CHOICES AND CHALLENGES FOR AMERICA'S FUTURE

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THE ELECTRIC CHAIR AND THE CHAIN GANG:

CHOICES AND CHALLENGES FOR AMERICA'S FUTURE

Lecture presented by Stephen B. Bright, director of the Southern Center for Human Rights and J. Skelly Wright Fellow at Yale Law School, at the Notre Dame Law School on February 15, 1996, and published in Volume 71, Notre Dame Law Review, page 845 (1996).

Copyright (c) 1996 University of Notre Dame; Stephen B. Bright

The use of capital punishment in America today presents a number of fundamental moral issues about our society and our system of justice. It is fitting that we address those issues here at Notre Dame Law School, which has a well-deserved reputation for raising moral issues, for a deep commitment to justice, and for responding to human needs with compassion.

Our society and the legal professional are failing to meet the need for legal services of many of those most desperately in need of such services in cases involving the highest stake, life itself. There are, of course, urgent needs in other areas besides capital punishment. Those accused of crimes which do not carry the death penalty, the poor, people of color, homeless people, people with mental impairments, people who are HIV positive, people in prisons and jails and many others are without lawyers to represent them in cases which involve their freedom, their shelter, their survival.

Those needs will be greater when you graduate from law school than they are today. But there could be fewer jobs and less resources for those who respond. And, as you know, you will be saddled with enormous debts. This presents a challenge, but it should not deter you from responding. Indeed, my message to you is that you have no choice except to respond Ä the needs and the times demand it.

Let's examine the needs and how individuals and institutions may respond to them.

Children and the poor are going to have a tremendous need for your services. The states are increasingly passing so-called welfare reform measures and Congress and the President are about to follow suit with a measure that will "end welfare as we know it." The result of these "reforms" will be to put thousands of children on heating grates to live.

This message to "get a job or starve" comes even as America's most prosperous companies are "down-sizing" Ä laying off thousands of workers who dedicated their lives to their companies. You will be practicing law in a world in which your fellow human beings are increasingly looked upon by the corporate structure and the government as disposable, as Charles Reich eloquently describes in his book, Opposing the System.1 A person can work hard all her life and suddenly, one day, lose her job, her health insurance, her home and everything Ä not because she did anything wrong, but because the company does not need her any more. Many of those who lose their jobs in this manner have little prospect of finding employment elsewhere.

Many of those growing up in our country today have little chance of obtaining a job because we have not met the promise of providing a quality education for all of our children. Of course, a quality education is essential for a job in today's world. Silicon Valley did not appear by coincidence in California. The opportunities offered there are the sweet fruit harvested as a result of the country's best system of higher education. But now that system is being raided to pay for unnecessary prisons. California now spends more money on its prison system than on its university system.

As a result of the denial of education, opportunity and even hope for so many of our children and their parents, the choice for many by age sixteen is not the one you had Ä which college to attend, what career to pursue. It is a choice between trying to find a minimum wage job at a fast food restaurant or getting in on the material wealth of the American dream through the only business available, the selling of illegal drugs.

As was pointed out recently by Steven Duke and Richard St. John:

Those who would eviscerate welfare contend that welfare recipients need the threat of severe deprivation to motivate them to seek a job. But all the evidence proves that there are no jobs for most of the people now on welfare . . . . A recent study of fastfood workers found 14 applicants for every opening.

There is another glaring gap in the reasoning of those who want to rescind the war on poverty: They assume that the only alternative a welfare recipient has is legitimate work. This overlooks the omnipresent alternative of crime.2

But America's children can still count on their government to fulfill one promise. Both the federal and state governments are committed to spend up to $30,000 a year on every child in the United States. All that child must do to obtain this government support is to try to medicate his depression or despair with illegal drugs or commit some other crime. The state and federal governments are absolutely committed to having a maximum security prison cell for any child who commits a crime Ä especially if that child is a person of color.

Some of those accused of crimes will be entered in a lottery Ä a lottery rigged by race and poverty. Out of thousands eligible, about 250 will be condemned to be strapped down and shot, hung, gassed, electrocuted or injected with lethal drugs.

Other industrialized nations have abandoned the death penalty. Recently the Constitutional Court of South Africa unanimously found the death penalty to be cruel, unusual and degrading punishment under that country's constitution.3 But we continue to sentence people to death in the United States.

I was in a Georgia courtroom last fall defending an African American facing the death penalty for a crime committed against a white person. We were trying to persuade the judge to remove the Confederate battle flag from the courtroom Ä it is a part of the Georgia state flag. The flag was adopted in defiance of the Supreme Court's decision in Brown v. Board of Education4 that schools be integrated.5 We were also asking the court to bar the state from seeking the death penalty against my client because of racial discrimination in the infliction of the death penalty in Georgia.

As we were litigating those motions, I was struck by several thoughts. The Olympic games are coming to Georgia next year. Georgia, like South Africa, has a long history of apartheid, racial oppression and racial violence. Yet now South Africa has moved ahead, it has joined the rest of the civilized world in abandoning capital punishment. But Georgia is still flying the Confederate battle flag in its courtrooms and burning people up in its electric chair while others celebrate their deaths outside.

But the problems are not limited to Georgia. The sad fact is that, increasingly, our state and federal governments are offering the young not hope, opportunity and equality, but the threat of incarceration and execution. Last summer, President Clinton began running television advertisements proclaiming his support for the death penalty and tough sentencing laws. In 1994, he signed into law a crime bill providing for the death penalty for fifty federal crimes.

The federal death penalty was brought back in 1988. Since that time the Justice Department has approved fifty-four capital prosecutions. All but nine have been against people of color. During the Clinton administration, Attorney General Reno has approved twenty-seven capital prosecutions. Twenty were against African Americans. Yet despite this sorry record, even more capital crimes were adopted last year.

In addition to providing for more death, state and federal governments pass new measures each year to provide for more incarceration. Longer prison sentences, mandatory minimum sentences, unreasonable and inflexible sentencing guidelines and other legislation such as "three strikes and you're out" result in more people serving longer periods of time behind bars at enormous cost. The United States now imprisons more people than ever before Ä over 1.5 million in both prisons and jails Ä and has the highest incarceration rate of any country in the world.6 To keep up with the growth in prison population will require the construction of 1,725 new prison beds each week.

And legislatures are moving to make life even more unbearable for those crowded into prisons and jails. Alabama has brought back the chain gang.7 Its only purpose is degradation and humiliation of human beings for political points. A person cannot get much work done chained to another person. Alabama has also returned to the practice of having prisoners stand in the hot Alabama sun for ten hours a day breaking rocks with ten-pound sledge hammers.8 This activity serves no practical purpose Ä there is no need for the crushed rock Ä but apparently it serves political purposes.

Not long ago such barbarism would be seen as just another aberrational act by Alabama. Today, it starts a national trend. Arizona and Florida have already reinstated the chain gang and other states are contemplating it as well. And the Alabama legislature, continuing its role as the trend setter, is now considering a bill to return to caning as punishment for crime. Children even as young as thirteen are being prosecuted as adults. Not just in Alabama, where fourteen and fifteen year old children are serving sentences of life imprisonment without any possibility of parole, but all across the land.

As prisons and jails become even more overcrowded, conditions deteriorate. Yet legislation proposed in the United States Congress would restrict the ability of federal courts to provide relief for unconstitutional conditions in prisons.9 This legislation is based on irresponsible assertions by the National Association of Attorneys General and members of Congress that prisoner lawsuits are about nothing more important than soggy sandwiches or being deprived of watching football games on television or the use of electronic games.

Nothing is said about the unconscionable degradation and violence in America's prisons that was corrected only by order of federal courts in response to suits brought by prisoners. Judge Frank Johnson ordered the correction of barbaric conditions in Alabama's prisons twenty years ago. Judge Johnson found "horrendous" overcrowding with inmates sleeping on mattresses in the hallways and next to urinals; prisons were "overrun with roaches, flies, mosquitoes, and other vermin"; mentally disturbed inmates were "dispersed throughout the prison population without receiving treatment"; and robbery, rape, extortion, theft and assault were "everyday occurrences" among the general inmate population.10

Prisons in thirty-nine states and the District of Columbia have been put under some form of court supervision because of the failure of state officials to operate constitutional facilities. For example, a federal judge found that residents of the California State Prison at San Quentin were "regarded and treated as caged animals, not human beings."11 At a prison in Pendleton, Indiana, the federal court found that inmates were shackled spread- eagle to metal bed frames for up to two and a half days at a time and "frequently denied the right to use the toilet and had to lie in their own filth."12 At the Southern Center for Human Rights, our docket of suits on behalf of prisoners is not about melting ice cream, but about the most fundamental human rights of people, such as the right to safety and security, to basic medical and mental health care.

It is the threat of punishment and degradation, not the promise of hope and opportunity, that we hold out to children who have the misfortune to be born into poverty, the victims of brutal racism, those who have the misfortune to be born into dysfunctional families, those who are the victims of physical, sexual and psychological abuse, and those who have the misfortune to be born with a deficit in intellectual functioning or some other mental impairment.

One would think that if all we hold out to these children is a prison cell, the chain gang and the electric chair, at least we could provide a little process Ä fair procedure with a good lawyer Ä before we take away their lives or freedom and subject them to such suffering and degradation for the suffering and degradation they caused others. And one would think that, at the very least, we would make sure that racial prejudice, which already puts so many at such a disadvantage, would not influence the severity of their punishment. But both fair procedures and the access to courts through competent and experienced counsel are being taken away even from those with the most desperate needs of all, those facing the executioner. And the courts are completely indifferent to the prominent role that race plays in the criminal justice system.

Since 1977, Chief Justice Rehnquist has waged a relentless war on the once great Writ of Habeas Corpus, which the Supreme Court described over thirty years ago as "the common law world's 'freedom writ."'13 It gives a person the right to go into federal court and assert that he or she has been imprisoned in violation of the Constitution. It gives a life-tenure federal judge the power, where there has been a constitutional violation, not to let the defendant go free, but to require the state to provide a new and fair trial. The Supreme Court once said "there is no higher duty than to maintain it unimpaired."14

But the Supreme Court under the leadership of Justice Rehnquist Ä later Chief Justice Rehnquist Ä has placed all manner of technicalities in the way of vindication of violations of the Bill of Rights.15 And now Congress and the President are poised to finish off the Writ. The Anti-Terrorism Bill that has passed the Senate includes provisions which would limit even further the ability of federal judges to set aside an illegally obtained death sentence.16 It will impose time limits that would treat capital cases like small claims cases.

This legislation would leave enforcement of the Bill of Rights primarily to state court judges. This sounds reasonable, but it overlooks that state court judges in all but a handful of states must stand for election.17 Those judges are not independent. In high publicity, high profile cases, enforcing the law may cost them their jobs. In the present political climate, an elected judge who grants relief in a capital case signs his or her own political death warrant. It has happened in California. Three justices of the state supreme court were swept from office because of their votes in capital cases.18 It happened in Mississippi.19 It has happened in other places, but often it does not happen because judges pay more attention to the next election than to the law in making their rulings.

There was an election last year for the Texas Court of Criminal Appeals. Stephen W. Mansfield ran for a seat on the court on a three-plank platform: greater use of the death penalty, greater use of the harmless error doctrine, and fines for lawyers who file "frivolous appeals" in death penalty cases.20 Mansfield challenged an incumbent, a former prosecutor, who had served for twelve years on the court. Before the election, it was revealed that Mansfield had been a member of the Texas bar only a couple of years, that he had been fined for practicing law without a license in Florida, that he had almost no criminal law experience.21 Nevertheless, Mansfield won the election. The Texas Lawyer aptly described him after his election as an "unqualified success."22

Of course the most fundamental element of a fair process is the right to counsel. Because without a lawyer, a person untrained in the law has no idea what his rights are or how to assert them. I am sure that many of you were inspired to go to law school, as I was, by Anthony Lewis' marvelous book, Gideon's Trumpet. It is the story of Clarence Earl Gideon who was convicted in Florida and then filed his own handwritten petition with the United States Supreme Court saying it just was not fair that he did not have a lawyer at his trial. This ultimately led to the case of Gideon v. Wainwright,23 which held that the poor person accused of a felony is entitled to a lawyer. Anthony Lewis observed after the decision:

It will be an enormous task to bring to life the dream of Gideon v. Wainwright Ä the dream of a vast, diverse country in which every person charged with a crime will be capably defended, no matter what his economic circumstances, and in which the lawyer representing him will do so proudly, without resentment at an unfair burden, sure of the support needed to make an adequate defense.24

Over thirty years after Gideon was decided, this dream has not been realized. There is no public defender office in many jurisdictions; in some jurisdictions, the indigent defense work is assigned to the lowest bidder.25 It was recently discovered that in Putnam County, Georgia, the local sheriff appointed lawyers to the cases of poor defendants and refused to appoint lawyers who would not agree to the plea dispositions proposed by the sheriff.26

Congress cut off all funding in the fall of 1995 for a very modest program to provide some measure of justice to those facing the death penalty Ä the post-conviction defender organizations or resource centers that had existed in twenty states. The resource centers, created in 1987, were a relatively small program for the size of the problem. All together they had about 200 lawyers to deal with the post-conviction representation of over 3,000 people condemned to death. But the young lawyers who were at the resource centers during their eight years of existence proved what a difference you can make if you tackle a problem, work hard at it, build an expertise and are committed to justice.

Some of the resource center attorneys were right out of law school. They were not paid very much by the prevailing standards of the legal profession. But after two or three years, those young lawyers had mastered the complex areas of criminal law, the sub-specialty of capital punishment law, and the procedural maze of state and federal post-conviction law. Besides building their own expertise and applying it, they recruited lawyers from firms to provide pro bono representation. Many lawyers responded to the call. And they, working with the resource center lawyers, provided the highest quality of representation.

