By PEGGY McCRACKEN
Staff Writer
One of the guarantors on a low-interest loan from Reeves County's
revolving loan fund has counter sued Reeves County, claiming harassment
in its attempts to recover the debt.
Louis Lively, one of 10 investors in Pecos River Livestock Inc., is a
defendant in a suit filed by Reeves County to collect the $131,000 loan.
Other defendants are Pecos River Livestock, John F. Teague, Rosemary
Wilkie, David Kidd, Mark Wilkie, Wiley B. Kidd, Roger Simmons, Elvia
Reynolds and Trevor Teague.
Lively said in his answer and counter suit that his obligation on the
loan is unenforcable because the state constitution prohibits a county
from extending any credit to a private corporation.
Also, the guaranty is ambiguous, therefore not enforceable. It omits any
oppportunity for any guarantor to mitigate damages by paying a definite
one-tenth of the obligation at any one time, he said.
Reeves County Commissioners refused to accept Lively's offer to pay
one-tenth of the obligation, or $13,544.86, but demands the full $19,650
that each investor guaranteed under the contract.
The county did enter into an agreement with another shareholder, Randy
Reynolds, allowing him to repay the $19,650 over the coming year. He has
already paid $5,000 and will pay up to $500 per month through December,
1996.
Reeves County holds a lien on moneys due to Reynolds as court-appointed
counsel in both county court-at-law and the 143rd Judicial District.
As a condition of that agreement, the county did not name Randy Reynolds
as a defendant in the suit.
Lively asked the court to abate the suit if the county does not bring
Reynolds in as a defendant.
In conjunction with the suit, defendant Elvia Reynolds wrote a letter to
the county's attorney, John Stickels, approving the sale of 70 young
goats at $50 each.
Proceeds from the sale should be placed in Stickels trust account,
Reynolds said.
District Judge Bob Parks had the case listed on today's court docket,
but announced that Lively's attorney, Robert Scogin, said that attorneys
had resolved the matters at hand.
Stickels said that Scogin had requested a copy of Randy Reynolds'
agreement, and he has supplied it. The agreement was filed for record on
Wednesday.
In criminal hearings this morning, Judge Parks accepted the guilty plea
of Roque Rodriguez Madrid on a charge of carrying a prohibited weapon.
He sentenced Madrid to two years deferred-adjudication probation and a
$500 fine, honoring the plea agreement.
Reeves County grand jurors on Thursday indicted the general manager for
Red Bluff Water Power Control District for tampering with a witness.
They also indicted 17 other defendants.
Jim Ed Miller is charged in the indictment with trying to coerce Ed
Armstrong not to testify against him, Red Bluff and its directors, and
the Ward County Irrigation District #1 and its directors.
The Ward County grand jury is investigating the Ward County Irrigation
District #1 for alleged misapplication of funds through purchase of
artwork, premium livestock and other items not related to the district's
operations.
Miller allegedly harmed and attempted to harm the credit and business
reputation of Ed Armstrong in an effort to influence a witness in an
official proceeding to "abstain from, discontinue and delay prosecution"
of Miller, the two districts and their directors.
He voluntarily surrendered to Reeves County Sheriff's deputies
immediately after the indictment was returned Thursday afternoon and
posted $2,500 bail.
"We are disappointed the indictment was returned," said Miller's
attorney, Wm. Monroe Kerr of Midland.
District Attorney John Stickels would not comment on particulars of the
case.
"The grand jury heard the evidence and determined there was probable
cause to return an indictment," he said.
Ward County grand jurors returned 10 indictments Wednesday, but none was
related to the irrigation district, Stickels said. That evidence will be
presented at a later session.
Most of Thursday's Reeves County indictments were drug related. Indicted
were:
* Joseph Daniel Dutchover, Daniel Salcido Dutchover, Hector Brito Pando,
Yolanda G. Pando, James Tarango and Martin Garcia, delivery of more than
400 grams of cocaine on Nov. 21, 1995. Their bail is $50,000 each.
* Efrain Rodriguez, delivery of less than one gram of cocaine on Sept.
20, 1995; bail $15,000.
* Raul Rodriguez Pando, delivery of cocaine less than one gram, Sept.
29, 1995; bail $15,000.
* Jesus Fuentes Alva, 20, possession of marijuana over five pounds but
under 50 pounds on Nov. 24, 1995; bail $10,000.
* Gregorio Juarez Navarrete, 41, delivery of cocaine less than four
grams, on Sept. 20, 1995; bail $15,000.
* Jesus Manuel Bermudez Gomez, 27, delivery of less than four grams of
cocaine on Sept. 20, 1995; bail $15,000.
* Johnny Venegas Valencia, 33, delivery of less than one gram of cocaine
on Nov. 8, 1995; bail $15,000.
