June 2009 - Posts
County Attorney José R. Rodríguez announced today that he was notified this morning that El Paso County's appeal to the United States Supreme Court in its border fence case against the U.S. Department of Homeland Security was denied.
El Paso County Attorney expressed his disappointment with the decision. "We are disappointed but not surprised by this outcome. While we feel that we had a strong case, competition for space on the Supreme Court's crowded docket is high," Rodríguez said.
"This decision now ends our pursuit of this case. El Paso County would very much like to thank Mayer Brown LLP of Washington, D.C., for their defense and support in this case. Mayer Brown litigated this case without any cost to the county," said Rodríguez.
Although the appeal was rejected, Rodriguez expressed optimism that the Obama Administration has demonstrated a willingness to consult with local communities on the fence and other border security policies.
The lawsuit against the Department of Homeland Security was filed on June 23, 2008 by El Paso County, the City of El Paso, the El Paso County Water Improvement District No. 1, and the Ysleta del Sur Pueblo, among others. The lawsuit challenged Secretary Chertoff's statutory authority to issue a waiver of more than 30 federal, state, and local laws to accelerate the construction of a border fence in El Paso County. The County contended that the Congressional waiver of authority, without the opportunity for judicial review, was an unconstitutional delegation of legislative power and moreover, that it was insufficient to permit the Secretary to declare pre-empted every state and local law related to the waived federal statues.
On September 11th, 2008 a Federal District Judge of the Western District of Texas granted the Department of Homeland Security's motion to dismiss the lawsuit based on the merits of the case.
In his ruling, U.S. District Judge Frank Montalvo held that the waivers used by the Secretary of Homeland Security Michael Chertoff to expedite the construction of the border fence were constitutional because "...Congress constitutionally delegated its authority in the Waiver Legislation."
Judge Montalvo further ruled that the Waiver legislation did not violate the 10th amendment to the U.S. Constitution because the waivers were issued with the intent to "preempt state and local laws, which would interfere with Congress's objective to expeditiously construct the border fence."
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Border Fence Appeal Press Release.pdf
El Paso County Attorney José R. Rodríguez announced today that County Judge Anthony Cobos has dropped the lawsuit he filed against the County of El Paso seeking to stop the El Paso County Board of Ethics from investigating an ethics complaint filed against him.
On Monday June 8, 2009, visiting Judge Martin Brock Jones ruled the County Board of Ethics was not a proper party in the lawsuit, allowing the Board to continue investigating the complaint filed by City Representative Emma Acosta against County Judge Anthony Cobos. The judge also ruled that the County Attorney was not disqualified from representing both the County of El Paso and the El Paso Board of Ethics.
El Paso County Attorney José R. Rodríguez expressed his satisfaction with Judge Cobos’ decision to nonsuit the county. “It is unfortunate that so much time and county resources were wasted on a suit without merit,” Rodriguez said.
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Ethics Board Lawsuit Press Release.pdf
Notice of Nonsuit.pdf
El Paso County Attorney José R. Rodríguez announced today the sentencing of a Fabens resident who pleaded guilty of violating the Clean Air Act, on a piece of property in the Fabens in far east El Paso County.
31-year-old Leobardo González was ordered to pay a $2,500 fine and court costs after pleading guilty to one count of illegal outdoor burning before Judge Alma Trejo of the County Criminal Court at Law Number One (the Environmental Court).
The offense occurred on or about September 5, 2007, when Mr. González was burning several roofing tar tiles, metal furniture, plastics, and household trash in the back yard of his property located at 1011 Wingo Reserve Rd., in Fabens, El Paso County.
The defendant accidentally set himself on fire while pouring gasoline on the waste and lighting it. He suffered severe burns to various parts of his body and was transported to Thomason Hospital for treatment of his injuries. The Fabens volunteer Fire Dept. had to respond to extinguish the fire.
"Burning waste, roofing tar tiles, is dangerous and bad for the environment because it sends toxic fumes into the air we breathe, and water used to extinguish the fire and the toxic chemicals in the tar could potentially harm our drinking water. The proper method of disposal should be to take your waste to the landfill. Additionally, the fire may get out of control and burn the person setting the fire and/or surrounding homes and property," said Rodríguez.
Rodríguez added that illegal outdoor burning is an on-going problem in the county of El Paso, and he stressed that the County Attorney's Office will continue to prosecute such offenders. The penalty for illegal outdoor burning ranges from a fine of not less than $1000 to up to $50,000 for an individual, or up to 180 days in jail, or both. For an association or corporation, the fine cannot be less than $1,000 or more than $100,000.
To report illegal outdoor burning or other environmental crime, call your local law enforcement agency. The Environmental Hotline at 1-888-6EL-PASO, El Paso Police Dept. at 832-4400, or El Paso Sheriff's Dept. at 546-2280.
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Fabens Illegal Burning Press Release.pdf
El Paso County Attorney José R. Rodríguez informed today that the indictment unsealed against El Paso District Clerk Gilbert Sanchez does not automatically trigger his removal from office. Texas law states that only if Mr. Sanchez were to be convicted of felony charges or misdemeanor charges involving official misconduct, the conviction would operate as an immediate removal.
Rodríguez further explained that, while the charges are pending, Mr. Sanchez will remain the elected District Clerk and has full powers as such, unless Mr. Sanchez resigns or a removal action is filed.
If Mr. Sanchez resigns, Commissioners Court will be able to vote on the appointment a interim clerk to fill the vacancy.
Regarding possible removal petitions, County Attorney Rodríguez said that if a removal action is filed, an out-of-town judge would preside over the case and decide whether the removal has merits. The presiding judge would have the authority to issue a temporary suspension against the District Clerk and appoint another person to perform the duties of the office.
Rodríguez explained that, according to Texas law, appropriate grounds for removal of elected officials from public office include incompetency, official misconduct and intoxication on or off duty caused by drinking an alcoholic beverage.
"We are currently reviewing the indictment in this case to determine if sufficient grounds and evidence exist to pursue a removal action," Rodríguez concluded.
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District Clerk Legal Status Press Release.pdf
Lee Shapleigh honored by the Texas District and County Attorneys Association (TDCAA).
The Texas District and County Attorneys Association (TDCAA) presented El Paso Assistant County Attorney Lee Shapleigh with the 2009 "Gerald Summerford" award, in a ceremony held last week in Dallas, Texas.
The "Gerald Summerford Award," also known as the "Civil Practitioner of the Year" award, recognizes Texas lawyers with long and distinguished careers who practice in the civil arena.
Lee Shapleigh was recognized for her work as Assistant County Attorney in El Paso for over 25 years, in which she has been the person primarily responsible for advising El Paso County Commissioners Court on a daily basis. Throughout the years, Ms. Shapleigh has built a state-wide reputation for providing sound, accurate, objective and cool-headed legal advice.
Her knowledge and grasp of the law regarding the complex and changing nature of Texas county government has allowed her to become recognized all over Texas as an expert on many subjects - everything from tax policies to the proper way to dispose of sewage.
Ms. Shapleigh was also recognized for mentoring lawyers in the complexities, benefits, and challenges of public law practice and for recruiting many attorneys in private practice back into the public sector.
El Paso County Attorney José R. Rodríguez said he is extremely proud of having such an experienced attorney working for the office.
"The quality of work that Ms. Shapleigh performs every day does not only help county officials and employees to make sound, legal decisions; it has also allowed the County of El Paso to protect taxpayer's money by preventing legal mistakes that could lead to the payment of expensive judgments," Rodriguez added.
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Summerford Award Press Release.pdf