And they made a difference. Walter McMillian, who spent six years on Alabama's death row, is a free man today because the Alabama Resource Center proved that he was innocent of the murder for which he was condemned to die.27 Lloyd Schlup is alive today because the resource center in Missouri established his innocence.28 Curtis Lee Kyles is alive today because the resource center in Louisiana marshalled evidence of his innocence.29

In addition, these young lawyers, and the pro bono attorneys with whom they worked, exposed constitutional violations in other cases Ä violations such as failure to disclose exculpatory evidence, racial discrimination, and prosecutorial misconduct. These are not technicalities. These are constitutional violations that go to the very integrity and reliability of the system.

And because these lawyers and these programs made a difference, they came under attack by the National Association of Attorneys General, led by the new Attorney General of South Carolina who ran on a promise to replace the state's electric chair with an electric sofa so that more people could be executed at one time.30 Apparently the attorneys general consider it a bad reflection on our criminal justice system that innocent people are being sentenced to death. The House and the Senate responded by cutting off all funding last fall.

Those who depend upon government funding must recognize that a reality of our times is that if they are effective in helping the poor or people of color, there is a very substantial risk that the government will take away or reduce the funding or, as with the federal Legal Services Corporation, which makes legal assistance available to the poor in civil cases, interfere with their ability to help their clients by placing restrictions on their practices. Of course, that has always been the case in many states; the only programs that received funding were the ones that were completely ineffective. But at least the federal government could be counted on for some programs and the federal courts for some measure of justice that could not be obtained in the state courts. But now there is no commitment to access to the courts or to fairness on the part of our national leadership in either party.

The result is that many who most need legal assistance are without it. Many of the 3,000 men, women and children on death rows throughout the country are without counsel. Many of the lawyers from the capital resource centers who would have provided representation have gone to other jobs in other states. This leaves two choices. One is the states can execute the condemned without providing counsel for the post-conviction stages of review. The Supreme Court has held there is no right to counsel in state post-conviction proceedings.31 The other choice is to assign a lawyer who knows nothing about post- conviction practice and pay the lawyer a token amount for providing the appearance of some process. Alabama compensates lawyers $600 for handling post-conviction representation. An attorney who devotes the necessary time will be earning less than ten cents an hour. But the fees in Alabama are better than in Georgia, Mississippi and some other states. They pay nothing.

If the states do provide counsel, we can expect to see the same quality of representation during post-conviction that we see at trial. And the quality of representation at trial in capital cases has been a disgrace to the legal profession.32 For example, judges in Houston, Texas have often appointed to defend capital and other criminal cases a lawyer who occasionally falls asleep during trial.33 When a defendant in a capital case there once complained about his lawyer sleeping, the judge responded that the Constitution guarantees the accused a lawyer, but it does not guarantee that the lawyer must be awake.34 The trial of a woman facing the death penalty in Alabama had to be suspended for a day because the lawyer appointed to defend her was too drunk to go forward.35 The judge sent him to jail for a day to dry out and then produced both the client and lawyer from jail and resumed the trial. She was sentenced to death.

Last month, I handled a post-conviction proceeding in a capital case in Georgia in which the court-appointed lawyers did not make one objection during the entire trial, which lasted only one and a half days.36 Only one motion was filed prior to trial. One of the attorneys appointed to defend the accused had never heard of two important Supreme Court decisions in Georgia capital cases, Furman v. Georgia37 and Gregg v. Georgia,38 which provide the structure for much of the Eighth Amendment law governing capital trials. Another lawyer who has handled a number of criminal and capital cases in Georgia was asked to name all of the criminal law decisions of which he was aware. He could answer only Miranda and Dred Scott.39

The Alabama Supreme Court affirmed a conviction and death sentence in a case after receiving a brief from the lawyer that was only one page long.40 The lawyer did not show up for oral argument. One might have expected the Alabama Supreme Court Ä or the courts in the other cases I have described Ä to call a halt to proceedings where the lawyering was so bad and appoint new counsel, not only to protect the rights of the accused, but also so that the court could do its job. Do these courts care at all about justice? How can a court decide a capital case based on a one-page brief and without oral argument? But the Alabama Supreme Court affirmed without ever having adequate briefing or any argument. The client was eventually executed.

Poor people do not choose their lawyers. They are assigned lawyers by state court judges, many of whom are elected and are more concerned about the next election than the Bill of Rights. We must ask, is it morally right to assign a poor person a lawyer who does not know the law, who does not care enough to investigate, who is incapable of properly handling such a serious case, and then penalize the poor person for errors made by the lawyer?

Another great moral and legal issue that courts continue to ignore is the role that racial prejudice plays in deciding who dies. Edward Horsley was executed in Alabama's electric chair on February 16, 1996. He was the eleventh African American put to death by Alabama of the fourteen that have been executed since the Supreme Court allowed resumption of capital punishment in 1976. He and his codefendant were sentenced to death by all- white juries selected in Monroeville, Alabama.

Two African American men sentenced to death by an all-white jury in Utah were executed even though jurors discovered during a lunch recess a note which contained the words "Hang the Nigger's" [sic] and a drawing of a figure hanging on a gallows.41 No court, state or federal, even had a hearing on such questions as who wrote the note, what influence it had on the jurors, and how widely it was discussed by the jurors. William Henry Hance was executed in Georgia without any court holding a hearing on the use of racial slurs by jurors who decided his fate.42 The racial disparities in the infliction of the death penalty are undeniable,43 yet courts refuse even to hold hearings on such ugly racial incidents as I have described here.

But even if our system could provide the person facing the death penalty with a fair and impartial judge, a responsible prosecutor who was beyond political influences, a capable defense lawyer, and a jury which represented a fair cross-section of the community, it would not eliminate the discrimination and unfairness in the infliction of the death penalty. No procedure employed by the court during jury selection or trial can eliminate the centuries of racial prejudice and discrimination in our history. Beyond that, the task of deciding who should live and who should die is simply too enormous for our court system. And our courts do not function best when caught up in the politics and passions of the moment, which is almost always the case when a capital trial is taking place.

I am reasonably confident that this sad situation is only going to get worse because no one in a leadership position speaks out against it. That was not always the case. Over thirty years ago, the Attorney General of the United States, Robert F. Kennedy, observed, "the poor person accused of a crime has no lobby." And he did something about it. He, the Attorney General of the United States, became a lobby for the poor person. He found responsible leaders on Capitol Hill who responded to his call. Together they brought about passage of the Criminal Justice Act to give lawyers to poor people accused of crimes in the federal courts. One opportunity that will be open to you upon graduation is to work at one of the federal defender offices all across the country now in existence thanks to the leadership of Attorney General Kennedy. Attorney General Kennedy supported the Criminal Justice Act not because he was soft on crime Ä Robert Kennedy was a tough prosecutor Ä but because he believed in fairness. It was as simple as that.

But after the election of 1994, as the state attorneys general and politicians in both parties moved to take away funding for the resource centers Ä to remove the small fig leaf of fairness that did not begin to cover the injustices and inequities in the use of the death penalty Ä not a word of protest was heard from the White House or the Department of Justice.

Those of us who remember Robert Kennedy hoped that someone might at least say: "Wait, if we are going to have the death penalty, if we are going to kill our own people Ä even our children Ä at least we must give lawyers to those accused of crimes." And not just a stable of plug horses that would not be accepted by a decent glue factory, but real lawyers who know what they are doing. It is a matter of fairness. We hoped that someone might say: "Wait, we cannot gut the great Writ of Habeas Corpus. Life and liberty are too precious. Even in this material world, life and liberty should have the protection of the federal courts." Our country could have benefitted from a lesson in fairness and due process from the President or the Attorney General or some of the leaders in Congress.

Those are some of the challenges. What can we do about them?

It can be difficult to find a public interest job Ä not as hard as some think, but it is certainly more difficult than finding a job with a law firm. As I said earlier, there are no public defender offices in many jurisdictions where those accused of crimes have the greatest need for competent legal counsel. And it is getting harder. Many of the capital resource centers have closed. The civil legal services programs are also under attack for providing too much justice. They are being cut back and restrictions placed on their work. And of course you have those law school debts.

Law schools and human rights organizations must come to the rescue. The legal profession must respond to the challenge. And you as individuals must respond to the problems I have described.

A number of law schools have responded. The University of Texas Law School now has a capital punishment clinic which provides an outstanding experience for students and desperately needed help for lawyers defending capital cases in that state. The Capital Clearinghouse at the Washington and Lee College of Law has helped improve the quality of representation in Virginia. Loan forgiveness programs are making it possible for law school graduates to take jobs which pay very little but allow them to respond to desperate needs. Yale and New York University are among the leaders in providing full loan forgiveness for students who go into public interest careers. Law students at many institutions have created public interest foundations, through which those who have well paying jobs make contributions to enable other graduates to accept public interest jobs and pay their loans.

Our program, the Southern Center for Human Rights, has benefitted tremendously in the last six years because each year we have had a Skadden Fellow, a new law graduate whose salary and benefits were paid for by the fellowship foundation of the law firm of Skadden, Arps, Slate, Meagher & Flom. Now in its seventh year, the Skadden program provides two-year fellowships for twenty-five law graduates. Thanks to that program, we have had three outstanding lawyers who would not have been with us otherwise. There are clients who are alive today who would be dead were it not for our Skadden Fellows. It is time for other firms to follow Skadden's lead.

Some people concerned about the death penalty created last year the Harry A. Blackmun Fellowship at our office. That fellowship is making it possible for us to put another recent law graduate in the field to respond to these desperate needs.

Judy Clarke, the federal public defender in Spokane, Washington, recently donated her fees for representing Susan Smith in South Carolina, $83,000, to the South Carolina Post-Conviction Defender Organization so it could establish a fellowship to provide representation for condemned inmates.44 This contribution was made by a public defender who is providing representation in the courts to poor people every day. Where is the rest of the legal profession? Lawyers have a monopoly on access to justice; they have a duty to see that it is not only available to those who can pay.

But what is also needed is the response of individuals who are willing to go where the needs are. The legal services offices that survive, the public defender offices that exist, and the various public interest law projects, like my office, are not going to offer you jobs a year before you graduate like the law firms do. The reason is we do not know if we will be cut back thirty percent or eliminated completely.

But those offices will need you at some point. Last year, two of my third-year students at Yale Law School were discouraged in January because they could not find public defender jobs. But by May they were calling for help in deciding between the three public defender offices that had made offers. Another recent graduate worked for a criminal defense lawyer in Atlanta while he waited for his bar results and an opening at a public defender office. He passed the bar and will start practicing with the public defender office in Atlanta next month.

I also urge you to explore creating your own programs, your own non-profit public interest law projects Ä not offices where lawyers get rich, but places where people get justice. But to do that, you must settle for less in material rewards than what other lawyers are receiving for their work.

It is easy to lose perspective. Remember that it is no sacrifice to receive the same income as that received by teachers, farmers, workers on the assembly line and other good, decent working men and women who raise families and contribute to their communities. To the contrary, it is a great privilege to devote one's life to things that are important and about which you care passionately.

You who will someday graduate from law school have the opportunity to become what Martin Luther King, Jr., in one of his many great sermons, called "drum majors for justice." Dr. King described the drum major for justice as one who speaks the truth Ä no matter how unwelcome it may be and no matter how uncomfortable it may make the listener Ä and as one who gives his or her life to serving others: to feeding the hungry, clothing the naked, and Ä particularly important for lawyers Ä to visiting those who are in prison, and to loving and serving humanity.45 He described his goal as a drum major for justice: "I just want to be there in love and justice and in truth and in commitment to others, so that we can make of this old world a new world."46

Follow the example of a young lawyer who graduated from Howard Law School, opened a practice in Baltimore and handled civil rights cases and became a great drum major for justice Ä Thurgood Marshall. Follow the example of a nun who ministered to the poor in the projects of New Orleans and on death row at Angola Ä Sister Helen Prejean.47

I offer my office as an example of what you can do only because it is the one I know something about and we have had some experience in surviving in hard times without much money. We have never received any government money. We must spread very thinly what little money we have to provide justice for those most in need of it. And that requires living a simple life, not letting a lot of material things clutter our existence.

We pay everyone the same, whether secretary, senior lawyer, or junior lawyer. Our annual salaries have been as low as $8,500. Now, everyone makes $23,000. You can live on this amount. I have lived on such a salary for the last thirteen years. But, of course, so have many other people in our society who work at jobs that are not nearly so interesting and fulfilling as what we do.

A law firm may pay one partner $600,000 or even more. At the Southern Center for Human Rights, that is the entire operating budget for a year for nine lawyers, three investigators, one paralegal, three administrative people and a number of law students. With that we provide representation in fifty capital cases and twenty-four cases challenging prison and jail conditions.

There are other possibilities. The new technology of today enables us to practice law from our homes with a computer, a modem, a printer, a telephone and a fax machine. It is possible to maintain very low overhead so you can charge reasonable fees for services or even barter, as William Kunstler often did with his neighbors.

Consider practicing law not in Washington, New York or the Bay Area, but in communities where there has never been a lawyer who would question the status quo, who would give African Americans the same representation as white people, who would give the poor the same representation as the rich. You can change that. Those communities are not hard to find. Get a map of any state in the Union. It will be full of them.

We live in a society where it is possible to isolate ourselves from the poverty, the racism, the injustices that affect the lives of so many people. The culture of becoming a lawyer is one in which there is almost overwhelming temptation to take the job that pays the most money to pay those debts; but then it is so easy to fall into a costly culture of BMWs, big houses, and summer homes. There is so much money available and so many good uses we can think of for it, that it is easy to give in to the twin evils of complacency and complicity.

