ACCEPTED
03-14-00068-CV
3965060
THIRD COURT OF APPEALS
AUSTIN, TEXAS
1/30/2015 12:37:52 PM
JEFFREY D. KYLE
CLERK
No. 03-14-00068-CV
COURT OF APPEALS FILED IN
3rd COURT OF APPEALS
THIRD DISTRICT OF TEXAS AT AUSTIN AUSTIN, TEXAS
1/30/2015 12:37:52 PM
LARRY MARK POLSKY, Appellant, JEFFREY D. KYLE
Clerk
v.
THE STATE OF TEXAS, Appellee.
On Appeal from the 126th Judicial District Court, Travis County, Texas
Cause No. D-1-GV-13-000067
THE STATE OF TEXAS'S OPPOSITION TO APPELLANT'S
MOTION FOR PERMISSION TO FILE ADDITIONAL AUTHORITY
KEN PAXTON SHELLY M. DOGGETT
Attorney General of Texas Assistant Attorney General
State Bar No. 24069619
CHARLES E. ROY Shelly.Doggett@texasattorneygeneral.gov
First Assistant Attorney
General KEN CROSS
Assistant Attorney General
JAMES E. DAVIS State Bar No. 05135800
Deputy Attorney General for Ken.Cross@texasattorneygeneral.gov
Civil Litigation
Office of the Attorney General
JON NIERMANN Environmental Protection Division
Chief, Environmental P. 0. Box 12548 (MC-o66)
Protection Division Austin, Texas 78711-2548
Tel: (512) 463-2012
Fax: (512) 320-0911
January 30, 2015
Appellee the State of Texas responds as follows to Appellant Larry
Mark Polsky's Motion for Permission to File Additional Authority, namely
pages purportedly excerpted from a local government document.
Polsky's current motion restates the notice of additional authority and
the request for judicial notice he filed on December 29, 2014. The State
opposed those previous filings in a letter brief filed with this Court on
January 20, 2015 (Attachment A). 1 For the same reasons, the State opposes
Polsky's current motion and requests that it be denied and disregarded
because of: (1) Polsky's inadequate briefing in regard to this additional
authority, (2) the presence in the current reporter's record of the proper
version of the additional authority, and (3) the additional authority's lack of
relevance to the issues on appeal. See Attachment A at 2-5.
To the extent Polsky further contends in his motion that his additional
authority establishes the role of Cameron County parks director Javier
Mendez as the "sole individual who would report 'alleged' violations of
Polsky's dune protection permit to the Cameron County Commissioners," he
is incorrect. No such limitation on violation-reporting is reflected in the
1The State incorporates its January 20, 2015 response by reference as if set forth fully
herein.
2
pages attached to Polsky's motion or in the proper version of the local
government document admitted below. 2 Indeed, Mendez himself explained
at trial that anyone, including citizens, can report suspected permit
violations to the Commissioners Court, and that the duty does not rest solely
with him as parks director. 4 RR 39:11-23.
PRAYER
This Court should deny Polsky's Motion for Permission to File
Additional Authority and affirm the trial court's final judgment in all things.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
JON NIERMANN
Chief, Environmental Protection Division
2 See Cameron County Dune Protection and Beach Access Plan, Vol. 6 of the reporter's
record, Court's Ex. 1, at 3-4, 26-28.
3
Is! Shelly M. Doggett
SHELLY M. DOGGETT
Assistant Attorney General
State Bar No. 24069619
Shelly.Doggett@texasattorneygeneral.gov
KEN CROSS
Assistant Attorney General
State Bar No. 05135800
Ken. Cross@texasattorneygeneral.gov
OFFICE OF THE ATTORNEY GENERAL
Environmental Protection Division
P.O. Box 12548, (MC-o66)
Austin, Texas 78711-2548
Tel: (512) 463-2012
Fax: (512) 320-0911
ATTORNEYSFORAPPELLEESTATEOF
TEXAS
4
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I certify that
this computer-generated document, excluding the contents listed in the
rule, contains approximately 297 words. I relied on the word count of the
computer program used to prepare the document.
CERTIFICATE OF SERVICE
On January 30, 2015, a true and correct copy of the foregoing
opposition was served on the following counsel and Appellant bye-filing
and Certified Mail, Return Receipt Requested:
Larry Mark Polsky, Esq.
5508 Padre Blvd., Suite A
South Padre Island, TX 78597
mossad194 7@sbcglobal.net
Pro se attorney and Appellant
Is/Shelly M. Doggett
Shelly M. Doggett
Assistant Attorney General
5
ATTACHMENT A
ACCEPTED
03-14-00068-CV
3822713
THIRD COURT OF APPEAL~
AUSTIN, TEXAS
1/20/2015 10:55:20 AM
JEFFREY D. KYLE
CLERK
January 13, 2015
Third Court of Appeals
c/o Jeffrey D. Kyle, Clerk
P.O. Box 12547
Austin, Texas 78711
RE: No. 03-14-00068-CV, Larry Mark Polsky v. The State of Texas,
Response to Appellant's Request for Judicial Notice and Notice of
Additional Authority, both filed December 29, 2014
Dear Mr. Kyle and the Honorable Justices of the Third Court of Appeals:
The State submits this letter brief responding to two December 29,
2014, filings by Appellant Larry Mark Polsky in this appeal of a jury verdict
finding that he violated a dune protection permit issued to him by the
Cameron County Commissioners Court.
