Visiting District Judge Kirkendall denies County Taxpayer Ethelvina Felan’s request for temporary injunction in Tax Rate lawsuit

By: Ricardo E. Calderon, Eagle Pass Business Journal, Inc., Copyright 2017

Visiting District Judge W. C. Kirkendall of the Second 25th District Court heard Plaintiff, Ethelvina Felan, Application for a Temporary Injunction against Maverick County Commissioners Court, County Judge David R. Saucedo, and County Elections Administrator from collecting the miscalculated 2016 County Tax Rate of $.542309 per $100 valuation until a trial on the merits or an election on the tax rate would determine the correct County tax rate for 2016, but after hearing evidence from several witnesses called by Plaintiff denied the request for a temporary injunction on the ground that Plaintiff had failed to show an “irreparable harm” would happen to her if the temporary injunction was not granted.

Judge Kirkendall’s decision to deny Ethelvina Felan’s request for temporary injunction is not a final judgment on the merits of Felan’s petition filed against Maverick County Commissioners Court, County Judge David R. Saucedo, and County Elections Administrator Roy Schmerber regarding the adoption of the wrong 2016 County Tax Rate  of $.0542309 per $100 valuation.  As a matter of fact, Judge Kirkendall asked the attorneys in the case to visit him in Chambers to discuss the trial schedule and available dates.  A trial date will be ordered by Judge Kirkendall in the near future where a full blown trial will be held.

Plaintiff, Ethelvina Felan, is represented by attorneys Jose Garza and Martin Golando while Defendants are represented by Robert “Woody” Wilson and Luis Vera, all of San Antonio, Texas.

Among the witnesses who testified at the preliminary Injunction hearing was Maverick County taxpayer Rudy Zavala who testified that Ethelvina Felan and him discovered the miscalculation of the 2016 County Tax Rate and notified Maverick County Commissioners Court that the adopted tax rate of $.58 per $100 valuation on September 12, 2016 was incorrect because it had not taken into consideration the sum of $3 Million in sales taxes collected by Maverick County in 2015 as required by state law under Truth in Taxation; that Felan and him provided Commissioners Court the correct 2016 Tax Rate of $.456838 per $100 valuation; that Felan and him started a tax rollback petition in the County; that Commissioners Court adopted a. 2016 County Tax Rate of $.542309 per $100 valuation on October 3, 2016; that Felan and him submitted the tax rollback petition to Maverick County on December 22, 2016; that Maverick County Commissioners Court invalidated the petition for lack of signatures; that County Elections Administrator Roy Schmerber made a mistake in not excluding “Suspense” voters from the County Voter Registration list in calculating the number of necessary signatures required for a Tax rollback election; and seeks a tax rollback on the 2016 County tax rate.

Also called as a witness was Maverick County Elections Administrator Roy Schmerber who testified that he oversaw voter registration cards and elections in Maverick County; that he did not exclude “Suspense” voters from the County voter registration list and calculation of the necessary voters needed for a tax rollback petition to be validated; and that Commissioners Court invalidated the tax rollback petition due to a lack of valid signatures.

Maverick County Judge David R. Saucedo was also called as a witness at the hearing and testified that he was not aware of the mistake in failing to take into consideration the $3 Million in sales taxes collected in 2015 when calculating the 2016 County Tax Rate of $.58 per $100 valuation on September 12,  2016; that he learned of the mistake after Commissioners Court had adopted the tax rate; that he relied upon Maverick County Tax Assessor Collector Isamari S. Villarreal and County Auditor Sandra Watkins to make the appropriate 2016 County Tax Rate Calculations; that after finding out about the mistake Commissioners Court adopted a lower tax rate of $.542309 per $100 valuation on September 29, 2016 and later ratified it on October 3, 2016; that Commissioners Court invalidated Plaintiff’s tax rollback petition due to the lack of necessary valid signatures from the County Voter Registration List as determined by County elections administrator Roy Schmerber and his staff; that if the tax rollback election were successful the County would lose between $1.6-$3.1 Million of tax revenues; that County taxpayers would receive between an average of $75–$80 in tax refund if the tax rollback election was successful; and that the County would have to cut services to residents if the tax rollback election were successful.

The lawsuit now goes through discovery, pre-trial motions, dispositive motions,   If any, and to trial on the merits in the immediate future for a decision.