Case Information

*0 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 1/30/2015 12:37:52 PM JEFFREY D. KYLE Clerk 03-14-00068-CV No. THIRD COURT OF APPEALS 1/30/2015 12:37:52 PM JEFFREY D. KYLE 03-14-00068-CV AUSTIN, TEXAS *1 ACCEPTED ^[3965060] CLERK COURT OF APPEALS THIRD DISTRICT OF TEXAS AT AUSTIN LARRY MARK POLSKY, Appellant, 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 Shelly.Doggett@texasattorneygeneral.gov CHARLES E. ROY First Assistant Attorney KEN CROSS

General State Bar No. 05135800 JAMES E. DAVIS Ken.Cross@texasattorneygeneral.gov Deputy Attorney General for Civil Litigation

Office of the Attorney General Environmental Protection Division JON NIERMANN P. 0. Box 12548 (MC-o66) Chief, Environmental Austin, Texas 78711-2548 Protection Division Tel: (512) 463-2012 Fax: (512) 320-0911 *2

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 20, 2015 (Attachment A). 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

*3 pages attached to Polsky's motion or in the proper version of the local

government document admitted below. 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 *4 Is! Shelly M. Doggett SHELLY M. DOGGETT Assistant Attorney General State Bar No. 24069619 Shelly.Doggett@texasattorneygeneral.gov KEN CROSS

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

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 *6 ATTACHMENT A THIRD COURT OF APPEAL~ 1/20/2015 10:55:20 AM JEFFREY D. KYLE 03-14-00068-CV AUSTIN, TEXAS *7 ACCEPTED ^[3822713] CLERK 13, 2015 c/o Jeffrey D. Kyle, Clerk

P.O. Box 12547

Austin, Texas

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 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. 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. 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.

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 ("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."). "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.

"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. 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

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 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 State Bar No. 24069619 Shelly.Doggett@texasattomeygeneral.gov KEN CROSS

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

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

[1] The State incorporates its January 20, 2015 response by reference as if set forth fully herein.

[2]

[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.

[1] As 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

[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]

[7] According 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.