* Juanita Estorga, delivery of cocaine on June 9, 1995; bail $100,000.
* Fabian Bravo Rubio, retaliation by threatening Amy Barboza as a
witness and informant, on Dec. 11, 1995; bail $15,000.
* James Kenneth Halliday, 54, aggravated assault by shooting Lance
Warnacut on Dec. 28, 1995; bail $50,000.
* Linda Lujan, forgery by passing a $65 check on Benito Salcido July 5,
1995; bail $7,500. The indictment alleges Lujan has one prior felony
conviction.
* Alvaro Abila, 39, aggravated assault by stabbing Dennis Rayos with a
knife of Sept. 27, 1995; bail $2,500.
The other dirver, James McAnally, died of injuries sustained in the
wreck. Robert Porras sustained injuries to his chest, head, neck, back,
shoulders, arms and body as a whole, the 143rd District Court petition
alleges.
McAnally was traveling south on Texas 17 when he attempted to turn left
onto County Road 112 into the path of Porras' pickup, which was
traveling north. The two pickups met right front to left front, the
petition claims.
Porras claims that McAnally was negligent in failing to grant
right-of-way to an oncoming vehicle.
McAnally had insurance for himself and Porras had under-insured motorist
coverage through the defendant, Nationwide Mutual Insurance Co.,
according to the petition.
Porras seeks damages for severe physical pain and mental anguish,
physical impairment, loss of earnings and medical expenses.
Reeves County grand jurors on Thursday returned four indictments related
to drug trafficking and/or possession.
Rodrigo Beltran-Perea, 24, is charged with delivery of cocaine to an
undercover officer on Nov. 2, 1994. His bail is $20,000.
Francisco Garcia Rico Sr., 58, is charged with possession of heroin on
Oct. 10, 1995. His bail is $25,000.
Jose M. Camacho, 40, is charged with possession of heroin on Nov. 13,
1995. His bail is $10,000.
Juanita Estorga, 35, was indicted for alleged delivery of cocaine on May
25, 1995. Her bail is $15,000.
Four former teacher's aides at the Pecos Head Start have sued the
Community Council of Reeves County, which operates the pre-school
program for disadvantaged children.
Susie Mendoza Saenz, Teresa Carreon, Sylvia Vasquez Mendoza and Gloria
Lujan Jones claim they were unlawfully terminated from their position
for filing for unemployment compensation in 1995.
"The termination was the product of a decision of the (council)
executive director," alleges the petition, filed Tuesday in 143rd
District Court.
Plaintiffs claim that the termination was in retaliation for their
exercising their rights under state and federal law, and that it also
violated their Fourteenth Amendment right to due process of law.
Each plaintiff sustained losses, injury and damages for loss of income,
mental anguish, pain and suffering and loss of reputation, the suit
alleges. They seek an undetermined amount of actual and compensatory
damages, plus attorney fees and court costs.
Yvonne Martin, council executive director, was out of town today and
unavailable for comment. Joey Herrera, chairman of the board of
directors, said he will withhold comment until he sees the suit.
Head Start aides work only during the school year. They are "laid off"
during the summer months, then re-hired in the fall. One of the
plaintiffs said that Martin told her she would not be re-hired if she
applied for unemployment compensation during the summer - which she did.
Smith admitted his part in a robbery at the Swiss Clock Inn on Nov. 10,
1995. He received 70 days credit for time he spent in jail since his
arrest.
Pleading guilty to state jail felonies and placed on three years
probation, fined $500 plus $164.50 court costs and $140 restitution to
the Department of Public Safety were:
Ruben Garcia Tercero, delivery of cocaine less than one gram on Aug. 30,
1995; Daniel Bustamante Ortiz, delivery of marijuana under five pounds
on Aug. 31, 1995; and Antonio Garcia Montanez, delivery of heroin less
than one gram on Aug. 30, 1995.
"After viewing the audit, it raises serious concerns in my mind about
what the way the water district spent money in the past, about
bookkeeping procedures; and about how it deals with employees," he said.
The Ward County grand jury ordered the audit after receiving citizen
complaints about district operations.
Jurors called for duty in 143rd District Court today were excused when
attorneys for the parties in a civil damage suit settled out of court.
District Judge Bob Parks said that some prospective jurors will return
Wednesday for a criminal trial.
Today's aborted trial concerned the death of Adrian Lujan in a wheel
chair-automobile accident on April 16, 1993. His parents, Leonor Lujan
and Robert N. Lujan, sued the maker and distributor of the wheel chair,
Everest and Jennings Corporation and Arizona Medical Supply Company.
Plaintiffs' attorney, Roddy Harrison, declined to comment on the
settlement.
