hereby adopted by the city and incorporated in this section by reference as

13-14.1

Exhibt "B"

Supp. No. 2

Ingram Code of Ordinances Chap1er 13: Utilities

if set out at length in this section, subject to the changes hereafter set forth to be in effect in the city, which changes shall also be on file in the office of the city secretary. (Ordinance 2013-5, sec. 2(21 ), adopted 9/3/13)

State law reference-On-site sewage disposal systems, V.T.C.A., Health and Safety Code, ch. 366.

Sec. 13.02.022 Application for service; responsibility for payment of charges

(a) Generally; pavment of fees and deposit; customer service agreement.

(1) Any person required to be connected to the city's wastewater system as provided in section 13.02.006 shall file an application for a customer service agreement with the city or the designated city official on a form to be provided by the city. Such application shall be filed within thirty (30) days from the date that notice is given by the city that service is available to the person's property.

(2) All affected property owners shall file an application for service prior to the beginning of new construction, remodeling, relocation, or other alteration of a strncture required to be connected to the wastewater system, if said structure is not already connected and receiving service. Applications shall be accompanied by the required deposit, tap fee and system access fee, as established and published from time to time by the city. A property owner's failure to make timely application for a connection may be deemed a violation of this article.

(3) Applicants for wastewater service shall complete and file with the city or the designated city official a customer service agreement (contract for wastewater service) on a form to be provided by the city. This agreement will be considered effective when the application has been completed and filed with the city, all required fees have been paid, and the application has been approved by staff. Wastewater service will not be provided until the application is complete and approved.

(b) Responsibility for fees for multiple living units. Where the city does not supply the source of water for all multiple living unit connections at a property, the owner of the premises will be responsible for the wastewater system fee, unless the owner provides individual water meters for each unit.

(c) No deductions for vacancies in apartments or duplex residences; removal of apartment or duplex unit from service. No deductions will be made for vacancies in the application of wastewater system service fees to apartment or duplex residences. Such units removed from service for reasons of remodeling or abandonment may be relieved from payment of wastewater system charges if requested in writing and sworn to by the owner. False statement(s) on such form may be prosecuted as a violation of this article and/or as perjury under state law.


Sec. 13.02.023 Adjustment of fees for nonstandard users

When, in the opinion of the designated city official, a user or applicant for new connection to the wastewater system does not clearly fit in a previously established category for use, or if application of the established connection or use fees to the user or applicant for new service

13- 15

Exhibt "B"

Ingram Code of Ordinances Chapter I 3: Utilities

would be inequitable, the designated city official may, upon written and verified application by

the user, make adjustments to the method of calculating connection or user fees. (Ordinance

2013-5, sec . 2(24), adopted 9/3/13)

Sec. 13.02.024 Billing

(a) Generally.

(1) Billing for wastewater system service fees shall be made to wastewater system

customers of the city on a monthly basis.

(2) All wastewater system users' bills shall be payable in full on or before fifteen (15)

days after the date of the bill to the customer, unless said customer chooses to contest

the bill, in which case the customer must follow the procedures prescribed below in

subsection (b) of this section.

(3) If a bill is not paid in full on or before fifteen (15) days after the date of the bill, a

penal ty of ten percent (10%) of the bill shall be added to the amount due as a fee for

late payment.

(4) If any customer shall refuse or neglect to pay fees when due for wastewater service

furnished by the city, such customer shall be sent ;vritten notice of delinquency. If

such account continues to be unpaid for 25 days from the date of the bill, service

shall be terminated.

(5) Notwithstanding the provisions for late payment penalties, late fees shall not apply to

state or federal governmental entities or the city, unless provided otherwise by

contract.

(6) For billing purposes, the occupant of all rental property, residential and

nonresidential, shall be the responsible party for payment of all wastewater fees. A

non-occupant owner may, at the owner's discretion, establish a wastewater account

for rental property if the owner requests the same in writing, but there shall be no

more than one wastewater account registered for each connection.

(b) Adjustment of bills. In the event that a customer d:isputes a bill, and in the opinion of the

designated city official an adjustment to the bill is appropriate, a customer may make a request to

the designated city official for adjustment of a bill or rate or method of rate calculation. The

application for rate/bill adjustment shall be reviewed by the designated city official within five (5)

working days of receipt of the application. After review, the designated city official shall make

adjustments as he finds appropriate.

(c) Continued use of wastewater system after failure to pav charges. Any person failing or

refusing to pay the charges provided for in this article, or failing or refusing to deposit the

required sum in the event of a dispute as to the amount of such charges, in the time and manner

required , and who continues to discharge waste from his property into the city's wastewater

system, shall be guilty of a violation of this article . Any conviction of a person for violating this

article shall not be a bar to the city's use of any or all applicable other civil or criminal remedies

available to it for seeking compliance with this article, including but not limited to institution of a

13-16

Exhibt "'B""

-

Ingram Code of Ordinances Chapter 13: Utiliries

suit for the collection of delinquent charges, an injunction to enjoin such person from continuing to discharge waste into the wastewater system without complying with the provisions of this article, or a suit for damages.

(d) Furnishing false information. It is a violation of this article to knowingly furnish the city with false or fraudulent information, or to intentionally or knowingly omit information that, if known by city representatives, would significantly change the city's decision-making in any matter related to implementation or use of this article.

(e) Lien for delinquent charges. The city is authorized by this article, pursuant to Tex Local Government Code sections 51.001, 51.012, 552.001 and 552.0025, to impose liens on property for the purpose of securing payment of delinquent charges incurred by property owners as a result of providing water and wastewater service to such property. This remedy is in addition to, and not in lieu of, other available civil and criminal remedies .

(f) Termination of water service for nonpayment of wastewater bill. Pursuant to 30 TAC section 291.88(e), as amended, the water company providing water service to a wastewater customer's location will terminate water service to the location upon notice from the city that the customer's wastewater bill payment is delinquent and undisputed.


Sec. 13.02.025 Interlocal agreement with City of Kerrville; Kerrville requirements incorporated

(a) The provisions of this article are intended to operate in accordance with and pursuant to the interlocal agreement (exhibit C attached to Ordinance 2013-5) between the City of Ingram and the City of Ken-ville, executed on October 25, 2005 , for the purpose of allowing the City of Ingram to deliver its wastewater to the City of Kerrville's wastewater system for acceptance, treatment and disposal by the City of Kerrville . All provisions of this article should be interpreted, if such interpretation appears reasonable in the opinion of the designated city official, in a manner consistent with the provisions of this interlocal agreement, including any amendments to or extensions of such agreement.

(b) This article shall be interpreted to incorporate all City of Kerrville requirements related to wastewater service, and shall require compliance with those requirements, where such Kerrville requirements are not in conflict with City of Ingram ordinances and requirements.


Sec. 13.02.026 Fee schedule

(a) Sewer rates. Rates shall be established from time to time by the city council and maintained in the offices of the city

(b) Deposits.

(1) Deposit amounts shall be established from time to time by the city council and maintained in the offices of the city.

(2) Deposits refunded after 12 continuous months without any past due payments.

13-17

Exhibt "B"

!11gram Code of Ordina11ces Chapter 13: Utilities

(3) A credit reference letter may be accepted in lieu of a deposit from another public

utility showing prompt payment of that utility's invoices for the preceding 12

months .

(c) Fees .

(1) New account fee: Shall be established from time to time by the city council and

maintained in the offices of the city for each account, regardless of length of service

history.

(2) Returned check fee: Shall be established from time to time by the city council and

maintained in the offices of the city. If there have been two returned checks or other

disallowed items for an account during the preceding twelve (12) months, only cash,

money orders, or a credit card will be accepted in payment of the invoice.

(3) Disconnect/reconnect fee: Shall be established from time to time by the city council

and maintained in the offices of the city

(4) Accounts having been disconnected for failure to pay will be deemed to have

abandoned any credit reference letter, and will be required to pay a full deposit prior

to reconnection.

(cl) Terms of service.

(I) Bills are due and payable upon receipt. Any use or customer of the system who does

not pay the amount due within I 5 days of the date of the bill shall be charged a

penalty in the amount of ten percent (10%) of the current amount of such bill.

(2) If the customer does not pay any bill plus late charges and any other accumulated

fees and/or charges due and payable before the 26th day after the date of the bill,

service will be disconnected. Service may be restored after payment in full of all

amounts due, plus a new reconnection fee . All required payments must be made prior

to reconnection of the wastewater service .

(Ordinance 2012-9 adopted 11/6/12; Ordinance adopting Code)

13-18

Exhibt "B"

-

-

CAUSE NO.19355B

CITY OF INGRAM, TEXAS § § § § § § § § § § §


198m ,JUDICIAL DISTRICT V.

MARK B. HENSLEY,JULIE G. HENSLEY, MARK HENSLEY, SR. ROCKY HAWKINS, DANIEL HA WK.INS, HAWKINS WARD ENTERPRISES, LLC, TERRY W. HISE, SAMUEL DEAN PIVER, AND TWANDA BROWN IN KERR COUNTY, TEXAS

AFFIDAVIT OF STEPHANIE BRECKENRIDGE

STATE OF TEXAS § §

COUNTY OF KERR §

BEFORE ME. the undersigned authority, a Notary Public, on this day personally appeared City Secretary Stephanie Breckenridge, and being by me duly sworn on her oath deposed and said:

My name is Stephanie Breckenridge. lam over the age of eighteen, have never been convicted of a felony or crime of moral turpitude, and am fully competent in all respects to make this affidavit . r am the City Secretary for the City of Ingram, Texas, and l have served in this capacity since March L 2008. l am personally familiar with the facts stated herein.

Ordinance No. 2015-1 and Chapter 13 of the Ingram Code of Ordinances were adopted by the City Council on May 19, 2015 and were effective as of that date. True and correct copies of those documents are attached to the City's Motion for Summary Judgement as Exhibits "A" and "B" and I personally certified the copies to be used as the exhibits. They are true and conect copies of the original documents and I am the custodian of records for the City of Ingram.

No lawsuits were filed against the City to annul or invalidate Ordinance No. 2015-1 and Chapter 13 of the Ingram Code of Ordinances in the three years following May 19, 2015 and the three-year anniversary of the effective date of adoption has expired.

Exhibit "C"

f UJiher, affiant sayeth not.

IE BRECKENRIDGE, City Secretary for the City of Ingram, Texas

SUBSCRIBED AND SWORN TO BEFORE ME by the said City Secretary Stephanie

Breckenridge on this 26th clay of February 2020, to ce1iify which witness my hand and official

NOTARY PUBLIC, STATE OF TEXAS

(Affix Notary Seal Above)

Affidavit of City Secretwy Stephanie Breckenridge Page 2

Exhibit '"C'"

CAUSE NO. 19355B

CITY OF INGRAM, TEXAS § § § § §


198th JUDICIAL DISTRICT


v.

MARKB. HE~SLEY,ET AL.

AFFIDAVIT OF MARK BOSMA

STATE OF TEXAS § §

COUNTY OF KERR §

BEFORE ME, the undersigned authority, a Notary Public, on this day personally appeared Mark Bosma, and being by me duly sworn on his oath deposed and said:

My name is Mark Bosma. I am over the age of eighteen, have never been convicted of a felony or crime of moral turpitude, and am fully competent in all respects to make this affidavit. I am the City Administrator for the City of Ingram, Texas. I am also the Designated Official for the City's wastewater project. I am personally familiar with facts stated herein and they are true and correct.

Each of the properties that are cited in this lav~'suit are either commercial, or in one case, residential (Defendant Brown), and all have a property line that is located within two hundred feet of a wastewater system lateral or main. All are within the designated service area of the system.

Further, affiant sayeth not.

MARK BOSMA, City Administrator for the City ofingram, Texas

SUBSCRIBED AND SWORN TO BEFORE ME by the said City Administrator Mark

Bosma, on thiJ0 day of February 2020 to ce11i · 1 \ ' a) and official seal.

RENEE SUBLETT · · · · · · exas

020 -3

NOTARY PUBLIC, STATE OF TEXAS

EXHIBIT 3

CAUSE NO. 19355B

CITY OF INGRAM, TEXAS § § § § §


198TH JUDICIAL DISTRlCT


v.

MARK B. HENSLEY, ET AL.

CITY OF INGRAM, TEXAS' VERIFIED EMERGENCY MOTION FOR ENFORCEMENT PURSUANT TO CHAPTER 54 OF THE TEXAS LOCAL

GOVERNMENT CODE


COMES NOW Plaintiff City of Ingram ("the City"), and files this Emergency Motion for

Enforcement pursuant to Chapter 54 of the Tex.as Local Government Code, and seeks injunctive

relief against Mark B. Hensley (a/k/a Mark Hensley, Sr.), Julie G. Hensley, Hawkins Ward

Enterprises, LLC, Terry W. Hise, Twanda Brown, David D. Britton and John T. Sheftield 1

(collectively "Defendants") in regard to their respective properties located in Ingram, Kerr

County, Texas and respectfully asks the Court for this enforcement action pursuant to Chapter 54

of the Texas Local Government Code and would respectfully show the Court as follows:

I. NATURE OF THE EMERGENCY

I. On March 19, 2020, the City collected stonn water runoff samples downstream from

Defendants' properties and flowing toward and into the Guadalupe River. On March 26, 2020,

the City received laboratory results from the Upper Guadalupe River Authority (UGRA) that

show that the samples contain dangerously high levels of E. coli bacteria.2 If the Court does not

enjoin Defendants from continuing to violate the City Code on wastewater, this situation will

1 Defendant Rocky Hawkins was also served with a No/ice; however, he has complied with the City's Ordinance and was nonsuited on February 26, 2020. An Order granting the nonsuit of Mr. Hawkins was entered on February 28, 2020. 2 Attached as Exhibit " A" is the VORA Chain of Custody and the Lab Report on the three samples. Attached as Exhibit "B" is a copy of a Goggle Map with the properties and locations of the samples.

continue to be a health hazard to the residents of and visitors to the City of Ingram and all those

using the Guadalupe River for recreation.

2. The City would ask the Court to take judicial notice that the State of Te:xas and the rest of

the world is cuJTently struggling with the Covid-1 9 pandemic. Citizens have been subject to

stay at home orders and social di stancing regulations designed to stop the spread of the v irus.

Now the State and local governments are relaxing these restrictions. Residents and visitors will

likely be looking for recreational activities and the Court should protect those persons who wish

to use the Guadalupe River both in and downstream of the City of Ingram, the Ingram City Park,

and other parks and shorelines downstream.

3. The City is entitled to a preferential setting by statute:

§ 54.014. Preferential Setting

If the municipality submits to the court a verified motion that includes facts that demonstrate that a delay wi ll unreasonably endanger persons or property, the court shall give a preference to the action brought by the municipality when setting cases filed under this subchaptcr.

Tex. Loe. Gov't Code § 54.014. The Affidavits of City Secretary Stephanie Breckenridge and

the Affidavit of Scott M. Tschirhart are attached to verify the facts stated heroin and the exhibits

attached hereto.

11. BACKGROUND

4. For many years environmental and engineering studies have shown that there is a

problem with the septic systems in and around the City of Ingram and that these systems have

been causing pollution, including high levels of E.coli bacteria in the soil, groundwater, and the

Page2

Guadalupe River.3 The City undertook a large and expensive project (in conjunction with grant

money and loans from various state and federal agencies) to create a wastewater system to

alleviate these pollution issues and to protect the health and safety of the residents and visitors to

the City oflngram.4

5. The vast majority of the residents and businesses in the City have connected to the

system as the sewer lines became accessible. Defendants are the holdouts. Defendants have

steadfastly refused to connect to the available sewer system despite the City's continuing efforts

to obtain compliance by negotiation and municipal court enforcement actions.

6. Chapter 13 of the City's Code contains tl1e relevant provisions.5 Connection to the

City's wastewater system is mandatory when the service is made available to property owners:


(a) Util ization of the city wastewater system is essential for the health and welfare of the city and residents. It is therefore mandatory that any residence or nonresidential facility that discharges waste shall be connected to the system when such is made available to such property. The wastewater system shall be deemed to be avai lable to any property where the closest property line is located within two hundred feet (200') of a wastewater system lateral or main, unless such property is outside the designated service area of the system as determined by the city and designated on a wastewater system map on file with the city secretary.

3 Attached as Exhibi t ' 'C" is a paper titled identification of Problelll Areas Based on Water Qt1ality by Scott Loveland of the UGRA dated April 1997. It describe1; in detai l the pollution problems in the City of lngram and how they affect the water. 4 A11ached as Exhibit ' 'D" is a City of lngram Engi.neering Report for Proposed Wastewater Col1ectio11 System dated November 2002. On Page 5 U1ern is a detai led discussion of tl1e health and safety issues and the need for the project. 5 A certified copy of this portion of the City Code is attached as Exhibit "E".

City Mtn to Enforce Page 3

Each of the Defendants own property located in the City where it has been deemed that the

wastewater system is available. Despite this availability, Defendants steadfastly refuse to

comply with the City Code.

7. On Febmary 20, 2020, Defendants6 Mark 8. Hensley (a/k/a Mark Hensley, Sr.), Julie G.

Hensley, Hawkins Ward Enterprises, LLC, Terry W. Hise, Twanda Brown and David D. Britton

were served, by and through their attorney ofrecord, via certified mail,7 with the City's Notice of

Violation - Code of Ordina,,ce Section 13.02.006, Mandatory Wastewater Connect for the

following properties individually owned by each as follows:

No. Property Address: Property ID Legal Description: Property Owner(s) No. Name:

I 3126 Junction Hwy, 27249 Greenwood Forest l Mark B. Hensley Ingram, Texas Blk 6 Lot 28

2 3 120 Junction Hwy, 27247 Greenwood Forest 1 Mark B. Hensley and Ingram, Texas Blk 6 Lot 26 Julie G. Hensley

3 3122 Junction Hwy, 27248 Greenwood Forest I Mark Hensley Sr. and Ingram, Texas Blk 6 Lot 27 Julie G. Hensley

4 3205 Junction Hwy, 26643 SJ Subdivision 2 Lot Hawkins Ward Ingram, Texas 11 , Acres .4568 Enterprises, LLC

5 30 1 Carolyn St. w., 3411 5 Pierson Blk 5 Lot l , 2 Ten-y W. Hise Ingram, Texas

6 11 4 Washington St., 34088 Pierson Blk I Lot 15 Twanda Brown Ingram, Texas

7 301 College St., 34141 Pierson Blk 6 Lot 13 David Douglas Britton, Ingram, Texas Jr.

