1 1 2 3 KERR COUNTY COMMISSIONERS' COURT 4 Special Session 5 Monday, October 16, 2023 6 1:00 p.m. 7 Commissioners' Courtroom 8 Kerr County Courthouse 9 Kerrville, Texas 78028 10 11 12 13 14 15 16 17 18 19 20 21 22 23 PRESENT: ROB KELLY, Kerr County Judge RICH PACES, Commissioner Precinct 2 24 JONATHAN LETZ, Commissioner Precinct 3 DON HARRIS, Commissioner Precinct 4 25 2 1 I-N-D-E-X 2 NO. PAGE 3 3.1 Consider, discuss and take appropriate 3 action to appoint a Commissioner for 4 Precinct 1 to fill the unexpired term. 5 *** Adjournment. 17 6 *** Reporter's Certificate. 18 7 * * * * * * 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 JUDGE KELLY: Court will come to order. It 2 is Monday, October the 16th, 2023. It's 1:00 o'clock in 3 the afternoon and the Kerr County Commissioners' Court 4 is convened in a special meeting. And we're going to 5 adjourn into Executive Session, and should probably be 6 five or ten minutes and we'll be out. So with that, 7 we'll retire into Executive Session. 8 (Executive Session) 9 JUDGE KELLY: It is 1:10, we're coming out 10 of Executive Session. We have no action item as a 11 result of Executive Session. We'll move on to the 12 Consideration Agenda, Item 3.1 that I placed on the 13 agenda was to consider, discuss and take appropriate 14 action to appoint a Commissioner for Precinct 1 to fill 15 the unexpired term. 16 There is no action required by this Court. 17 That is solely -- the authority to do that is solely 18 vested in the County Judge by the Texas Constitution and 19 has been since 1876. So there's been a lot of talk 20 about what I can and can't do, and so I want to read a 21 statement, I know we're on YouTube. But I want to put 22 things in context because -- and I'm going to start with 23 telling you what the conclusion is before I get to the 24 conclusion. I do not have jurisdiction to do anything 25 involving Commissioner Belew. 4 1 Now, let's back up and let me show you how 2 that is. A quo warranto proceeding can only be brought 3 by State prosecutors. The County Commissioners' Court, 4 County Judge has nothing to do with it. Our County 5 Attorney recused herself rightfully, because of the 6 conflict of interest from having represented all of us 7 collectively. So that only left District Attorneys and 8 the Attorney General, and they have prosecutorial 9 discretion to do what they think is right under the 10 circumstances. And they conduct an investigation, they 11 make their own determination. 12 And in this case, ultimately, as a result of 13 that investigation, there was a decision made by the 14 District Attorney for the 198th District Court to bring 15 a quo -- we say -- I saw warranto, because I can't say 16 warranto, but that's what it technically is in Latin, to 17 bring that proceeding. Kerr County had nothing to do 18 with it. I had nothing do with it, other than was aware 19 it was going on and monitored it along with our County 20 Attorney as to where we were with it. 21 But when a District Court orders the removal 22 of a County official or employee, then this Court must 23 comply if it applies to us. And that's the only option 24 we have. You either follow the order or you're in 25 contempt of court. It's that simple. 5 1 Belew's quo warranto proceeding was 2 initiated by a criminal investigation in the 198th. The 3 basis of the claim was a 1973 felony conviction, to 4 which Belew pleaded guilty and was placed on 10-year 5 probation, which he completed successfully. Felony 6 convictions carry certain disabilities, such as 7 prohibiting certain convicted felons from voting, 8 holding public office or serving on juries. 9 Belew failed to disclose his felony 10 conviction before running for public office and getting 11 elected, which is a misdemeanor offense, but the 12 investigation found that the new misdemeanor crimes were 13 barred by the statute of limitations. The 198th DA 14 decided to bring the quo warranto action to remove Belew 15 from his office and the Kerr County Commissioners' Court 16 was not involved at all, other than as an observer. 17 The quo warranto action was referred to a 18 visiting judge from San Antonio, the Honorable Sid 19 Harle. Belew retained Patrick O'Fiel to defend the 20 action. His defense was he thought he was on deferred 21 adjudication and conviction would be automatically 22 removed. The Tarrant County records reflected his 23 signed guilty plea, but the last page of the judgment 24 was missing from the record. 25 Belew's position was that his conviction was 6 1 not final because the missing page and the alleged 2 deferred adjudication. The State maintained the 3 conviction was, in fact, final from a reading of all the 4 available records, and the fact that deferred 5 adjudication was not legal in Texas until 1975, two 6 years after the offense. 