A lawsuit by neighbors against a potential new city landfill off Old Lorena Road must be thrown out, an intermediate appellate court ruled Thursday, saying the residents’ claims were “not ripe” because the future of the site is uncertain.
Waco’s 10th Court of Appeals ruled that 414th State District Judge Vicki Menard erred in not dismissing a breach of contract lawsuit that Citizens To Save Lake Waco filed against city in January 2017. The justices sent the case back to Menard with orders to throw the suit out.
In a seven-page opinion written by 10th Court Chief Justice Tom Gray, the three-judge panel ruled that because the city has shifted it focus for a new landfill away from land off Old Lorena Road to a site near Axtell, the issues in the suit are not pressing and at most the plaintiffs have “potential injury, not a concrete injury.”
“Thus, on the record before us, neither Lake Waco nor the city can demonstrate a reasonable likelihood that the claims ‘will soon ripen.’” the opinion states. “And without more, Lake Waco’s underlying breach of contract and permanent injunction claims are not ripe.”
The court ruled that because the group’s claims are not “ripe,” Menard had no jurisdiction to rule on the city’s plea to the jurisdiction and has no jurisdiction over Citizens to Save Lake Waco’s claims in the underlying suit.
The lawsuit sought a permanent injunction against the city from expanding the current landfill onto adjacent property off Old Lorena Road. The suit claims that the city, if it decides to build the new landfill adjacent to the old one, would violate the terms of a 1992 lawsuit settlement not to expand the present site.
The city claims that had it chosen that location, it would have had to apply for a permit for a new landfill, constituting a new location and not an expansion of the current landfill.
Waco City Attorney Jennifer Richie said the city respects the court’s decision and intends to fulfill its obligation to provide a new landfill before the current one reaches capacity by exploring the “best options to fulfill this responsibility.”
“The court has dismissed the plaintiff’s lawsuit,” Richie said. “The court did not rule on the merits of this case or on the city’s plea to the jurisdiction. The court merely ruled on ripeness, meaning that the court does not believe that the case is ready to be heard.”
Billy Davis, one of the attorneys representing the citizens’ group, said the group is “OK with the ruling.” He said they filed suit because they thought the city would have been in violation of a previous lawsuit settlement had it sought another permit for the property adjacent to the landfill.
In light of the court’s ruling, the group will wait to see if the city seeks a permit on the land off Old Lorena Road and will file the suit again if it does, Davis said.
Waco attorney Andy McSwain, who represents the city with attorney James Parker, argued in oral arguments before the 10th Court in June that the city is protected from the suit by governmental immunity and that the court should overturn Menard’s ruling on that basis.
Austin attorney Kevin Terrazas, who represents Citizens to Save Lake Waco with attorneys Davis, Matt Morrison and Ronald Beal, told the justices that the city did not claim immunity when it settled the 1992 lawsuit with Wanda Glaze, an Old Lorena Road resident, and would be in clear violation of the agreement were it to pursue the landfill permit in that area.
“The essence of the litigation at this point is should the city honor an agreement made 27 years ago in settlement of a lawsuit related to the landfill permit at the time?” Davis said after the June hearing. “We believe the settlement agreement is enforceable and the city should stand behind what it agreed to do in order for them to get the permit they wanted.”
Since the current lawsuit was filed, City Hall has been hit by a barrage of protests from residents in the Highway 84 area. In response, city officials searched for an alternative location and have a permit filed for a new landfill off TK Parkway and State Highway 31. The new site covers 1,290 acres and extends into Limestone and Hill counties.
The appellate court said in its ruling that there is no evidence the city has expanded the current landfill or will expand it.
“It is uncertain that the city will apply for or receive a permit to expand the current landfill or to build a new landfill on the acreage acquired adjacent to the (current) landfill in the near future; or in either instance, whether the TCEQ will approve such a permit,” the court wrote.