6 Defendant Rocky Hawkins was also served with a Notice; however, he has complied with the City's Ordinance and was nonsuited on February 26, 2020. An Ore/er granting the nonsuit of Mr. Hawkins was entered on February 28, 2020. 7 A true and correct copy of this Notice is attached as Exhibit ''F" .

City Min to Enforce Page4

8 401 College St., 34142 Pierson Blk 6 Lot 14 David Douglas Britton, lngram, Texas Jr.

8. On March 30, 2020, Defendant John T. Sheffield was served via certified mail ,8 with the

City's Notice of Violation - Code of Ordinance Section 13.02.006, Manda101:v Wastewater

Connect for the following property individually owned as follows:

No. Property Address: Property ID Legal Description: Property Owner(s) No. Name:

9 3298 Junction Hwy, 32649 Mosel Blk I A, Lot 3, John T. Sheffield Ingram, Texas 4PT

9. Despite years of attempts to negotiate, ci tations in the Ingram Municipal Court, and

notices relating to the cunent lawsuit, Defendants refuse to comply with the City Code and

connect to the City's wastewater system.

I 0. On March 19, 2020 the City obtained samples of sto1T11water that were downstream from

the Defendants' properties. See Exhibit A. Each of these samples were tested by the UORA

Lab and fo und to have extremely high levels of E.coli . The Texas Commission on

Enviro11111ental Quality has set the single sample criteria for E. coli at 399 colonies of bacteria

per 100 milliliters of water for primary contact recreation (swimmer fu lly submersed in water).

If levels exceed thjs standard, the risk of contracting waterborne illnesses increases. See 30 TAC

§307. 7. Each of the samples exceeded the state level considerably. The Lab Report for the

$ A true and correct copy of this Notice is allached as Bxhibit ''G". I (owever, Defendant Sheffield has had actual notice of his violatiou for many years as he filed snu agai1)St lhe City of Ingram over his failure to connect to the City's wastewater system on May 18, 20 15, under Cau8e No. 15388A; styled John Sheffield and Ole Ingram Groce,y . LLC Doing Business as Ole Ingram Groce1y v. City of Ingram, Texas, Jame.~ Salter, Individually and in his Capacity as Mayor o.(Cily of Ingram, Texas and Stephanie Breckenridge Individually and as Secretary of City of Ingram, in the 216111 Judicial District Court in Kerr County, Texas.

City M.tn to 5nforce Page5

tht·ee samples shows levels of 1300, 727, and in excess of the ability of the Lab to measure

for one sample which showed in excess of 2420 colonies of bacteria per 100 milliliters.

11 . The sample that showed the levels in excess of 2420 was taken in an open drainage

directly adjacent to the children's playground in Ingram Park and would have been accessible to

any child who wandered into the drainage. This condition presents a clear and present danger to

residents and visitors.

Ill. ARGUMENT AND AUTHORITY

12. The City seeks to enjoin, correct and abate the dangerous conditions at Defendants'

respecti ve properties so that it no longer presents a substanti al danger of injury or an adverse

health impact to persons other than Defendants.

13. The City is authorized to bring civil action for the enforcement of its ordinances related

to the preservations of the public safety and public health pursuant to Chapter 54, Texas Local

Government Code, sections 54.012, 54.015, 54.0 16, 54.0 17 and 54.0 18. See Chaplet 54,

Subchapter B, Tex. Loe. Gov 't Code. Specifically:

§ 54.0 I 2. Civil Action

A municipality may bring a civil action for the enforcement of an ordinance:

(6) relating to dangerously damaged or deteriorated structures or im provements [In this case, defective septic systems.]

(9) relating to point source effluent limitations or the discharge of a pollutant, other than from a non-point source, into a sewer system, including a sanitary or sto1m water sewer system, owned or control led by the mttnicipality;

Tex. Loe. Gov't Code§ 54.012. Each of the samples were taken from culverts and ditches that

are a pmt of the City's stonn water sewer system. A "point source" means the point of discharge

City Min to Enforce Page 6

of the pollutant-containing effluent. 33 U.S.C. § 1362(14); Sierra Club v. Shell Oil Co., 817 F.2d

11 69, 11 73 (5th Cir. 1987).

Point source means any discernible, confined, and discrete conveyance, including but not limited to, any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, landfill leachate collection system, vessel or other floating craft from which pollutants are or may be discharged. This tenn does not include return flows from in igated agriculture or agricultural stonn water runoff.

40 C.F.R. § 122.2

Pollutant means dredged spoil, solid waste, incinerator residue, filter backwash, sewage, garbage, sewage sludge, munitions, chemical wastes, biological mate1i als, radioactive materials (except those regulated under the Atomic Energy Act of 1954, as amended (42 U.S.C. 20 1 I et seq.)), heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.

40 C.F.R. § 122.2

14. The City has codified wastewater utility ordinance that provides for the connection to the

City's sanitary wastewater (sewer) lines to protect the groundwatei-, the Guadalupe River, the

Ingram Dam and creeks and tributaries flowing to the Guadalupe River from hannful

contaminants seeping into the water system from septic tanks.

15. Said ordinance of which Defendants are in violation is codified at City of Ingram, Code

of Ordinances, Chapter 13, Wastewater System.

16. On a showing of substantial danger or injury or an adverse health irnpact to any person or

to the prope1iy of any person other than the defendant, the City is authorized to seek injunctive

relief:

§ 54.016. Injunction

(a) On a showing of substa11tial danger of injury or an adverse health impact to any person or to the prope1iy of any person other than the defendant, the

City Min io Enforce Page 7

municipality may obtaih against the owner or owner's representative with control over the premises an injunction that:

( I ) prohibits specific conduct that violates the ordinance; and (2) requires specific conduct that is necessary for compliance with the ordinance.

(b) It is not necessary for the municipality to prove that another adequate remedy or penalty for a violation does not exist or to show that prosecution in a criminal action has occurred or has been attempted.

Tex. Loe. Gov't Code § 54.016. The City seeks an injunction that requires Defendants to

immediately comply with the Ingram Code of Ordinances and specifically that requires

Defendants to submit applications, payment of all fees, and make immediate ainngements to

connect to the City's wastewater system by a date certain. The City suggests that the Court

mandate compliance within ten ( I 0) days of this Court's Order.

17. The City is also authorized by statute to seek administrative penalties for non-

compliance:

§ 54.017. Civil Penalty

(a) In a suit against the owner or the owner's representative with control over the premises, the municipality may recover a civil penalty if it proves that:

(l) the defendant was actually notified of the provisions of the ordinance; and (2) after the defendant received notice of the ordinance provisions, the defendant committed acts in violation of the ordinance or failed to take action necessary for compliance with the ordinance.

(b) A civi l penalty under this section may not exceed $1,000 a day for a violation of an ordinance, except that a civi l penalty under this section may not exceed $5,000 a day for a violation of an ordinance relating to point source effluent limitations or the discharge of a pollutant, other than from a non-point source, into a sewer system, including a sanitary or stonn water sewer system, owned or controlled by the municipality.

Tex. Loe. Gov't Code§ 54.017

City Min lo E11force Page 8

l 8. The City primarily seeks compliance with the City Code. However) the City respectfully

requests that the Court set a date certain for Defendants to comply with the City Code and if they

do not, the City respectfully requests that the Court assess a civil penalty, on each Defendant for

each property, not to exceed $5,000 per day from the date of non-compliance until Defendants

take action to come into compliance with the City Code and connect their prope11ies to the City's

wastewater system and destroy their existing septic systems.

lV. PRAYER

Unless enjoined to cease and desist, Defendants will continue indefinitely to violate the

City's Code of Ordinances to occur on their respective properties in [ngram, Kerr County, Texas.

Residents and visitors will be at risk of contact with dangerous E. coli bacteria.

WHEREFORE, PREMISES CONSIDERED, Plai ntiff, the City of Ingram, prays that the

Court issue an injunction requiring Defendants to immediately take steps to comply with Chapter

13 of the City of Ingram's Code of Ordinances, and that within ten ( JO) days of this Cou11 's

Order, each Defendant shall submit the proper application and all necessary fees to the City and

make a1Tangements with a licensed plumber to connect all wastewater systems on their

properties to the City's wastewater system and to destroy any existing septic tank on their

properties. If any of the Defendants fails to comply with the Court's Order, the City respectfully

requests that the Court assess a civil penalty of not more than $5,000 per day (after the expiration

of the ten (10) days) for each and every day such Defendant does not comply. The City prays for

such other relief, in law or in equity, to which the City may be justly entitled.

Page 9

SIGNED this 13th day of May 2020.

By:

C/111 Mm 10 Enforce


Denton Navar-ro Rocha Bernal & Zech, P.C.

A Professional Corporation 2500 W. William Cannon Drive, Suite 609 Austin, Texas 78745 512/279-6431 512/279-6438 (Facsimile) [email protected] smtschirhart@rampagela w .com

CHARLES E. ZECH State Bar No. 505 11 785 SCOTT M. TSCHIRHART State Bar No. 24013655

ILSE D. BAJLEY State Bar No. 0 1523800 11 7 Painted Post L11. San Antonio, Texas 7823 1 (210) 449-3669 [email protected]

Attorneys for Plaint(ff City of Ingram, Texas

Page 10


l, the undersigned, do hereby certify and attest that on this the 13th day of May 2020, all parties in interest listed below were served with a true and co1Tect copy of the foregoing as indicated or by electronic mail from the Clerk of the Court.

Roger E. Gordon THE LAW OFFIC£ OF ROGER GORDON

90 I South Mopac Expressway Austin, Texas 78746


Calley D. Callahan Electronic Notification KNOLLE, HOLCOMB, CALLAIJAN & TAYLOR 13625 Ronald W. Reagan Blvd. Building One, suite 100 Cedar Park, Texas 786 13

City Min to Enforce

CHARLES E. ZECH SCOTT M. TSCHlRHART

Page 11

EXHIBIT 4

5/18/2020 www.co.kerr.tx.us/commcrt/minutes/2005/010105cc1.txt

http://www.co.kerr.tx.us/commcrt/minutes/2005/010105cc1.txt 1/16

1 2 3 4 5 6 7 8 KERR COUNTY COMMISSIONERS COURT 9 Special Session 10 Saturday, January 1, 2005 11 10:00 a.m. 12 Commissioners' Courtroom 13 Kerr County Courthouse 14 Kerrville, Texas 15 16 17 18 19 20 21 22 PRESENT: H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 23 WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2 JONATHAN LETZ, Commissioner Pct. 3 24 ABSENT: PAT TINLEY, Kerr County Judge 25 DAVE NICHOLSON, Commissioner Pct. 4 2 1 I N D E X January 1, 2005 2 PAGE 1.1 Approval of official bonds of: 4 3 E. Bruce Curry, 216th District Attorney H.A. "Buster" Baldwin, Commissioner Precinct 1 4 Jonathan Letz, Commissioner Precinct 3 Rex Emerson, County Attorney 5 W.R. "Rusty" Hierholzer, Sheriff Linda Uecker, District Clerk 6 Paula Rector, Tax Assessor/Collector



David Billeiter, Constable Precinct 1 7 Joel Ayala, Jr., Constable Precinct 2 Angel Garza, Constable Precinct 3 8 Bob Terrill, Constable Precinct 4 Ed North, Deputy Constable Precinct 2 9 T.D. Hall, Deputy Constable Precinct 4 Mindy Williams, Assistant Auditor 10 District and County Clerk's Crime Policy bond 11 1.2 Approval of application of appointments for the following deputies: 4 12 Joel Ayala, Jr. Robert Terrill 13 Rusty Hierholzer Paula Rector 14 1.3 Administer oaths to elected officials: 15 Stephen B. Ables, 216th District Judge 5 E. Bruce Curry, 216th District Attorney 6 16 H.A. "Buster" Baldwin, Commissioner Precinct 1 7 Jonathan Letz, Commissioner Precinct 3 8 17 W.R. "Rusty" Hierholzer, Sheriff 9 Paula Rector, Tax Assessor/Collector 9 18 M. Rex Emerson, Jr., County Attorney 10 David Billeiter, Constable Precinct 1 10 19 Joel Ayala, Jr., Constable Precinct 2 11 Angel Garza, Constable Precinct 3 12 20 Bob Terrill, Constable Precinct 4 12 T.D. Hall, Deputy Constable Precinct 4 13 21 James F. Hayes, Headwaters Underground Water Conservation District Director at Large 14 22 Mary Ellen Summerlin, Headwaters Underground Water Conservation District, Precinct 2 14 23 John R. Elliott, Headwaters Underground Water Conservation District, Precinct 4 15 24 Deputy Sheriffs 15 25 --- Adjourned 19 3 1 On Saturday, January 1, 2005, at 10:00 a.m., a special 2 meeting of the Kerr County Commissioners Court was held in the 3 Commissioners' Courtroom, Kerr County Courthouse, Kerrville, 4 Texas, and the following proceedings were had in open court: 5 P R O C E E D I N G S 6 COMMISSIONER BALDWIN: Good morning. I'll 7 call the Kerr County Commissioners Court to order, please. 8 This is January 1, 2005. It's 10 a.m. We're in the 9 District Courtroom, and let the record show that there are 10 three Commissioners; Number 1, Number 2, and Number 3. The 11 Commissioner 4 and the County Judge are absent. Gentlemen, 12 I have taken it upon myself to ask someone to come and have



14 MS. RECTOR: Five. 15 JUDGE ABLES: This is your fifth term. You 16 and I started out together, didn't we? 17 MS. RECTOR: Yes, we did. 18 JUDGE ABLES: Just seems like yesterday we 19 took our oath. This is Paula Rector, your Tax 20 Assessor/Collector, who I will swear at this time. Paula, 21 would you raise your right hand? Paula Rector, do you 22 solemnly swear that you will faithfully execute the duties 23 of the office of Kerr County Tax Assessor/Collector of the 24 State of Texas, and will, to the best of your ability, 25 preserve, protect, and defend the Constitution and laws of 1-1-05 10 1 the United States and of this state, so help you God? 2 MS. RECTOR: I do. 3 JUDGE ABLES: All right. Congratulations. 4 (Applause.) 5 JUDGE PROHL: Melvin Rex. 6 (Discussion off the record.) 7 JUDGE PROHL: This is Melvin Rex Emerson, 8 Jr., who is entering his first term as our County Attorney. 9 (Applause.) 10 JUDGE PROHL: Do you, Melvin Rex Emerson, 11 Jr., solemnly swear or affirm that you will faithfully 12 execute the duties of the office of Kerr County Attorney of 13 the State of Texas, and will, to the best of your ability, 14 preserve, protect, and defend the Constitution and laws of 15 the United States and of this state, so help you God? 16 MR. EMERSON: I will. 17 (Applause.) 18 JUDGE ABLES: David Billeiter.

EXHIBIT 5

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1

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7

8 KERR COUNTY COMMISSIONERS COURT

9 Special Session

10 Monday, February 28, 2005

11 9:00 a.m.

12 Commissioners' Courtroom

13 Kerr County Courthouse

14 Kerrville, Texas

15

16

17

18

19

20

21

22

23 PRESENT: PAT TINLEY, Kerr County Judge H. A. "BUSTER" BALDWIN, Commissioner Pct. 1

24 WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2 JONATHAN LETZ, Commissioner Pct. 3

25 DAVE NICHOLSON, Commissioner Pct. 4 2

1 I N D E X February 28, 2005

2 PAGE --- Commissioners' Comments 5 3 1.1 Presentation concerning Trans Texas Corridor 8 4 1.14 Consider nomination of Chuck Lewis to fill

vacancy on Kerr Central Appraisal District 5 Board of Directors 26 1.2 Discuss IT staffing, consider bids opened on 6 February 14, and award contract for services,



consider budget amendment 29 7 1.3 Consider abandoning, discontinuing, and vacating

380 feet of Riojas Road, Pct. 3 37 8 1.4 Consider Preliminary Revision of Plat for Lot 4

of Live Springs Ranch, Pct. 4 39 9 1.6 Public Hearing concerning Revision of Plat for

Lot 9 & 10, Rio Retiro, Pct. 4 46 10 1.7 Consider Revision of Plat for Lot 9 & 10 of Rio

Retiro, Pct. 4 47 11 1.8 Public Hearing concerning Revision of Plat for

Lot 4 of Live Springs Ranch, Pct. 4 54 12 1.5 Consider Preliminary Plat for Live Springs Ranch,

Section 2, Pct. 4 56 13 1.9 Consider Preliminary Plat for Center Point

Independent School District, Pct. 2 60 14 1.10 Public Hearing concerning Revision of Plat for

Holcomb Ranch to include vacating, discontinuing, 15 and abandoning the road shown as Hacienda Trail 65 1.11 Consider Revision of Plat for Holcomb Ranch to 16 include vacating, discontinuing, and abandoning

the road shown as Hacienda Trail 66 17 1.12 Consider authorizing Road and Bridge to repair the

service drive at the Juvenile Detention Facility 68 18 1.13 Discuss possibility of a grant to support

Substance Abuse Treatment Program 70 19 1.15 Consider approval of redesignation of the

Child Welfare Board of Directors, approve 20 terms of each director 74 1.16 Consider approval of agreement with VeriClaims, 21 Inc. for administrative services for indigent

health care claims, approval of Business Associate 22 Agreement 77 1.17 Consider adopting a resolution inviting the 23 West Texas Judges and Commissioners Association

annual conference to Kerrville in 2007 78 24 1.18 Consider accepting resignation of Walter Harris

from Alamo Area Council on Aging 79 25

3

1 I N D E X (Continued) February 28, 2005

2 PAGE

3 1.19 Consider accepting Kerr County Attorney's office agreed-upon procedures report for the period

4 January 2002 through December 2004 81 1.20 Consider conducting workshop and/or public hearing 5 on proposed Kerr County Nuisance Abatement Program 91 1.21 Consider request for designation of City of Ingram 6 as a "Colonia" for eligibility for grant funding

for wastewater gathering system 97 7 1.22 Consider lease purchase of chip spreader and

asphalt distributor, approve lease document with 8 Security State Bank & Trust, and authorize County

Judge to sign same 107 9 1.23 Reassessment of new employee of J.P. 4 from 17-1

to proper step/grade 109 10 1.24 Request emergency Funds for purchase of computer

for District Clerk's office 125 11 4.1 Pay Bills 129 12 4.2 Budget Amendments 134 4.3 Late Bills 144 13



5.1 Reports from Commissioners/Liaison Committee 14 Assignments 146 5.2 Reports from Elected Officials/Department 15 Heads 153

16 --- Adjourned 165

17

18

19

20

21

22

23

24

25 4

1 On Monday, February 28, 2005, at 9:00 a.m., a special

2 meeting of the Kerr County Commissioners Court was held in the

3 Commissioners' Courtroom, Kerr County Courthouse, Kerrville,

4 Texas, and the following proceedings were had in open court:

5 P R O C E E D I N G S

6 JUDGE TINLEY: Good morning, ladies and

7 gentlemen. Let me call to order this meeting of the Kerr

8 County Commissioners Court regularly scheduled for this time

9 and date, Monday, February 28th, 2005, at 9 a.m.