Polsky first requests that this Court take judicial notice of certain
pages excerpted from Cameron County's Beach Access and Dune Protection
Plan. 1 Polsky pairs that request with a separate "Notice of Additional
Authority," again ostensibly attaching a section of the County's Plan, albeit
different from that accompanying his judicial notice request. In this
additional authority, Polsky purports to support his claim that his trial
witness and county parks director Javier Mendez was the "[d]uly
[d]esignated '[b]uilding [i]nspector' for [b]eachfront [c]onstruction of the
Cameron County Commissioner's Court."
Polsky's filings are skeletal. In them he has failed to provide any
briefing as to why the referenced pages are relevant and any proof that his
excerpts were taken from the appellate record or an authentic source.
1As described below, the full name of the document, which is already part of the
appellate record, is the Cameron County Dune Protection and Beach Access Plan (the
Plan).
POST OFFICE BOX 12548, AUSTIN, TEXAS 78711-2548 TEL:(512) 463-2100 WEB: WWW.TEXASATTORNEYGENERAL.GOV
An Equal Employment Opponunity Employer
Third Court of Appeals
January 13,2015
1. Polsky failed to provide any briefing regarding his
judicial notice request and notice of supplemental
authority.
Polsky's judicial notice request and notice of additional authority
should be denied and disregarded, respectively, due to inadequate briefing.
Polsky failed to provide any substantive arguments or discussion in these
filings. This Court need not wade through the parties' briefing and
appellate record to determine the relevance, if any, of these documents to
Polsky.s issues and arguments on appeal.
2. The trial court already took judicial notice of the County's
Plan, which is part of the appellate record.
Should the Court consider Polsky's judicial notice request, the State
objects to judicial notice of the particular excerpts attached by Polsky.
First, a complete copy of the County's Plan is already part of the
appellate record as Court's Exhibit 1.2 Polsky's unauthenticated excerpts
differ from Court's Exhibit 1, suggesting perhaps they derive from another
version of the County's Plan. 3 Second, the trial court took judicial notice of
the Plan on the first day of trial without objection, making judicial notice of
the same material on appeal unnecessary and duplicative. 2 Supp. RR
179:11-182:8; Court's Ex. 1.
Nevertheless, in the event this Court determines that reference to the
County's Plan is appropriate in deciding this appeal-which it need not, as
demonstrated herein-the Court should consider the copy admitted into the
record. Polsky's excerpts, which lack authentication and are not part of the
appellate record, are unreliable.
2 A copy of the Plan can be found in Volume 6 of the reporter's record herein.
3 Although their content appears to mirror that in Court's Exhibit 1, Polsky's excerpts
could not have come from the record exhibit because the page numbering for the Plan
sections is different and Polsky's cover page is missing. Compare Court's Ex. 1 at 3-4
and 26-27 with attachments to Polsky's judicial notice request and notice of additional
authority.
2
Third Court of Appeals
January 13, 2015
3· Neither of the proffered excerpts is relevant to the issues
briefed on appeal.
In any event, this Court may disregard Polsky's submissions because
neither portion of the Plan that Polsky cites is relevant to his appeal.
Polsky's request for judicial notice of "Page 21, Section 4, (iii) - (xi)"4 makes
this clear. The cited pages list factors the Cameron County Commissioners
. Court should consider when issuing or denying dune protection permits,
such as the one obtained by Polsky as part of his development activity. But
as the briefing on file clarifies, neither party disputed that the
Commissioners Court issued Polsky a valid dune protection permit, nor did
the State attack the validity or substance of the permit itself. 5 Instead, this
suit concerned whether Polsky violated the terms of his properly issued
dune permit. See State's Am. Br. at 28-30. Polsky's proffered material is
irrelevant on its face and his failure to argue its relevance constitutes
inadequate briefing that should also result in rejection of his request.
Similarly misguided is Polsky's attempt to provide "additional
authority," which again appears unrelated to any issue in this appeal.
Polsky underlines a section of the excerpt indicating that the Cameron
County Parks Department administers the public beach access component
of the Plan, and authorizing it to give non-binding recommendations to the
Commissioners Court on "action" to be taken regarding beachfront
construction certificates. 6 The paragraph's context suggests that the
4 No such section of the County's Plan exists. The State assumes that Polsky is
referencing section III.E.4.a.iii-xi, found in Court's Ex. 1 at 26-27.
s See Appellant's Reply Br. at 1 ("[T]here was never a contest at the trial that [Polsky]
had not obtained a properly issued dune protection permit."); and see Am. Br. of
Appellee the State of Texas (hereinafter State's Amended Brief) at 28 ("Here, the State
did not dispute that Polsky obtained a properly issued permit, nor claim that the
County's permit violated state law or GLO rules or should have been revoked.").