HUBBARD — It brims with history, this community a marathon race east of Waco on State Highway 31. The wealthy once traveled here to indulge in the healing power of mineral baths. Some fell in love with the area, building stately homes on streets today lined with crape myrtles and antique shops.
Some say Hubbard’s future lies in limbo. Its Dairy Queen closed, never a good sign in small-town America, but Sonic has placed there a brick-covered, dine-in restaurant, not its prototype car-hop restaurant. Ronnie and Theresa Raney, retirees from Ellis County, could not resist a three-story Victorian on Bois D’Arc Avenue, and they have friends eyeing Hubbard with interest.
But what about that $70 million ogre lurking on the outskirts? The Texas Department of Transportation is rebuilding a 9.7-mile portion of State Highway 31, widening it from two lanes to four lanes and making other adjustments, including creating “an eastern reliever route” outside Hubbard city limits. The bottom line is that vehicles now traveling through Hubbard bound for Corsicana, Tyler or other points east and north may never see downtown.
Some may wonder if this one-stoplight town, literally, will fade to black like the infamous Bates Motel in Hitchcock’s “Psycho,” abandoned by progress.
“Everybody has an opinion. Just stop by the City Cafe any morning,” said Gene Fulton, president of the Greater Hubbard Chamber of Commerce.
Personally speaking, Fulton said the highway department is doing Hubbard a favor. Alternative designs could have threatened existing businesses.
“That would have been a big mess on us,” Fulton said. “Where things stand now, there will be enough vacant land for a medium-sized truck stop, maybe a fast-food place and a hotel. They can create a new town on the loop.”
The 18-wheelers now barreling through the heart of Hubbard likely will take the modified highway when it opens in 2020, according to TxDOT estimates, while others may opt to travel what will become Business 31 through town, Fulton said.
Whatever the outcome, Hubbard, population 1,431, may never be the same.
“It may hurt momentarily,” said Hubbard Antique Mall’s Carol Scott, taking the long-term view. “But people who are going to shop for unique items and antiques have been coming here since the 1980s. They want to get off the beaten path to go junking. That will not change, I don’t believe.”
More than 20 vendors peddle glassware, wooden objects, collectibles, jewelry and offbeat toys in the mall. Many items originated at estate sales.
“We get 20 to 30 people a day in here. Some days, nobody, but on the weekends, it’s crazy,” Scott said. “It’s a sleepy little town, but it’s holding its own. We see people who have been to the VA in Waco. Others have family in the area. Some have farms nearby. We’ve got a nice Sonic, at least three antique stores. We’re close to Sonic to get your big-city fix, then come back to our one traffic light where you can hear the birds again.”
Hubbard is not without problems. Assorted commercial properties, some appearing on busier thoroughfares, have given up the ghost, and have the names and numbers of real estate agents on the premises to prove it. Old homes sag. Signs have faded. Rust has gained a foothold here and there.
But real estate agent Margot Foster said she notices a resurgence.
A relatively new antique shop called Ida Pearl’s, on North Magnolia Avenue, is attracting attention. A general store is under development next door, and another vacancy downtown is under contract, Foster said.
“That’s a pretty good lick for Hubbard in a short time,” she said.
“Polo’s Pizza downtown has very good food, Italian and Mexican,” Foster said. “We have the walk-in Sonic, which arrived about this time last year. Wells Fargo moved out, but Citizens State Bank moved into their space. Hubbard City Drug can compete with anybody. We’ve got a lot going on here.”
Ida Pearl’s owner Joyce Marek said the highway’s pending impact “has crossed our minds,” and she wonders if a strategically placed billboard would help.
Her shop dotes on novelty items with Texas ties, selling, for example, dish towels in the shape of the Lone Star State. She reminds that Major League Baseball great Tris Speaker was born in Hubbard. The mineral water, discovered with the digging of a well in the 1890s, put Hubbard on the map with two other communities, Marlin and Mineral Wells. A bath house and 14-bed hospital opened, and Hubbard’s population exploded to 2,700 by the 1920s.