Judge Parks said he had several other cases on the trial docket this
week, but would have to cancel all but Wednesday's criminal case,
involving unauthorized use of a motor vehicle.
District Attorney John Stickels is unable to try a case on Tuesday
because he will convene the Ward County grand jury at 1:30 p.m. in
Monahans.
Stickels said the grand jury is investigating the Ward County Water
Improvement District #1, and he has subpoenaed a large number of
witnesses for Tuesday's session.
Opponents of beer and wine sales won a round when the Eighth Court of
Appeals ruled that a special exception won by S&B Beverage Company Inc.
(dba Furr's) is void.
S&B sought the special exception to the C-1 zoning ordinance in the 900
block of Eddy Street to allow the sale of beer and wine at Furr's for
off-premises consumption.
Furr's has since sold the store, and the question is moot, said John
Stickels, attorney for S&B.
Randy Reynolds, who filed suit on behalf of West Texas Water Works and
others to void the special exception granted by the Zoning Board of
Adjustment, said today that he is pleased with the appeals court's
decision.
"Obviously it stops everything, and it is probably moot anyway," he said.
District Judge Bob Parks said the judgment remanding the matter back to
his court for trial on Reynold's petition for a declaratory judgment
that beer and wine sales are prohibited by the zoning ordinance is not
final until he receives a mandate from the appeals court.
"When I receive the mandate, it is back in my court," Judge Parks said.
The appeals court overturned Judge Park's ruling that he does not have
jurisdiction to try the facts of the case and set aside or modify the
special exception granted.
"A board of adjustment must act within the strictures set by the
legislature and the city council and may not stray outside its
specifically granted authority. Any action exceeding this authority is
null and void and subject to collateral attack," the appeals court ruled.
Courts have defined "special exceptions" as uses permitted expressly by
the ordinance, under conditions there specified.
The Pecos ordinance addresses three types of possible usages relevant to
this proceeding: permitted uses, prohibited uses and contitionl uses. If
the use is prohibited, either explicity or impliedly, any special
esception allowing it is void and subject to collateral attack, the
court's opinion states.
"Therefore, the question narrows to whether the sale of beer and wine in
a C-1 district is a conditional use expressly provided for under the
ordinance. Otherwise, the special exception is void.
The ordinance provides that the operation of a "retail store (no
secondhand goods, beer or liquor)" is a permitted use in a C-1 district.
Stickels interprets the parenthetical provision as modifying the type of
store which may be operated, while Reynolds argues that it modifies the
type of goods which may be sold at a particular retail store.
Either interpretation "does not purport to allow the conditional use of
beer and wine sales to be determined at the discretion of the Board.
Therefore, any special exception allowing such a use under the
conditional use provision of the ordinance is void, just as if the use
were explicitly prohibited in the ordinance," the appeals court
concluded.
Also party to the suit is Convenience Beverage Inc., who petitioned the
zoning board of adjustment for a special exception allowing beer and
wine sales at Allsups store on Eddy Street.
Stickels said the ruling makes it clear that the city council would have
to change the zoning ordinance in order for beer and wine sales to be
legal in that district.
Jury selection got underway this morning in the aggravated robbery trial
of Queston Nabi Barton.
Barton is charged with robbing a clerk at the Swiss Clock Inn restaurant
on Nov. 17, 1995, using a weapon as a threat.
District Attorney John Stickels is prosecuting for the state, while
David Zavoda of Monahans is defense attorney.
District Judge Bob Parks said the trial is expected to continue Thursday.
Stickels said that Barton has applied for probation should he be
convicted. The possible sentence range is two years probation to 99
years in prison.
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Queston Nabi Barton should serve 10 years probation and pay a $3,000
fine for robbing the Swiss Clock Inn Restaurant Nov. 17, 1995, a 143rd
District Court jury decided Wednesday.
Barton was convicted of robbing a clerk at the restaurant, using a
weapon as a threat.
Stickels said the maximum punishment for aggravated robbery is 99 years
in prison.
Monahans attorney David Zavoda was defense attorney.
Visiting Judge Paul McCollum and attorneys for Reeves County and Pecos
River Livestock Inc. this morning set a pre-trial schedule.
Reeves County has sued the goat dairy stockholders for $131,000 owed on
a defaulted loan to partially finance the operation south of Pecos.
Each stockholder guaranteed to repay up to $19,650 of that debt.
Judge McCollum said that the defendants may continue to offer for sale
collateral of the corporation, which includes a large number of goats.
They will report May 9 the results of the sale or prospective sale of
the collateral, and no sale will be consumated without agreement of all
parties.
All motions must be filed by May 9, when the court will set a date for
completion of discovery and to consider the county's request for
judicial foreclosure.