6 "Beachfront construction certificates are required under Natural Resources Code
§[]61.015 (c) - (h) for any construction within 1000 feet of mean high tide or up to the
first public road, whichever distance is greater. The Cameron County Park System,
operating through the Cameron County Commissioners' Court and advised by the
County Parks Advisory Board, is hereby charged with responsibility for administering
the beach access component of this plan .... Cameron County Commissioners' Court
will review and take action on beachfront construction certificates as advised by parks
system staff and the county Parks Advisory Board, whose recommendations will be
considered but are not binding on court action." Court's Ex. 1 at 3, 4.
3
Third Court of Appeals
January 13, 2015
"action" is limited to decisions regarding applications for beachfront
construction certificates. See Court's Ex. 1 at 3 ("Neither the County nor
State shall unreasonably delay review or action on an application, and shall
make a final determination on an application no later than 6 weeks from
application receipt."). Again, Polsky cites to a Plan provision governing
permit-granting rather than permit-enforcing procedures. Moreover, this
provision concerns the beach access issues addressed in beachfront
construction certificates-not the dune protection issues addressed in the
instant appeal.
Accordingly, that the Plan may allow the Parks Department to offer
non-binding recommendations relating to beachfront construction
certificates does not concomitantly authorize the Parks Department or its
employees to advise the Commissioners Court on actions concerning dune
protection permits. 7 And nowhere does the Plan elevate the Parks Director
to the position of "duly designated building inspector" in Polsky's
nomenclature. See State's Am. Br. at 32-33 (summarizing Mendez's
testimony regarding his position and responsibilities). Neither Polsky nor
Mendez presented any authority or authorization at trial that Mendez-
even in his position as parks director-was testifying on behalf of the
Commissioners Court or as its representative on any matter, including dune
protection.
To be sure, Mendez did testify at trial that he had visited Polsky's
building site and believed the construction did not violate Polsky's dune
protection permit. See, e.g., 4 RR 23:11-25:2. But, as the State previously
explained, the jury heard Mendez's testimony, evaluated its credibility and
veracity, and properly disregarded Mendez's contradictory testimony in
favor of the overwhelming evidence of violation. State's Am. Br. at 12-26.
The proffered portions of the Plan, moreover, do not advance Polsky's
legal argument that Mendez's contrary opinion could veto the State's
7According to the Plan, when issuing a dune protection permit, the Commissioners
Court should consider comments from the Cameron County Dune Protection
Committee, the General Land Office, the Attorney General's Office, and the general
public. Court's Ex. 1 at 21, 26.
s Mendez conceded on cross-examination that he once labeled Polsky's activity
"questionable" and discussed his concerns with the County attorney. See State's Am. Br.
at 25-26.
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Third Court of Appeals
January 13,2015
parallel permit enforcement authority under Tex. Nat. Res. Code§ 63.181.
Thus, even if Mendez were the County's designated authority on dune
protection permit violations-which he is not-the State could nonetheless
disagree with his opinion, bring a suit for permit violations, and seek a jury
verdict such as the one obtained herein. State's Am. Br. at 30.
PRAYER
Polsky's judicial notice request should be denied and his
supplemental authority disregarded for inadequate briefing and lack of
relevance. If the Court grants Polsky's judicial notice motion, it should take
notice of Court's Exhibit 1, the complete 2010 Cameron County Dune
Protection and Beach Access Plan found in Volume 6 of the reporter's
record. Finally, this Court should affirm the trial court's judgment in all
things.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
CHARLES E. ROY
First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
JON NIERMANN
Chief, Environmental Protection Division
Is/ Shelly M. Doggett
SHELLY M. DOGGETT
Assistant Attorney General
State Bar No. 24069619
Shelly.Doggett@texasattomeygeneral.gov
5
Third Court of Appeals
January 13, 2015
KEN CROSS
Assistant Attorney General
State Bar No. 05135800
Ken.Cross@texasattorneygeneral.gov
OFFICE OF THE ATTORNEY GENERAL
Environmental Protection Division (MC-o66)
P.O. Box 12548
Austin, Texas 78711-2548
Tel: (512) 463-2012
Fax: (512) 320-0911
ATTORNEYS FOR APPELLEE STATE OF
TEXAS
6
Third Court of Appeals
January 13, 2015
CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rule of Appellate Procedure 9.4(i), I certify that
this computer-generated document, excluding the contents listed in the
rule, contains approximately 1,485 words. I relied on the word count of the
computer program used to prepare the document.
CERTIFICATE OF SERVICE
On January 13, 2015, a true and correct copy of the foregoing letter
brief was served on the following counsel and Appellant as indicated bye-
filing and Certified Mail, Return Receipt Requested:
Larry Mark Polsky, Esq.
5508 Padre Blvd., Suite A
South Padre Island, TX 78597
mossad1947@sbcglobal.net
Pro se attorney and Appellant
/s/ShellyM. Doggett
Shelly M. Doggett
Assistant Attorney General
7