The bath house closed in about 1930 and was destroyed by fire in 1934, according to a post on texasescapes.com.
Hubbard is due another heyday, said Fulton, the chamber of commerce president.
“When property comes up for sale in the country around Hubbard, it sells within a matter of days. People are wanting a little piece of the rock, though not necessarily right in the city limits,” Fulton said. “There have been rumors that some pretty-good-sized investment groups have been looking at land between Dawson and Axtell the past few months. Maybe they’ve discovered us. I worked in Waco for decades, and now look what is happening there. We’re in what you might call a sustaining mode here in Hubbard. We don’t have a lot of wiggle room financially, but we hope to change that with the addition of a few more businesses. You have to remember what Hubbard went through in 1973, the tornado that killed six people and destroyed 200 structures. It’s hard for a little town to survive something like that.”
But it did, and Fulton said he sees bigger and better things.
He spoke to the Hubbard Lions Club on Thursday, and urged the 10 in attendance to serve as ambassadors for the community, to talk up what is good about Hubbard and let visitors know there is plenty to do.
Fulton said he hardly had the crowd roaring, but he remains optimistic. The city serves as a crossroads, highways 31 and 171 run through it, giving travelers access to Interstate 35 and I-20. Opinions continue to run hot and cold, but Hubbard has history on its side, Fulton said.
McLennan County will spend more than $850,000 preparing to run the now privately operated Jack Harwell Detention Center, a figure that includes hiring and providing training, uniforms, physicals and drug screening for 96 people to staff the facility on State Highway 6, McLennan County commissioners heard Thursday during presentations on the 2020 county budget.
After the transition, estimates show the county could see a savings running the jail itself, though a sheriff’s office official said he expects the county to break even on annual costs.
LaSalle Corrections is scheduled to relinquish control of the jail Oct. 1. The troubled facility in June passed its first inspection by the Texas Commission on Jail Standards since August last year, county officials said. The county built the 1,162-bed jail in 2010 and has hired private for-profit companies to run it since it opened. State jail regulators have cited chronic problems, including failure to follow inmate identification protocol, failure to maintain the 1-to-48 jailer-to-prisoner ratio and inappropriate mental health screenings.
Now the county itself will try to reverse that trend.
Startup costs aside, the sheriff’s office estimates running the detention center will cost $10.2 million during the fiscal year beginning Oct. 1. That includes $8.06 million in salaries and benefits for those at the Jack Harwell jail, kitchen and medical facilities. An estimated $2.2 million is proposed to go toward operating expenses and supplies, not counting personnel. That includes almost $657,000 for food services, almost $492,000 for medical services and $601,000 for utilities, according to a preliminary budget summary.
Commissioners continue to schedule hearings to more closely examine the numbers and to hear presentations from staffers and department heads.
The county pays LaSalle Corrections $8.06 million a year to run Jack Harwell Detention Center, according to a budget summary presented Thursday by the auditor’s office, which also used requests from the sheriff’s office to estimate the county would spend $10.2 million next year. The office also estimated the county would see $4.6 million in revenue from housing federal prisoners at the detention center, creating a $2.45 million savings to the county compared to LaSalle running the jail and receiving the federal revenue.
But Capt. Ricky Armstrong took issue with that projection. He said during the meeting and during an interview afterward that the savings estimate is based on housing an average of 260 federal inmates daily. The federal prisoner count at Jack Harwell runs closer to 170 to 220 daily, Armstrong said.
He said he believes the county will just about break even from a budget standpoint, at least initially.
“I see close to a clean slate. It will not cost us any extra,” Armstrong said. “I also think it’s a good idea, the county taking over. I believe we will be able to offer more programs to help integrate inmates into the community and not come back. The numbers we talked about today are what we’re asking for. It’s a preliminary budget, just a starting place. We’ll come back next week.”
He said the county welcomes interest from LaSalle Corrections employees.
“We have 40 to 50 who have indicated an interest in working for us, and at least 30 are in the background stage,” Armstrong said.