I urge you to commit yourselves today not to do that. As Elie Wiesel said in accepting the Nobel Peace Prize, "Our lives no longer belong to us alone; they belong to all those who need us desperately."48 I have not had enough time to describe all the desperate needs, only some of what needs to be done to work toward finally realizing the promise of Clarence Earl Gideon's case.

Your time, your talents and your commitment are urgently needed. Let me give you an example of how much you are needed. Cornelius Singleton, a mentally retarded African American youth on death row in Alabama, went eight years without seeing the lawyer assigned to represent him in post-conviction proceedings. Can you imagine what it must be like to be on death row for eight years and not see a lawyer? Not to know whether you are going to be executed the next day, the next week, the next year? To have no idea what is even happening on your case? Do you see what a difference you could make if you had been Cornelius Singleton's lawyer? Just by going to see him, by counseling him, you would have provided a valuable service.

We cannot solve all the problems, but we can lend a helping hand and our professional skills to those who most need us. Like those who helped slaves escape to freedom as part of the underground railroad before the Civil War, we can help people reach safe passage, one at a time, from the injustices which threaten to destroy them.

And what a difference you can make to those individuals whom you help. Last summer, one of my clients, Tony Amadeo, who had been condemned to die by Georgia when he was only eighteen years old, but whose death sentence was set aside due to racial discrimination,49 graduated summa cum laude from Mercer University. Do not let anyone tell you that you cannot make a difference as a lawyer.

And we can bear witness to the injustices we see until we shake our fellow citizens out of the indifference which we see about us.

I leave you with the challenge issued by Justice Thurgood Marshall, six months before he died, in accepting the Liberty Bell Award in Philadelphia. Justice Marshall was frail. He was in a wheelchair. But by the end of his remarks, it was observed that "his voice was as booming as [it had been] in those magnificent times when he argued before the Supreme Court."50 Justice Marshall said:

I wish I could say that racism and prejudice are only distant memories . . . and that liberty and equality were just around the bend. I wish I could say that America has come to appreciate diversity and to see and accept similarity. But as I look around, I see not a nation of unity but of division Ä Afro and white, indigenous and immigrant, rich and poor, educated and illiterate. . . .

Look around. Can't you see the tensions in Watts? Can't you feel the fear in Scarsdale? Can't you sense the alienation in Simi Valley? The despair in the South Bronx? The rage in Brooklyn?

We cannot play ostrich. Democracy cannot flourish among fear. Liberty cannot bloom among hate. Justice cannot take root amid rage. We must go against the prevailing wind. We must dissent from the indifference. We must dissent from the apathy. . . . We must dissent from a government that has left its young without jobs, education or hope. We must dissent from the poverty of vision and an absence of leadership. We must dissent because America can do better, because America has no choice but to do better. Take a chance, won't you? Knock down the fences that divide. Tear apart the walls that imprison. Reach out; freedom lies just on the other side.51

That's the challenge. To continue the work which Justice Marshall so nobly advanced in his great career at the bar. Now it's your turn.

I hope to see you in the courts.

. Charles Reich, Opposing the System (1995).

. Steven B. Duke & Richard St. John, Less Welfare: More Crime, Pittsburgh Post-Gazette, Jan. 14, 1996, at B1.

. The State v. Makwanyane, Constl. Ct. of South Africa, June 6, 1995, reprinted in 16 Hum. Rts. L.J. 154 (1995).

. 347 U.S. 483 (1954) (holding that racial segregation in the public schools violates the Equal Protection Clause); see also Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (requiring that desegregation of the public schools proceed "with all deliberate speed").

. Coleman v. Miller, 885 F. Supp. 1561, 1569 (N.D. Ga. 1995) (finding that the flag was adopted "as a statement of defiance against federal desegregation mandates and an expression of anti-black feelings").

. 1,725 New Prisons Beds a Week; Biggest 1-Year Spurt in Inmate Population, Atlanta Const., Dec. 4, 1995, at 1A (reporting a Department of Justice announcement that there are 1.1 million inmates in prison and another 484,000 in jails, giving the United States an incarceration rate of 565 per 100,000, higher than even Russia, which had been the world leader).

. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. Times, Mar. 26, 1995, at 16; Brent Staples, The Chain Gang Show, N.Y. Times Mag., Sept. 17, 1995, at 62.

. Alabama to Make Prisoners Break Rocks, N.Y. Times, July 29, 1995, at 5.

. Stop Turning Out Prisoners Act, H.R. 667, 104 Cong., 1st Sess. (1995). After some modification, the restrictions were adopted as the Prison Litigation Reform Act by the Congress as a rider to the Omnibus Rescission and Appropriations Act of 1996, Pub. L. 104-134, and signed into law by President Clinton on April 26, 1996.

. Pugh v. Locke, 406 F. Supp. 318, 322-27 (M.D. Ala. 1976), aff'd as modified, 559 F.2d 283 (5th Cir. 1977), rev'd in part on other grounds, 438 U.S. 781 (1978) (per curiam).

. Toussaint v. McCarthy, 597 F. Supp. 1388, 1400 (N.D. Cal. 1984), aff'd in relevant part, 801 F.2d 1080 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987).

. French v. Owens, 777 F.2d 1250, 1253 (7th Cir. 1985), cert. denied, 479 U.S. 817 (1986). These are, of course, only a few of the many examples of unconscionable constitutional violations that could be found in America's prisons before they were corrected by federal lawsuits brought on behalf of prisoners. For an excellent and sobering account of conditions in the Mississippi State Pentitentiary over the decades before federal court intervention, see David M. Oshinski, "Worse than Slavery": Parchman Farm and the Ordeal of Jim Crow Justice (1996); see also Nils Christie, Crime Control as Industry: Toward GULAGS, Western Style? (1993) (a description of failures of the American prison system by an eminent Norwegian criminologist); Susan P. Sturm, The Legacy and Future of Corrections Litigation, 142 U. Pa. L. Rev. 639 (1993) (describing reforms accomplished through corrections litigation).

. Smith v. Bennett, 365 U.S. 708, 712 (1961).

. Id. at 713 (quoting Bowen v. Johnson, 306 U.S. 19, 26 (1939)).

. The Court has limited the availability of the Writ to vindicate constitutional rights by adopting strict rules of procedural default, see, e.g., Smith v. Murray, 477 U.S. 527, 533-36 (1986); Engle v. Isaacs, 456 U.S. 107, 130-34 (1982); Wainwright v. Sykes, 433 U.S. 72, 88-91 (1977); Timothy J. Foley, The New Arbitrariness: Procedural Default of Federal Habeas Claims in Capital Cases, 23 Loy. L.A. L. Rev. 193 (1989); by excluding most Fourth Amendment claims from habeas corpus review, Stone v. Powell, 428 U.S. 465 (1976); by requiring deference to fact finding by state court judges, see, e.g., Patton v. Yount, 467 U.S. 1025 (1984); Sumner v. Mata, 439 U.S. 539 (1981), after remand, 455 U.S. 591 (1982), after second remand, 464 U.S. 957 (1983); by making it more difficult for a petitioner to obtain an evidentiary hearing to prove a constitutional violation, Keeney v. Tamayo- Reyes, 504 U.S. 1 (1992); by adopting an extremely restrictive doctrine regarding the retroactivity of constitutional law, Teague v. Lane, 489 U.S. 288 (1989); James S. Liebman, More than "Slightly Retro:" The Rehnquist Court's Rout of Habeas Corpus Jurisdiction in Teague v. Lane, 18 N.Y.U. Rev. L. & Soc. Change 537 (1991); by reducing the harmless error standard for constitutional violations recognized in federal habeas review, Brecht v. Abrahamson, 507 U.S. 619 (1993); and by restricting when a constitutional violation may be raised in a second habeas petition, McCleskey v. Zant, 499 U.S. 467 (1991).

. The Antiterrorism and Effective Death Penalty Act of 1996, signed into law by President Clinton on April 24, 1996, Pub. L. 104-132, requires deference by federal courts to decisions of state courts unless the decision is "contrary to, or involved an unreasonable application of, clearly established Federal law," id. s 104(3); establishes a statute of limitation for the filing of habeas corpus petitions, id. s 101; further restricts when a federal court may conduct an evidentiary hearing, id. 104(4); and adds new barriers to hearing a successive habeas corpus petition, id. s 105; see David Cole, Destruction of the Habeas Safety Net, Legal Times, June 19, 1995, at 30.

. Stephen B. Bright & Patrick J. Keenan, Judges and the Politics of Death: Deciding Between the Bill of Rights and the Next Election in Capital Cases, 75 B.U. L. Rev. 759, 779 n.89 (1995) (in 32 of the 38 states that have the death penalty, state court judges must stand for periodic election or retention).

. Governor George Deukmejian announced his opposition to Chief Justice Rose Bird because of her votes in capital cases and warned two other justices he would oppose them unless the death penalty was upheld. Leo C. Wolinsky, Support for Two Justices Tied to Death Penalty Votes, Governor Says, L.A. Times, Mar. 14, 1986, at 3; Steve Wiegand, Governor's Warning to 2 Justices, S.F. Chron., Mar. 14, 1986, at 1. He eventually campaigned for the removal of all three justices and the voters responded by voting all three from their positions. Frank Clifford, Voters Repudiate 3 of Court's Liberal Justices, L.A. Times, Nov. 5, 1986, pt. 1, at 1 (describing results of election and commercials in the last month of the campaign which insisted "that all three justices needed to lose if the death penalty is to be enforced").

. David W. Case, In Search of an Independent Judiciary: Alternatives to Judicial Elections in Mississippi, 13 Miss. C. L. Rev. 1, 15-20 (1992) (describing how Justice James Robertson was defeated by a "law and order candidate" who had the support of the Mississippi Prosecutor's Association). Robertson was the second justice to be voted off the Mississippi Supreme Court in two years for being "soft on crime." Andy Kanengler, McRae Overwhelms Justice Joel Blass, Clarion-Ledger (Jackson, Miss.), June 6, 1990, at 4A; Tammie Cessna Langford, McRae Unseats Blass, Sun Herald (Biloxi, Miss.), June 3, 1990, at A1.

. Janet Elliott & Richard Connelly, Mansfield: The Stealth Candidate; His Past Isn't What it Seems, Tex. Law., Oct. 3, 1994, at 1, 32.

. Id.; John Williams, Election '94: GOP Gains Majority in State Supreme Court, Houston Chron., Nov. 10, 1994, at A29.

. Jane Elliott, Unqualified Success: Mansfield's Mandate; Vote Makes Case for Merit Selection, Tex. Law., Nov. 14, 1994, at 1.

. 372 U.S. 335 (1963).

. Anthony Lewis, Gideon's Trumpet 205 (1964).

. For a description of the lack of indigent defense systems and the state of indigent defense, see Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835, 1849-55 (1994).

. Judy Bailey, Does Sheriff Run Putnam's Indigent Defense?, Fulton County Daily Rep., Nov. 10, 1995, at 1.

. Peter Applebome, Black Man Freed After Years on Death Row in Alabama, N.Y. Times, Mar. 3, 1993, at A1.

. See Schlup v. Delo, 115 S. Ct. 851 (1995).

. Kyles v. Whitley, 115 S. Ct. 1555 (1995) (finding a violation of due process by the prosecution due to failure to turn over exculpatory evidence).

. Marcia Coyle, Republicans Take Aim at Death Row Lawyers, Nat'l L.J., Sept. 11, 1995, at A1, A25 (describing the effort of South Carolina's Attorney General and other members of the National Association of Attorneys General to eliminate funding for the post-conviction defender organizations even though the organizations had established the innocence of at least four men condemned to die); David Cole, Too Expensive or Too Effective? The Real Reason the GOP Wants to Cut Capital-Representation Centers, Fulton County Daily Rep., Sept. 8, 1995, at 6 (pointing out that eliminating funding for the capital representation centers would increase the cost of providing representation, but decrease the quality).

. Murray v. Giarratano, 492 U.S. 1 (1989).

. For a more comprehensive discussion of the problems of deficient representation in capital cases and the reasons for it, see Bright, supra note 25.

. Paul M. Barrett, Lawyer's Fast Work on Death Cases Raises Doubts About System, Wall St. J., Sept. 7, 1994, at 1 (describing Houston lawyer Joe Frank Canon, who is known for hurrying through capital trials like "greased lightening," occasionally falls asleep, and has had 10 clients sentenced to death); Ex Parte Burdine, 901 S.W.2d 456, 457 (Tex. Crim. App. 1995) (Maloney, J., dissenting) (noting testimony of jurors and court clerk that defense attorney slept during trial).

. John Makeig, Asleep on the Job; Slaying Trial Boring, Lawyer Said, Houston Chron., Aug. 14, 1992, at A35.

. Record at 846-49, Haney v. State, 603 So. 2d 368 (Ala. Crim. App. 1991), aff'd, 603 So. 2d 412 (Ala. 1992), cert. denied, 113 S. Ct. 1297 (1993).

. Judy Bailey, A Poor Example of Indigent Defense, Fulton County Daily Rep., Jan. 16, 1996, at 1 (describing hearing in Fugate v. Thomas, Super. Ct. of Butts Co., Ga., No. 94-V-195 (Jan. 10-11, 1996)).

. Furman v. Georgia, 408 U.S. 238 (1972) (striking down Georgia's death penalty statute).

. Gregg v. Georgia, 428 U.S. 153 (1976) (upholding the death penalty statue enacted by the Georgia legislature in 1973 in response to the Court's decision in Furman).

. Transcript of Hearing of Apr. 25-27, 1988, at 231, State v. Birt, Super. Ct. of Jefferson Co., Ga. No. 2360 (1988) (on file with author). The lawyer was referring to Miranda v. Arizona, 384 U.S. 436 (1966), and Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). Dred Scott was not a criminal case.