7 The hearing was set for September 29 of this 8 year. Throughout this entire period of time, 9 Commissioner Belew was permitted to fully participate in 10 Commissioners' Court. 11 At the hearing on September 29, Judge Harle 12 granted the State's quo warranto based upon Belew's 13 prior felony conviction, and ordered him removed from 14 office effective September 29. 15 Belew immediately filed a request to suspend 16 enforcement of the judgment, pending appeal to the 17 Fourth Court of Appeals in San Antonio. He was unable 18 to continue his duties as Commissioner until the trial 19 court, that's Judge Harle, ruled on his request. 20 Last Friday, October the 13th, the Court 21 overruled his request and upheld his removal from 22 office. The effect of Judge Harle's ruling is that 23 Commissioner Belew cannot serve as Commissioner of 24 Precinct 1 while the case is on appeal. The Kerr County 25 Commissioners' Court does not have jurisdiction to 7 1 overrule the order of the District Court, which is a 2 superior court. Only the appellate court has the 3 authority to supersede Judge Harle's order. 4 Disregard of the District Court's order on 5 September 29 would be contempt of court, which is a very 6 serious matter and as the County Judge I am powerless to 7 do anything except comply and await the appellate 8 outcome. That's a jurisdictional issue. 9 Now, with that, I have made the very 10 controversial decision to go ahead and fill this 11 vacancy. And the reason for that is number one, it is 12 imperative that there be representation in Precinct 1. 13 But from a personal point of view, I don't like 14 repeating mistakes that I've made before. And I don't 15 want to make the same mistakes. The Texas Constitution 16 provides that the County Judge is the sole authority to 17 appoint a successor to a vacant commissioner's seat. 18 In 2014, and Heather will probably remember 19 this, when Commissioner Oehler died, Judge Pollard who 20 was the County Judge at the time, did not take 21 applications. He did not even entertain the resumes 22 that were sent in, and I know this because I sent one. 23 And he made the decision solely on the basis of his 24 judgment that Bob Reeves was the person that he wanted 25 to appoint to that bench for the remainder of the term 8 1 and that's exactly what he did. And he did it with that 2 booming baritone voice of his in a very assertive and 3 decisive way. 4 My feelings were kind of bruised about that. 5 I thought that I ought to get a hearing or something. 6 Or at least a nod, but I got nothing. And yet, I -- my 7 friendship with Judge Pollard continues. But I thought 8 when I get a chance I'll do it differently. 9 So then along comes 2021 and Commissioner 10 Moser resigns. And so I set out and did the most far 11 reaching process that I could to reach out to make 12 the -- to post the position, leave it open for a month, 13 take applications, interview people. We got over 30 14 applications that came in. Fifteen or twenty of them 15 said they were going to run for the position and a few 16 said they were not. 17 And that was a hotly contested election, as 18 you can attest to, but I made the decision at that time 19 thinking that I was making the right decision. I think 20 you get the gist that I don't think I made the right 21 decision that day. But I made the decision that I was 22 not going to put somebody in that position if they were 23 going to run for the seat. But I did put what I thought 24 was the best person that applied because Beck Gipson was 25 truly an outstanding Commissioner. And for those of you 9 1 that do not know him or have never worked with him, it's 2 your loss. Let me tell ya. He's a jewel. 3 And as he was wrapping up his term, and you 4 were getting ready to take office, he and I had a long 5 talk about would we do it that way again if we had to. 6 And you gotta know that Beck Gipson has been a close 7 personal friend of mine for over 30 years. I've 8 entrusted the most sensitive decisions in my family to 9 Beck Gipson, and we both agreed that we wouldn't do it 10 the same way. That he really did like the job. 11 He complained that it took him about a year 12 to learn the job, which I think Don and I both attest 13 to, and you're in the process. About a year to learn 14 the job. And just about the time he was getting really 15 good at doing the job, it was time for him to go. And 16 had we not done it the way that I did it, he would have 17 run for election. Now, would he have won? I don't 18 know. The people decide who wins. That's what that's 19 all about. 