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2009-01-08

Forsooth, yet another lawsuit cometh

By Judith Pannebaker

As the proverbial rhyme goes, “for want of a nail,” a kingdom was eventually lost. However, as occurred recently in the County of Bandera, for want of a correct address, another lawsuit was launched.

In his second grievance against Lord High Attorney General Greg Abbott on behalf of local citizenry, Sir George “The Crown Prince of Persuasion” Hyde of the San Antonio law firm Denton, Navarro, Rocha & Bernal, PC swore to defend the county’s right not to release his billing records. Not only that, but he pledged to mount the lawsuit pro bono - which, translated from the Latin, means “done without compensation for the public good.”In contemporary parlance, Sir Hyde is donating his services because the mistake that sparked the suit was “his bad.”

Another ‘after the fact’ ratification

On Monday, Dec. 29, Hyde, along with comrade-in-arms Ryan “Prince of Open Records Litigation” Henry, appeared before commissioners to discuss the litigation in a closed executive session. Hyde required the court’s swift ratification of the legal action since - as in a previous case - the second lawsuit against the AG had been filed Tuesday, Dec. 23, in Travis County. Eventually, the suit was approved with Precinct 2 Commissioner Bobby Harris casting the lone “nay” vote.

The latest suit grew out of a Texas Public Information Act request from Roger Sullivan. He had requested that Bandera County provide him with an accounting of checks paid to the law firm of Denton, Navarro, Rocha & Bernal for work completed on the county’s behalf.

On Sept. 29, Sullivan had written Bandera’s public information officer: “The documents containing information responsive to my request dated September 12, 2008, would be the detailed invoices given to Bandera County by Denton, Navarro, Rocha & Bernal for the payment of the following checks. I am interested in seeing what the county has paid for and the notations on the checks are vague such as ‘twenty one hundred and seventy dollars and eighteen cents for CONSULT VARIOUS ISS and another for PROF SVC-OPEN REC.”

The seven checks for which Sullivan had requested more detailed information were dated May 10 to Dec. 13, 2007.

Another attorney-client privilege
According to court documents, on Oct. 16, Hyde, acting as outside attorney for Bandera County, submitted a request for a legal opinion from the Texas Attorney General. Insisting the information Sullivan sought was exempted from disclosure, Hyde wrote: “Specifically, the attorney fee bills contain attorney-client privileged information.”

Hyde pointed out Sullivan had also sought fee documents relating to litigation that had been transferred to United States District Court, Western District of Texas - San Antonio division from a US District Court in California. That civil lawsuit - of which former County Attorney Kerry Schneider remains a party - is still being litigated. “The release of such information could adversely compromise the current litigation,” Hyde continued.
However, in a response dated Dec. 17, the AG concluded that the entities had failed to comply with “procedural requirements” of the Code of the Government; therefore, the AG ordered the documents released.

Assistant Attorney General Jennifer Luttrall explained why the ruling allowed Sullivan access to the documents he had requested.

For want of an address

In a letter dated Dec. 16, Luttrall chastised Hyde for his procedural missteps. Apparently, he had failed to respond to Sullivan’s request in the prescribed time period. Although a request does not necessarily have to be filled within the mandated 10-day period, a letter explaining the status of the request must be delivered to the requestor within that period.

Sullivan failed to receive correspondence from Hyde within in a timely manner, according to the AG. Luttrall pointed out that the response had been sent to Sullivan at “an incorrect address consisting of an erroneous post office box number.”

Although Hyde insisted two subsequent responses had been mailed to Sullivan’s correct address on Oct. 27 and Oct. 28, Luttrall noted: “The county was required to mail a properly addressed copy of its request for a ruling to (Sullivan) no later than Oct. 16, 2008. Accordingly, we find the county has failed to meet the elements of timeliness and failed to comply with the Government Code.”

This AG ruling presumes the requested information is public and must be released unless the Bandera County - or Hyde as its agent - can offer a compelling reason to withhold the information.

Meanwhile Sullivan remains convinced the obfuscation concerned Schneider’s legal entanglements in the San Antonio District Court. Hyde, it appears, is representing Schneider in the litigation with the blessing of the Texas Association of Counties. Although Schneider began representing the Bandera Falls Property Owner's Association and the water utility in the Pipe Creek subdivision as private counsel, a portion of that representation apparently spilled over to her capacity as county attorney.

Public or private personae
In 2007, the original owner of the water utility, Bunker BW Rogge, brought litigation against Schneider and various members of the Bandera Falls Property Owners Association as the consequence of the water utility being taken over by the POA.

In court filings, Rogge contends Schneider illegally facilitated the takeover of the utility company and its wells without due process, misusing her authority and violating his Fourteenth Amendment rights. Rogge contends the misuse of her authority as county attorney extended to dealings with the Texas Commission on Environmental Quality (then-TNRCC) and the local groundwater district, as well.

Rogge is suing for damages totaling $20 million.

For his part, Sullivan contends that Bandera County has illegally used taxpayers’ money to pay Hyde for defending Schneider in the protracted civil litigation. To substantiate his claim, he had requested copies of checks paid by the county to Hyde’s firm. Sullivan also requested information on any work Hyde had performed in the case of Bunker BW Rogge vs. the Bandera Falls Property Owners Association, Schneider et al.

Pro bono

Commenting on Hyde’s pro bono work for the county, Sullivan said, “Hyde’s doing this for free because it was his mistake that supposedly initiated the litigation.” According to Sullivan, Hyde should likewise donate his time to the county for the first lawsuit the county filed against the AG.

“Hyde redacted information from documents sent to the (Bandera County) Courier that he shouldn’t have,” Sullivan recalled. “That led to the AG opinion that all records requested by the Courier would have to be made public. Since he made a mistake, it seems like he needs to litigate that first lawsuit against the AG for free, too.”

In previous court pleadings related to Bunker BW Rogge v. Bandera Falls POA et al, Schneider had asserted that no legal or ethical conflict of interest existed between her private law practice and her duties as county attorney. However, last fall, her motion that pending litigation against her be dismissed because of her immunity as a government official was denied.
Schneider’s civil trial has been set for June in a San Antonio federal court.