. Brief for Appellant, Ex parte Heath, 455 So. 2d 905 (Ala. 1984). The brief is set out in full in Bright, supra note 25, at 1860-61 n.154.

. See Andrews v. Shulsen, 485 U.S. 919 (1988) (Marshall, J., dissenting from denial of certiorari).

. See Hance v. Zant, 114 S. Ct. 1392 (1994) (Blackmun, J., dissenting from denial of certiorari); Bob Herbert, Mr. Hance's 'Perfect Punishment,' N.Y. Times, Mar. 27, 1994, at D17; Bob Herbert, Jury Room Injustice, N.Y. Times, Mar. 30, 1994, at A15.

. For further discussion of the influence of race on the imposition of the death penalty and the failure of legislatures and courts to deal with the problem, see Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discrimination in the Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433 (1995).

. Clif LeBlanc, Smith Lawyer Donates $83,000 in Fees, The State (Columbia, S.C.), Feb. 2, 1996, at B3; Andrew Blum, Defender Proffers Fees, Nat'l L.J., Apr. 15, 1996, at A7.

. Testament of Hope: The Essential Writings of Martin Luther King, Jr. 259- 67 (James M. Washington ed., 1986).

. Id. at 267.

. See Helen Prejean, C.S.J., Dead Man Walking: An Eyewitness Account of the Death Penalty in the United States (1993) (describing her work with death row inmates).

. Wiesel's Speech: This Honor Belongs to All the Survivors, N.Y. Times, Dec. 11, 1986, at A2.

. Amadeo v. Zant, 486 U.S. 214 (1988).

. A. Leon Higginbotham, Jr., Justice Clarence Thomas in Retrospect, 45 Hastings L.J. 1405, 1430 (1994).

. Carl T. Rowan, Dream Makers, Dream Breakers: The World of Justice Thurgood Marshall 453-54 (1993).

Page

HEBBRONVILLE ~ On June 15, as one of the wealthiest and most reclusive men in South Texas was quietly dying at his ranch 35 miles from town..........

Ranch foreman is inheriting legal fight

Web Posted: 08/23/2007 01:31 PM CDT

John MacCormack
Express-News HEBBRONVILLE — On June 15, as one of the wealthiest and most reclusive men in South Texas was quietly dying at his ranch 35 miles from town, the lawyers were very busy.

The rich man's relatives, employees and attorneys were struggling for money and control, and time was short. A doctor had given the aging rancher less than 24 hours to live.

If Robert C. East, 87, were to die before they settled it, an even nastier legal fight likely would ensue.

East, a great-grandson of Richard King, founder of the fabled King Ranch, had no known descendants. He measured his worth in hundreds of millions of dollars and hundreds of thousands of acres.

A pioneering cattleman in his own right, he had spent most of his life deep in the Jim Hogg County mesquite with the cattle and vaqueros of his family spread, the San Antonio Viejo Ranch.

East worked on horseback well into his 80s, preferred border Spanish to English and answered to "Roberto." He so rarely came to town that even some older, lifelong Hebbronville residents had never met him.

"He was a very old-fashioned kind of guy. Very old times, and very, very private," recalled one East employee, who, like others, asked not to be named.

In late 2006, East's health began to fail. By late spring, weakened by pneumonia, he was malnourished, gravely ill and increasingly uncommunicative.

A closed-door court battle began in May, when some relatives pressed for a court-appointed guardian.

The foreman

At stake was East's welfare — and administrative control of his considerable assets. Since the entire estate would go to a family wildlife trust, the parties bickered over who would be in charge after his death.

The fight centered on Oscar Ozuna, the ranch foreman since 2001 who claimed he had East's full confidence, having been raised on the ranch and having worked for him off and on for decades.

But East's relatives saw Ozuna as a manipulative Svengali, claiming the foreman had cut East off from his family, neglected his health and property and taken over his affairs.

In the fall, East had put shaky signatures to a set of legal documents that greatly benefited Ozuna.

There was a long-term employment contract that paid Ozuna $11,000 a month.

Ozuna, ranch employee Carilu Cantu Leal and Celestino Canales, a local justice of the peace, became sole officers of the Robert C. East Management Trust, which would control his wealth after his death.

Another instrument authorized a $500,000 payout to Ozuna from the trust, payable at East's death.

A broad power of attorney was granted to Ozuna, Cantu and Canales in the event East became incapacitated.

In court filings, Ozuna said all these actions clearly showed East wanted him in charge.

"In naming Mr. Ozuna as his attorney-in-fact, Robert C. East thereby expressed his confidence and trust in Mr. Ozuna's ability to conduct (East's) business affairs and to care for (East) in health-related matters," said a document filed by Ozuna lawyer Preston Hendrichson.

Doctors who saw East last spring noted he seemed most comfortable when Ozuna and other familiar ranch hands were present.

But Ozuna was self-serving, not benevolent, some of East's nieces and nephews argued.

"As soon as he was hired, Oscar Ozuna and persons associated with him began a long and deliberate plan to isolate Robert Claude East ... (and) control the flow of information to Robert Claude East, and consolidate their control over Robert Claude East," reads one court motion.

His assets, the motion said, have "at best been mismanaged and at worst systematically plundered by Oscar Ozuna and his associates."

Neither Ozuna nor Hendrichson responded to requests for comment. Nor did Cantu and her lawyer, Frank Enriquez. Reached in Hebbronville, Canales declined to comment.

'Incapacity is total'

District Judge Alex Gabert, at the request of East's lawyers, made the court hearings and case file off limits to the public, and most of the parties have declined to comment.

Information is also scarce on the streets of Hebbronville.

"This whole thing is touchy. I can't talk. Everyone has got the mums," said one longtime East acquaintance.

But the secret legal drama can be glimpsed in court documents obtained by the San Antonio Express-News.

The key issue was East's mental competence. Some of his relatives argued that he had been legally incapacitated for months and desperately needed an independent guardian.

Ozuna, Canales and Cantu, as well as two lawyers who represented East, claimed he was still able to make important decisions.

"I believe he has capacity, but I am not saying he has total capacity," testified Paul Price, one of East's lawyers, in a May 21 hearing.

When a court-approved psychiatrist visited the ranch on May 30, he found East "essentially non-communicative" and in failing health.

"Mr. East is described by all interviewed as someone who preferred to have few if any visitors. His greatest pleasure was the day-to-day operations of his ranch," Dr. Mark A. Burns reported.

"It is also reported that he has had challenging relationships with various family members and is largely estranged from his blood relations."

As to East's mental state, Burns was unequivocal.

"In terms of decision-making capacity, Mr. East appears to be severely impaired ... He clearly meets the definition of an 'incapacitated person.' ... His incapacity is total and a guardian should be appointed," he wrote.

No guardian was appointed.

But on the same afternoon he approved a comprehensive agreement, the judge named an attorney ad litem, who assured the court that it was in East's best interest.

Secret showdown

When they began mediating in May, the parties were millions of dollars apart on a deal that would remove Ozuna and his associates from the picture.

Although a partial deal was reached in early June, leading to Ozuna, Cantu and Canales being banned from the ranch, by midmonth nothing was final.

The lawyers were growing anxious. If East were to die before an agreement was reached, the mediation would become void, leaving Ozuna and his associates still in charge.

On June 15, a Friday afternoon, Judge Gabert presided in blue jeans at an emergency hearing in Rio Grande City. Ozuna, the sole witness, testified East was of sound mind last year when he signed the critical documents.

"He was in his five senses ... He knew everything he did," Ozuna said.

Moments later, Gabert signed an order approving East's will, the comprehensive settlement and various other documents. At 4:40 p.m. the order was stamped by the district clerk.

All told, about $2 million of East's money changed hands, with Ozuna reportedly receiving nearly $900,000. Cantu and Canales together were paid about $325,000. The balance went to pay their attorneys.

In exchange, the three agreed to drop all claims to East's estate, renounce their powers of attorney and step down as officers of the charity due to inherit East's money.

The hush-hush deal — which some parties to the litigation learned about later — came none too soon. On Saturday, a Catholic priest administered the last rites and by early Monday East was dead.

Three days later, more than 150 people paid their last respects in a graveside ceremony at the ranch. A mariachi played, poetry was read and East was laid to rest near his parents and siblings.

But if East had forever secured the peace and privacy he loved, the legal wrangling was hardly over.

Ten days after his death, the office of Attorney General Greg Abbott — which oversees all charities — notified all the parties that a complaint had been received about the East case.

"The matter is under review to determine if it warrants an investigation," said Abbott spokesman Tom Kelley.

Late last week, a lawyer for Helen Kleberg Groves, one of East's cousins, asked Gabert to set aside his approval of the settlement because Groves and other parties weren't consulted when the final deal was hammered out.

The lawyer, Dick DeGuerin of Houston, also argued that East was likely "totally incapacitated" long before he died and should have had a guardian appointed to protect his interests.

The motion further noted that toxicology test results aren't in, so "the causes of Robert C. East's death have not been fully explored."

"We're not satisfied that all the facts are known," DeGuerin said later by telephone. "When you have five parties to a controversy and only three are in the room when the settlement is made, it just doesn't smell right."

---

jmaccormack@express-news.net

e the power to provide for the prompt collection, by suit or otherwise, of taxes assessed, levied and imposed, and is hereby authorized, and to that e

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City of Kingsville Official Website






City Charter Amendments



Table of Contents

Article I:
Section 1 Corporate name
Section 2 Boundaries (Amended by electorate, 5-13-06)
Section 3 Platting of property
Section 4 Extension of city limits or boundaries



Article II:
Section 1 Corporate power
Section 2 Powers of ordinance
Section 3 Style of ordinance
Section 4 Real estate, etc., owned by the city
Section 5 Acquisition of property
Section 6 Public property exempt from executions
Section 7 City funds not subject to garnishment
Section 8 Exemption from liability for damages
Section 9 Right of eminent domain
Section 10 Ownership of public utilities
Section 11 Funds for the acquisition of any public utility, security for same, etc.
Section 12 Manufacture or purchase of public utility products
Section 13 Right to operate and maintain public utility acquired, exclusive
Section 14 Right to regulate charges, etc., of holder of franchise or privilege
Section 15 Street powers
Section 16 Construction of sidewalks and curbs
Section 17 Sidewalks, improvements; defective may be declared nuisance
Section 18 Franchise for use of streets
Section 19 Public works, improvements
Section 20 Altering streets, obstructions, encroachments, etc.
Section 21 Parks, playgrounds, etc.
Section 22 Peace and good order
Section 23 Initiative and referendum (Amended by electorate, 5-13-06)
Section 24 Recall (Amended by electorate, 5-13-06)

Article III:
Section 1 Taxation

Article IV:
Section 1 Bonds

Article V:
Section 1 Municipal government
Section 2 Terms of office
Section 3 Vacancies (Amended by electorate, 5-13-06)
Section 4 Qualifications (Amended by electorate, 5-13-06)
Section 5 Elections
Section 6 Judge
Section 7 Election returns
Section 8 Election day (Amended by electorate, 5-13-06)
Section 9 Election law controlling
Section 10 Legislative and governing body
Section 11 Duties of Mayor and Commissioners
Section 12 Meeting of the Commission
Section 13 Compensation
Section 14 Legislative procedure
Section 15 Ordinance enactment
Section 16 Emergency measure; defined and provided for
Section 17 Ordinances; publication of
Section 18 Ordinances; recording
Section 19 Investigations by Commission
Section 20 Boards of city development
Section 21 Salaries; general
Section 22 Payment of claims
Section 23 Accounting procedure
Section 24 Audit and examination
Section 25 Contracts (deleted August 9, 1986)
Section 26 Nepotism (deleted August 9, 1986)
Section 27 Hours of labor upon public works (deleted August 9, 1986)
Section 28 Official bonds (Amended by electorate, 5-13-06)
Section 29 Oath of office
Section 30 City Manager
Section 31 Powers and duties
Section 32 Appointment and removal of City Manager (Amended by electorate, 5-13-06)
Section 33 Establishment of a special fund for capital improvements

General Provisions:

Section 1 Enumeration of powers
Section 2 Ratification of ordinances
Section 3 Amendments to Charter
Section 4 Vote on proposed Charter, manner, etc.
Section 5 Election of Mayor and Commissioners


ARTICLE I


Section 1_CORPORATE NAME: All the inhabitants of the City of Kingsville, in Kleberg County, Texas, as the boundaries and limits of said City presently exist, or may hereafter be established, shall be a body politic, incorporated under, and be known by the name and style of the "City of Kingsville" with such powers, rights and duties as are hereinafter provided, and all other powers not herein specifically designated that are granted by the Constitution and laws of the State of Texas to such cities.



Section 2 - BOUNDARIES: The bounds and limits of the City are hereby established and described as being those boundaries heretofore established in the original incorporated proceedings of the City, filed of record on April 12, 1916 in the office of the Clerk of the County Court of Kleberg County, Texas and those boundaries established and changed thereafter in all annexation ordinances and proceedings of the City. (Amended by electorate, 5-13-06)



Section 3 - PLATTING OF PROPERTY: Should any property lying within the city limits, as established by this Charter, be hereafter platted into blocks and lots, the owners of said property shall plat and lay the same off to conform to the streets and alleys abutting the same, and shall file with the Mayor a correct map thereof provided, that in no case shall the City of Kingsville be required to pay for any of said streets or alleys, at whatever date opened, but when opened by reason of the platting of said property, at whatever date platted, they shall become, by such act, the property of the City of Kingsville, for use as public highways and shall be cared for as such.



Section 4 - EXTENSION OF CITY LIMITS OR BOUNDARIES: The City Commission may by ordinance annex additional territory lying adjacent to the city with or without the consent of the owners and inhabitants of the territory annexed.