The county is working to hire at least 80 jail staffers in the next 30 days, he said.
Of immediate concern to commissioners is the estimated $851,574 transition cost, which is not reflected in the current county budget.
“We know that’s going to be a hit,” Precinct 4 Commissioner Ben Perry said. “If there are things we could do without or put off until next year or the year after that, I would like to see a discussion about those.”
Perry said commissioners might be well served to invite District Attorney Barry Johnson to meet with them and discuss the possible impact of his prosecutorial philosophy on jail occupancy rates.
“I know several commissioners had such a meeting with his predecessor,” Perry said, referring to former District Attorney Abel Reyna.
In other budget discussions Thursday, commissioners tentatively agreed to increase the county’s annual contribution to the Waco-McLennan County Economic Development Corp. incentive fund from $2.25 million to $2.5 million, contingent on the city of Waco matching the increase.
A proposed $1.4 million capital outlay requested by the sheriff’s office would buy several new vehicles, including nine Chevrolet Tahoes, a 15-passenger transport van and three trucks for use by the Jack Harwell facility. Other expenses include buying a drug dog, renovating the evidence room, buying a food warming cabinet and a license-plate recognition system that would include two vehicles and a trailer. The license-plate recognition system would assist in searches for missing people, fugitives and potential terrorists.
Precinct 1 Commissioner Kelly Snell questioned the need for so many new vehicles. He asked the sheriff’s office to provide information about the after-hours use of assigned vehicles. He later said in an interview there are events at which the county provides security or a presence, but he does not want county vehicles subjected to wear and tear without reimbursement.
Waco’s 10th Court of Appeals reversed Sam Ukwuachu’s 2015 sexual assault conviction on Thursday, ruling prosecutors used “false testimony” and violated the former Baylor University football player’s due process rights.
The three-judge intermediate appellate court reversed the case and awarded Ukwuachu a new trial.
“Because we find that Ukwuachu’s due process rights were violated by the use of false testimony, we reverse the judgment of the trial court and remand for a new trial,” the eight-page ruling written by Chief Justice Tom Gray states.
McLennan County Executive Assistant District Attorney Tom Needham said the DA’s office thinks the 10th Court ruling is “both legally and factually incorrect” and that it will appeal the ruling to the Texas Court of Criminal Appeals.
“We respectfully disagree with the decision of the 10th Court of Appeals,” Needham said. “We are confident that the decision will be reversed by the Texas Court of Criminal Appeals. We strongly dispute the statements by the 10th Court of Appeals that false testimony of any kind was introduced or used in any way in the Ukwuachu trial.”
Ukwuachu’s sexual assault case has been bouncing from court to court for years, dating to his arrest after a Baylor homecoming party in 2013, to his conviction for sexual assault in 54th State District Court in 2015, to a 10th Court of Appeals conviction reversal in March 2017 to a reversal of that reversal by the Court of Criminal Appeals in June 2018.
The sexual assault convictions of Ukwuachu and former Baylor player Tevin Elliott cast Baylor in a negative spotlight and set the path for the sexual assault scandal that continues to rock the school years later through pending lawsuits.
In reversing the 10th Court’s reversal, the Court of Criminal Appeals sent the case back to the Waco court to consider other issues it had not addressed when it overturned the conviction on an issue relating to the admissibility of text messages.
The most-recent 10th Court opinion says the court did not address those other issues before deciding to reverse the conviction again, this time on an issue over the use of Ukwuachu’s roommate’s cellphone to track his location at the time of the alleged offense.
Needham said he is disappointed the 10th Court did not address all the points of appeal that were presented to the court.
William Bratton, Ukwuachu’s appellate attorney, said he and Ukwuachu are pleased with the opinion.
“I thought all the points we argued are pretty good points and I am not surprised they reversed this one, too,” Bratton said. “But there are still three more points they haven’t even ruled on, so we will just have to wait to see. But the reversal is the way it should be.”