20 My job is to put somebody in this position 21 for the remaining 14 months, 14 and a half months, 22 whatever it is, that can best do the County's work. The 23 County, unlike the City, does not have a City Manager, 24 we don't have a staff, we do the work ourselves. It 25 comes right down to each one of us doing our fair share 10 1 of what needs to be done. 2 But now we're to the point that -- there 3 were three mistakes I wanted to talk about. One was my 4 expectations when I sent my resume to Pollard or to the 5 Court, I sent it to the entire court, if you'll 6 remember. And the second one had to do with I would 7 have done it differently with Beck if I knew now what I 8 didn't know then. And the third mistake that I don't 9 want to make is I had an opportunity to do something 10 historical with the last appointment that I did not do. 11 And that's shame on me. This Court needs diversity. 12 If you look up here, there's only four of us 13 left, but we're all a bunch of white guys. We're all on 14 Medicare. This is not the face of Kerr County. It's 15 really not. And the time has come to do something 16 historical. Something that I will be proud to be 17 remembered by and even though I'm going to be probably 18 lynched on the way out, and that is I have decided to 19 appoint the best qualified woman to this bench. 20 Now there are those of you that said, well, 21 you're discriminating on the basis of gender. No, I'm 22 equalizing on the basis of gender and it's not anywhere 23 close to equal. One seat on this Court is 20 percent. 24 But it's time that it be done. And I expect to be 25 criticized for it and let that be my legacy, and so I 11 1 pick Anne Overby to appoint as Commissioner Precinct 1, 2 because I've known her for over 30 years. I've taught 3 her Sunday School, I taught her kids Sunday School, 4 she's taught Sunday School to -- to my family. I know 5 her and Kerwin very well, their kids, and she is a very, 6 very impressive young woman. 7 And for those of you who are in -- from my 8 age, she's a young woman, trust me. And she's not on 9 Medicare, which I think right now oughta be a criteria 10 for this job. She's married to Kerwin, who is a CPA 11 here in town. They have two children. Anne and Kerwin 12 met at UT. Kerwin tells the story that when he first 13 asked Anne out, she declined the date, and later 14 reconsidered, and he married her, and she's 5 foot 12 15 inches tall. And a wonderful person. 16 She's worked for Lamar Smith since -- or 17 Lamar Smith, our former Congressman, since 2002. She 18 works with Chip Roy now. She has impeccable credits. 19 She has dealt with every conceivable political position 20 under the sun. Red, blue, it didn't matter, she's had 21 to deal with them all. And she's done it with grace and 22 finesse. 23 And she's been very active in the community, 24 she's been active in the Fork on the River, the Arcadia 25 Live. She's been very active at the church and a DPS 12 1 teacher and a lay leader. She serves on the Main Street 2 advisory board. She was President of the charity ball. 3 She serves on our Kerr County Historical Commission. 4 She did project graduation, and that's a job if you've 5 ever done one of those. This is a renaissance woman. 6 And it is my great honor and privilege to 7 appoint her, and I -- I understand there may be 8 opposition to that, but it is my authority and my 9 privilege to do that, and I do it -- I do it gladly. 10 And I'm excited about the prospects for the County. I 11 understand some people want to speak and that's fine. I 12 want to advise you that I have to leave at 1:30. I have 13 a very important doctor's appointment I need to make. 14 Remember, I am on Medicare. And so, with that, the 15 floor is open for discussion. 16 COMMISSIONER LETZ: My only comment is I 17 think it's a good selection. 18 JUDGE KELLY: Okay. 19 COMMISSIONER HARRIS: I made mine in 20 Executive Session. 21 COMMISSIONER PACES: I'm disappointed that 22 you're unhappy with the process that led to Tom Moser's 23 replacement. 24 JUDGE KELLY: No, that's -- 25 COMMISSIONER PACES: Hopefully that's not a 13 1 function of myself but -- 2 JUDGE KELLY: -- don't take that personally. 3 COMMISSIONER PACES: Well, I -- I -- do. 4 But that's all right. 5 JUDGE KELLY: Beck was very close. And -- 6 COMMISSIONER PACES: I realize that. 7 JUDGE KELLY: -- we wish we hadn't done it 8 that way. 9 COMMISSIONER PACES: I still -- that was the 10 one thing I truly admired you for was for having a very 11 open, transparent process and you stuck to it. And I 12 was grateful that you did. I wish you would have 13 applied that here and had a little more open process for 14 selection and ultimate appointment at your decision, but 15 I do think that you should not tip the scale in any 16 candidate's favor, and presumably Anne Overby will be 17 running and this will tip the scale. So I'm 18 disappointed. 19 JUDGE KELLY: Probably on the negative side. 20 George, you've got a request to talk. You 21 want to talk? 22 COMMISSIONER HARRIS: Good luck. 23 MR. BAROODY: George Baroody, 1616 Glenn 24 Road. I appreciate the heads up. So a couple of the 25 comments you made. You've made mistakes in this process 14 1 and I've outlined them before, I'm not going to do them 2 again, except to say if you're going to tell us that the 3 Court has nothing to say or do about something, then sit 4 on your hands and keep your mouth shut. You went public 5 on your opinion on the situation and, to me, that was a 6 detriment to the Court. I came prepared to say nothing 7 against anybody you were going to appoint. 