^ Back to Top

ARTICLE II



Section 1 - CORPORATE POWER: The City of Kingsville made a body politic and corporate by the legal adoption of this Charter, shall have perpetual succession, may use a common seal, may sue and be sued, may contract and be contracted with, implead and be impleaded in all courts and places and in all matters whatever; may take, hold and purchase land, within or without the city limits, as may be needed for corporate purposes of said City, and may sell any real estate or personal property owned by it, perform and render all public services and, when deemed expedient, may condemn property for corporate use and may hold, manage and control the same, and shall be subject to all the duties and obligations now pertaining to or incumbent upon said city as a corporation, not in conflict with the provisions of this Charter, and shall enjoy all the rights, immunities, powers, privileges and franchises now possessed by said City, and herein conferred and granted.



Section 2 - POWERS OF ORDINANCE: The City of Kingsville shall have the power to enact and enforce all ordinances necessary to protect health, life and property and to prevent and summarily abate and remove all nuisances, and to preserve and enforce the good government, order and security of the City and its inhabitants, and to enact and enforce ordinances on any and all subjects provided that no ordinance shall be enacted inconsistent with the provisions of this Charter or the General Laws or Constitution of the State of Texas.



Section 3 - STYLE OF ORDINANCE: The style of all ordinances of the City of Kingsville, shall be: "BE IT ORDAINED by the City Commission of the City of Kingsville," but the same may be omitted when published in book or pamphlet form by the City of Kingsville.



Section 4 - REAL ESTATE, ETC., OWNED BY THE CITY: All real estate owned in fee simple title or held by lease, sufferance, easement or otherwise, all public buildings, fire stations, parks, public squares, streets, alleys and all property of whatever kind, character or description, whether real or personal, which has been granted, donated, purchased or otherwise acquired by the City of Kingsville through any means of agency, and all causes of action, chooses in action, rights and privileges of every kind and character, and all property of whatsoever character and description which may have been held or is now held, controlled or used by the said City of Kingsville, or public ways or in trust for the public, shall vest in and remain in and inure to the said corporation of the City of Kingsville by the legal adoption of this Charter, and all suits and pending action to which the City of Kingsville heretofore was or now is a party, plaintiff or defendant, shall in no wise be affected or terminated by the provisions of this Charter or by the legal adoption of the same, but shall continue unabated.



Section 5 - ACQUISITION OF PROPERTY: The City of Kingsville shall have the power and authority to acquire by purchase, gift, devise, condemnation or otherwise any character of property, including any charitable or trust fund.



Section 6 - PUBLIC PROPERTY EXEMPT FROM EXECUTIONS: Said City shall have the power to provide that no public property or any other character of property owned or held by said city shall be subject to any execution of any kind or nature.



Section 7 - CITY FUNDS NOT SUBJECT TO GARNISHMENT: Said City shall have the power to provide that no funds of the city shall be subject to garnishment and that the city shall never be required to answer in any garnishment proceedings.



Section 8 - EXEMPTION FROM LIABILITY FOR DAMAGES: Said City shall have the power to provide for the exemption of said city from liability on account of any claim for damages to any person or property, and to fix rules and regulations governing the city's liability, as may be deemed advisable.



Section 9 - RIGHT OF EMINENT DOMAIN: Said City shall have the right to eminent domain and the power to appropriate property for public uses whenever the governing authority shall deem it necessary; and to take any private property, within or without the city limits, for any of the following purposes, to wit City Halls, Police Stations, Jails, Calabooses, Fire Stations and fire alarm systems, Libraries, Hospitals, Sanitariums, Auditoriums, Market Houses, Slaughter Houses, Reformatories, Abattoirs, Streets, Alleys, Parks, Highways, Playgrounds, Sewer Systems, Storm Sewers, Sewage Disposal Plants, Filtering Beds and Emptying Grounds for Sewer Systems, Drainage, Water Supply Sources, Wells, Water and Electric Light and Power Systems, Street Car Systems, Telephone and Telegraph Systems, Gas Plants or Gas Systems, Cemeteries, Crematories, Prison Farms, Pest Houses, and to acquire lands, within or without the City, for any other municipal purpose that may be deemed advisable. That the power herein granted for the purpose of acquiring private property shall include the power of improvement and enlargement of waterworks, including water supply, riparian rights, stand pipes, watersheds, and the construction of supply reservoirs. That in all cases where the city exercises the power of eminent domain, it shall be controlled as nearly as practicable, by the laws governing the condemnation of property by railroad corporations in this State, the city taking the position of the railroad corporation in any such case.



Section 10 - OWNERSHIP OF PUBLIC UTILITIES: Said city shall have the power to buy, own or construct, and to maintain and operate, within or without the city limits, complete water systems, gas or electric lighting or power plant or plants, telephone systems, street railways, sewer systems, sewage plants, fertilizing plants, abattoirs, municipal railway terminals, or any other public service utility, and to demand and receive compensation for services furnished by the city for private purposes or otherwise, and to have the power to regulate by ordinance, the collection of compensation for such services. That said city shall have the power to acquire by lease, purchase or condemnation, the property of any person, firm or corporation now or hereafter conducting any such business for the purpose of operating such public utility or utilities and for the purpose of distributing such service throughout the city, or any portion thereof.



Section 11 - FUNDS FOR THE ACQUISITION OF ANY PUBLIC UTILITY, SECURITY FOR SAME, ETC.: Should the city determine to acquire any public utility by purchase, condemnation or otherwise, as herein provided, said city shall have the power to obtain funds for the purpose of acquiring said public utility and paying the compensation thereof, by issuing bonds or notes, or other evidence of indebtedness, and shall secure the same by fixing a lien upon the property constituting the public utility so acquired and said security shall apply alone to said property so pledged.



Section 12 - MANUFACTURE OR PURCHASE OF PUBLIC UTILITY PRODUCTS: Said city shall have the authority to manufacture its own electricity, gas or anything else that may be needed or used by it or the public; to make contracts with any person, firm or corporation for the purchase of gas, water, electricity or any other commodity or articles used by it or the public, and to sell same to the public as may be determined by the governing authority.



Section 13 - RIGHT TO OPERATE AND MAINTAIN PUBLIC UTILITY ACQUIRED, EXCLUSIVE: In the event said city shall acquire, by purchase, gift, devise, deed, condemnation or otherwise, any water-works system, electric light or power system, gas system, street railway system, telephone system or any other public service utility to operate and maintain for the purpose of serving the inhabitants of said city, the right to operate and maintain such public service utility, so acquired, shall be exclusive.



Section 14 - RIGHT TO REGULATE CHARGES, ETC., OF HOLDER OF FRANCHISE OR PRIVILEGE: Said City shall have the power to determine, fix and regulate the charges, fares and rates of any person, firm or corporation exercising, or that may hereafter exercise, any right of franchise or public privilege in said City, and to prescribe the kind of service to be furnished, the equipment to be used, the manner in which the service shall be rendered and to change such regulations from time to time; that in order to ascertain all the facts necessary for the proper understanding of what is or should be a reasonable rate of regulation, the governing authority shall have full power to inspect the books and other records of such person, firm or corporation and compel the attendance of witnesses for such purposes. Every franchise holder who shall request an increase in rates, charges or fares, shall have, at the hearing of the Commission called to consider such request, the burden of establishing by competent evidence, the value of its investments properly allocable to service in the City, and the amount and character of its expenses and revenues connected with the rendering of such service. If, upon such hearing, the Commission is not satisfied with the sufficiency of the evidence so furnished, it shall be entitled to call upon such public utility for the furnishing of additional evidence at a subsequent date, to which said hearing may be adjourned. If at the conclusion of said adjourned hearing, the Commission is still not satisfied with the sufficiency of the evidence furnished by said utility, the Commission shall have the right to select and employ rate consultants to conduct investigation, present evidence and advise the Commission, at its hearing on such requested increase in rates, charges or fares; and said utility shall reimburse the City for ONE HUNDRED PERCENT (100%) of its reasonable and necessary expense so incurred. Such rate consultants shall be qualified, competent and of good standing in their professions. No Public Utility franchise holder shall institute any legal action to contest any rate, charge or fare fixed by the Commission until such franchise holder has filed a motion for rehearing with the Commission specifically setting out each ground of its complaint against the rate, charge or fare fixed by the Commission, and until the Commission-shall have acted upon such motion. Such motion shall be deemed overruled unless acted upon by the Commission within a reasonable time, not to exceed ninety (90) days from the filing of such motion for rehearing; provided, that the Commission may by resolution extend such time limit for acting on said motion for rehearing from ninety (90) days to one hundred eighty (180) days; provided, however, that the City shall not prescribe the equipment to be used by public utility companies and provided, further, that where a State Law provides different time limits on rate hearings than those herein set out, then and in that event, the City shall observe the hearing times as set forth in such State Law.



Section 15 - STREET POWERS: The City of Kingsville shall have exclusive dominion, control and jurisdiction in, upon, over and under the public streets, avenues, alleys and highways of the city and to provide for the improvement thereof by paving, raising, grading, draining, or otherwise, and to charge the cost of making such improvement against the abutting property, by fixing a lien against the same and a personal charge against the owner thereof, according to an assessment specially levied therefor, in an amount not to exceed the special benefit of any such property received in enhanced value by reason of such improvements, and to provide for the issuance of assignable certificates covering the payment for said improvement; provided that in no event shall a percentage of the cost of such improvements greater than that authorized by applicable State statute be charged to the owner; it being further provided that all street railway, stream railways and other railways shall pay the entire cost of improving said streets, avenues, alleys and highways between the rails and tracks of any such railway companies, and for a distance of two feet on each side thereof.



Section 16 - CONSTRUCTION OF SIDEWALKS AND CURBS: Said City shall have the power to provide for the construction and building of sidewalks and to charge the entire cost of construction of said sidewalks, including curb, against the owner of the abutting property and to make special charge against the owner for such cost, and to provide by special assessments, a lien against such property for such cost.



Section 17 - SIDEWALKS, IMPROVEMENT; DEFECTIVE MAY BE DECLARED NUISANCE: Said city shall have the power to provide for the construction, improvement or repair of any such sidewalk, or the construction of any such curb, by penal ordinance, and to declare defective sidewalks to be a public nuisance.



Section 18 - FRANCHISE FOR USE OF STREETS: Said city shall have the power and authority to grant franchises for the use and occupancy of streets, avenues, alleys and any and all public grounds belonging to or under the control of the city. No telegraph, telephone, electric light or power, street railway, inter-urban railway, steam railway, gas company, waterworks, water system or any other character of public utility shall be granted any franchise or permitted the use of any street, avenue, alley, highway or grounds of the city without first making application to and obtaining the consent of the governing authorities thereto, expressed by ordinance, and upon paying such compensation as may be prescribed, and upon such conditions as may be provided for by such ordinance, and before such ordinance proposing to make any grant for franchise or privilege to any applicant to use or occupy any street, avenue, alley or any other public ground belonging to or under the control of the city, shall become effective, publication of said ordinance, as finally proposed to be passed, shall be made in some newspaper published in the City of Kingsville, once a week for three consecutive weeks, which publication shall be made at the expense of the applicant desiring said grant and said proposed ordinance shall not be thereafter changed unless again republished as in the first instance, nor shall any such ordinance take effect or become a law or contract or vest any right in the applicants therefor, until after the expiration of thirty days from the last publication of said ordinance, as aforesaid.



Pending the time such ordinance may become effective, it is made the duty of the governing authority of the City to order an election if requested to so do by written petition of at least ten percent (10%) of the legally qualified voters, as determined by the number of votes cast in the last regular municipal election; at which election the qualified voters of said city shall vote for or against the proposed grant, as set forth in detail by the ordinance conferring the rights and privileges upon the applicant therefor. Such election shall be ordered not less than thirty (30) days nor more than ninety (90) days from the date of filing said petition, and if at said election the majority of the votes cast shall be for the granting of such franchise or privilege, said ordinance and the making of said proposed grant shall thereupon become effective, but if a majority of the votes cast by said election shall be against the granting of such franchise or privilege, such ordinance shall be ineffective and the making of such proposed grant shall be null and void.



No franchise shall be granted for a term of more than thirty (30) years. All franchises shall specify the term of years for which granted and such franchises may be amended from time to time with the consent of the franchise holder.



Section 19 - PUBLIC WORKS, IMPROVEMENTS: Said city shall have the power to open, extend, straighten and widen any public street, avenue, boulevard or alley and for such purposes to acquire the necessary land, by purchase or condemnation, and to provide that the cost of improving such street, avenue, boulevard or alley by opening, extending, straightening or widening the same shall be paid by the owners of property lying in the territory of such improvement to the extent they are especially benefitted thereby, and to provide that the cost shall be charged, by special assessment against such owners and their property for the amount due by them, and three (3) Special Commissioners shall be appointed by the District Judge or Judge of the Kleberg County Court At Law of Kleberg County, Texas, for the purpose of condemning said land and apportioning said cost, and such apportionment shall be specially assessed by the governing authority of said city against the owners and their property lying in the territory so found by said Special Commissioners to be specially benefitted in enhanced value, and said city may issue assignable certificates for the payment of any such cost against such property owners and their property and may provide for the payment thereof in deferred payments which deferred payments shall bear interest at the rate of not exceeding eight (8) per cent per annum. Said city shall pay such portion of such cost as may be determined by said Special Commissioners, to be due by it provided the cost paid by the city shall never exceed one-third (1/3) of the cost of such improvement.



