directory
Commissioners Court passes resolution declaring no confidence in county attorney
by Joe Baker
Nov 05, 2012 | 3713 views | 0 0 comments | 14 14 recommendations | email to a friend | print
On a 4-1 vote, Karnes County Commissioners Court approved a resolution declaring no confidence in County Attorney Robert Busselman during a special meeting Nov. 5.

According to information at wikipedia.com, a resolution of no confidence is a statement or vote which states that a person in a superior position - be it government, managerial, etc - is no longer deemed fit to hold that position. This may be based on said person falling short in some respect, failing to carry out obligations, or making choices that other members feel are detrimental.

County Commissioner Carl Hummel made a motion to approve the resolution and Commissioner Pete Jauer seconded the motion. The motion carried with Hummel, Jauer, County Judge Barbara Shaw and Commissioner Tracey Schendel voting in favor while Commissioner James Rosales cast the only vote opposed to the resolution.

Rosales said his reason for voting against was due to the fact that while there may have been problems between Busselman and Judge Shaw, Busselman managed to conduct "business as usual" with all four of the local justices of the peace.

See this week's issue of The Karnes Countywide for more details about the Monday afternoon meeting.

Below is the complete text of the resolution:

A RESOLUTION OF THE COMMISSIONERS COURT OF KARNES COUNTY, TEXAS DECLARING NO CONFIDENCE IN ROBERT “BOB” LEE BUSSELMAN AS THE COUNTY ATTORNEY OF KARNES COUNTY

-------------------------

WHEREAS, Robert “Bob” Lee Busselman is the duly elected County Attorney of Karnes County; and,

WHEREAS, In 2009 a dispute arose between County Attorney Bob Busselman and the then sitting County Commissioners’ Court regarding Busselman's objection to the Court’s action to approve the construction of a Courthouse Annex and in response, the County Attorney improperly used his statutory power to prosecute the removal of elected officials by seeking the entire Commissioners Court be removed from office in Eckols v. Kendall, Jr. Et. Al.; and,

WHEREAS, In response to the improper action by the County Attorney, the Karnes County Commissioners Court found by resolution that the removal of duly elected County Officials through the removal process, except for the most serious offenses as provided by law, would subvert the fundamental democratic electoral process provided by our state and would allow a small group of citizens to overrule the will of all the citizens of the County by making their votes, cast at a properly held election, null and void; and,

WHEREAS, On April 12, 2009, the Honorable David Peeples, presiding judge for the Fourth Administrative Judicial Region summarily DENIED Busselman’s request and dismissed his case without the need for the court members to even respond; and,

WHEREAS, On Sept. 15, 2009, Maurice A. Yarter, represented by Betty Yarter (while suspended from the practice of law by the Texas State Bar) also sued Karnes County Commissioners Court seeking declaratory relief and injunction related to the Courthouse Annex in Yarter v. Karnes County Commissioners Court, filed in the 81st Judicial District of Karnes County, Texas; and,

WHEREAS, On September 16, 2009 again while suspended from the practice of law by the Texas State Bar, Betty Yarter and County Attorney Bob Busselman both made open court appearances on behalf of Maurice A. Yarter to argue for an injunction against the County; and, again the relief sought was DENIED by District Judge Peden; and,

WHEREAS, On February 17, 2010, Yarter’s appeal of Judge Peden’s Order was again DENIED, again in favor of the County; and,

WHEREAS, Since 2009 Court members have repeatedly raised objections and concerns with the County Attorney regarding numerous practices while in office, which are considered by the Court as improper, including but not limited to the following:

1) In early 2010, Busselman presented Commissioners Court a proposed mineral lease between M.D. Dixon and Karnes County, advising and advocating the Court to execute the lease; however, Busselman did not follow the statutory procedure set forth by Chapter 71 of the Texas Natural Resources Code to obtain the lease, resulting in the lease having to be canceled and outside counsel being engaged to correct the error by the court and properly obtain a lease pursuant to state law.

2) In 2010, Busselman appointed an individual, Maurice Yarter, as his investigator despite the fact that TCLEOSE reports Yarter is not licensed as a Texas Peace Officer. The Texas Code of Criminal Procedure defines a county attorney’s investigator as a “peace officer” (Sec. 2.12(5)). Section 1701.201 of the Texas Occupations Code states that a person may not be appointed as an officer (including peace officer) unless that person appointed holds an appropriate license issued by TCLEOSE. Texas Occupations Code 1701.551 makes the appointment of unlicensed persons to serve as a peace officer a criminal misdemeanor.

3) In July 2011, County Attorney Busselman unsuccessfully attempted to use the removal process to remove Vi Malone, Karnes County Treasurer. The unanimous jury verdict found in favor of Ms. Malone and against the claims made by Busselman. The County then had to reimburse the Treasurer her attorney’s fees (roughly $35,000 of Taxpayer funds).

4) In August 2011, County Attorney Busselman intimidated County officials and employees by stating throughout the County offices he had a “Judge in his pocket” (County Attorney Busselman was known to possess a handgun he referred to as “the Judge”). These statements reportedly caused employees to fear for their safety at work.

5) In 2012 the County Judge discovered and brought to the Court’s Attention a practice by the County Attorney to grant “pre-trial diversions” and collect fees in misdemeanor criminal cases filed in County Court. These arrangements appear to mirror the practice described and found to be unauthorized by law in Texas Attorney General Opinion JC-0042; such funds cannot be used by the County (JC-463) and taking these payments could jeopardize the County Attorney’s bond pursuant to Government Code 45.001. A demand of illegal fees constitutes official misconduct. Brackenridge v. State (27Tex.App. 513, May 8, 1889)(holding that a county official willfully demanding or receiving fees not authorized by law has committed official misconduct).

