ACCEPTED 03-14-00068-CV 3822713 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/20/2015 10:55:20 AM JEFFREY D. KYLE CLERK
FILED IN 3rd COURT OF APPEALS January 13, 2015 AUSTIN, TEXAS 1/20/2015 10:55:20 AM Third Court of Appeals JEFFREY D. KYLE Clerk cjo 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.
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 Opportunity 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 ofthe 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.
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ACCEPTED 03-14-00068-CV 3822713 THIRD COURT OF APPEALS AUSTIN, TEXAS 1/20/2015 10:55:20 AM JEFFREY D. KYLE CLERK
FILED IN 3rd COURT OF APPEALS January 13, 2015 AUSTIN, TEXAS 1/20/2015 10:55:20 AM Third Court of Appeals JEFFREY D. KYLE Clerk cjo 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.
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 Opportunity 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 ofthe 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.
8 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.
4 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@texasattorneygeneral.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
ATTORNEYSFORAPPELLEESTATEOF 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 by e-
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
fs/Shelly M. Doggett Shelly M. Doggett Assistant Attorney General