Bratton bristled at Needham’s comments, saying it was a prosecutor from his office that created the issue.
“That was in black and white in the record,” he said. “If the state is getting irate about it, they need to go back and read the record more carefully. This isn’t something the defense made up. They were way out of bounds on this.”
A 54th State District Court jury convicted Ukwauchu of sexual assault and granted his request for probation. The victim in the case, a freshman athlete at Baylor, testified that Ukwuachu raped her at The Groves apartments on South University Parks Drive after a Baylor homecoming party in November 2013.
Ukwuachu, from Pearland, transferred to Baylor from Boise State University but never played at Baylor. He said he had a consensual sexual encounter with the woman.
The 10th Court reversed the case again on the basis of its belief that the prosecution’s use of the cellphone records created false testimony and violated Ukwuachu’s due process rights.
“The false testimony relates to Ukwuachu’s roommate’s location and whether phone calls were made around the time of the alleged offense,” the opinion states. “The complaint is that the false testimony was created by the way in which the state made use of his roommate’s cell phone records, which were provided to Ukwuachu on the second day of the trial, but which were excluded from evidence.
“Regardless of whether done knowingly or unknowingly, the state’s use of material testimony that is false to obtain a conviction violates a defendant’s right to due process under the Fifth and Fourteenth Amendments,” according to the opinion.
The court wrote that based on the time and location data shown by the phone records, the state argued that Ukwuachu’s roommate was across town during the alleged assault rather than in their apartment as the roommate testified.
The alleged victim testified that she screamed during the assault and said the roommate could have heard her if he had been there as he said.
“But the times shown in the phone records were in UTC (Coordinated Universal Time), which was five hours different from local time,” the court said. “Due to this five-hour difference in time for when the calls were made, Ukwuachu claimed that his roommate’s testimony was not shown to be untrue by the records as argued by the state. The trial court did not allow the admission of the phone records but allowed the state to ask questions about making phone calls.”
The court found that there is a “reasonable likelihood that the false impression affected the judgment of the jury.”
A 48-year-old Waco man convicted of sexually abusing two family members and forcing them to perform sex acts on each other will spend the rest of his life in prison.
Jurors in Waco’s 54th State District Court in the case of Billy Joe King returned a punishment verdict of 99 years for each of two counts of continuous sexual abuse of a child.
The jury found the 48-year-old King guilty on Wednesday, then spent about two hours Wednesday and Thursday deliberating punishment. Defendants convicted of continuous sexual abuse of a child are not eligible for parole, meaning barring a successful appeal, King will die in prison.
Prosecutors Sydney Tuggle and Will Hix asked the jury to assess life sentences for each count.
“We know how difficult this case was to listen to and be a part of, and we are so thankful for this jury, who ensured that there will be no more victims at the hands of this perpetrator,” Tuggle said. “We feel an enormous amount of gratitude to the jurors for all the thought they put into this verdict. Thank you to everyone who worked on and contributed to bringing this man to justice. We can’t wait to see how these survivors continue to grow from their past into their incredibly bright futures.”
The victims, a 14-year-old girl and a 16-year-old boy, each testified that King sexually abused them for two to three years. King first abused the boy when he was 6, while the girl was first abused when she was 9. King also made them perform sex acts with each other while he watched, they said.
Some of the abuse occurred while they were living in Marlin, while other incidents happened at King’s McKenzie Avenue home, they said.
The girl reported the abuse on at least three occasions to King’s wife, Monica Renee King, but she sided with King and did nothing to stop it, the girl testified.
Monica King is serving a 20-month sentence for endangering a child for failing to report the abuse. She testified the girl showed her pages from her diary that detailed the sexual abuse and she ripped the pages from the journal and threw them away.
Waco attorney Alan Bennett, who defended Billy King with attorney Jessi Freud, told jurors Wednesday that 40-year sentences would be appropriate.
“We appreciate the jury’s attention and thoughtful consideration of all the evidence,” Bennett said after the four-day trial.