Section 20 - ALTERING STREETS, OBSTRUCTIONS, ENCROACHMENTS, ETC.: Said city shall have the power to control, regulate and remove all obstructions, encroachments and incumbrances on any public street, avenue, boulevard or alley and to narrow, alter, widen, straighten, vacate, abandon and close same; to provide for sprinkling and cleaning same, and to regulate and control the moving of buildings and structures of every kind and character upon and along the same.



Section 21 - PARKS, PLAYGROUNDS, ETC.: Said city shall have the exclusive control over all city parks and playgrounds and to control, regulate and remove all obstructions and prevent encroachment thereupon; and to provide for the raising, grading, filling, terracing, landscape gardening, erecting buildings, providing amusements therein, for establishing walks and paving driveways around, in and through said parks, playgrounds and other public grounds.



Section 22 - PEACE AND GOOD ORDER: Said city shall have the power to define all nuisances, prohibit the same within the city and outside the city limits for a distance of five thousand (5,000) feet; to police all parks, grounds, speedways, streets, avenues and alleys owned by said city, within or without the city limits; to prohibit the pollution and/or contamination of all sources of water supply of said city, and to provide for the protection of water sheds and the prevention of the depletion of its aquifer.



To provide for the inspection of dairies, cows and dairy herds, slaughter pens and slaughter houses and abattoirs, within or without the city limits from which meat, milk, butter or eggs from same are furnished to the inhabitants of said city, and to provide for the inspection of meat markets, grocery stores, drug stores, confectioneries, fruit stands, ice cream factories, laundries, bottling plants, hotels, restaurants and bakeries; the source, storage and distribution of water, and all other places where food or drink for human consumption are manufactured, handled, sold or exposed for sale, and to regulate and inspect the character and standard of such articles of food and drink so sold or offered for sale.



To provide for the inspection and regulation of the sanitary condition of all premises and vacant lots within the city limits; for the removal of garbage, night soil, refuse and unsanitary vegetation; to provide for establishing a lien against the property for any expense incurred by the city in enforcing this provision, and further to provide for the making and enforcing of all proper and reasonable regulation, for the health and sanitation of said city and its inhabitants.



To provide for a health department and the establishment of rules and regulations protecting the health of the city, the establishment of quarantine stations, pest houses and hospitals and to provide for the adoption of necessary quarantine laws to protect the inhabitants against contagious and infectious diseases.



To provide for a sanitary sewer system and for the maintenance thereof; to require property owners to make connections to such sewers with their premises and to provide for fixing a lien against any property owner's premises who fails or refuses to make sanitary sewer connections and to charge the cost against the said owner and make it a personal liability, and to fix penalties for failure to make sanitary sewer connections.



To require property owners, their agents and lessees to remove, within a reasonable time, ice slush, snow and other debris from sidewalks fronting on property owned, occupied or controlled by such owner, agent, or lessee and to require such owner, agent, or lessee to remove all low hanging limbs from trees adjacent to sidewalks in said city.



To prohibit the driving of herds of horses, mules, cattle, hogs, sheep, goats and all herds of domestic animals along or upon the streets, avenues or alleys of said city.



To establish and regulate public pounds and to regulate, restrain and prohibit the running at large of all domesticated and non-domesticated animals and fowls, and to authorize the restraining, impounding and sale of the same for the cost of the proceedings and the penalty incurred, and to order their destruction when they cannot be sold and to impose penalties upon the owner thereof for the violation of any ordinance regulating or prohibiting the same, and to tax, legislate, restrain and prohibit the running at large of dogs and to authorize their destruction and impose penalties to the owners or keepers thereof.


To prohibit the inhumane treatment of animals and to provide punishment therefor.




To prohibit and restrain the flying of kites, firing firearms, firecrackers, rolling of hoops and the use of velocipedes, bicycles and skates, or the use and practice of any amusement on the streets or sidewalks to the annoyance of pedestrians or persons using such streets or sidewalks, and to restrain, regulate and prohibit the ringing of bells, or blowing of horns, bugles and whistles, crying of goods and all other noises, practices and performances tending to the collection of persons in the streets or tending, unnecessarily, to interfere with the peace and quietude of the inhabitants of said city; and to suppress and regulate all unnecessary noises.



To license any lawful business, occupation or calling that is susceptible to the control of the police power, and to license, regulate, control or prohibit the erection of signs or billboards.


To license, tax and regulate or suppress and prevent hawkers, peddlers and pawn brokers.



To license, tax and regulate all charges or fares made by any person, firm or corporation owning, operating or controlling any vehicle operated for the carriage of passengers or freight for hire on the public streets of the city.



To regulate the operation of railway trains and street cars operated on, along or across the street, avenues or alleys of said city; to license and control the operation of automobiles, motorcycles, taxicabs, busses, cabs and carriages and all character of vehicles using the public streets and to regulate the use and occupancy of the streets by any such vehicles.



To provide for the regulation and control of plumbers and plumbing works and to secure efficiency in the same.



To provide for the inspection of weights, measures and meters and fix a standard of such weights, measures and meters and require conformity of such standards and provide penalties for failure to use or conform to the same, and to provide for inspection fees.



To provide for the issuance of permits for erecting all buildings; for the inspection of the construction of all buildings in respect to proper wiring for electric lights and other electric appliances; piping for gas, flues, chimneys, plumbing and sewer connections and to enforce proper regulations in regard thereto.


To provide for establishing and maintaining a public library.




To provide for the establishment and designation of fire limits; to prescribe the character and kind of structures to be erected therein; to provide for the erection of fireproof buildings within said limits and for the condemnation of dangerous or dilapidated structures that are calculated to increase the fire hazard.



To enact and enforce all ordinances and resolutions, necessary to regulate the safety of all office buildings, hotels, apartment houses, rooming houses, hospitals, theaters, store buildings and all public buildings.



To require the construction of fire escapes in connection with public buildings, and to determine the sufficiency and regulate the safety of all exits and fire escapes provided on public buildings of every kind and character.



To provide for the establishment of districts and limits, within said city, where saloons for the sale of spirituous, vinous or malt liquors may be located and maintained, and to prohibit the sale of such liquors or the location of such saloons without such defined districts or limits; and to regulate the location, permit, forbid, regulate and control theaters, moving picture shows, vaudeville shows, dance halls, ten pin alleys, pool halls and all other public amusements, whenever the preservation of order, tranquility, public safety or good morals demand it.


To restrain and punish vagrants, mendicants, beggars and prostitutes.




To prohibit and punish keepers and inmates of bawdy, assignation and disorderly houses, and to prevent and suppress such keepers, inmates and owners, or agent of such owners, of such house, knowingly permitting such houses to be occupied as such bawdy, assignation or disorderly houses and to determine such inmates and keepers to be vagrants.


To provide for establishing and maintaining the Fire Department of the City.




To require waterworks corporations, gas companies, street car companies, telephone companies, electric light and power companies or other companies or individuals, exercising franchises, now or hereafter, from the city, to make and furnish extensions of their service to such territory as may be required by ordinance.



To establish and maintain the City Police Department, prescribe the qualifications and duties of policemen and regulate their conduct.



To provide for the enforcement of all ordinances enacted by it, by a fine not to exceed Two Hundred Dollars ($200.00), or as may be authorized by the General Laws of the State of Texas, provided that no ordinance shall provide a greater or less penalty that is prescribed for a like offense by the laws of the State.



To provide for the commutation of fines imposed, by labor in a workhouse, on the public streets and public ways of the city; and for the collection of any fine imposed, execution may be enforced, as executions issued in civil cases.



To provide for a Court for the trial of misdemeanor offenses, known as the "Municipal Court," with such powers and duties as are defined and prescribed by applicable state law.



To appoint, as soon as practicable after the adoption of this Charter some suitable person for the position of judge or recorder of the Municipal Court, who shall discharge the duties of said office under the terms and provisions of the State law creating said court, and subject to the provisions of this Charter.



To establish, maintain and regulate the city prison, workhouse and other means of punishment for vagrants, city convicts and disorderly persons, and such hospitals, orphanages and charitable institutions as may be deemed expedient by the governing authority.



To establish, maintain, regulate and operate market places, abattoirs and slaughter pens and to build and maintain buildings therefor, to rent and lease the same, and to regulate and provide for the regulation and inspection of said market places, abattoirs and slaughter pens.



Section 23 - INITIATIVE AND REFERENDUM: (a) The legislative power of the city is vested in the City Commission, but the people of the city reserve unto themselves the powers of initiative and referendum which shall be exercised in the manner prescribed in this Charter.

(1) Initiative. The registered voters of the city shall have the power to propose ordinances to the City Commission and, if the Commission fails to adopt the ordinance in substantially the form in which it was presented, to adopt or reject the ordinance proposed at an election as provided herein.

(2) Referendum. The registered voters of the city shall have the power to require reconsideration by the City Commission of any adopted ordinance or part thereof and, if the Commission fails to repeal the ordinance, or the disputed part thereof, to approve or reject it at an election as provided herein.

(b) The power of initiative and referendum reserved herein shall not extend to specific items contained in the operating or capital budgets of the city, contracts, appropriations already made, the levy of taxes or the individual salaries of city officials or employees. The powers of initiative and referendum contained herein are not in lieu of the referendum powers and procedures provided elsewhere in this Charter and under state law; therefore, the powers of initiative and referendum provided in this section shall not apply when another referendum procedure is available under this Charter or state law.

(c) Any five registered voters may commence initiative or referendum proceedings by filing with the City Secretary a statement that they intend to circulate petitions calling for an initiative or referendum. The statement shall include the following:

(1) the names and addresses of the registered voters commencing the proceedings:

(2) the full text of the ordinance being proposed by initiative or the full text of the ordinance to be reconsidered by referendum; and

(3) the name and address of the registered voter who is designated to receive all communications from the City Secretary and City Attorney under this section.

(d) In the case of an initiative, the City Attorney shall draft an ordinance in legal form, consistent with the laws of the State and the United States, incorporating in substance the text submitted. The City Secretary shall present the initiative or the request for referendum to the City Commission at its next regular meeting. Forty‑five days from the date of presentment shall be allotted to the City Commission to consider the adoption of such ordinance by initiative. In the case of referendum, the statement commencing the referendum proceedings must be filed no later than the tenth day after the City Commission adopts the ordinance and the City Commission shall have until the adjournment of the next regular City Commission meeting following receipt of the statement to reconsider such ordinance.

(e) In the event the Commission fails to take the proposed action within the time allotted, the City Secretary shall furnish to the proponents petition pages for circulation among the registered voters of the city. Each petition page shall contain the following:

(1) a summary not to exceed 100 words stating in substance the initiative or referendum measure to be considered by the voters and the notation that the full text of the ordinance is available for inspection at the office of the City Secretary;

(2) the printed name, address and registration number of each voter signing the petition;

(3) the signature of each signer in ink and the date of signing;

(4) the date of issuance of the petition by the City Secretary and, in the case of a referendum petition, the names and addresses of the five persons who initiated the procedure.

(f) All petition pages comprising an initiative or referendum petition shall be assembled and filed with the City Secretary as one instrument within ninety days from date of issuance of the forms for such purposes by the City Secretary. Within twenty days, the City Secretary shall determine whether the same is signed by qualified voters of the city equal in number to at least five percent of the registered voters of the city voting in the most recent city election. If the certificate of the City Secretary shows the initiative or referendum petition to have total signatures of registered voters in number that is less than the required five percent of the number of registered voters voting in the most recent city election, the City Secretary shall notify the person filing the petition, and it may be supplemented within ten days from the date of the City Secretary's notice by filing supplementary petition pages as provided by the City Secretary bearing signatures of other registered voters. Within ten days after such supplementary pages are filed, the City Secretary shall again examine the original petition, as supplemented, and shall certify the results thereof to the Commission at its next regular meeting.

(g) In the case of referendum, if all necessary petition pages comprising the referendum petition have been assembled and filed with the City Secretary within sixty days from the deadline for action by the City Commission to reconsider the ordinance, the effectiveness of the disputed provisions shall be suspended pending the outcome of these referendum proceedings. Nothing herein shall be construed to prevent the City Commission from repealing the disputed provisions to be reconsidered during such period.

(h) Whenever an initiative or referendum petition is certified by the City Secretary to have valid signatures equal in number to at least five percent of the registered voters of the city voting in the most recent city election and the City Commission does not adopt the ordinance proposed by initiative or repeal the disputed provisions sought to be reconsidered by referendum, the Commission shall include the proposition on the ballot at an election to be held as follows:

(1) in the case of an initiative, at the next regular City Commission elections;

(2) in the case of a referendum for which the necessary petition pages have been filed within sixty days from the deadline for action by the City Commission to reconsider the ordinance, at the next available uniform election date under state law; or

(3) in the case of any other referendum, at the next regular City Commission elections.

(i) Not later than the next regular meeting of the City Commission following the election, the Commission shall canvass the election returns, and if a majority of the registered voters voting on the issue approve of the ordinance submitted by initiative or the referendum, such action shall become effective as of the date the returns are canvassed or as of any later effective date as may be provided.

(j) Any ordinance adopted by initiative shall not be subject to repeal or substantial modification by action of the Commission for a period of four years from the date of the election, except by referendum election called by the Commission or by petition as herein provided. Any ordinance repealed by referendum shall not be reinstituted in whole or substantial part by action of the Commission for a period of four years from the date of the election, except by referendum election called by the Commission or by petition as herein provided. (Amended by electorate, 5-13-06)


Section 24 - RECALL: 1) SCOPE: Any member of the City Commission, whether elected to office by the qualified voters of the City or appointed by the City Commission to fill a vacancy, shall be subject to recall and removal from the office by the qualified voters of the City.

2) RESTRICTIONS ON RECALL: No recall petition shall be filed against any officer of the City within six (6) months after such officer's election or appointment, nor within six (6) months after an election for such officer's recall, nor within six (6) months of the expiration of such officer's term.

