Friday, March 6, 2009

BISD UPDATE

As to the Antonio Juarez case pending before federal judge Hanen, no changes - neither side appears to be taking action in the case.

As to the case before Judge Ben Euresti, March 12, 2009, at 8:30 a.m. should be the beginning of the end for one side or the other. All parties, plaintiffs and defendants have motions pending which will be heard on March 12, 2009.

There may be an interesting twist to the cases. Ben Neece in the Amended Petition filed for Art Rendon references a letter from someone with the Texas Supreme Court Disciplinary section. He suggests the letter acts as intimidation against Rendon and his counsel. Apparently someone filed a complaint and Ben Neece received some type letter concerning the complaint. A complaint does not mean wrongdoing. As to this issue I am leaving it here. It was all very confusing.

The Amended Petition is so confusing and filled with meandering argument and discussion I was getting a headache and simply stopped trying to understand what Ben Neece and Star Jones were trying to argue. I will say this, the State Bar (which is under the control of the Texas Supreme Court) has no business threatening anyone with sanctions while a case is pending.

Questions of law and facts are for the trial court, and not the State Bar. There are times when the State Bar should oversee acts in a pending case - attorney refuses to accept service - attorney point blank lies - but on questions of law and fact, the State Bar oversteps its place when it gets involved during the trial process.

In his Amended Petition filed for Rendon, Neece appears to state Rendon is no longer suing the Trustees individually. He clearly states they are being sued in their official capacity only. This means they are not being sued at all. It means BISD is being sued.

On page 7 of the petition at ¶ VI(i) it states "The Plaintiff requests that the court declare that Trustee Defendants are in violation of the Texas Open Meetings Act, TEA Regulations and BISD Policy and of their Contract with Plaintiff."

But then on page 12 ¶VIII b) (i) the petition states "Plaintiff has dropped his claims of breach of contract against Trustee Defendants therefore the Education Code is not implicated."
¶ VIII b) (ii) states basically the same thing.

If he is not suing on the contract or TEA violations, why then ask the court to declare that the Trustees have violated same?

The entire lawsuit reads with these conflicts.

Throughout the lawsuit Neece alleges Rendon is suing for TOMA violations and therefore Rendon does not need to complete the administrative process. But then he goes on in paragraph after paragraph to allege defamation. Is it TOMA or defamation? Is it TOMA or breach of contract?

On the TOMA issue I have stated in the past that I am not familiar enough with TOMA to form an opinion. Here Ben Neece did make an interesting argument which I think is correct. The court has jurisdiction to find TOMA violations and void all actions taken in violation of TOMA. This has nothing to do with the Education Code and completion of the Administrative process.

But here is the kicker, just because some judge finds TOMA was violated, does not mean Rendon was defamed. It is a separate issue. Neece is clearly trying to muddy the waters by trying to manipulate Judge Euresti into finding a TOMA violation equates to everything which was said is false or a breach of contract. No, a TOMA violation means the Board failed to follow TOMA - nothing more nothing less. If a violation is found, the court then must void the actions taken as a result of the TOMA violations. The Board is then free to reconvene under TOMA and get to the same result. Rendon may win the battle, while still losing the war.

I do not know if there was a TOMA violation. It is not clear to me the Board voted on anything which the court can now void. The court can only void an affirmative act by the Board. I guess, but I do not know, the court might be able to find TOMA was violated but that there is nothing to void because no action was taken against Rendon.

As to the firing or demoting of Rendon, all the Board through its counsel has to stipulate to is no action will be taken without compliance with TOMA, and the issue becomes moot.

As to Hector Gonzales, who knows? BISD is basically alleging immunity and the court is without jurisdiction over the parties. If BISD is correct, then Ben Euresti will simply dismiss the lawsuit. If Judge Euresti fails to dismiss the lawsuit, BISD is free to take it on an interim appeal. What I find interesting is, Ben Neece has seen the light on the immunity and administrative issues and dropped most of the claims in the original lawsuit. Why hasn’t Hector Gonzales’ attorney seen the same light?

Unless the March 12, 2009, hearing gets cancelled, I suspect the hearing will bring to light a lot of information no one really wants out there. People on all sides will be leaving the court very unhappy.

I would remind Judge Euresti he decides whether or not he has jurisdiction over the parties and whether or not Gonzales has alleged a legal or equitable interest in the Rendon suit to justify intervention. This is one reason I do not like any interference by the State Bar. If the judge knows the State Bar is watching he may be inclined to find ethical violations out of fear he will be sanctioned as a judge for not sanctioning unethical conduct by the lawyers.
No judge should be put under that type scrutiny. But this does not change the fact Judge Euresti has an independent duty from the arguments of counsel to decide if he has jurisdiction over the parties, and to sanction Gonzales and his attorney for forum shopping if he finds Gonzales has no legal or equitable interest in the Rendon case which justifies Gonzales’ intervention.
Only March 12, 2009, will tell the result.

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