10 Commissioner Nicholson, I think you have the honors this

11 morning.

12 COMMISSIONER NICHOLSON: Will you join me in

13 prayer, please?

14 (Prayer and pledge of allegiance.)

15 JUDGE TINLEY: Thank you. At this time, if

16 there's any member of the audience or the public that wishes

17 to be heard on a matter that is not a listed agenda item, we

18 would ask that you come forward at this time. If you want

19 to be heard on a -- a specified listed agenda item, we'd ask

20 that you fill out a participation form. The forms are in



12 big letters.

13 COMMISSIONER NICHOLSON: Yeah. So people

14 don't get unnecessarily excited.

15 JUDGE TINLEY: Any further question or

16 discussion on the motion?

17 COMMISSIONER WILLIAMS: It says "Draft" on

18 the one I'm looking at.

19 JUDGE TINLEY: All in favor of the motion,

20 signify by raising your right hand.

21 (The motion carried by unanimous vote.)

22 JUDGE TINLEY: All opposed, same sign.

23 (No response.)

24 JUDGE TINLEY: That motion does carry. Next

25 item on the agenda is Number 21, consider and discuss a

2-28-0598

1 request for designation of the City of Ingram as a colonia

2 for eligibility for grant funding for the wastewater

3 gathering system. Judge Edwards, good morning.

4 MR. EDWARDS: How are you, Judge?

5 Commissioners? I assume that all of you have received a

6 packet that was filed, and I won't belabor it. This has

7 been a joint effort of actually four governmental entities

8 trying to work together to get this grant application. It

9 started out, of course, with the school laying a line to the

10 elementary school property, city of -- city of Kerrville.

11 We entered into a preliminary agreement with the City of

12 Kerrville to accept and treat the effluent. U.G.R.A. gave

13 us a grant to fund the preliminary engineering report. In

14 the process of the application, they changed the rules on us

15 and increased the quality and extent of the engineering

16 report that we needed, so the engineering firm put in

17 another $15,000 worth of work at no charge to us. Then they



18 changed the rules and said they weren't going to do their

19 in-house environmental assessments any more, and so we had

20 to do that. And we went out for proposals and got a $22,000

21 bid, which we couldn't quite afford, but I went back to

22 U.G.R.A., and again they were very nice and agreed to pay me

23 $3,000 or $4,000 to do an environmental assessment, which I

24 did, and the engineering and the environmental assessment

25 has all been approved by the U.S.D.A.

2-28-0599

1 I'm encouraged by the fact that I'm asking

2 for this colonia, because this request came from the main

3 office of U.S.D.A. They suggested that we get this

4 designation, which tells me that -- it's an assumption on my

5 part, but three things. Number one, they're obviously now

6 looking very closely at our application, because they've

7 requested some additional paperwork in addition to this.

8 Number two, it -- I think they wouldn't have asked us to do

9 this if they weren't considering our application actively.

10 And, number three, if we get this colonia designation,

11 there's a chance that we can get a 100 percent grant instead

12 of a maximum of 75 or even less under the program that we're

13 in. So, I'm encouraged by this. And I've tried to give you

14 the data to meet the standards for eligibility for obtaining

15 this designation as a colonia, and that's the first time

16 I've ever had to do anything like this, so it's kind of

17 shooting from the hip, but I think the documentation is

18 there to reflect the demographics of the city of Ingram from

19 the -- from the standpoint of salary, the standard of

20 housing that we have, et cetera, et cetera. So, we're

21 requesting the County to give us this designation, and be

22 the fifth county government to join in trying to get this



23 application approved. So, I'll be asking -- happy to answer

24 any questions that you have. I don't want to belabor the

25 whole application, although we can.

2-28-05100

1 COMMISSIONER BALDWIN: Danny, I have two

2 questions. I don't know -- I can't -- there's a lot of

3 information here, and I can't tell exactly where -- what

4 area is in -- would be designated colonia.

5 MR. EDWARDS: The entire city of Ingram.

6 COMMISSIONER BALDWIN: Okay. Which brings --

7 but not Greenwood Forest?

8 MR. EDWARDS: No.

9 COMMISSIONER BALDWIN: Which brings me to my

10 second question. What authority does this Commissioners

11 Court have in designating an incorporated city as a colonia?

12 MR. EDWARDS: The -- the qualifications are

13 set out on the first page of the request. It says, by

14 U.S.D.A. definition, a colonia is any identifiable community

15 designated by the state or county in which it is located,

16 determined to be a colonia on the basis of objective

17 criteria, and sets out the objective criteria there. And,

18 of course, it goes on in the next paragraph to show what the

19 eligibility requirements are. In talking to the U.S.D.A.

20 Rural Development, they actually -- all they asked for was a

21 letter or an authority from the County Judge evidencing the

22 designation of the city as a colonia. After speaking with

23 the Judge, he felt like that it would be proper for the

24 Commissioners Court to be involved in making this

25 designation, and I concur with that. But it just --

2-28-05101

1 U.S.D.A. regs say you have to be designated by the state or



2 county, and you are the county.

3 COMMISSIONER WILLIAMS: I'm glad the

4 commissioner asked that question, 'cause I was going to do

5 the same thing. Our only other experience in this was with

6 Center Point.

7 MR. EDWARDS: Right.

8 COMMISSIONER WILLIAMS: The area of Center

9 Point that would be served by a centralized system, and the

10 reason we did it -- we did it is because the City of Center

11 Point had disbanded and there was no -- was no local

12 authority there. So, that -- I'm glad you asked the

13 question; it popped up in my head. What if we designate you

14 as -- Ingram as a colonia, and the City Council says -- due

15 to public pressure or other reasons, says, "No, we don't

16 want to do that"?

17 MR. EDWARDS: City Council, I assure you, has

18 already considered this. In fact, the City Council approved

19 the application -- the filing of the application, and it's

20 shown on the final signature page. It was approved pursuant

21 to the authority of Ingram City Council. It's been signed

22 off by a committee designated by the City Council to approve

23 this application. And, that's --

24 COMMISSIONER WILLIAMS: Okay.

25 MR. EDWARDS: And the mayor is present if you

2-28-05102

1 have any questions about the interest of the City of Ingram

2 being involved in this. But it had 100 percent approval by

3 the City Council.

4 COMMISSIONER WILLIAMS: And they've already

5 made that designation?

6 MR. EDWARDS: Yes.



7 COMMISSIONER WILLIAMS: For purposes of this

8 purpose?

9 MR. EDWARDS: Yes. They authorized me to

10 file this -- to file this application and to go forth with

11 it.

12 COMMISSIONER WILLIAMS: I'm cool with it. If

13 you're cool with it, I'm cool with it.

14 COMMISSIONER LETZ: Has the -- the City of

15 Kerrville, obviously, is behind this, 'cause they're the

16 ones that are the ultimate recipient of the waste.

17 MR. EDWARDS: That's correct.

18 COMMISSIONER LETZ: Have they -- are they

19 actively assisting with the grant application in any way?

20 Or --

21 MR. EDWARDS: No, they haven't acted --

22 assisted in the application, except to the extent that, as

23 part of the application process, we had to provide U.S.D.A.

24 with a preliminary agreement between the City of Ingram and

25 the City of Kerrville to reflect their -- not only their

2-28-05103

1 willingness, but their commitment to accepting this effluent

2 and treating it properly. So, we have an extensive

3 preliminary contract of about that many pages already with

4 the City of Kerrville.

5 COMMISSIONER LETZ: The reason I asked that

6 is just that, I mean, the City is -- I guess the residents

7 of the city is a beneficiary, 'cause they're the ones that

8 get the fee for doing this -- the service, and I was hoping

9 they were fully on board. I visited with some of the

10 members of the city staff and counsel, and, certainly, this

11 project is, I think, of great importance to the whole

12 county, I think, to get wastewater, I think is what it does.



13 And the unincorporated area between Ingram and Kerrville

14 hopefully will be allowed to tap into this line for a fee.

15 MR. EDWARDS: We've already had a number of

16 requests, because the line actually already runs in front of

17 Greenwood Forest. And I've had numerous phone calls, and

18 some angry requests, "Why can't I get on it now?" Well, the

19 simple answer is that the -- the line at this point is owned

20 by the school district, and the school district is not

21 authorized to get the sewer service, so they can't allow

22 other people to connect onto the line, even though it's

23 right -- goes right down Highway 27 in front of their

24 property. So, our agreement, of course, with the City of

25 Ingram is that once we get the grant and the wastewater

2-28-05104

1 program is instigated, then we will take over the operation

2 of that line. And then we will be a city -- we will be a

3 governmental body which is in the sewer business, and

4 therefore, those people that are on the line to get it at

5 that time have the opportunity to -- to come onto the

6 system.

7 COMMISSIONER LETZ: So -- I'm getting out of

8 my business area, but I frequently do that. So, I don't

9 understand why the school and the City can't work something

10 out to let people that want to get into that line now, that

11 -- it seems that we're just wasting money by people not

12 being allowed to get onto that line when it exists. And it

13 seems some sort of -- I can understand the school's point,

14 but why couldn't they do some sort of interlocal agreement

15 with the City to get at least something going so people

16 aren't -- people that want to get off of septic, and in an

17 area that we need to get people off septic, can't get onto a



18 line that currently exists? That agreement would have to be

19 between the Ingram school district and City of Kerrville.

20 We're not in the picture yet, until such time as --

21 COMMISSIONER BALDWIN: Once we get in the

22 picture, though --

23 COMMISSIONER LETZ: Right.

24 COMMISSIONER BALDWIN: -- then they can do

25 that.

2-28-05105

1 JUDGE TINLEY: Mm-hmm.

2 MR. EDWARDS: We will actually take over

3 operation of the line. It' a two-part line. Starting at

4 the city limits of the city of Kerrville, it goes for a

5 distance as a gravity line, and then it becomes a pressure

6 line, forced main. In the original agreement between the

7 city of -- City of Kerrville and the Independent School

8 District, the Independent School District maintained

9 responsibility for the forced main portion of it, and gave

10 control of the gravity portion of it to the City of

11 Kerrville. But most of these people of which you speak,

12 Commissioner, are on the forced main portion of it; they're

13 not on the gravity portion of it.

14 COMMISSIONER WILLIAMS: Danny, I have two

15 quick questions. Municipal Code permits the City to mandate

16 hookups within its jurisdiction; is that correct?

17 MR. EDWARDS: Do what, now?

18 COMMISSIONER WILLIAMS: Mandate hookups.

19 MR. EDWARDS: Who?

20 COMMISSIONER WILLIAMS: City. By Municipal

21 Code, City of Ingram.

22 MR. EDWARDS: Yes, we will mandate.

23 COMMISSIONER WILLIAMS: And, secondly, will



24 this grant pay for hookups for people who are lower to

25 moderate income?

2-28-05106

1 MR. EDWARDS: We have included in the grant

2 application half a million dollars to try to absorb the cost

3 of going from the house to the lateral. Of course, as you

4 well know, that means all of their septic tank systems have

5 to be decommissioned, and --

6 COMMISSIONER WILLIAMS: Right.

7 MR. EDWARDS: -- it's an expensive process.

8 So, we did include a half a million dollars in the grant

9 application to cover that. If we don't get the colonia

10 designation, we're not going to get a 100 percent grant.

11 And, of course, one of the first things that we'd probably

12 have to forego would be that portion of the -- of the

13 expenses. Our primary concern is to get the laterals in, so

14 that's another good reason why the colonia designation will

15 assist us, because if we get the 100 percent grant, it does

16 include money to connect the house to the lateral.

17 COMMISSIONER WILLIAMS: Thank you. Judge,

18 would you accept a modification on the styling of the agenda

19 item, to read, "Designation of City of Ingram as a colonia

20 for purposes of establishing eligibility"?

21 JUDGE TINLEY: I think, in the broad sense,

22 that's implied.

23 COMMISSIONER LETZ: Is that your motion?

24 COMMISSIONER BALDWIN: Yeah, that's his

25 motion. Say yes.

2-28-05107

1 COMMISSIONER WILLIAMS: Yeah, it is.



2 COMMISSIONER BALDWIN: Second.

3 JUDGE TINLEY: Motion made and seconded to

4 designate the City of Ingram as a colonia for purposes of

5 establishing eligibility for grant funding for wastewater

6 gathering system.

7 COMMISSIONER WILLIAMS: I'm happy.

8 JUDGE TINLEY: Okay. Any question or

9 discussion on that motion? All in favor of the motion,




13 (No response.)

14 JUDGE TINLEY: That motion does carry.

15 MR. EDWARDS: Thank you very much. We

16 appreciate it greatly.

17 JUDGE TINLEY: Appreciate you being here.

18 The next item on the agenda is consider and discuss a lease

19 purchase of a chip spreader and asphalt distributor, and

20 approve lease documents with Security State Bank and Trust,

21 and authorize the County Judge to sign the same.

22 Mr. Tomlinson.

23 COMMISSIONER BALDWIN: Tommy, are you out

24 building roads now? Or --

25 COMMISSIONER WILLIAMS: Spreading chips.

2-28-05108

1 COMMISSIONER BALDWIN: Spreading chips.

2 MR. TOMLINSON: Yeah, this is two pieces of

3 equipment that -- that was approved in the budget process.

4 It's an asphalt distributor for $49,500 and a chip spreader

5 for $182,398. What I did, I made arrangements through

6 Security State Bank and Trust to supply the funding under a

7 lease-purchase arrangement, through them. I have the

EXHIBIT 6

EXHIBIT 7

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7


9 Regular Session

10 Monday, August 14, 2006

11 9:00 a.m.



14 Kerrville, Texas

15

16

17

18

19

20

21

22



25 DAVE NICHOLSON, Commissioner Pct. 4 2

1 I N D E X August 14, 2006

2 PAGE --- Visitors' Input 5

3 --- Commissioners' Comments 6

4 1.1 Airport Fencing - Presentation of status with Airport Board on claim for fencing 9

5 1.2 Presentation by Martin Marietta Materials of

6 plans to expand mining operation in Kerr County 25



7 1.6 Consider/discuss, take appropriate action on proposed plan provision changes for TCDRS 2007

8 plan year 41

9 1.14 Consider/discuss, take appropriate action to authorize County Judge to write a letter to LCRA

10 regarding Rim Rock-Goat Creek project requesting them to take the shortest/least expensive route 72

11 1.7 Public Hearing concerning abandoning, vacating,

12 and discontinuing Privilege Creek Subdivision 90

13 1.11 Request for variance in requirements for an on-site septic facility for a dwelling to be

14 located at Lot 24, Wood Trails Ranch 91

15 1.3 Consider/discuss, take appropriate action on Landscaping Plan for Union Church 100

16 1.4 Consider/discuss, take appropriate action to adopt

17 a Statement of Support for the Guard and Reserve 104

18 1.5 Consider/discuss, take appropriate action to post warning signs at Ingram Dam 110

19 1.8 Consider/discuss, take appropriate action to abandon

20 vacate, and discontinue Privilege Creek Subdivision 114

21 1.9 Consider/discuss, take appropriate action to open new portion of Upper Turtle Creek Road, Pct. 1 & 4 115

22 1.10 Consider/discuss, take appropriate action to consider

23 alternate plat process for revising Lots 16, 17 & 18 of Riverside Park, set public hearing for same 121

24 1.12 Consider/discuss, take appropriate action on

25 approving Kerr County Juvenile Detention Facility Policy and Procedures manual for '06-'07 123

3

1 I N D E X (Continued) August 14, 2006

2 PAGE 1.13 Consider/discuss, take appropriate action approving

3 per diem rate for Kerr County Juvenile Detention Center, approve Judge Tinley signing off on

4 contracts for counties contracting with Kerr County for secure preadjudication detention services 127

5 1.15 Consider/discuss, appoint Lt. Rob McCutcheon to

6 Criminal Justice Advisory Committee of Alamo Area Council of Governments to represent Kerr County 129

7 1.16 Consider/discuss performing State-required OSSF

8 functions for City of Ingram, take appropriate action on resolution from City of Ingram

9 authorizing Kerr County to perform such functions 131

10 1.17 Consider/discuss, take appropriate action on request from The Blue Knights to use Flat Rock

11 Lake Park the weekend of October 21, 2006 136

12 1.18 Consider and decide on process for selecting Human Resource Director and Administrative Assistant 137



13 1.19 Consider/discuss, take appropriate action to

14 approve Appendix for Kerr County Subdivision Rules 141

15 1.20 Consider/discuss, approve organization/functions of departments that report to Commissioners Court

16 (Executive Session) ---

17 1.21 Consider/discuss, take appropriate action on the "Kerr County Management's Discussion and Analysis"

18 for 2004-2005 audit 143

19 1.22 Reports from the following Departments: Animal Control ---

20 Extension Office 148 Environmental Health 160

21 4.1 Pay Bills 173

22 4.2 Budget Amendments 179 4.3 Late Bills ---

23 4.4 Approve and Accept Monthly Reports 210

24 5.1 Reports from Commissioners/Liaison Committee Assignments 212


4

1 On Monday, August 14, 2006, at 9:00 a.m., a regular





6 JUDGE TINLEY: Good morning, ladies and gentlemen.

7 Let me call to order, if I might, this regularly scheduled

8 meeting of the Kerr County Commissioners Court scheduled for

9 this date and time, Monday, August 14, 2006, at 9 a.m. It's

10 just a bit past that time now, so let's commence.