8 Clearly, the law says you get the sole right 9 of final -- final say on that appointment. Doesn't mean 10 you had to make it unilaterally. And also, works -- I 11 don't understand if the -- the proceedings with Mr. 12 Belew, he had like three or four days left to file an 13 appeal, it's my understanding he hasn't filed one, why 14 bring this forward three or four days ahead of that when 15 it would have been cleaner to wait until that appeal 16 process is over because you have the awkward situation 17 now. 18 If he was to file an appeal and win, to have 19 to remove somebody you just appointed to reinstate him, 20 which you could have saved everybody the trouble and 21 waited until Monday, which is your next court meeting 22 outside that window and done it then. 23 I was also prepared to come ask the other 24 ones, seeing as how this is more of a show than just one 25 person's vote, I was going to ask the other ones, let's 15 1 all just leave together and let you provide the show 2 yourself. Because this is your show. I'm sure you 3 asked them their opinion back there, but probably told 4 them, you know, it's crazy, you guys have an opinion, 5 but I'm going with this. 6 And that point, as it sits right now, it 7 looks like -- you know, the appearance is is that they 8 support this decision. Don't know if they do or don't. 9 As a voter in Precinct 1, I take offense to the fact 10 that nobody in Precinct 1 is giving input in this 11 decision. Because it's my understanding you don't live 12 in Precinct 1 and they don't live in Precinct 1, yet 13 we're the ones being disenfranchised in this whole 14 process. And whoever you want to blame for that, that's 15 your right. But at the end of the day, we're the ones 16 taking the hit. 17 And so I would -- like I say, it's too late 18 now because the decision's already been made. But I 19 still would invite y'all to leave with me. I'm going to 20 leave now. Thanks. 21 JUDGE KELLY: Well, I'm leaving in a couple 22 minutes so nobody needs to get up. I'll be going. So 23 you won't have to bother. Anybody else want to address 24 the Court? 25 COMMISSIONER LETZ: Judge, I'll make a brief 16 1 comment. You know, I'm not going to go into what we 2 talked about in Executive Session because I can't. But 3 the decision is yours. And you know, whether individual 4 commissioners, myself included, agree or disagree with 5 the decision, you've made your decision and the 6 Constitution allows you to make that decision. It's 7 been done that way at other times. So it's not like 8 it's a new format. 9 But it's important for this whole Court and 10 the community to welcome Anne. This Court has got to 11 work together. Regardless of your opinions and feelings 12 of how the process is done, I think we need to welcome 13 her, and work with her, because it's vital for this 14 community for us to have a good working relationship 15 together. 16 JUDGE KELLY: I agree with that. And I'll 17 do everything in my power for it. Mr. Wolff? 18 MR. WOLFF: I'm Jerry Wolff, I live at 509 19 North Buckboard. I concur with Mr. Baroody's comments, 20 but I wanted to add one thing. This may be procedural. 21 But yesterday I checked the County's website and this 22 meeting was listed, as it properly should have been. 23 This morning I checked, or late this morning about 24 11:30, and this -- there's nothing -- this meeting is 25 not listed on the City's website -- or County's website 17 1 any longer. 2 JUDGE KELLY: I don't know anything about 3 that. 4 MRS. GRINSTEAD: I don't know. 5 JUDGE KELLY: Go check with Lisa Walter and 6 IT. But there's no reason I know that it shouldn't have 7 been up there. 8 MR. WOLFF: Okay. I just -- again, for lack 9 of transparency, I think this is a very important 10 meeting for everyone who's in Kerr County to have 11 attended this meeting and been notified. Thank you. 12 JUDGE KELLY: Thank you. Any other 13 comments? Then there being none, we are adjourned. 14 * * * * * * 15 16 17 18 19 20 21 22 23 24 25 18 1 STATE OF TEXAS * 2 COUNTY OF KERR * 3 I, DEBRA ELLEN GIFFORD, Certified Shorthand 4 Reporter in and for the State of Texas, and Official 5 Court Reporter in and for Kerr County, do hereby certify 6 that the above and foregoing pages contain and comprise 7 a true and correct transcription of the proceedings had 8 in the above-entitled Special Commissioners' Court. 9 Dated this the 23rd day of October, A.D. 10 2023. 11 12 /s/DEBRA ELLEN GIFFORD Certified Shorthand Reporter 13 No. 953 Expiration Date 04/30/2025 14 * * * * * * 15 16 17 18 19 20 21 22 23 24 25