6) In August 2012, County Attorney Busselman in violation of Texas Disciplinary Rules of Professional Conduct 5.01 allowed “assistant/substitute county attorney Yarter” to advise and encourage the County Commissioners Court to require road use agreements that are not authorized by law and which the County lacks express legal authority to issue.

7) On August 22, 2012, County Attorney Busselman sought to put the following agenda item on the Court’s agenda: “Presentation to the Court on legal issues concerning the county.” The Proposed agenda item was not specific enough to comply with the Texas Open Meeting Act and would not provide the public with transparency. The Act requires that notice be sufficient to apprise the general public of the subject to be considered during a meeting. The Texas Supreme Court has held as insufficient agenda items that listed only general items such as “litigation” and “personnel” (Cox Enterprises, Inc. v. Board of Trustees, 706 S.W. 956) Similarly, the Austin Court of Appeals has found that a commissioners court agenda item listed as “Presentation by Commissioner” was insufficient in that it failed to give adequate notice of the topics to be discussed and noted that county officials are in a position to provide specific descriptions of the topic of their presentations (JC-0169).

8) For the period of Oct. 1 – Oct. 5, 2012 Busselman approved a timesheet for $3,000 as monthly contract labor for Betty Yarter for services as “assistant/substitute county attorney”. No contract for such labor and no funds for such work were budgeted by the County. The Texas Attorney General has opined that there is no statutory authority for contracting for an “assistant/substitute county attorney” (See JC-0430).

9) In 2012, County Attorney Busselman as repeatedly offered to resign, contingent on the Court agreeing to allow him to appoint his own replacement, contrary to the legal process. When refused, he has repeatedly withdrawn his intent to resign.

10) On September 6, 2012, County Attorney Busselman failed to exercise his supervisory duty to take action against “assistant/substitute county attorney” Yarter to protect the release of confidential client information after she disclosed information obtained through her representation of the county, which is improper pursuant to the Texas Disciplinary Rules of Professional Conduct 1.05 and 5.01.

WHEREAS, Karnes County Commissioners Court has consulted with its special legal counsel, its attorneys, in a protected meeting pursuant to Rule 503 of the Texas Rules of Evidence and has independently reviewed and considered the law and related facts and circumstances before the Court; and

WHEREAS, Based on the information known to the Court, the Court anticipates County Attorney Bob Busselman to retaliate by filing yet another removal petition seeking the removal of the duly elected Karnes County Judge and/or any Commissioner of the Court; and,

WHEREAS, Texas Penal Code § 39.03. OFFICIAL OPPRESSION states in pertinent part:

(a) A public servant acting under color of his office or employment commits an offense if he: (1) intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful; (2) intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful; or (3) intentionally subjects another to sexual harassment.

(b) For purposes of this section, a public servant acts under color of his office or employment if he acts or purports to act in an official capacity or takes advantage of such actual or purported capacity.

(d) An offense under this section is a Class A misdemeanor; and,

WHEREAS, Based on the information known to the Court and the County Attorney’s practices for at least the past four years, the Court finds and considers any such removal action described herein as being a violation of the Texas Penal Code §39.03 and brought in retaliation for the lawful report of inappropriate conduct by the Court members about the County Attorney; and,

WHEREAS, The Karnes County Commissioners Court

hereby considers and finds that any such allegation made considering the evidence known, sufficiently involves allegations attempting to invalidate official county action and/or official acts/ omissions of elected officials acting in their official capacity; and,

WHEREAS, The Court finds any and all anticipated allegations would include claims involving the performance of the Court Members’ official duties of their elected office as County Judge/County Commissioner; and,

WHEREAS, Karnes County Commissioners Court further finds that any relief sought in an Original Petition for removal would seek to invalidate the will of the people as demonstrated in the prior duly held election of County Officials electing the officials to office; and

WHEREAS, The Court finds that should any Court Member request and require legal representation to defend against anticipated legal action by County Attorney Busselman for a defense for the civil issues falling within the performance of their duties as elected officials of the County that the County should provide for and pay all related defense costs for the defense, including all expenses related thereto through appropriate action by the Court; and,

WHEREAS, The Court finds the issue of removal of the duly elected County Attorney, properly through the statutory removal process is warranted for due consideration due to the fact that several actions while in office fall within the most serious offenses which destroy the public trust, as provided by law, and failing to do so would subvert the fundamental democratic electoral process provided by our state and would allow the improper actions of one elected official to overrule the will of all the citizens of the County, but the County is not a designated entity who may bring a removal petition pursuant to Texas Government Code § 87.015; and,

WHEREAS, The Court finds it proper to issue this resolution declaring no confidence in the County Attorney;

NOW THEREFORE, BE IT RESOLVED by the Commissioners Court of the County of Karnes, Texas, that:

This resolution was considered during a property posted and properly conducted open meeting pursuant to the Texas Open Meetings Act;

The recitals above are hereby resolved as legislative findings of fact by the Karnes County Commissioners’ Court as if recited verbatim herein;

The Adoption of this resolution is in the best interest of the citizens of the Karnes County, Texas.
Comments
(0)
Comments-icon Post a Comment
No Comments Yet