3) RECALL PROCEDURE: Any qualified voters of the City may make and file with the person performing the duties of City Secretary an affidavit containing the name or names of the officer(s) whose removal is sought and a statement of the grounds for removal. The City Secretary shall immediately notify in writing the officer(s) sought to be removed that the affidavit has been filed and shall inform the officer(s) of its statement of grounds. The City Secretary shall within a period of two (2) working days from the time the affidavit was filed thereupon make available to the qualified voters making such affidavit copies of petition blanks demanding such removal. The City Secretary shall keep a sufficient number of such printed petition blanks on hand for distribution. Such blanks when issued by the City Secretary shall bear the signature of the City Secretary and be of such form as prescribed below and shall be numbered, dated, and indicate the name of the person to whom issued. The City Secretary shall enter in a record to be kept in his or her office the name of the qualified voters to whom the petition blanks were issued and the number to said person.

4) PETITION: Before the question of recall of such officer shall be submitted to the qualified voters of the City, a petition demanding such question to be so submitted shall first be filed with the person performing the duties of the City Secretary; which said petition shall be signed by qualified voters of the City equal in number to at least twenty percent (20%) of the number of qualified voters voting in the most recent city election. Such petition shall contain a general statement of the grounds for which the removal is sought.

A signature on a petition for recall is valid only if the petition meets the requirements of the State Election Code.

5) FORM OF RECALL PETITION: The recall petition mentioned above must be addressed to the City Commission of the City of Kingsville, must distinctly and specifically state the ground(s) upon which such petition for removal is predicated, and if there be more than one ground, such as for incompetency, noncompliance with this Charter, misconduct or malfeasance in office, shall specifically state each ground with such certainty as to give the officer sought to be removed, notice of such matters and things with which he or she is charged. Recall petition papers provided by the person performing the duties of City Secretary shall be in form substantially as follows:

We the undersigned qualified voters of the City of Kingsville hereby demand the question of removing (Name of Person) from the office of (Name of Office) be submitted to a vote of the qualified voters of the City. The charges and specifications upon which this demand for removal is predicated are as follows:


Signature Printed Name Address, including County Voter Registration No.


The signatures shall be verified by oath in the following form:

"STATE OF TEXAS

COUNTY OF KLEBERG


I, , being first duly sworn, on oath depose and say that the statements made therein are true, and that each signature appearing thereto was made in my presence on the day and date it purports to have been made, and I solemnly swear that the same is the genuine signature of the person whose name it purports to be.


Sworn and subscribed to before me this day of .


Notary Public in and for Kleberg County, Texas"

6) PRESENTATION OF PETITION; ELECTION TO BE CALLED: All papers comprising a recall petition shall be returned and filed with the person performing the duties of City Secretary within thirty (30) days after the filing of the affidavit hereinbefore provided for. The person performing the duties of City Secretary shall certify said petitions within fifteen (15) days of receipt and present such certified petitions to the City Commission at the next regular City Commission meeting. If the officer whose removal is sought does not resign within five (5) calendar days after such notice is given, then it shall become the duty of the City Commission to order an election and fix a date for holding such recall election, the date of which election shall be in accordance with the Texas Election Code Annotated.

7) FAILURE OF CITY COMMISSION TO CALL AN ELECTION: In case all of the requirements of this Charter shall have been met and the City Commission shall fail or refuse to receive the recall petition, or to order such recall election, or to discharge any other duties imposed upon said City Commission by the provisions of this Charter with reference to such recall, then the District Judge of Kleberg County, Texas, or other judge of competent jurisdiction shall discharge any such duties herein provided to be discharged by the person performing the duties of City Secretary or by the City Commission.

8) BALLOTS IN RECALL ELECTION: Ballots used at recall elections shall conform to the following requirements:

(a) With respect to each person whose removal is sought, the question shall be submitted: "Shall (Name of Person) be removed from the office of (Name of Office) by recall?"

(b) Immediately below each such question there shall be printed the two following propositions, one above the other, in order indicated:

"{ } Yes"

"{ } No"

9) RESULT OF RECALL ELECTION: If a majority of the votes cast at a recall election shall be against the recall of the person named on the ballot, he or she shall continue in office for the remainder of his or her unexpired term, subject to recall as before. If a majority of the votes cast at such an election be for the recall of the person named on the ballot, he or she shall, regardless of any technical defects in the recall petition, be deemed removed from office.

If, in such recall election, there shall, as a result of such election, remain one or more such elective officer's who is not recalled, then such officer or officers not recalled shall discharge all the duties incumbent upon the governing authorities of said city until the vacancy or vacancies created at such recall elections are filled by an election for that purpose, as hereinafter provided for, but if in any proposed recall election it is proposed and submitted to recall all elective officers, then there shall be placed on said ballots under the question of recall, the names of candidates proposed to fill the vacancies proposed to be created by such election, but the names of such officers proposed to be recalled shall not appear on the ballot as candidates.

If at any recall election it is not proposed and submitted to recall all of the elective officers, but only one or more, fewer than all, and such election shall result in favor of the recall of one or more of such officers, proposed to be recalled, then it shall be the duty of such officer or officers not recalled and constituting the governing authority of the city, within five (5) days after such election is held, to meet, canvass the returns, declare the result of the election and on the same day order an election to fill such vacancy or vacancies, which such replacement election shall be in accordance with the Texas Election Code Annotated.

In no instance shall an officer removed from office by recall election succeed himself or herself, nor shall such officer's name appear on a ballot for elective office of the City within a period of two (2) years following the date of the election at which such officer was removed from office. (Amended by electorate, 5-13-06)

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ARTICLE III



Section 1 - TAXATION: The City shall have the power and is hereby authorized, annually, to levy and collect taxes, not exceeding seventy-five ($0.75), on each one hundred dollars ($100.00) assessed valuation of all real and personal property within city limits, for general maintenance purposes, and to levy and collect taxes, not exceeding for all purposes Two and 50/100 Dollars ($2.50) on each One Hundred Dollars ($100.00) of assessed valuation of all real and personal property within the City limits, not exempt from taxation by the Constitution and laws of the State.



Shall authorize the granting and issuance of licenses and shall direct the manner of issuing and registering the same and fix the fees therefor; but no license shall issue for a longer period than one (1) year and shall not be assignable except by permission of the governing authority of said city.



Shall have the power, annually, to levy and collect a franchise tax against any public corporation using or occupying the public streets or grounds of the city, separately from the tangible property of such corporation, and to levy and collect, annually upon the property and shares of corporations, companies and corporate institutions, as the same are now or may be assessed by the State laws, and shall have full power to enforce the collection of such taxes.



Shall have the power to regulate the manner and mode of making out tax lists, inventories and appraisements of property therein, and to prescribe the oath that shall be administered to each person rendering property for taxation and to prescribe how, when and where property shall be rendered and to prescribe the number and form of assessment rolls and to adopt such measures as may be deemed advisable to secure the assessment of all property within the city limits and to collect taxes thereon and may provide a fine upon all persons failing, neglecting or refusing to render their property for taxation, and to do any and all other things necessary or proper to render effectual the collection of moneys by taxation.



Shall have the power to provide for the rendition of unrendered property for taxation and levy and assess taxes thereon annually, and to provide for the rendition, levy and assessment of taxes for previous years on property omitted from taxation, and to provide interest at the rate not to exceed that interest rate authorized by State Law upon such unrendered or omitted property and to change and provide for correction and re-assessment property erroneously assessed.



All real, personal or mixed property held, owned or situated in the City of Kingsville shall be liable for all municipal taxes, due by the owner thereof, including taxes on real estate, franchises, personal and mixed property, and all other municipal taxes of whatsoever character. Such municipal taxes are hereby declared to be a lien, charge and encumbrance upon the property so taxed and shall be a prior lien to all other claims, sales, assignments, transfers, gifts and judicial writs. Said lien shall exist from the first day of January of each year until all taxes have been paid and against any real estate which, for any cause, has failed to be assessed for one or more years, and such lien shall be good and effective for every year for which assessment has so failed.



Personal property of all persons, firms, or corporations owing any taxes to the City of Kingsville, is hereby made liable for all such taxes, whether the same be upon personal or real property or upon both.



The governing authority of the city shall levy the annual tax for such year, but special taxes or assessments allowed by this Charter may be levied, assessed and collected at such time as the governing authority may provide; provided, that should the governing authority fail or neglect to levy the annual tax herein provided for any one year the annual tax levy for the preceding year last made by said governing authority shall and will be considered in force and effective as the tax levy for the year for which no annual tax levy was made.



Said city shall have the power to provide for the prompt collection, by suit or otherwise, of taxes assessed, levied and imposed, and is hereby authorized, and to that end shall have full power and authority to sell, or cause to be sold, all kinds of property, real and personal, and shall make such rules and regulations and enact all such ordinances as are deemed necessary for the collection of any taxes provided in this Charter.



It shall not be necessary in any action, suit or proceeding in which the city shall be a party, for any bond, undertaking or security to be executed in behalf of the city.



The city shall have the power to control and manage the finances of the city; to provide its fiscal year and fiscal arrangement.



All moneys arising from the collection of taxes by the city shall be divided into two funds, and designated as a "General Fund" and an "Interest and Sinking Fund."



No irregularities in the time or manner of making or returning the city assessment rolls or the approval of such rolls shall invalidate any assessment.



The governing authority of the city shall have the authority to create a Board of Adjustment whose duties shall be to equalize the values of all property rendered for taxation in the City of Kingsville; prescribe the qualifications, compensation and number necessary to constitute said board, and enact all ordinances necessary to regulate and control the equalization of values by such board.

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ARTICLE IV



Section 1 - BONDS: The governing authority of the city shall have the power to appropriate so much of the general revenue of the city as may be necessary for the purpose of retiring and discharging the accrued indebtedness of the city, and for the purpose of improving the streets, purchasing and constructing sewers, erecting and maintaining public buildings of every kind and for the purchasing or constructing of water works plans and systems and for the purpose of erecting, maintaining and operating an electric light and power plant and such other public utilities as the governing authority may from time to time deem expedient, and in furtherance of any and all of these subjects, the city shall have the right and power to borrow money upon the credit of the city, within the limits provided by law, and to issue coupon bonds of the city therefor, in such sums as may be deemed expedient, to bear interest at a rate as may be authorized by State statute, payable annually or semi-annually, at such places as may be designated by the city ordinance.



All bonds shall specify for what purpose they are issued, and shall be invalid if sold for less than their par value, and when any bonds are issued by the city, a fund shall be provided to pay the interest and create a sinking fund to redeem said bonds, which fund shall not be diverted or drawn upon for any other purposes and the person acting as city treasurer shall honor no drafts upon said fund except to pay interest upon or redeem the bonds for which it was provided.



Said bonds shall be issued for a period of time not to exceed forty (40) years; shall be signed by the Mayor, countersigned by the person acting in the capacity of city clerk or secretary, and shall be payableiat such places and times as may be fixed by the ordinance of the governing authority. All such bonds shall be submitted to the Attorney General of the State of Texas for his approval and the Comptroller for registration, as provided by State law; provided, that any such bonds, after approval, may be issued by the city either optional or serial, or otherwise, as may be deemed advisable by the governing authority.



Before the issuance of any bonds the same shall be submitted to a vote of the qualified voters of the city and should a majority of the votes cast at such election be in favor of issuing the bonds, the same shall be issued as provided herein; but should said election fail to carry, bonds shall not be issued. The election provided for above shall be conducted as other elections under the State law, after due notice by publication, once each week for three (3) consecutive weeks prior thereto, in one or more newspapers published in Kingsville, which said notice shall state the nature and purpose of said election.

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ARTICLE V



Section 1 - MUNICIPAL GOVERNMENT: From and after the regular City election to be held in April, 1952, the municipal government of the City of Kingsville, shall consist of the City Commission, which shall be composed of five (5) commissioners, one of whom shall be Mayor of the City.



Section 2 - TERMS OF OFFICE: The Mayor and each Commissioner shall serve, after the first election for Commissioners as hereinafter provided, for a term of two (2) years and until his successor is elected and qualified, unless sooner removed from office as herein provided.



Section 3 - VACANCIES: Vacancies in the City Commission, except for those created by recall election, shall be filled for the remainder of the unexpired term by appointment of the remaining Commissioners within 90 days of the vacancy. (Am. Ord. 94003, passed 5‑9‑94; Amended by electorate, 5-13-06)




Section 4 - QUALIFICATIONS: The Mayor and each Commissioner shall be citizens of the United States, and have resided in the City of Kingsville for a continuous period of 12 months, and have attained the age of 21 years at the time of filing as a candidate for such position; and have the other qualifications of an Elector in the City and as provided for candidates in the State Election Code. The Mayor and each Commissioner shall not be in arrears in the payment of any taxes or other liabilities to local taxing entities. ("In arrears" is defined herein to mean that payment has not been received within ninety (90) days from due date.) The Mayor, Commissioners, and other officers and employees shall not hold any other public office of emolument, except the Office of Notary Public, and shall not be interested in the profits or emoluments or any contract, job, work or service for the municipality, or interested in the sale to or by the City of any property, real or personal. All such qualifications and requirements shall be fully complied with by any prospective candidate for the position of Mayor or Commission at the time of filing for election. Any Mayor or Commissioner of the City who shall cease to possess any of the qualifications herein required shall forthwith forfeit his office and any such contracts in which any officer or employee is or may become interested may be declared void by the Commission. No elected official shall otherwise accept any service, or anything of value, directly or indirectly, from any entity, upon terms more favorable than are granted to the public. All members present at Commission meetings shall vote "Yes" or "no" on all matters requiring a vote before such Commission; provided, however, any Commissioner having a conflict of interest regarding the matter or matters upon which a vote is to be taken shall abstain from voting and abstain from any discussion on such matter. (Amended by electorate, 5-13-06)



Section 5 - ELECTIONS: The elective officers of the City shall consist of five (5) commissioners- one of whom shall be designated as Mayor, and the names of the candidates for Mayor and Commissioners shall be printed on one ballot and submitted to the qualified voter for election, and the candidate for Mayor receiving the highest number of votes at the election shall be declared elected; and the four candidates for Commissioners receiving the highest number of votes at the election shall be declared duly elected.