11 Commissioner 4?

12 COMMISSIONER NICHOLSON: Would you join me in a

13 prayer and the pledge to the flag, please?


15 JUDGE TINLEY: Thank you. At this time, if there's

16 a member of the public or the audience that wishes to be heard

17 on any item that is not a listed agenda item, you're

18 privileged to come forward at this time and tell us what's on

19 your mind. If you wish to speak on an agenda item, we would



3 SHERIFF HIERHOLZER: I do have a recommendation on

4 an alternate. But --

5 COMMISSIONER BALDWIN: Hold it to yourself.

6 JUDGE TINLEY: I have some thoughts on that myself.

7 COMMISSIONER BALDWIN: Y'all get together and fight

8 it out.

9 SHERIFF HIERHOLZER: That's fine.

10 JUDGE TINLEY: Item 16, consider and discuss

11 performing State-required O.S.S.F. functions for the City of

12 Ingram and take appropriate action on resolution from the City

13 of Ingram authorizing Kerr County to perform such functions.

14 As the backup material indicates, I placed this on the agenda

15 after a meeting with the mayor and City Attorney for the City

16 of Ingram. They have a few instances each year in which they

17 have the O.S.S.F. applications submitted to them. Because of

18 the difficulty in having someone that's qualified, a separate

19 designated representative and so forth, they have asked if we

20 would consider being the designated representative for the

21 City of Ingram and handling their O.S.S.F. functions, the

22 consideration being that any fees that are generated out of

23 those applications and cases would remain here at Kerr County.

24 COMMISSIONER BALDWIN: What about this memo from

25 Miguel talking about they need to relinquish their authorized

8-14-06132

1 agent status?

2 JUDGE TINLEY: Well, my only response to that would

3 be, if -- if the City of Ingram appoints Kerr County -- or

4 Kerr County as their designated representative, as that term

5 is commonly known, that would supersede, I would think, their

6 current appointment.

7 COMMISSIONER BALDWIN: Well, it just sounds like

8 that this step -- by reading this paragraph from Miguel, it



9 looks like that -- that this step needs to be taken first. I

10 mean, I don't know. I agree with you. It seems like that's

11 the way it should work, but it --

12 COMMISSIONER WILLIAMS: Let me see.

13 COMMISSIONER BALDWIN: Here, you can have your very

14 own. Ingram must first relinquish their O.S.S.F. order with

15 T.C.E.Q. and vacate their authorized agent status. So, I'm

16 assuming that he's...

17 JUDGE TINLEY: Mayor Hiram Walker.

18 COMMISSIONER BALDWIN: Are we supposed to stand up

19 and bow?

20 JUDGE TINLEY: Yeah.

21 MAYOR JACKSON: Not hardly. According to Danny

22 Edwards, he spoke to T.C.E.Q., and the resolution we passed

23 should serve as that. In other words, it --

24 COMMISSIONER BALDWIN: I see.

25 MAYOR JACKSON: -- it accomplishes both functions at

8-14-06133

1 the same time. So, as far as the person at T.C.E.Q. he spoke

2 to, this should be sufficient. If not, it's not a problem.

3 We can -- you know, we can draft whatever kind of document

4 T.C.E.Q. really wants. Council's fully on board, so it's just

5 a matter of formalities.

6 COMMISSIONER WILLIAMS: One interesting point that

7 Miguel raises. Because if you didn't do that, there are --

8 then there would be two authorized agents, which is the level

9 above designated representative, and you'd have two. Kerr

10 County doing the work for you as authorized agent and

11 designated representative, but you folks would still be the

12 authorized agent. I'm curious about that.

13 MAYOR JACKSON: All I can tell you is that the City



14 Attorney spoke to the State, and that's what they said. So,

15 if there is something different, like I say, it's not a

16 problem on our end. We can draft it any way they want it.

17 COMMISSIONER LETZ: How many -- Howard, how many

18 applications come in a year?

19 MAYOR JACKSON: I've heard two or three. It's not a

20 -- not a large number. There's not been a lot of -- of

21 building activity within the city. Most of it's been outside.

22 And then, of course, it's going to decrease as we get our

23 wastewater system online, so --

24 COMMISSIONER LETZ: Right. Only reason I bring it

25 up is that, I mean, the county subsidizes that program. And

8-14-06134

1 if it was -- two or three is not hardly worth fiddling about,

2 but if it's -- if it was, like, 100, well, yeah, it would be.

3 MAYOR JACKSON: I wish it was.

4 COMMISSIONER NICHOLSON: Are there any -- inside the

5 city limits, are there any large tracts left that could be

6 developed?

7 MAYOR JACKSON: There's a few, but none that I have

8 heard anything about anybody showing any interest in. Like I

9 say, once this wastewater system actually becomes -- we get

10 some pipe in the ground, I suspect that that's going to be --

11 but we're going to push for connection to that system versus

12 septic tanks. I mean, it just doesn't make any sense.

13 COMMISSIONER NICHOLSON: That's going to be a --

14 that's going to change Ingram for the better.

15 COMMISSIONER WILLIAMS: What's your anticipated

16 timetable on the sewer system?

17 MAYOR JACKSON: If we can get the surveyor, again,

18 to give us the data we need, I'm anticipating we'll probably

19 bid it sometime later in the year, so construction would



20 actually start probably in the spring or late winter. That's

21 what I'm hoping, anyway.

22 COMMISSIONER WILLIAMS: Good. Sooner the better.

23 MAYOR JACKSON: If I had a backhoe, I could start it

24 sooner.

25 COMMISSIONER BALDWIN: I don't know anybody who

8-14-06135

1 knows more about that stuff than you do, anyway.

2 MAYOR JACKSON: Well, this will be the first time in

3 my entire career that I've gotten to start on the very bottom

4 of it. Hopefully we can get it right.

5 JUDGE TINLEY: You're starting on this end, and

6 you're used to starting on the other end of it.

7 MAYOR JACKSON: I'm usually trying to fix decades of

8 somebody else's mistakes, so this time there's not going to be

9 anybody to blame but us. So --

10 JUDGE TINLEY: Do you want the County Attorney to

11 take a look at this thing and make sure the legalities are

12 correct? Or what's the Court's pleasure?

13 COMMISSIONER LETZ: Well, Miguel's here. He's here

14 now, so --

15 MR. ARREOLA: Got in a little late, I'm sorry.

16 COMMISSIONER WILLIAMS: The question has to do with

17 authorized agent status.

18 MR. ARREOLA: Yes. We checked with T.C.E.Q., and --

19 or I was talking to Mr. Jackson. We need to get the

20 authorized agent status to be revoked, basically, to move it

21 into the County. And I don't know where the process is there,

22 if they already started it or not. I e-mailed T.C.E.Q. I

23 haven't gotten a response yet to see where they are on that.

24 The other thing we can do probably is interlocal agreement in



25 the meantime, but I don't think we can just take over without

8-14-06136

1 them first -- renounce to that.

2 COMMISSIONER BALDWIN: Well, I guess we better -- I

3 guess we better wait. I want to hear him tell me I can vote

4 before I better vote.

5 MAYOR JACKSON: Whatever paperwork or however --

6 what form we need to put it in won't be a problem for us.

7 JUDGE TINLEY: I guess Mr. Emerson and Mr. Edwards

8 can collaborate.

9 MAYOR JACKSON: That would probably be the best

10 idea, because this sounds like a legal issue to me.

11 COMMISSIONER BALDWIN: Mm-hmm.

12 JUDGE TINLEY: Okay. Mayor Jackson, we appreciate

13 you being here with us today. Sorry about the delay. I know

14 you've been here all morning.

15 MAYOR JACKSON: Not a problem, but I do have other

16 commitments, so I'll see you guys later.

17 JUDGE TINLEY: Thank you, sir.

18 COMMISSIONER BALDWIN: Thank you.

19 JUDGE TINLEY: Let's move on to Item 17; consider,

20 discuss, and take appropriate action on request from Blue

21 Knights to use Flat Rock Lake Park the weekend of October 21,

22 2006. That'll be 20, 21, and 22 October. I put this on the

23 agenda at the request of a representative of Blue Knights;

24 Lieutenant Rob McCutcheon, as a matter of fact. He -- he

25 provided us with some backup material in the back. I did

8-14-06137

1 mention to him that they would not be able to exclude others

2 from the park that would normally use it for fishing or

3 whatever else may occur down there. Be much like the

EXHIBIT 8



1

2

3

4

5

6

7


9 Special Session

10 Monday, November 27, 2006

11 9:00 a.m.



14 Kerrville, Texas

15

16

17

18

19

20

21

22 PRESENT: PAT TINLEY, Kerr County Judge

23 H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2

24 DAVE NICHOLSON, Commissioner Pct. 4

25 ABSENT: JONATHAN LETZ, Commissioner Pct. 3 2

1 I N D E X November 27, 2006

2 PAGE --- Commissioners' Comments 4

3 1.1 Consider/discuss report from Butt-Holdsworth

4 Library Advisory Board president 9

5 1.2 Consider, take appropriate action on Kerr County member(s) of Butt Holdsworth Library Advisory Board 32

6



1.3 Consider/discuss approval of bids for electrical, 7 plumbing, HVAC, and pest control 33

8 1.4 Consider/discuss/approve replacing old vending machine with new and improved ones 35

9 1.5 Consider/discuss/approve new contract with Five

10 Star Wireless for better rate, authorize County Judge to sign same 38


12 proposed policy to allow county employees to waive participation in employee medical benefits plan,

13 establish county contribution to employee's cafeteria plan or flexible medical spending account for 2007 40

14 1.7 Receipt of responses from County Treasurer with

15 respect to various IRS issues, appropriate action concerning such responses 58

16 1.8 Consider/discuss, take appropriate action to set

17 amount of Kerr County Treasurer's official bond, effective January 1, 2007, in accordance with

18 provisions of § 83.002, Texas Local Government Code 65

19 1.9 Consider/discuss, take appropriate action to set up Texas Automated Vehicle Inspection System 78

20 1.10 Consider/discuss, take appropriate action for

21 concept of revision of Plat for Lot 1, Heartland Acres; set public hearing for same 83


23 consider division of property and septic for Lot 248A, B&R Ranches, Precinct 2 84


25 concept of revision of Plat for Lots 12, 13A & 13B, Riverside Park; set public hearing for same 94

3

1 I N D E X (Continued) November 27, 2006

2 PAGE

3 1.13 Consider/discuss, take appropriate action to purchase three pieces of equipment at the expiration of their

4 leases 94

5 1.14 Consider/discuss, take appropriate action to adopt a companion resolution acknowledging UGRA's

6 participation in Kerrville South Wastewater Project, Phase IV 99

7 1.15 Consider/discuss, take appropriate action on report

8 and recommendations of TCEQ Dam Safety Division regarding Flat Rock Lake Dam 100


10 a Resolution of Commendation for the service and sacrifice of Naval Petty Officer Charles Komppa,

11 formerly of Ingram, Texas 108

12 1.17 Consider/discuss, take appropriate action on proposed interlocal agreement between Kerr County



13 and City of Ingram with regard to OSSF jurisdiction and services 111

14 1.18 Consider/discuss appointment of Jennifer Correa-

15 Knoulton to the Kerr County Child Service Board 120

16 4.1 Pay Bills 121 4.2 Budget Amendments 124

17 4.3 Late Bills --- 4.4 Approve and Accept Monthly Reports 129

18 5.1 Reports from Commissioners/Liaison Committee

19 Assignments 129


21

22

23

24

25 4

1 On Monday, November 27, 2006, at 9:00 a.m., a special






7 Let me call to order this regular meeting of the Kerr County

8 Commissioners Court scheduled and posted for this time and

9 date, Monday, November the 27th, 2006, at 9 a.m. It's just a

10 bit past that now. Commissioner Baldwin?

11 COMMISSIONER BALDWIN: Yes, sir. Would you please

12 rise and join me in a word of prayer and the pledge of

13 allegiance, please.


15 JUDGE TINLEY: Thank you. Please be seated. At

16 this time, if there's any member of the public that wishes to

17 be heard concerning any matter that is not a listed agenda

18 item, feel free to come forward at this time and tell us

19 what's on your mind. If you wish to be heard on a listed



18 COMMISSIONER BALDWIN: That's the way it was

19 spelled.

20 COMMISSIONER NICHOLSON: Let's go and doublecheck.

21 COMMISSIONER BALDWIN: We will.

22 JUDGE TINLEY: Yeah, thank you. With that caveat,

23 any question or discussion? All in favor of the resolution,



11-27-06111


2 (No response.)

3 JUDGE TINLEY: The motion does carry.

4 COMMISSIONER BALDWIN: Judge, when we get this typed

5 and cleaned up and done properly, I will seek out the -- I

6 guess the wife and children to get this to.

7 JUDGE TINLEY: I'd appreciate that.

8 COMMISSIONER BALDWIN: Yes, sir.

9 JUDGE TINLEY: Let's move to Item 17; consider,

10 discuss, and take appropriate action on proposed interlocal

11 agreement between Kerr County and the City of Ingram with

12 regard to O.S.S.F. jurisdiction and services. I put this on

13 the agenda. We initially started considering this, oh, a

14 number of months ago. Mayor Jackson and City Attorney Danny

15 Edwards initially had a discussion about this. It went

16 through the Environmental Services department here, and

17 needless to say, it's not going to be a money-maker for us,

18 but I think we can do this more efficiently in Ingram, Texas

19 than they can in the city of Ingram, and it'll give us

20 uniformity of -- of purpose and -- and the licensing and

21 enforcement, and I think it's a good thing. The County

22 Attorney has approved the interlocal agreement.

23 COMMISSIONER NICHOLSON: Judge, earlier, the



24 Environmental Health Director said that -- that there would be

25 budget consequences to taking this action. Do we have some

11-27-06112

1 feel for what those budget consequences are?

2 JUDGE TINLEY: My understanding -- and, of course,

3 Miguel can probably be a little bit more informative on

4 this -- was that there was a concern about -- obviously, this

5 department doesn't make money. It's health and safety issues

6 that they -- that they keep track of. But the -- the number

7 of actual cases that we're going to be involved in for

8 licensing are going to be quite small; probably three to five

9 a year, is what I've been hearing, which should have minimal

10 impact. Now, the greater impact may be on the enforcement end

11 of it, and I suspect Mr. Arreola can tell us more about that.

12 MR. ARREOLA: That's what I was going -- the revenue

13 side is going to be low. The resources needed for enforcement

14 is where the greatest expense is going to be. So it's a

15 little unbalanced. I think it's good for the environment, but

16 that's it's going to take some of our resources, plus the data

17 entry and the -- all the recordkeeping. It's different. So,

18 we're going to have to -- for T.C.E.Q. audits and

19 informational purposes, we're going to have to convert all of

20 that into our system, which is going to take extra -- extra

21 efforts.

22 COMMISSIONER NICHOLSON: What is that recordkeeping

23 and enforcement going to cost?

24 MR. ARREOLA: I don't have numbers. I don't know

25 how many we're going to be actually enforcing. But, you know,

11-27-06113

1 we didn't budget for none, so it'll be, you know, outside.



2 COMMISSIONER WILLIAMS: What's the history --

3 Ingram's history in terms of volume over the years past? Do

4 you have some sense of it that way?

5 MR. ARREOLA: Yes, sir. New permitting, we have

6 some numbers, and I think probably three, four a year. We

7 have no records of enforcement. They don't have them, so we

8 don't -- we don't know what's -- what's there. There's a part

9 of the state law that says we have to do maintenance on a

10 unit. It's not going on in the county right now -- in the

11 city, so we're going to have to implement that from scratch.

12 And all that will take -- you know.

13 JUDGE TINLEY: Yeah, those numbers will have to be

14 developed, 'cause we don't have any historical numbers.

15 MR. ARREOLA: Right.

16 JUDGE TINLEY: From the prosecution and judicial

17 resources, those are -- we already do those, --

18 MR. ARREOLA: Yes.

19 JUDGE TINLEY: -- obviously. It's the

20 administrative out of your office that we're talking about.

21 MR. ARREOLA: Correct.

22 JUDGE TINLEY: That's the question mark.

23 MR. ARREOLA: Mm-hmm.

24 COMMISSIONER BALDWIN: I wanted to -- that was my

25 only comment, is this one sentence here in the City's

11-27-06114

1 responsibilities. Section 4B, The City will, at the request

2 of the County, have its City Attorney file in the Ingram

3 Municipal Court any complaints or causes of action as

4 necessary for the enforcement of the rules and regulations.