Section 6 - JUDGE: The Commission shall be the judge of the election and qualification of its




Section 7 - ELECTION RETURNS: The Commission shall, at the next regular meeting of said Commission, after each regular and special election, canvass the returns and declare the result of such election.



Section 8 - ELECTION DAY: The regular City Election will be held in accordance with the provisions of the Texas Election Code Annotated, Chapter 41. The City Commission shall, by ordinance, establish the general election date. The City Commission shall be responsible to specify places for holding such election.

SPECIAL ELECTIONS: The City Commission may, by ordinance or resolution, order a special election under conditions specified elsewhere in this Charter, for initiative or referendum of ordinances, bond issues, Charter amendments, recall of the Mayor or Commission members or other purposes deemed appropriate by City Commission. The special City Elections will be held in accordance with the provisions of the Texas Election Code Annotated, Chapter 41. The City Commission will fix time and place for holding such special elections, and provide all means for holding same. (Amended by electorate, 5-13-06)


Section 9 - ELECTION_LAW CONTROLLING: All elections provided in this Charter shall be conducted, and the results canvassed and announced by the election authorities prescribed by the General Election Laws of the State of Texas, and said General Election Laws shall control in all municipal elections, except as otherwise herein provided.



All elections other than the regular municipal elections as set forth in Section 8, Article V of this Charter, shall be called Special Elections.



Section 10 - LEGISLATIVE AND GOVERNING BODY: The Commission shall enact all ordinances and resolutions, and adopt all regulations; and constitute the legislative and governing body of the City. The City Commission shall have the power to appoint the City Judge, the City Manager and the City Attorney. They shall not have the power of appointment or dismissal of the other employees of the City.



Section 11 - DUTIES OF MAYOR AND COMMISSIONERS: The Mayor and Commissioners shall exercise equal power and authority in the transaction of business for the City, except that the Mayor shall act as presiding officer of the Commission, and in his absence a Mayor pro tempore may be chosen. The Mayor, or his representative as may be annually designated by the Mayor in writing, shall sign all official documents for the City upon the consent and proper instruction from the Commission, and shall perform all duties imposed upon him by this Charter, and by the ordinances of the City, or upon the order of said Commission.



Section 12 - MEETING OF THE COMMISSION: On the first Thursday at 7:30 o'clock P.M., after the election of the Commission has been declared, the Commission shall meet in the City Hall, at which time the Commissioners shall qualify and assume the duties of their offices. Thereafter, the Commissioners shall meet at such times as may be prescribed by ordinance, resolution or motion, but they shall meet at least once every month. Any two of the five members of the Commission may call special meetings of the Commission at any time deemed advisable. All meetings of the Commission shall be public, except such executive sessions as may be provided for by ordinance or resolution, and any citizen shall have access to the minutes of and records thereof, at all reasonable times. The Commission shall determine its own rules of order of business, and shall keep journal of its proceedings.



Section 13 - COMPENSATION: The Mayor shall be paid Fifty Dollars ($50.00) for each regular or special meeting of the Commission attended. The Commissioners shall be paid Twenty-Five Dollars ($25.00) for each Commissioners Meeting attended; provided, however, that the Mayor and Commissioners shall never be paid for more than four meetings in any one month.



Section 14 - LEGISLATIVE PROCEDURE: A majority of all members elected on the Commission shall constitute a quorum to do business, and the affirmative vote of a majority of all five Commissioners be necessary to adopt any ordinance or resolution. The vote upon the passage of all ordinances or resolutions shall be taken by "Yes" or "No" and entered upon the Journal. Every ordinance or resolution passed by the Commission shall be signed by the Mayor and the persons acting as City Clerk or Secretary, and by him recorded.



Section 15 - ORDINANCE ENACTMENT: Each proposed ordinance or resolution shall be introduced in written or printed form, shall not contain more than one subject, which shall be clearly stated in the title, but general appropriation ordinances may contain the various subjects and accounts for which moneys are to be appropriated. No ordinance, unless it is declared an emergency measure, and passed by at least a four-fifths (4/5) vote of all five Commissioners, shall be passed on the date on which it shall be introduced.




Section 16 - EMERGENCY MEASURE; DEFINED AND PROVIDED FOR: An emergency measure in an ordinance or resolution for the immediate preservation of the public peace, property, health or safety, or providing for the usual daily operation of a municipal department in which the emergency is set forth and defined as a preamble thereto. Ordinance for the payment of salaries and wages may be passed as emergency measures, but no measure making a grant, renewal or extension of a franchise, or other special privilege or regulating the rate to be charged for its service by any public utility, shall ever be passed as an emergency measure.



Section 17 - ORDINANCES; PUBLICATION OF: All ordinances, other than emergency measures, shall be published once a week for two (2) consecutive weeks, in some newspaper published in Kingsville, and no ordinances shall become effective, until ten (10) days after the date of its last publication. Such ordinances may be published by descriptive caption, with such adoption briefly describing the purpose and penalties of said ordinance.



Section 18 - ORDINANCES; RECORDING: Every ordinance, or resolution, upon its becoming effective, shall be recorded in a book kept for that purpose and shall be authenticated by the signature of the Mayor and the party exercising the duties of city clerk or city secretary.



Section 19 - INVESTIGATIONS BY COMMISSION: The Commission may investigate the financial transaction of any office or department of the City government and any acts and conduct of any official or employee. In conducting such investigation, the Commission may compel the attendance of witnesses, the production of books and papers, and other evidence, and for that purpose may issue subpoenas or attachments which shall be signed by the Mayor; which may be served and executed by any officer authorized by law to serve subpoenas or other process, or any peace officer of the city. If any witness shall refuse to appear or to testify to any of the facts within his knowledge, or to produce any papers or books in his possession or under his control relating to the matter under investigation before the Commission, the Commission shall have the power to cause the witness to be punished as for contempt, not exceeding a fine of One Hundred Dollars ($100.00) and three (3) days in the city prison. No witness shall be excused from testifying, touching his knowledge of the matter under investigation in any such injury, but such testimony shall not be used against him in any criminal prosecution except for perjury committed upon such inquiry.



Section 20 - BOARD OF CITY DEVELOPMENT: The Commission shall have the authority to appoint what shall be known and designated as a "Board of City Development," which shall be composed of members who shall serve without compensation, and may prescribe the qualifications and duties of such board and their term of office, and may appropriate not exceeding Two cents ($.02) per One Hundred Dollars ($100.00) valuation of the taxable property in the City of Kingsville, from the General Fund of said city to support the work of the board.



Section 21 - SALARIES; GENERAL: The Commission shall fix and determine the wages and salaries of all appointive officers and employees of the City, and provide for the payment thereof.



Section 22 - PAYMENT OF CLAIMS: No warrant for the payment of any claim shall be issued by the city unless such claim shall be evidenced by an itemized account sworn to by claimant, audited and allowed by the Commission at a regular meeting, and all warrants shall be signed by the Mayor and countersigned by the party acting as city clerk or secretary.



Section 23 - ACCOUNTING PROCEDURE: An accounting procedure shall be devised and maintained for the city adequate in detail. All transactions effecting the acquisition, custodianship and disposition of values, including cash receipts, credit transactions and disbursements and the recorded facts, shall be presented periodically to officials and to the public in such summaries and analytical schedules in detailed support thereof as shall be necessary to show the full effect of such transactions for each fiscal year upon the finances of the city and in relation to each department of the city government, including distinct summaries and schedules for each public utility owned and operated.



Section 24 - AUDIT AND EXAMINATION: The Commission shall cause a complete audit of the books and accounts and of all records and transactions of the administration of the city to be made at least once every year and as often as the Commission may deem it necessary, and shall be made by a public accountant. The duty of the public accountant shall include the preparation of a general balance sheet showing summaries of income and expenditures and also comparisons, in proper class)fications with the last previous audit; such summaries shall be published in some newspaper published in Kingsville, on time, within ten (10) days after the completion of such audit.



Section 25 - CONTRACTS: Deleted, August 9, 1986.


Section 26 - NEPOTISM: Deleted, August 9, 1986.


Section 27 - HOURS OF LABOR UPON PUBLIC WORKS: Deleted, August 9, 1986.




Section 28 - OFFICIAL BONDS: The City Commission shall require bonds of municipal officers and employees who receive or pay out any monies of the City and all City Commission Members. The amount of such bonds shall be determined by the City Commission and the cost thereof shall be borne by the City. (Amended by electorate, 5-13-06)



Section 29 - OATH OF OFFICE: Every officer of the city shall, before entering upon the duties of his office, take and subscribe to the oath prescribed by the Constitution of the State of Texas for County Officials.



Section 30 - CITY MANAGER: A city manager shall be chosen by the Commission on the basis of his executive and administrative qualifications with special reference to his actual experience in, or his knowledge of accepted practice in respect to the duties of his office. At the time of his appointment, he need not be a resident of the City or State, but during his tenure in office, he shall reside within the City. No Commissioner shall be appointed City Manager during the term for which he shall have been elected nor within one year after the expiration of his term.



Section 31 - POWERS AND DUTIES: The City Manager shall be the Chief executive officer and the head of the administrative branch of the City government. He shall be responsible to the Commission for the proper administration of all affairs of the City, and to that end, he shall have such power and shall be required to do any and all acts and perform all duties as authorized or directed by motion, resolution or ordinance of the City Commission; provided, however, that the Commission may not authorize or direct the City Manager to do anything which is in conflict with any provisions of this Charter.



Section 32 - APPOINTMENT AND REMOVAL OF CITY MANAGER: The City Manager shall be appointed, suspended and removed at the discretion of the City Commission, by vote of the majority of the entire City Commission. The action of the City Commission in suspending or removing the City Manager shall be final. It is the intention of this Charter to vest all authority and fix all responsibilities of such appointment, suspension or removal in the City Commission. (Amended by electorate, 5-13-06)


Section 33 - ESTABLISHMENT OF A SPECIAL FUND FOR CAPITAL IMPROVEMENTS: The Commission shall be authorized to order by ordinance, the establishment of a special fund to set aside a percentage of tax revenue for capital improvements.


GENERAL PROVISIONS



Section l - ENUMERATION OF POWERS: The enumeration of powers made in this Charter shall never be construed to preclude, by implication or otherwise, the city from exercising the powers incident to the enjoyment of local self-government, nor to do any and all things not inhibited by the Constitution and laws of the State of Texas.



Section 2 - RATIFICATION OF ORDINANCES: All ordinances and resolutions in force at the time of the taking effect of this Charter, not inconsistent with its provisions, shall continue in force until amended or repealed.



Section 3 - AMENDMENTS TO CHARTER: This Charter, after its adoption, may be amended in accordance with the provisions of an Act of the Thirty-Third Legislature of the State of Texas, entitled, "An Act Authorizing Cities Having More Than 5,000 Inhabitants, by a Majority Vote of the Qualified Voters of Said City, at an Election Held for That Purpose, to Adopt and Amend Their Charter, Etc." approved April 7th, 1913, and any Acts amendatory thereof.



Section 4 - VOTE ON PROPOSED CHARTER, MANNER, ETC.: This Charter shall be submitted to the qualified voters of the City of Kingsville for adoption or rejection, on the Third Tuesday in April, A.D. 1916, at which election, if a majority of the qualified voters voting in such election shall vote in favor of the adoption of this Charter, then it shall become the Charter of the City of Kingsville, until amended or repealed.



The present Commissioners of the Town of Kingsville shall call such election and the same shall be conducted and returns made, and results declared as provided by the laws of the State of Texas governing municipal elections and in case a majority of the votes cast at such election shall be in favor of the adoption of such Charter, then an official order shall be entered upon the records of said town by the Town Commission of Kingsville, declaring the same adopted, and the Town Secretary shall record, at length, upon the records of the Town, in a separate book to be kept in his office for such purpose, such Charter so adopted, and such secretary shall furnish to the Mayor a copy of such Charter, so adopted, authenticated by his signature and seal of the Town, which copy of the Charter shall be forwarded by the Mayor of the Town of Kingsville to the Secretary of State, and shall show the approval of such Charter by a majority vote of the qualified voters of the town of Kingsville at such election.



Section 5 - ELECTION OF MAYOR AND COMMISSIONERS: The present Town Commission of Kingsville shall call an election to be held on the Third Tuesday in April, A.D. 1916; said date being the same date upon which this Charter is to be presented to the voters of the Town of Kingsville for adoption, for the election of Three (3) Commissioners, one of whom shall be designated Mayor, and, if a majority of the voters at such election vote for the adoption of this Charter, the Commissioners and Mayor elected on said day shall be declared elected officers under the new Charter, and, should the Charter fail of adoption, they shall be declared elected offices of the Town of Kingsville, under old Charter.


Respectfully submitted,

ISI B.O. Sims, Jr. ISI C.H. Flato, Jr. ISI W.F. Kahlden ISI M.E. Miles ISI Max Dover ISI John Cypher /SI W.A. Clampitt ISI Sam Sellers Kingsville, Texas, March 7th, 1916.

ISI F.D. Yeary
ISI L.C. McRoberts
ISI H.C. Dennett
ISI C.A. McCracken
ISI W.A. Walker
ISI T.F. Johnson
ISI R.C. Mecklin
COMMITTEE

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