5 So, that sounds like to me that if we ask them to, then they

6 will handle all -- all of that.

7 MR. ARREOLA: They will handle the court side, but



8 all the investigation and all the resources come from us

9 first.

10 COMMISSIONER BALDWIN: Okay, I understand that now.

11 So, while I'm there, the only comment -- and I see Howard back

12 there -- the only comment I have about this, if it -- if the

13 -- if it does go into the courtroom in the City of Ingram, and

14 if they don't take care of business out there, then I -- this

15 Commissioner will take another hard look at it immediately.

16 MR. ARREOLA: Okay. I was going to ask, and

17 probably to the attorney's office, if I could -- 'cause I

18 didn't see anything anywhere in here that I cannot take it to

19 the J.P. court. If I could take it to the J.P. court instead

20 of municipal court. I don't know if the J.P. will take it, if

21 it's overlapping jurisdiction. But we -- you know, the J.P.'s

22 know the rules; we've been working with them. They've been

23 good to us. So --

24 JUDGE TINLEY: Mayor Walker, did you have a --

25 MAYOR JACKSON: I was just going to say, the City

11-27-06115

1 does have some extra power as far as enforcement.

2 JUDGE TINLEY: Not Walker, Jackson. Excuse me.

3 MAYOR JACKSON: I knew you knew who I was.

4 COMMISSIONER WILLIAMS: He's getting confused.

5 JUDGE TINLEY: This is not the first time I've done

6 this, either. There is a Howard Walker, pretty good mandolin

7 player; I'm sure you know him.

8 MAYOR JACKSON: No, not really.

9 JUDGE TINLEY: He played with the Poverty Playboys.

10 MAYOR JACKSON: Anyway, back to the subject,

11 there -- there are some additional enforcement actions that

12 the City can take that the County cannot, over and above the



13 actual technical -- whatever, as far as the O.S.S.F. rules.

14 In other words, we can use nuisances, we can use a lot of

15 things that we have in our little repertoire that -- that you

16 guys don't.

17 COMMISSIONER WILLIAMS: I think Commissioner

18 Baldwin's point is really valid, in that we're expending the

19 time and the effort to -- to address failing septics or

20 correct problems, and if the City doesn't follow up with

21 that, --

22 MAYOR JACKSON: Well, all I can say --

23 COMMISSIONER WILLIAMS: -- then that's a wasted

24 effort.

25 MAYOR JACKSON: All I can say is as long as I'm

11-27-06116

1 there, I guarantee it will be. And beyond that, I can't -- of

2 course, I can't promise. But --

3 COMMISSIONER BALDWIN: Yeah.

4 MAYOR JACKSON: -- I think once it's up and rolling,

5 though, I think -- I don't think anything's really going to

6 change, to be honest with you.

7 COMMISSIONER WILLIAMS: Is that good or bad?

8 MAYOR JACKSON: That's good.


10 MAYOR JACKSON: In other words, the enforcement is

11 going to be pretty strong. I live there, and that's -- and

12 water and wastewater is my business. Environment's my

13 business. So -- and I think if we can get this thing set up

14 and get it going, I don't think it's going to change. I mean,

15 I can't imagine anybody sitting where I'm sitting now and

16 taking a contrary action. I just --

17 COMMISSIONER WILLIAMS: Looking ahead to the future,

18 in terms of Ingram and its centralized sewer system, have you



19 adopted an ordinance that will require people living within

20 your city limits to hook up to that sewer system?

21 MAYOR JACKSON: Yes, definitely.

22 COMMISSIONER WILLIAMS: That's a real plus.

23 MAYOR JACKSON: Yes, that's going to happen. And

24 there also -- there have been several people from outside the

25 city express interest in being annexed and tying on, and I

11-27-06117

1 asked this last council meeting for a consensus on -- we're

2 going to concentrate on taking care of the city first, what's

3 there now. Now, if somebody wants to come in from the outside

4 and they want to pay the full cost, then more power to them,

5 but we're not going to subsidize. We're going to take care of

6 our own first.

7 COMMISSIONER BALDWIN: I just think you got to

8 prosecute them to the hilt, especially in the beginning, to

9 get the attention and let people know that you're there on

10 base.

11 MAYOR JACKSON: Exactly.

12 COMMISSIONER BALDWIN: That is, if Miguel chooses to

13 use the City of Ingram. We know what our J.P.'s will do.

14 MAYOR JACKSON: If we know of a problem within the

15 city, what I'm saying is, I guarantee you that any -- any

16 other resources we can bring to bear will happen, 'cause this

17 is -- well, this affects everybody.


19 MAYOR JACKSON: And we're right on the river too,

20 just like everybody else. The old -- the common misconception

21 about septic systems is, if it's not bubbling up out of the

22 ground, it's working. Well, I beg to differ in this part of

23 the world.



24 COMMISSIONER BALDWIN: What authority does Ingram

25 have -- the City have over a county function?

11-27-06118

1 MAYOR JACKSON: Well, we're -- we just have a lot

2 more leeway in defining nuisances, and just -- there's a lot

3 of things we can do.

4 COMMISSIONER BALDWIN: Okay.

5 MAYOR JACKSON: Where -- where county governments

6 are just not empowered to do. You guys can enforce the state

7 rules, but we can add onto them; we can make them more strict

8 if we desire. We don't have to actually attack it from the

9 O.S.S.F. standpoint; we can attack it from an impact on a

10 neighbor or something like -- like a nuisance, or there's

11 probably some other lawyerly terms that you can use. But --

12 COMMISSIONER BALDWIN: Well, shouldn't that be done

13 before we adopt this?

14 MAYOR JACKSON: Well, I'd kind of like to see what

15 -- what we run into. We can handle things.


17 MAYOR JACKSON: I'm no fan of overregulation.


19 MAYOR JACKSON: Let's see how it works, and if we

20 need to do some things, then we can make that happen.

21 COMMISSIONER BALDWIN: Okay, very good.

22 MR. ARREOLA: My question then is, we're going to be

23 enforcing state law or any county rules more stringent than

24 the state law in the City of Ingram; is that correct?

25 MAYOR JACKSON: No. What we want you guys to do is

11-27-06119

1 enforce the state law. If -- if there's a situation where

2 maybe the state law doesn't contemplate a certain thing, then



3 there's some things that we can probably do to address that.

4 MR. ARREOLA: So, we just bring it to your

5 attention?

6 MAYOR JACKSON: As long as we know it, correct.

7 MR. ARREOLA: All right.

8 COMMISSIONER NICHOLSON: Okay. I'm going to move we

9 approve the proposed interlocal agreement between Kerr County

10 and the City of Ingram with regard to O.S.S.F. jurisdiction

11 and services, and authorize County Judge to sign same.

12 COMMISSIONER WILLIAMS: Second.

13 JUDGE TINLEY: Motion made and seconded for approval

14 of the agenda item as indicated. Any further question or

15 discussion?

16 COMMISSIONER NICHOLSON: Yes, I've got a couple

17 comments. One, I think y'all are aware that I believe that

18 any time that government entities like the county and cities

19 can combine services and effectively avoid duplication and

20 take advantage of those economies of scales and synergies, I

21 want to do that, and there are other opportunities that we

22 haven't looked at. For that reason, I think this is a good

23 piece of business. I also think that next summer or sooner,

24 that the -- the Environmental Health Director's going to come

25 to you and say, "I need some more money because of that Ingram

11-27-06120

1 contract," so we'll wait and see.

2 JUDGE TINLEY: For --

3 COMMISSIONER WILLIAMS: Is this a one-year

4 agreement?

5 JUDGE TINLEY: One year or subject to 90 days

6 cancellation, I believe it is.

7 COMMISSIONER NICHOLSON: Yeah, by either party.

EXHIBIT 9



1

2

3

4

5

6

7


9 Regular Session

10 Monday, January 8, 2007

11 9:00 a.m.



14 Kerrville, Texas

15

16

17

18

19

20

21

22



25 BRUCE OEHLER, Commissioner Pct. 4 2

1 I N D E X January 8, 2007



4 designate Commissioners' and Judge's liaison appointments for various functions for 2007 9

5 1.2 Consider/discuss, take appropriate action

6 regarding report from Eric Maloney, First



Responder Coordinator -- 7

1.3 Appoint two new ESD #2 directors to fill 8 expired terms 16

9 1.4 Review of Kerr County Juvenile Detention Facility first quarter budget revenues 17


11 schedule and receive detailed presentation from Headwaters Groundwater Conservation District (HGCD)

12 consulting Geologist Feather Wilson on aquifer modeling in Kerr County. Presentation to be

13 scheduled for January 22, 2007 24

14 1.6 Consider/discuss, take appropriate action on correspondence from Milton E. Taylor regarding

15 easement to his property adjacent to Kerr County's Flat Rock Lake Park (new section) 36

16 1.7 Public Hearing concerning Revision of Plat for

17 Lots 5 & 6, Cypress Springs, Phase I, in Pct. 4 51

18 1.8 Consider/discuss, take appropriate action concerning Revision of Plat for Lots 5 & 6,

19 Cypress Springs Estates, Phase I, Pct. 4 51

20 1.17 Consider/discuss, take appropriate action to approve Final Plat of Lasso Ranch, Pct. 3 53


22 Lots 16 & 17, Bear Creek Ranch Estates, Pct. 1 57

23 1.10 Consider/discuss, take appropriate action for Revision of Plat for Lots 16 & 17, Bear Creek

24 Ranch Estates, Pct. 1 57

25 1.11 Public Hearing concerning Revision of Plat for Lots 124 B & 131A of Falling Water, Pct. 3 60

3

1 I N D E X (Continued) January 8, 2007

2 PAGE

3 1.12 Consider/discuss, take appropriate action for Revision of Plat for Lot 124B & 131A of Falling

4 Water, Pct. 3 60

5 1.13 Public Hearing concerning Revision of Plat for Lot 1 of Heartland Acres, Pct. 2 75


7 Revision of Plat for Lot 1 of Heartland Acres, Pct. 2 75


9 Lot 12, 13A & 13B, Riverside Park, Pct. 4 77

10 1.16 Consider/discuss, take appropriate action for Revision of Lots 12, 13A & 13B, Riverside Park,

11 Pct. 4 78

12 1.19 Consider/discuss, take appropriate action to bring new hire in at 13-2 due to six years prior



13 experience using budgeted funds from prior employee 79

14 1.18 Consider/discuss, take appropriate action to allow merit/step increase using budgeted funds from prior

15 employee 81

16 1.20 Public Hearing on Revised Kerr County Subdivision Rules and Regulations 85


18 revised Kerr County Subdivision Rules/Regulations 88

19 4.1 Pay Bills 95 4.2 Budget Amendments 96

20 4.3 Late Bills -- 4.4 Approve and Accept Monthly Reports 99


22 Assignments 100


24

25 4

1 On Monday, January 8, 2007, at 9:00 a.m., a regular





6 JUDGE TINLEY: Okay. Let me call to order, if I

7 might, this regular meeting of the Kerr County Commissioners

8 Court scheduled and posted for this time and date, Monday,

9 January the 8th, 2007, at 9 a.m. It's that time now.

10 Commissioner Oehler?


12 JUDGE TINLEY: Thank you. At this time, if there's

13 any member of the audience or the public that wishes to be

14 heard on any matter that is not a listed agenda item, feel

15 free to come forward at this time. If you wish to be heard on

16 a particular agenda item, we'd ask that you fill out a

17 participation form. They can be found at the back of the

18 room. It's not essential, but it helps me to not miss you

19 when we get to that item. If, for some reason, you should not



18 COMMISSIONER WILLIAMS: Legislature has its own

19 pitted battle going on right now -- pitched battle.

20 COMMISSIONER LETZ: Right.

21 JUDGE TINLEY: Anything else?

22 COMMISSIONER LETZ: That's it.

23 COMMISSIONER OEHLER: I don't know what I can

24 report. I haven't been here.

25 JUDGE TINLEY: I understand.

1-8-07105

1 COMMISSIONER OEHLER: I would assume there will be

2 something to report in the future, though.

3 JUDGE TINLEY: Okay. Tomorrow I will be at AACOG

4 heading up the Regional Review Committee that scores

5 applications for Community Block Development Grant funds from

6 all of the various jurisdictions within AACOG. There are 24

7 applications, I believe. There were 25; one was withdrawn.

8 That was a program under which the City of Kerrville, last

9 go-round, got some first-time sewer installation out here just

10 west of town, just outside the city limits. The only

11 application pending out of Kerr County is one out of the city

12 of Ingram, dealing with their water and sewer needs there. I

13 will, of course, be ineligible to act on that. But --

14 COMMISSIONER BALDWIN: You will be ineligible?

15 JUDGE TINLEY: Yes. Under our conflict rules, any

16 jurisdiction within Kerr County, I would -- I'm ineligible to

17 participate in, in the scoring.

18 COMMISSIONER WILLIAMS: Hopefully you'll be

19 ineligible on our C.D.B.G. grant coming forward.

20 JUDGE TINLEY: I hope to be ineligible on that very

21 soon, as a matter of fact.

22 COMMISSIONER BALDWIN: But when it comes to the full



23 board, our representative votes on it?

24 COMMISSIONER WILLIAMS: I do. I do vote, yes.

25 JUDGE TINLEY: But that process works. It's a

1-8-07106

1 two-tiered process. Half of the scoring takes place at the

2 COG level, which is what we will do using certain criteria

3 that we've already adopted and put in place and assigned

4 various point values to, and then the Office of Rural

5 Community Affairs at the state level has the other point

6 value, which is equal to ours, to assign -- they use different

7 criteria. But the -- the total point values which are

8 achieved that way are -- determine the ranking, and then you

9 just plug in the amount of money and see how far it goes,

10 and -- and you stop when you run out of money. But it's based

11 upon the -- the point totals that you achieve.

12 COMMISSIONER WILLIAMS: Judge, the Ingram one you

13 mentioned, that's not the sewer grant to U.S.D.A., is it?

14 JUDGE TINLEY: It is part and parcel of that.


16 JUDGE TINLEY: They're trying to accumulate funds

17 from, of course, every source that they can. My recollection

18 is that the U.S.D.A. is something just over $3 million.

19 COMMISSIONER WILLIAMS: Mm-hmm.

20 JUDGE TINLEY: And, of course, we're limited per

21 project by 250,000. And, of course, that is their application

22 to the Regional Review Committee. But there's -- it's a --

23 it's a pretty enlightening experience when you see the shape

24 that some of these smaller municipalities, particularly,

25 and -- and other jurisdictions are in, particularly as it

1-8-07107

1 concerns water availability, their distribution to their -- to



2 their citizens, and also the wastewater disposal. Some of

3 them are -- are really in a big world of hurt, particularly

4 the smaller municipalities. They just don't generate the

5 revenue that -- that you can in a larger jurisdiction.

6 COMMISSIONER WILLIAMS: Right.

7 JUDGE TINLEY: So that's what I'll be doing all day

8 tomorrow. And the -- one other item. As I distributed to

9 each of you gentlemen, we did receive a -- I received, because

10 I'm on the distribution list from the Internal Revenue

11 Service, a response from them relative to the Treasurer's

12 appeal to be relieved of the penalty and interest occasioned

13 by late payment of payroll taxes. That appeal was denied. I

14 don't know what has happened subsequent to that. The Court,

15 of course, authorized the payment of those funds to stop the

16 further accrual of penalty and interest. And maybe at the

17 next meeting, we can get the Treasurer to give us a report as

18 to where that stands.

19 COMMISSIONER BALDWIN: If my memory serves me, she

20 said that you usually don't get it the first time, that you

21 have to try over and over again. Wouldn't that -- didn't she

22 say that?

23 JUDGE TINLEY: She indicated that you -- you

24 normally have to appeal it multiple times, and so that's what

25 I'm anticipating. But I haven't heard, so I don't know -- I

1-8-07108

1 don't know what -- what action, if any, she's taking in

2 response to that, but I'd be interested to know -- to know

3 that, as I'm sure you folks would, too. That's all I got.

4 COMMISSIONER BALDWIN: One more question. You

5 touched on the AACOG several times. When is the retirement

6 party?



7 COMMISSIONER WILLIAMS: Oh, thank you for reminding

8 me. The 28th. I'm sure the invitation will be forthcoming,

9 but it is Sunday, the 28th. It is not Super Bowl Sunday.

10 COMMISSIONER BALDWIN: Who cares?

11 COMMISSIONER WILLIAMS: Doesn't make any difference,

12 since the Cowboys are not in it.

13 COMMISSIONER BALDWIN: Who cares?

14 COMMISSIONER WILLIAMS: My understanding is 2:00 to

15 5 p.m. at the Henry B. Gonzales -- or one of the sections of

16 the Henry B. Gonzales Convention Center.

17 COMMISSIONER OEHLER: Who's retiring?

18 COMMISSIONER WILLIAMS: Al Notzon, after almost 40

19 years as the head of AACOG.

20 COMMISSIONER BALDWIN: We need to go. Anybody that

21 can hang in there 40 years...

22 COMMISSIONER WILLIAMS: And he will be replaced by

23 Gloria Arriaga. I don't know if you've ever had the

24 opportunity to meet Gloria, but I will -- at the earliest

25 opportunity, I'll invite Gloria to come to court so everybody

1-8-07109

1 can meet her, talk to her. She's extraordinarily

2 knowledgeable, has worked her way up this ladder, and she

3 survived a really rigorous search for a new executive

4 director. She'll do a good job.

5 JUDGE TINLEY: Anything else? You got anything for

6 us?

7 MR. EMERSON: One quick item. Responses out of my

8 office may be a little bit slow towards the end of the month.

9 I have two different employees undergoing surgical procedures,

10 so just bear with us if we're not quite as fast as we usually

11 are.

12 JUDGE TINLEY: Another item, I think some of you got

EXHIBIT 10

5/18/2020 www.co.kerr.tx.us/commcrt/minutes/2007/121007cc.txt


1 2 3 4 5 6 7 8 KERR COUNTY COMMISSIONERS COURT 9 Regular Session 10 Monday, December 10, 2007 11 9:00 a.m. 12 Commissioners' Courtroom 13 Kerr County Courthouse 14 Kerrville, Texas 15 16 17 18 19 20 21 22 PRESENT: PAT TINLEY, Kerr County Judge 23 H. A. "BUSTER" BALDWIN, Commissioner Pct. 1 JONATHAN LETZ, Commissioner Pct. 3 24 BRUCE OEHLER, Commissioner Pct. 4 25 ABSENT: WILLIAM "BILL" WILLIAMS, Commissioner Pct. 2 2 1 I N D E X December 10, 2007 2 PAGE 1.1 Consider/discuss take appropriate action on 3 request to use portion of courthouse grounds and parking area on January 11, 2008, for 4 Cowboy Breakfast 8 1.2 Consider/discuss, take appropriate action on 5 Ingram ISD septic problem and proposed emergency repair by ISD maintenance personnel 14 6 1.3 Consider/discuss, take appropriate action on



request for variance to install small septic 7 system on First Street in Ingram based on imminent installation of city sewer 15 8 1.4 Open bids received for digital video recording system for the juvenile detention facility and 9 award appropriate bid 32,77 1.5 Consider/discuss, take appropriate action on 10 how to allocate excess funds from the '06/'07 library budget 34 11 1.8 Consider/discuss, take appropriate action concerning deed without warranty filed by Energy/ 12 Land, Inc., to Kerr County 36 1.9 Consider/discuss, take appropriate action con- 13 cerning expiration of lease for Cat 924 loader and 12H maintainer 38 14 1.10 Consider/discuss, take appropriate action for concept plan of Camp Verde Store 43 15 1.6 Consider/discuss, take appropriate action for concept of revision of plat for 707 Ranch, and 16 set public hearing for same 48 1.12 Consider/discuss, take appropriate action 17 concerning final revision of plat for Lot 67 of Cypress Springs Estates, Phase 2, Section One 51 18 1.14 Consider/discuss, take appropriate action to ratify and confirm submission of application to 19 AACOG for solid waste grant to purchase two vehicles; authorize resolution in support of same 52 20 1.15 Consider/discuss take appropriate action on appointing committee to review and present 21 recommendation on long-range facility needs of Kerr County Jail and Law Enforcement Center 53 22 1.7 Consider/discuss, take appropriate action on final revision of plat for Hill River Country Estates 57 23 1.16 Consider/discuss, take appropriate action on reviewing current burn ban implementation and 24 notification procedures, exemptions for prescribed burning during a burn ban, and website revisions 25 related to burn ban 61 3 1 I N D E X December 10, 2007 2 PAGE 1.17 Consider/discuss, take appropriate action to 3 rescind all prior Commissioners' Court orders authorizing individual department/official 4 cell phone contracts 71 1.11 Consider/discuss, take appropriate action con- 5 cerning concept of Solar Village, Lots 14-17; set public hearing for same 72 6 1.13 Consider/discuss, formulate & adopt Kerr County's position regarding utilization of Kerr County 7 Airport Authority; forward same to Texas Attorney General; appropriate action as necessary 78 8 1.18 Approve the assessment as a result of Texas State Comptroller's audit and authorize payment 9 of the assessed amount 88 1.19 Consider/discuss, take appropriate action to 10 authorize Jerry Shiever to prepare early referrals of all delinquent personal property accounts 95 11 1.20 Receive information on legislative & regulatory updates and elections and take any desired 12 appropriate action to finalize TCDRS plan and elections for Kerr County for 2008 100



13 1.21 Consider/discuss, take appropriate action on authorizing the financial adviser to prepare 14 recommendations for the most economical and beneficial type of short-term financing for 15 the County, and begin documentation necessary for the short-term financing application 105 16 1.22 Consider/discuss, take appropriate action to adopt an order, based on burn ban status, pro- 17 hibiting sale or use of restricted fireworks in any portion of unincorporated area of the county 107 18 1.23 Consider/discuss, take appropriate action on Edward Martin contract 112 19 4.1 Pay Bills 113 20 4.2 Budget Amendments 116 4.3 Late Bills 117 21 4.4 Approve and Accept Monthly Reports 118 22 5.1 Reports from Commissioners/Liaison Assignments --- 23 1.24 Consider/discuss, take appropriate action on hiring a part-time deputy (Executive Session) --- 24 3.1 Action taken on executive session item(s) 120 25 --- Adjourned 121 4 1 On Monday, December 10, 2007, at 9:00 a.m., a regular 2 meeting of the Kerr County Commissioners Court was held in 3 the Commissioners' Courtroom, Kerr County Courthouse, 4 Kerrville, Texas, and the following proceedings were had in 5 open court: 6 P R O C E E D I N G S 7 JUDGE TINLEY: Good morning, ladies and gentlemen. 8 Let me call to order this regularly scheduled meeting of the 9 Kerr County Commissioners Court posted and scheduled for this 10 time and date, Monday, December the 10th, 2007, at 9 a.m. It 11 is that time now. Commissioner Baldwin? 12 COMMISSIONER BALDWIN: Yes, sir. Would you stand 13 and join me in a word of prayer, and then we'll do the pledge 14 of allegiance. 15 (Prayer and pledge of allegiance.) 16 JUDGE TINLEY: Thank you. 17 COMMISSIONER BALDWIN: Thank you. 18 JUDGE TINLEY: At this time, if there's any member 19 of the public or the audience that wishes to be heard on any



15 the weekend. 16 JUDGE TINLEY: Okay. We'll move to Item 3; 17 consider, discuss, take appropriate action on request for 18 variance to install a small septic system on First Street in 19 Ingram, based on the imminent installation of city sewer. We 20 have Mr. Digges, the honorable Danny Edwards from the City 21 Attorney's office in Ingram, and Mr. Garcia. Who wants to 22 run with the ball here? 23 MR. DIGGES: I instigated this, so I guess I should 24 come up and talk about it. 25 JUDGE TINLEY: Okay. 12-10-07 16 1 MR. DIGGES: It's a -- a residence in Ingram where 2 it's going to be in the first phase of the sewering of that 3 city. And we were asked by the sellers of the property to 4 install a new septic system, as the one that was there was -- 5 was failing. And so we have made a determination by soil 6 profiles what type of conditions we got there. We got a 7 couple of feet of clay, and we got caliche beneath it, so 8 we've got a good absorptive soil beneath. And our thinking 9 is, why put in a full-blown system when we can do an 10 abbreviated or smaller system and certainly get by until the 11 sewers were to come? In that regard, Danny Edwards may be 12 gracious enough to kind of give us an update on when he 13 thinks the -- all that's going to happen so you all can have 14 a feel for that. 15 But, you know, we used to do septic inspections 16 back in the early '90's, before the County even became 17 involved in doing inspections. And this was inspections at 18 the time of sale; not for new installations, but it was the 19 existing systems. And there was a number of times where we 20 just came across a 500-, 550-gallon tank, 100 foot of drain



21 field, and people have been operating on that for 10, 15, 20 22 years. And so the system that we're suggesting would be in 23 line with that, and so it could easily last that long, and it 24 would save the sellers of the property about $3,000 to put in 25 a smaller system than the full-blown system. Once all that 12-10-07 17 1 -- that larger tank and that -- that would more than double 2 the size of the drain field to get a regulation system. Once 3 it was in and the new sewer was in, they're going to be 4 required to connect on, and so it's just going to be gravel 5 and dirt, and it's going to be just a waste of -- of effort 6 and money, in my opinion. And I thought the Court might feel 7 the same, and so that's -- that's why I instigated this. And 8 Ray's here to talk, and Danny too, to give you that update. 9 MR. EDWARDS: Morning, Judge. 10 JUDGE TINLEY: Good morning. 11 MR. EDWARDS: And Court. I talked this morning 12 with both the U.S.D.A., who has given us our grant, and the 13 engineer to try to get as updated a report as I could give 14 you. All plans have been completed. They have been sent to 15 U.S.D.A. We have met with the City of Kerrville to make sure 16 that we're in line with all their specifications, et cetera. 17 In talking with the U.S.D.A. representative this morning over 18 in Fredericksburg, they're awaiting some minor paperwork. I 19 call it minor in comparison to the last two and a half years 20 that we've been fighting this project, which has been unduly 21 delayed by many -- on many counts. But all the plans are 22 finished. They have been forwarded to U.S.D.A. They've -- 23 this morning he said, "Would you send me one more set of 24 plans?" And he wanted a separate sheet that showed just the 25 right-of-ways and designating where the right-of-ways would



12-10-07 18 1 be -- rights-of-way would be. 2 I talked to the engineer. All of this is obviously 3 on computer, and they can even send it electronically to 4 U.S.D.A. when necessary. I have -- I have acquired all of 5 the right-of-way for the main lines. They're all signed and 6 ready to be recorded. We have about four or five minor 7 rights-of-way up in the city that we still have yet to 8 acquire. Ninety-five, 96 percent of the lines will be laid 9 in the city streets, so we have very few rights-of-way to 10 acquire. Once we -- the bid -- the spec book for bids is 11 complete. The contract -- the blank forms of contracts are 12 complete, and they have not yet been sent to the U.S.D.A. 13 That was one of the things he requested this morning. I have 14 to empathize with the engineer; he lost his number-one girl 15 about four months ago, and I think he's been living in chaos 16 down there ever since. But he says the spec book is 17 finished, the contracts are finished, and they should go out 18 sometime either late this week or next week. 19 The encouraging word that I received from U.S.D.A. 20 this morning was, once they have every single, solitary 21 sliver of paper they need, they usually get it approved in 22 about 30 days, so that's kind of a happy thing. The bad news 23 is, this has to be approved by T.C.E.Q., and I don't think 24 anybody wants to prognosticate what T.C.E.Q.'s going to do. 25 But as far as the engineering and paperwork, it's ready to 12-10-07 19 1 go. We anticipate -- the engineer, rather, anticipates the 2 construction time on this will be -- assuming we get, on the 3 first -- the bid process, as all of you know, takes 45, 60 4 days sometimes, and assuming that the first bid that we get



5 is something we can live with, that's another element you 6 have to consider. But it's moving as rapidly as it can. 7 They estimate the construction time on it at about 12 months, 8 roughly. And because it's -- the design of it is -- is 9 tremendous. We -- by necessity, we had to make a change in 10 plans where our main line was going, and by that necessity, 11 we eliminated three lift stations and saved us about, oh, 12 $750,000, $800,000 on our project. So, the mother of 13 necessity created an opportunity to -- to save a considerable 14 amount of money. I am encouraged that we're this far along. 15 And that's about it. I'll answer any questions you might 16 have. 17 COMMISSIONER BALDWIN: Danny? 18 MR. EDWARDS: Yes, sir? 19 COMMISSIONER BALDWIN: You feel quite -- I mean, I 20 can tell you feel quite sure that the -- that the new system 21 is going to come on board; you're going to get your grants 22 and all that? 23 MR. EDWARDS: Oh, yeah. We've -- 24 COMMISSIONER BALDWIN: That's going to happen, but 25 it's not like you to use the word "imminent." 12-10-07 20 1 MR. EDWARDS: Well, I don't know what "imminent" 2 means to some people. (Laughter.) 3 COMMISSIONER BALDWIN: There's my lawyer. 4 MR. EDWARDS: Well, this -- with all due respect, 5 this work's probably six to nine months behind schedule, for 6 reasons -- no fault of the City of Ingram. 7 COMMISSIONER BALDWIN: Sure. 8 MR. EDWARDS: And it's just -- and, of course, one 9 of the things we're concerned about on the first bid process



10 is that the numbers that we presented to U.S.D.A. to obtain 11 this grant are now three years old, and PVC pipe's gone up 12 about 30 percent or more, and so we don't know what the 13 results of that will be when we get our first bid in. 14 However, we did eliminate -- there was three lift stations 15 that were in our original numbers, so we're hoping that that 16 compensates somewhat. 17 COMMISSIONER BALDWIN: You talked about -- you 18 talked about 30 days on part of it, getting the -- getting 19 all the paperwork in and sending it off to somebody, and 20 it'll take 30 days or so for you to get the stamp of approval 21 from that, and then you talked about 12 months -- 22 MR. EDWARDS: Construction. 23 COMMISSIONER BALDWIN: -- construction. So, 24 there's -- there's 13 months right there. And then what 25 other time frame? Are you saying that in about 13 months, we 12-10-07 21 1 should be on line? And -- 2 MR. EDWARDS: Well, you've got your bid process, 3 which is 30 to 60 days -- 45 to 60 days. 4 COMMISSIONER BALDWIN: Sixty more days, okay. 5 MR. EDWARDS: And I can't tell you how long it will 6 take for the engineer to provide the remaining documentation 7 they requested this morning, which is basic -- one of them 8 requires the signatures of the mayor and the approval by the 9 City Council, which is the right-of-way map, and I'll have 10 all of the rights-of-way completed probably next week 11 without -- without any problem. 12 COMMISSIONER BALDWIN: So, a long time. The reason 13 I'm asking these questions is to grant a variance for a small 14 septic system -- and I'm not -- I heard Charlie talk about 15 buckets or something; I don't know -- I don't remember what.



16 But small septic systems, and I'm -- and I want to get to our 17 guy here and find out about this time frame and the -- the 18 small system, and how long -- you know, if there's enough -- 19 if this small system will last long enough for y'all to get 20 on line and all those things. 21 MR. EDWARDS: Let me make one comment before he 22 takes over. First of all, I want to say how pleased the City 23 of Ingram is with the County having taken over the septic 24 regulations. We've been short-handed out there for almost a 25 year and a half, doing anything on this. Since they took it 12-10-07 22 1 over, we've already boarded up one house completely. We're 2 about ready to condemn another one. We've had several 3 enforcement actions taken with cooperation between myself 4 and -- and the Environmental Health Department, and we're 5 very pleased with what the County enforcement agency's been 6 doing, and we've been trying to work with them as closely as 7 we can, and I think we're seeing good results already, so 8 we're very pleased with that. 9 COMMISSIONER BALDWIN: Thank you. 10 JUDGE TINLEY: Mr. Edwards, you mentioned that one 11 big question mark is T.C.E.Q.'s blessing on this project. 12 Have -- have they made any pronouncement over there at 13 T.C.E.Q. that gives you any indication of where they're going 14 or how fast they're going to go? 15 MR. EDWARDS: None whatsoever. They've had the -- 16 they've had the plans for the -- well, it's the original 17 plan. They've had the final plans for some -- a month now, I 18 guess. They don't require all of the necessary paperwork 19 U.S.D.A. does, obviously, because of the grant. So -- but 20 they do have the final plans for review, and they -- it's my



21 understanding -- and I'm not professing to be an expert, but 22 U.S.D.A. looks at one phase of operation, such as the 23 feasibility of it, the finances, and T.C.E.Q. looks at the 24 physical aspects of it, the engineering and et cetera. So -- 25 but, no, I have no indication from T.C.E.Q. as to how long 12-10-07 23 1 they might take to review it. 2 COMMISSIONER LETZ: But it sounds like you're 3 looking at about 24 months. 4 MR. EDWARDS: Pardon? 5 COMMISSIONER LETZ: About 24 months, probably. I 6 mean, about two years to get online -- two, two and a half 7 years, more than likely, to get online. 8 MR. EDWARDS: That's your words, not mine. 9 COMMISSIONER LETZ: Well, the reason I want -- 10 well, when you were calculating up over here, we were up to 11 about 18 months. If you're going to allow T.C.E.Q., you 12 know, three to six months, that puts you from -- you know. 13 MR. EDWARDS: You have a history with T.C.E.Q., 14 Commissioner? I mean, you may have. 15 COMMISSIONER LETZ: I don't have a good history 16 with them, no. 17 MR. EDWARDS: I thought maybe you know something I 18 don't know. 19 COMMISSIONER LETZ: No. They're -- I mean, as you 20 -- it's just a large agency; it takes a long time to act. 21 So, if they're being -- I would be -- if I were in y'all's 22 shoes, I'd be very happy to get it in three months, an answer 23 out of T.C.E.Q. This puts you closer to two years, so -- and 24 then you figure out some kind of -- you know, you bid it, and 25 you're going to allow another 60 days from awarding the bid



12-10-07 24 1 to starting construction, likely. So, you're looking at two 2 to two and a half years, I would think. I mean, when you 3 start adding up all the dates, from now. 4 MR. EDWARDS: I hope not, but you may be right. 5 JUDGE TINLEY: Well, of course, this -- you've been 6 involved in this process how long, Mr. Edwards? 7 MR. EDWARDS: About two and a half years. 8 JUDGE TINLEY: Yeah, to this point. And -- 9 MR. EDWARDS: That's right. 10 JUDGE TINLEY: -- the citizens of Ingram are deeply 11 indebted to you for your perseverance -- 12 MR. EDWARDS: Thank you. 13 JUDGE TINLEY: -- in hanging in with this thing and 14 going forward and getting this funding. 15 MR. EDWARDS: It's been -- 16 JUDGE TINLEY: You've been instrumental in doing 17 that for them. I appreciate your work. 18 MR. EDWARDS: It's been a cooperative effort along 19 with the County, with U.G.R.A. and with the school district, 20 the City. It's been a -- Kerrville. It's been a -- it's 21 really been a mutual government agreement. It's been a long 22 process, but we're very pleased with the progress as much as 23 we have. Also, I do empathize with these people who are 24 facing having to rebuild septic systems. And I guess my only 25 comment would be -- is that anything that's done to improve 12-10-07 25 1 the septic system in the city of Ingram is a tremendous 2 thing, because we still have culverts and 55-gallon drums out 3 there used -- being used as septic tanks, so any kind of 4 modification that's made to update one is certainly an



5 improvement over probably 50 percent of the systems that we 6 have. And so I would commend your Environmental Health 7 Department for working in that respect also. 8 COMMISSIONER OEHLER: I kind of encouraged 9 Environmental Health to do this, because there's no point -- 10 I've encouraged Environmental Health to work with these 11 property owners to do what we could do minimally to make them 12 where they're safe until they do have time to hook up to the 13 new wastewater system, 'cause I really hate to see people 14 spend money unnecessarily. But we do have to cure problems 15 when it becomes a health and safety -- 16 MR. DIGGES: I agree. 17 COMMISSIONER OEHLER: -- issue. 18 MR. EDWARDS: As I say, I'm really pleased with 19 what they're doing, and anything that's done is an 20 improvement for the city of Ingram. 21 COMMISSIONER OEHLER: I understand. 22 MR. EDWARDS: Thank you. 23 MR. GARCIA: The only thing I would submit to the 24 Court on these issues for the variances is that we -- the 25 Court recognize that in the event of a failure of one of 12-10-07 26 1 these systems -- we don't suspect that system will fail, but 2 in the event it does fail, is that what would the Court 3 require on this variance if it -- if it did fail? 4 COMMISSIONER BALDWIN: Good question. 5 MR. GARCIA: Other than that, we -- we want to work 6 with the city of Ingram; we want to do what we can to help 7 these people because of the sewer system. I won't use 8 "imminent," but the -- 9 COMMISSIONER OEHLER: Well, I believe if you use a 10 designer to go evaluate the problem, and then they come up



11 with a solution that -- that would last, in their opinion, 12 for at least two years, I think that that's a reasonable 13 request, and it would also save the landowner a lot of money. 14 And I do believe those variances need to be considered here 15 on a case-by-case. I don't think we can just give a blanket 16 variance for the city of Ingram. 17 COMMISSIONER LETZ: I agree on that point. But I 18 think the question would be, is if it fails, it needs to be 19 upgraded to a new standard so it's not failing. I mean, the 20 variance is only in effect to the point that the system is 21 operating as designed, which is correctly and efficiently. 22 If it doesn't, then additional work has to be done, even 23 during the variance period, in my mind. 24 MR. GARCIA: Exactly. And that's what we want to 25 make sure, that if it does fail, is the Court going to 12-10-07 27 1 require that they install a full system? 2 JUDGE TINLEY: Or whatever is required to bring the 3 system into an efficient operation that's in compliance with 4 health and safety norms. 5 MR. GARCIA: Yes, sir. 6 MR. DIGGES: In this instance, what we can do -- 7 what we've basically done is, the property has already 8 changed hands, and they've escrowed money for the full-blown 9 system, but we've also given them the price for the smaller 10 system. So, in this instance, if you all want us to, we 11 could have them hold that additional money in escrow until it 12 actually hooks up to city sewer, and then that -- that money 13 can be released back to the sellers. 14 JUDGE TINLEY: I don't know that we want to get 15 involved in somebody's private transaction. I think we're in



16 a position to talk about variances and what happens in the 17 event the variance is granted. If it doesn't work like it 18 should be in a properly operating system, then that's going 19 to therefore require you to upgrade the system to one that is 20 properly operating, whatever that may be. But I don't think 21 we need to get involved in someone's private transaction. 22 COMMISSIONER LETZ: I mean, that's between the 23 buyer and the seller. If they want to leave the money in 24 escrow, that's up to them. 25 COMMISSIONER BALDWIN: What kind -- what kind of 12-10-07 28 1 system has failed there, Charlie? 2 MR. DIGGES: Well, we weren't asked to analyze the 3 existing system, but the -- apparently, a pumper went out 4 there and found that the tank was dry, and that it was an old 5 type tank and it was leaking -- apparently leaking. And we 6 did encounter -- when we did our soil profiles, we did 7 encounter the old drain field, and it was those old 1-foot 8 long clay tiles that are -- are left with an inch gap between 9 the whole series of them, a whole row of them. 10 COMMISSIONER BALDWIN: Mm-hmm. 11 MR. DIGGES: And I can -- I can offer the Court 12 this. You know, part of what makes a septic drain field fail 13 is the development of what's called the biomat, and it's just 14 a thick layer that gets more and more impervious over the 15 course of time. And, so, you're not going to have one. I 16 mean, it's going to -- it's not going to mature enough to 17 fail. So, this -- that system won't even start getting a 18 mature biomat till probably four or five years old, and so 19 I'm pretty confident -- like I said, we've analyzed a bunch 20 of systems back in the early '90's, and this is a typical 21 type hill country installation, that it didn't do real good



22 to Camp Meeting Creek, but as far as surfacing on the ground, 23 you know, we have a lot of installations out there where it 24 was a problem, you know, for collectively a bunch of them 25 going into Camp Meeting Creek. But -- but as far as it 12-10-07 29 1 surfacing on the ground, nothing would surface on the ground, 2 and it would not be an imminent or immediate health hazard. 3 COMMISSIONER BALDWIN: How many of these kind of 4 issues or situations are in the city of Ingram? 5 MR. DIGGES: I don't know. I think we're going to 6 see more. 7 COMMISSIONER BALDWIN: Well, could you estimate? 8 Is there hundreds? 9 MR. DIGGES: That I really don't know. You know, 10 you've got a lot of older homes there, that probably there's 11 -- I mean, Ray may know better than me, but there's probably 12 just a small percentage that have updated systems. So, the 13 type of system we're proposing is probably as good as the 14 average system there, and it's going to be brand-new. 15 COMMISSIONER BALDWIN: Ray, how does it work? 16 When -- I'm going to guess that there's lots of these kinds 17 of things in Ingram, and we -- you may be back in here every 18 month with one or two of these every month. Who knows? When 19 -- when these things do happen, is Charlie Digges locked in 20 to get all the business? Or how does that -- how does that 21 happen? 22 MR. GARCIA: No, it's whoever they hire. 23 COMMISSIONER BALDWIN: The private property owner 24 hires? 25 MR. GARCIA: Right. 12-10-07



30 1 COMMISSIONER BALDWIN: Okay. 2 MR. GARCIA: We provide a list of professionals -- 3 COMMISSIONER BALDWIN: Okay, good. 4 MR. GARCIA: -- to the public. 5 COMMISSIONER BALDWIN: You don't make a 6 recommendation? 7 MR. GARCIA: No. 8 COMMISSIONER BALDWIN: You don't say, "Oh, hey, 9 Charlie did the last one; you may want to talk to him"? You 10 don't do that, do you? 11 MR. GARCIA: No, we don't. 12 COMMISSIONER BALDWIN: Okay, thank you. 13 MR. GARCIA: You're welcome. 14 COMMISSIONER OEHLER: I think this is a good fix 15 for a bad problem, and it's a reasonable request. We have to 16 -- something has to be done because of the health and 17 environment risk, so I think it's -- 18 COMMISSIONER LETZ: Is that a motion? 19 COMMISSIONER OEHLER: I move -- I move that we -- 20 COMMISSIONER BALDWIN: Wait, I got one more 21 question. One more question. The variance -- the variances 22 under -- in our rules and regulations cover this kind of an 23 issue? 24 MR. GARCIA: No. That's why we're here, because if 25 it was a variance going through our department, the rules 12-10-07 31 1 state it's going to be equal to or better than. 2 COMMISSIONER BALDWIN: Okay. 3 MR. GARCIA: But, again, that's why we're up here, 4 is to get a variance from the Court, because it doesn't meet 5 the minimum state standard. But, again, as Charlie and Danny

EXHIBIT 11



1

2

3

4

5

6

7


9 Special Session

10 Monday, December 22, 2008

11 9:00 a.m.



14 Kerrville, Texas

15

16

17

18

19

20

21

22




1 I N D E X December 22, 2008


3 1.1 Consider/discuss and approve, in compliance

4 with Local Government Code Section 151.001, authority to appoint a deputy Constable in

5 Precinct 1, effective January 1, 2009 6




presentation of Application Under Oath of Officer 7 to the Commissioners Court for appointment of

deputies (Treasurer) 7 8

1.5 Consider/discuss, take appropriate action on 9 presentation of County Treasurer's monthly report

for November 2008 for examination and acceptance 8 10

1.10 Consider/discuss, take appropriate action to 11 authorize County Auditor to send out a letter to

all school districts requesting their population 12 census in order to refund the funds remaining in

the Kerr County Divide Permanent School Fund in 13 accordance with the determination of those funds

by David A. Anderson, General Counsel, Texas 14 Education Agency; authorize payment of said funds 10

15 1.2 Consider/discuss, take appropriate action to approve purchase of a 12-passenger van from

16 Caldwell Country Chevrolet 12

17 1.11 Present a rebate check from Buy Board in the amount of $1,037.75 for Kerr County's

18 participation in the program 13

19 1.15 Consider/discuss, take appropriate action to accept a sub-grant for fiscal year 2008 Homeland

20 Security Grant Program from the Division of Emergency Management 14

21 1.3 Presentation by Kerrville/Kerr County Airport

22 Board regarding storm water infrastructure and taxiway relocation project 17


24 regarding Application Under Oath of Officer to Commissioners Court for appointment of

25 deputies for 2009-2012 term of office (Tax Assessor/Collector) 41

3

1 I N D E X (Continued) December 22, 2008

2 PAGE 1.9 Consider/discuss, take appropriate action on

3 all elected and appointed officials' bonds 42

4 1.16 Consider/discuss, take appropriate action on update to the Court on progress made in first

5 quarter of budget year in the Kerr County Indigent Health Program 44

6 1.6 Public Hearing concerning final revision of plat

7 for Lots 46-A & 47-A of Cypress Springs Estates Phase I, Precinct 4 49


9 final revision of plat for Lots 46-A & 47-A of Cypress Springs Estates, Phase I, Precinct 4 50


11 appoint or reappoint members to the Board of Commissioners for E.S.D. #2 51




13 regarding health insurance --

14 1.18 Consider/discuss, take appropriate action on H.R. capital loan 51, 102


16 regarding Applications Under Oath of Officers for deputies of each elected and appointed

17 official 53

18 1.12 Presentation by Dean Danos, Deputy Director AACOG on proposed Alamo Regional Transit (ART)

19 routes in Kerrville/Kerr County 58

20 1.14 Consider/discuss, take appropriate action on joint agreement between Kerr County and City

21 of Kerrville with the Normandy Group for governmental relations assistance to obtain

22 federal government funding or other assistance for economic development projects, and projects,

23 installations, infrastructure, and/or facilities needs for Kerrville and Kerr County 73

24 1.13 Consider and discuss proposed agreement between

25 Kerr County Historical Commission and Schreiner University 84

4

1 I N D E X (Continued) December 22, 2008

2 PAGE

3 4.1 Pay Bills 102 4.2 Budget Amendments ---

4 4.3 Late Bills --- 4.4 Approve and Accept Monthly Reports 103


6 Assignments 103 5.2 Reports from Elected Officials/Department Heads 110

7 --- Adjourned 115

8

9

10

11

12

13

14

15

16

17

18

19



8 on what they can get out of that lake before we plug it.

9 Hopefully -- hopefully, they'll get quite a bit of that. The

10 hole at the school is real big, 'cause that's only a very

11 short haul. Maybe where they're driving now is less than a

12 mile round trip, so that will end -- that will do well. And

13 the main reason that we decided to go ahead and -- and try to

14 get some of that out, this is the very first time we've ever

15 drained that thing when we had dry conditions like this, to

16 where you can actually get in there and move a lot of

17 material that wasn't wet.

18 COMMISSIONER BALDWIN: Mm-hmm.

19 COMMISSIONER OEHLER: And so, you know, the drought

20 is a bad thing, but for this, it's a wonderful thing. So,

21 they're going to -- I think they're going to try to get out

22 all they can get, you know, while they have time to do it.


24 COMMISSIONER OEHLER: I think that's it.

25 COMMISSIONER WILLIAMS: Judge, I do have -- I was

12-22-08109

1 checking my e-mail. I got one from Grantworks there. We

2 were talking about the next round of colonia fundings, and

3 the deadline for that is in March. And they're talking to us

4 about the possibility of applying for half a million dollar

5 grant, which would do a couple things, some in your precinct,

6 some ramp-up on Kerrville South. The current Phase 4 in

7 Kerrville South goes down to Ranchero Road, picks up those

8 duplexes and quads, all that kind of stuff, and then the --

9 Southwind, isn't it, Buster?

10 COMMISSIONER BALDWIN: Yes, sir.

11 COMMISSIONER WILLIAMS: Southwind Mobile Home Park.

12 There still remains down there an apartment complex that --

13 that someday we'd like to hook up, and so this is a little



14 ramp-up work. Also, we're talking about the possibility of

15 finishing out Blue Ridge and that mobile home park, which are

16 the two of those that were started by the City and didn't get

17 finished.

18 JUDGE TINLEY: Blue Ridge.

19 COMMISSIONER OEHLER: Blue Ridge.

20 COMMISSIONER WILLIAMS: So we would be picking that

21 up. So, I'll come back to the Court with it in January and

22 see where that takes us.

23 COMMISSIONER OEHLER: I also think they made some

24 progress -- I haven't gotten to meet with the Ingram City

25 Manager yet, but there's a real interest in the City taking

12-22-08110

1 some sewer for those businesses along 27, taking it right on

2 down and treating them. That would really be a wonderful

3 thing, and looking real forward to getting that done.

4 COMMISSIONER WILLIAMS: I queried Grantworks about

5 whether or not there are any funds available for that

6 purpose, Bruce, and because they're businesses and they --

7 you know, they're well above the threshold. There's probably

8 no funding through any of these sources for that purpose.

9 COMMISSIONER OEHLER: Right.

10 COMMISSIONER WILLIAMS: They can do it on their

11 own.

12 COMMISSIONER OEHLER: I think most of the

13 businesses along there will be more than willing to pay

14 whatever the expense is to get on that line, get rid of those

15 septics.

16 COMMISSIONER LETZ: Increases the amount of

17 property available. But we can't discuss it.

18 COMMISSIONER OEHLER: So, that's all I have.

EXHIBIT 12



1

2

3

4

5

6

7


9 Regular Session

10 Monday, January 12, 2009

11 9:00 a.m.



14 Kerrville, Texas

15

16

17

18

19

20

21

22





2 PAGE

3 --- Commissioners' Comments 5

4 1.1 Consider/discuss, take appropriate action to approve amending resolution for submission of

5 the General Victim Assistance Direct Services Program grant proposal for 2009-2010 to Office

6 of the Governor, Criminal Justice Division 12



7 1.2 Consider/discuss, take appropriate action to approve two updates to 2008-2009 Kerr

8 County Indigent Health Care policy adopted in December 2008 14


10 budget amendment request from J.P. 1 15, 63

11 1.4 Open bids received from the RFP for mass notification services and distribute to

12 appropriate personnel to begin review and evaluation process 40


14 appoint Lee Fry as a member of Kerr County Child Services Board 46


16 requests from appointed and elected officials to appoint clerks and assistants for their

17 offices pursuant to Local Government Code Chapter 151 47


19 amend Court Order 31141 reappointing Garland Reece and Perrin Wells for three-year terms to

20 Board of Commissioners for ESD #2; amend the term to two years 47


22 reducing registration fees during Rabies drive 48

23 1.10 Consider/discuss, take appropriate on request from Heart of the Hills Barrel Racing Association

24 to be added to nonprofit list for use of Indoor Arena at Hill Country Youth Exhibit Center 49

25 3


2 PAGE 1.11 Consider/discuss, take appropriate action to

3 approve amendment to interlocal agreement for firefighting services between City of Kerrville

4 and Kerr County for FY '08-'09 52

5 1.12 Consider/discuss, take appropriate action to approve grant agreement between Texas Water

6 Development Board and Kerr County for Center Point/Eastern Kerr County wastewater project 53


8 approve Wastewater Facility Plan contract between Kerr County and Tetra Tech, Inc. for

9 Center Point/Eastern Kerr County wastewater project 56


11 appoint Cheryl Thompson to ESD #1 Board of Commissioners for a two-year term 58


13 approve declaring a roll shelf cabinet and one



file cabinet as surplus property 58 14

1.16 Consider/discuss, take appropriate action to 15 adopt a resolution in support of Texas Tech

University acquiring continued funding from 16 the Texas Legislature 60

17 1.8 Consider/discuss, take appropriate action to adopt a resolution opposing wastewater discharge

18 at Hill Country Camp on Harper Road 62

19 4.1 Pay Bills 70 4.2 Budget Amendments --

20 4.3 Late Bills -- 4.4 Approve and Accept Monthly Reports 71


22 Assignments 72 5.2 Reports from Elected Officials/Department Heads 74

23 --- Adjourned 76

24

25 4

1 On Monday, January 12, 2009, at 9:00 a.m., a regular

2 meeting of the Kerr County Commissioners Court was held in

3 the Commissioners' Courtroom, Kerr County Courthouse,

4 Kerrville, Texas, and the following proceedings were had in

5 open court:



8 Let me call to order this regularly scheduled meeting of the

9 Kerr County Commissioners Court, first meeting of 2009 --

10 regular meeting of 2009, posted and scheduled for today,

11 Monday, January the 12th, 2009, at 9 a.m. It is that time

12 now. Commissioner Baldwin?

13 COMMISSIONER BALDWIN: Yes, sir. Y'all stand and

14 have a word of prayer with me, please.


16 COMMISSIONER BALDWIN: Why are those lights off?

17 MS. LAVENDER: 'Cause I unscrewed the lightbulbs on

18 them a little while ago before we took the photographs.

19 COMMISSIONER BALDWIN: Photographs.

20 COMMISSIONER WILLIAMS: This one's on.



10 COMMISSIONER WILLIAMS: However...

11 COMMISSIONER LETZ: However, there were some

12 unintended consequences to it that I think are coming to the

13 forefront now about really limiting counties' ability to do

14 small lots where they need to in certain areas, such as

15 ETJ's, and near -- and things of that nature. So, anyway, he

16 was very interested in that as well. That's it.

17 JUDGE TINLEY: Commissioner Oehler?

18 COMMISSIONER OEHLER: Well, several things,

19 actually. I met with the Ingram City Manager and -- and

20 Charlie Hastings the other day about trying to work an

21 agreement that would allow businesses along Highway 27 in

22 Ingram's ETJ, as well as in Kerrville's ETJ, to be able to

23 hook up to a line that's going to become a dead line once the

24 Ingram wastewater project goes into effect and actually some

25 of the hookups occur. And they didn't tell me no; they

1-12-099

1 didn't tell me yes. But I have to do some legwork to find

2 out how much water usage we're talking about, I think, if

3 they combined all the businesses along there that are

4 affected. I thought that was -- you know, that would be a

5 wonderful thing if we could get the City to go along with

6 some kind of an agreement to make that possible, because

7 they're really kind of in no man's land. They're not going

8 to be allowed to hook up to Ingram; not allowed to hook up to

9 Kerrville, because they're not in -- either one in the city

10 limits. So, this may be kind of a -- a maiden voyage, I

11 guess, into an area that would really be a big help to a lot

12 of areas that are unincorporated, and be allowed to do things

13 to get off of septic and get onto wastewater.

14 Two, I met last week with TexDOT on -- on

15 off-system bridges in my area. Seems that those are going to

EXHIBIT 13



1

2

3

4

5

6

7


9 Special Session

10 Monday, October 26, 2009

11 9:00 a.m.



14 Kerrville, Texas

15

16

17

18

19

20

21

22




1 I N D E X October 26, 2009



4 request for permission to use the courthouse parking lot/lawn to host the 6th annual Hill

5 Country Cowboy Breakfast on January 15, 2010 8




request to approve nomination of Roger "Corey" 7 Walters to fill the current vacancy on the

Kerrville/Kerr County Airport Board 11 8

1.4 Consider/discuss, take appropriate action to 9 review and acknowledge receipt of the annual

commissary audit to ensure compliance with 10 Chapter 351.0415, Local Government Code 13

11 1.5 Consider/discuss, take appropriate action to approve a private road name in Precinct 1 15


13 go out for proposals to purchase a used 66" single-drum vibratory compactor 16


15 adopt Kerr County policy relating to acceptance of cash from citizens in payment of fines, fees,

16 or other payments 20

17 1.11 Consider/discuss, take appropriate action to authorize and/or approve preliminary planning,

18 evaluation, and other preconstruction activities or procedures in connection with proposed Law

19 Enforcement Annex/Adult Probation Building 35

20 1.3 Consider/discuss, take appropriate action to award bid for Kerr County 2009-2010 employees

21 health benefits 36

22 1.7 Presentation from Steve Soliz on the San Antonio AirLIFE's Guardian Angel plan 59


24 submit an application to Texas Water Development Board for flood protection planning grant for

25 Center Point/East Kerr County and other areas of Kerr County as may be desirable 73

3

1 I N D E X (Continued) October 26, 2009

2 PAGE 1.10 Consider/discuss, take appropriate action on

3 update and status report of the jail docket/ direct file/fast track 81


5 concerning appeal from Kerr County to Texas Water Development Board on DFC's set by GMA-9

6 for the Edwards-Trinity (Plateau), Ellenberger, and Hickory Aquifers 129


8 approve contracts with KEDF, K'Star, CASA, Comfort VFD, Elm Pass VFD, Center Point VFD,

9 Castle Lake VFD, Mountain Home VFD, Hunt VFD, Ingram VFD, and Tierra Linda VFD; allow County

10 Judge to sign same 130

11 1.14 Consider/discuss, take appropriate action to establish Local Data Advisory Board pursuant to

12 S.B. 1061 131



13 1.15 Consider/discuss, take appropriate action on elected official appointment 134


15 proposed Community Collaborative Agreement between Hill Country Council on Alcohol and

16 Drug Abuse and Kerr County Court 143

17 1.17 Consider/discuss, take appropriate action on policy to coordinate all community service

18 programs to provide liability/loss protection for Kerr County 146


20 regarding policies & procedures, software and payment plan configuration and coordination for

21 court compliance and fee officers (Executive Session if needed) 148


23 possible sale, lease, or other disposition of County-owned real property (Executive Session) ---

24 4.1 Pay Bills 185

25 4.2 Budget Amendments 190

4

1 I N D E X (Continued) October 26, 2009

2 PAGE 4.3 Late Bills ---

3 4.4 Approve and Accept Monthly Reports 191

4 5.1 Reports from Commissioners/Liaison Committee Assignments 192

5 5.2 Reports from Elected Officials/Department Heads 196

6 --- Adjourned 203

7

8

9

10

11

12

13

14

15

16

17

18

19



10-26-09130

1 all I have. I mean, the appeal is being worked out

2 between -- or that verbiage part of it -- between myself and

3 Ray Buck kind of coordinated it using their outside counsel,

4 Anthony Corbett. And I visited with -- briefly with Rex and

5 Ilse last week, and visited with Ilse a little bit more. I

6 think there may be a little part I'd like to have them

7 present as well, and a couple of issues, one related to

8 subdivision rules and water availability and what this does

9 to our interpretation of that, and possibly another issue of

10 proper posting of an agenda item for the action taken under

11 the August 29th meeting, 2008. A question has come up as to

12 whether -- whether the GMA-9 posted one of its meetings

13 correctly -- not the meeting correctly, one of the agenda

14 items correctly. Other than that, we're just getting ready

15 for it. We'll be there Monday. That's it.


17 COMMISSIONER LETZ: Nope.

18 JUDGE TINLEY: Okay. We'll move to Item 13, to

19 consider, discuss, take appropriate action to approve

20 contract with Kerr Economic Development Foundation, K'Star,

21 CASA, Comfort VFD, Elm Pass VFD, Center Point VFD, Castle

22 Lake VFD, Mountain Home VFD, Hunt VFD, Ingram VFD, and Tierra

23 Linda VFD, and allow County Judge to sign the same. Have you

24 had an opportunity to review these contracts, Mr. Emerson?

25 MR. EMERSON: I think most of them are the standard

10-26-09131

1 contracts, Your Honor.

2 COMMISSIONER WILLIAMS: Move approval.

3 COMMISSIONER BALDWIN: Second.

4 COMMISSIONER WILLIAMS: As presented.



16 JUDGE TINLEY: Is that your motion?

17 COMMISSIONER BALDWIN: Absolutely.

18 JUDGE TINLEY: Okay. And we have a second here?

19 COMMISSIONER WILLIAMS: Second.

20 JUDGE TINLEY: Any question or discussion on the

21 motion? All in favor of the motion, signify by raising your

22 right hand.



25 (No response.)

10-26-09134

1 JUDGE TINLEY: The motion carries. Gentlemen,

2 we've got several more items to do, as well as our regular

3 financial items. What's the Court's desire? Blow through,

4 or come back after lunch?

5 COMMISSIONER BALDWIN: Well, I want to do Point 15.

6 COMMISSIONER LETZ: Then go to lunch?

7 COMMISSIONER BALDWIN: And then go to lunch.

8 JUDGE TINLEY: Okay.

9 COMMISSIONER BALDWIN: 'Cause I think there's

10 probably a lot of people in here wanting to see what that

11 does.

12 JUDGE TINLEY: Okay. We'll move to Item 15;

13 consider, discuss, take appropriate action on elected

14 official appointment. I would note that we have received

15 communication from the County Attorney notifying us that he

16 intends to resign effective Friday, October 30th, 2009, at

17 11 a.m. I think, under certain provisions of state law, at

18 this point we do not want to accept that resignation for fear

19 that it may trigger something, and it may prevent him from

20 being able to continue to function until that point in time.



21 So, I just merely make note of --

22 COMMISSIONER BALDWIN: In other words, if we

23 accepted it, even though this date is before us, it might

24 possibly be immediate?

25 JUDGE TINLEY: I'd refer you to Judge Phil

10-26-09135

1 Hardberger for that issue, and I think he'd probably tell

2 you, yeah, that's the way --

3 COMMISSIONER BALDWIN: Stay out of the way.

4 JUDGE TINLEY: -- that's the way the appellate

5 court said it works.

6 COMMISSIONER OEHLER: I have never seen it. I

7 don't even want to look at it.

8 JUDGE TINLEY: But it -- we're just being put on

9 notice, kind of, sort of, is the way I see it.

10 COMMISSIONER OEHLER: Yeah.

11 JUDGE TINLEY: But being put on notice, it behooves

12 us to plan, I think. And it occurs to me that we should

13 serve notice that if, in fact, that occurs, and if someone

14 wishes to be considered for that position, they need to

15 provide us with their resumé, as it were, all of the

16 documentation that they feel like supports their position to

17 be appointed, and that they do it by a specified date so that

18 this Court may take reasonably prompt action. But I think

19 they need a reasonable period of time in which to do that.

20 Would you agree, Commissioner?

21 COMMISSIONER BALDWIN: I would. But I think we may

22 be separated a little bit over what a reasonable time might

23 be. But I definitely am in favor of giving everyone an

24 opportunity to apply; that's a given. But the point is,

25 let's say that we -- let's say that we give -- you know, it's



10-26-09136

1 a two-week process, even, from -- and so from Friday, when

2 the County Attorney resigns, and at that time, at the end

3 of -- so we're uncovered for two weeks? We don't have an

4 attorney for two weeks?

5 COMMISSIONER WILLIAMS: No, we could have a special

6 meeting for that purpose.

7 COMMISSIONER BALDWIN: We could have a special

8 meeting, or we can appoint someone to fill that -- that term.

9 COMMISSIONER LETZ: When's your -- the current term

10 up?

11 MR. EMERSON: Three years.

12 COMMISSIONER OEHLER: Whoever is going to run for

13 that would have to run twice in four years.

14 COMMISSIONER WILLIAMS: Have to run next year,

15 whoever it is.

16 COMMISSIONER LETZ: Next year or three years? You

17 just got reelected, right?

18 MR. EMERSON: Right, but whoever you appoint will

19 have to run in the March primary, have to run in the next

20 general election.

21 COMMISSIONER LETZ: Oh, okay.

22 COMMISSIONER BALDWIN: So, like, we're expecting

23 Rex to resign this Friday at 11:00. Why can't we ask all the

24 folks that are interested to have a resumé or an application,

25 whatever it is, in here by this Friday? And then one week

10-26-09137

1 later, having a special meeting to -- to do that, to appoint.

2 But I'm -- I'm uncomfortable about being -- not having an

3 attorney in here.

4 JUDGE TINLEY: I understand.



5 COMMISSIONER BALDWIN: Aren't you?

6 COMMISSIONER LETZ: I guess the --

7 COMMISSIONER WILLIAMS: I'd prefer to have one.

8 COMMISSIONER LETZ: Is it possible to appoint an

9 interim?

10 COMMISSIONER BALDWIN: Yes. That's what I'm saying

11 to do.

12 JUDGE TINLEY: Acting?

13 COMMISSIONER LETZ: An acting. And then make the

14 decision -- I mean, I would be much more comfortable having

15 somebody in that office --

16 COMMISSIONER BALDWIN: All the time.

17 COMMISSIONER LETZ: -- at 10:01, I think -- or

18 11:01. 11:01.


20 COMMISSIONER WILLIAMS: Well, an interim with the

21 understanding that -- with some understanding that this

22 individual is not going to seek the position? Or an interim

23 for just a few hours, or a week or 10 days? What are we

24 talking about?

25 JUDGE TINLEY: Short period, I would think, if

10-26-09138

1 we're -- if we wanted to have it covered. I think upon the

2 effectiveness of the resignation of the current County

3 Attorney, we can designate someone to be the acting County

4 Attorney.


6 JUDGE TINLEY: And then that gives us a period of

7 two weeks or whatever, whatever is appropriate to give people

8 an opportunity to -- to bring forward their credentials and

9 the resumés, and give us an opportunity to review them and

10 make -- make the appointment until --



11 COMMISSIONER BALDWIN: The election.

12 JUDGE TINLEY: Mm-hmm.

13 COMMISSIONER WILLIAMS: That's the key. "Acting."

14 JUDGE TINLEY: Yes.

15 COMMISSIONER WILLIAMS: Versus -- okay.

16 COMMISSIONER BALDWIN: So, if we appointed -- let's

17 just say that we ask everybody to have their resumés in by

18 this coming Friday, and then in the meantime, you and whoever

19 will form some kind of little committee to look those over,

20 and then the following Friday, have a special Commissioners

21 Court meeting to make that appointment. So, we would just

22 have one week of an acting County Attorney.

23 COMMISSIONER WILLIAMS: That would be acceptable.

24 COMMISSIONER OEHLER: Do we really need to do that?

25 I mean, we have the assistant. The office is not going to be

10-26-09139

1 vacated. It won't be any action, I don't believe, but there

2 will be -- you could call and get -- I mean, I'm just

3 throwing it out there.

4 COMMISSIONER LETZ: I think my concern would be

5 that there's -- as an elected office, there's constitutional

6 duties, and there's no one to fulfill those constitutional

7 duties unless we make an acting appointment.

8 COMMISSIONER OEHLER: Okay.

9 COMMISSIONER LETZ: That's how I look at it.

10 COMMISSIONER WILLIAMS: I agree with that.

11 COMMISSIONER OEHLER: Okay. I'm -- I just wanted

12 to know, 'cause I can't really see it as being that big of an

13 emergency.

14 JUDGE TINLEY: And if we name an acting, I think we

15 ought to give a little bit more time for those that are



16 interested.

17 COMMISSIONER BALDWIN: So, you think lawyers can't

18 put their resumés together in five days?

19 JUDGE TINLEY: Well, how long did it take the good

20 governor to do his deal?

21 COMMISSIONER BALDWIN: We're talking lawyers here,

22 not governors.

23 JUDGE TINLEY: There were lawyers involved, now.

24 COMMISSIONER WILLIAMS: Well, may -- it may give

25 the opportunity for more lawyers to put their resumés in

10-26-09140

1 place.

2 COMMISSIONER OEHLER: I would say the second

3 meeting in November.

4 JUDGE TINLEY: Maybe not -- maybe not even that

5 late.

6 COMMISSIONER OEHLER: Or have a special meeting; I

7 don't care. I'll be here whenever there's a meeting.

8 COMMISSIONER WILLIAMS: We have to meet to accept

9 the County Attorney's resignation, do we not?

10 COMMISSIONER LETZ: He can just resign.

11 JUDGE TINLEY: No.

12 COMMISSIONER WILLIAMS: We do not? Okay.

13 JUDGE TINLEY: Our first meeting is going to be the

14 9th, which is -- in essence, is -- that's two weeks from

15 today, yeah. But, now, in that -- in that vein, we could

16 throw it off until sometime after the 9th. But I think you

17 ought to give at least 10 days --


19 JUDGE TINLEY: -- opportunity to -- to get these

20 resumés filed, and that, to me, would indicate a deadline of,

21 say, probably the -- say the 6th of November. We got an



22 election that's going to come in the meantime.

23 COMMISSIONER OEHLER: What date in November?

24 JUDGE TINLEY: 6th. That's a Friday.

25 COMMISSIONER OEHLER: Okay.

10-26-09141

1 JUDGE TINLEY: That's just slightly more than 10

2 days.

3 COMMISSIONER OEHLER: Works for me.

4 COMMISSIONER LETZ: Can we appoint an acting today?

5 COMMISSIONER BALDWIN: Yes.

6 JUDGE TINLEY: Sure. Sure.

7 COMMISSIONER BALDWIN: Actually --

8 COMMISSIONER OEHLER: Providing for the fact that

9 the County Attorney does resign?

10 COMMISSIONER BALDWIN: Actually, the agenda item

11 that's -- it says "action on elected official appointment."

12 It really -- I don't know if it covers all these other things

13 that we're talking about, these dates.

14 JUDGE TINLEY: I think it does.

15 COMMISSIONER BALDWIN: Okay. All right. That's

16 fine with me.

17 JUDGE TINLEY: That's one facet of -- you know, we

18 can -- we can appoint an acting County Attorney to become

19 effective upon the vacation of the office by the existing

20 County Attorney until further action by the Court, with a

21 request that any applicants who are interested in that

22 position furnish their resumés to the Court on or before the

23 close of business on Friday, November the 6th, and will

24 thereafter make the appointment.

25 COMMISSIONER BALDWIN: Is that the motion?

10-26-09



142

1 COMMISSIONER LETZ: Sounded like he was making a

2 motion to me.

3 COMMISSIONER WILLIAMS: That sounds like the

4 structure of a motion, Judge. Only one thing missing, and

5 that's the name of the individual.

6 COMMISSIONER BALDWIN: I move that we appoint Ilse

7 Bailey as the acting -- whatever, with all that other stuff

8 you just said.

9 JUDGE TINLEY: Okay.

10 COMMISSIONER WILLIAMS: I would second that.

11 JUDGE TINLEY: You just filled in the name, right?

12 COMMISSIONER BALDWIN: I'm filling in the name.

13 JUDGE TINLEY: Okay. All right. Motion and

14 second. Question or discussion? All in favor of the motion,




18 (No response.)

19 JUDGE TINLEY: Okay. If and when our elected

20 County Attorney vacates his office, we're going to be looking

21 to you, Ms. Bailey.

22 MS. BAILEY: Thank you, Your Honor. And I

23 appreciate Mr. Baldwin's eloquent statement of that motion.

24 COMMISSIONER BALDWIN: You're quite welcome.

25 MS. BAILEY: Thank you.

10-26-09143

1 COMMISSIONER BALDWIN: Any time I can be of

2 assistance to you, you let me know.

3 MS. BAILEY: Thank you.

4 JUDGE TINLEY: Why don't we come back -- we'll be

5 in recess until about --

cause no. 19355b city of ingram, texas § plaintiff § in

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