Defendants Roger Simmons, Rosemary Wilkie and Louis Lively were present
for today's action. Other defendants are John F. Teague, David Kidd,
Mark Wilkie, Wiley B. Kidd, Elvia Reynolds and Trevor Teague.
Lively filed a counterclaim alleging that the county violated the Fair
Debt and Collection Practices Act. He also asks that Randy Reynolds be
included as a defendant, since he was one of the original stockholders.
Reynolds signed an agreement with the county to pay his guarantee of
$19,650. After an initial payment of $5,000, he would pay up to $500 per
month, with the county holding a lien against attorney fees due Reynolds
for his representation of indigent clients.
District Judge Bob Parks on Friday sentenced Queston Nabi Barton to 10
years in prison, probated for 10 years, assessed a $3,000 fine and
ordered him to pay $490.18 to Sunday House (Swiss Clock Inn) for a
robbery on Nov. 17, 1995.
Barton was convicted by a 143rd District Court jury on Wednesday of
robbery, which carries a penalty of 2-20 years in prison.
District Attorney John Stickels abandoned the state's claim that Barton
used a deadly weapon, which constitutes aggravated robbery and carries a
penalty of up to 99 years in prison.
The jury found that Barton had not been previously convicted of a felony
and recommended probation, which Judge Parks granted, allowing 117 days
credit for time that Barton spent in jail since his arrest.
However, as one of the terms of probation, Judge Parks ordered Barton to
serve six months in county jail, with no credit for time served, perform
250 hours of community service and reimburse Reeves County for $1,000 in
attorney fees.
He will be under surveillance supervision and electronic monitoring for
six to 12 months and pay monthly probation fees, plus $206.50 in court
costs.
Visiting Judge Ray D. Anderson of Brownfield this morning set a
tentative trial date for the week of March 11 in the suit filed by
Reeves County Court-at-law Judge Lee Green against Reeves County.
Ruling on special exceptions, Judge Anderson denied Judge Green's
petition for an injunction forcing the county to pay his salary while
the case is in dispute.
"That doesn't matter, because we are getting a quick trial setting,"
said Green's attorney, Mario Gonzalez of El Paso.
"If we had to wait months and months to get a setting, it would be
something we would have to look at," Gonzalez said. "The fact we have
such a quick trial setting makes us extremely happy."
Judge Green filed suit after county commissioners took his $53,000
salary out of the budget, setting it at zero for 1996. They later
amended the budget to include $32,500 for the court-at-law judge salary,
but Green has refused to accept payroll checks.
Gonzalez said that Green is asking for a reasonable salary, adequate
office space and reasonable clerical help.
The statute creating the court-at-law, passed by the Texas Legislature
in 1972, sets the judge's salary at 90 percent of the district judge's
salary or less.
"I don't find 90 percent of the district judge's salary unreasonable,"
Gonzalez said. "They both have to have a bachelor's degree, doctor of
jurisprudence, pass the state bar, practice law a number of years, get
elected and go to judicial college," he said.
"These people spent a lot of time and money getting educated. (A judge)
can not practice private law, and that's what makes it so difficult."
County Judge Jimmy Galindo and commissioners Lupe Garcia, Dr. W.J. Bang,
Herman Tarin and Bernardo Martinez were supoenaed for today's hearing.
They were required to bring copies of the county budget for the past
three years, minutes of county commissioners meetings at which the
salary of the judge was discussed, documents relied upon in determining
the salary for the county judge and documents evidencing comparable
salaries for county court judges in other counties.
In denying the injunction on the salary question, Judge Anderson said
that Green failed to show immediate and irreparable injury, loss or
damage if the injunction was not granted.
Anderson, senior judge of the 121st district, was appointed by
Administrative Judge Weldon Kirk after Green objected to Judge Curt
Steib of San Angelo hearing the case, which was originally set for Jan.
17.
Roddy Harrison, attorney for Reeves County, had no comment on today's
hearing.
Seven defendants named in recent grand jury indictments on drug charges
pleaded "not guilty" Friday in 143rd District Court, and Judge Bob Parks
set pre-trial hearings for March.
Appearing with their attorneys to plead not guilty to drug delivery were
Efrain Rodriguez, Raul Rodriguez Pando, Yolanda G. Pando, Hector Brito
Pando, Daniel Salcido Dutchover and Gregorio Juarez Navarrete.
Two defendants indicted along with the Pandos and Dutchovers were not
arraigned. Judge Parks ordered that arraignment be set for Joseph
Dutchover and Martin Garcia.
Others pleading "not guilty" were Jim Ed Miller, tampering with a
witness; and Albaro Abila, aggravated assault.
Pre-trial for Carlos Vasquez on a charge of murder was set for March 1
after a psychiatrist found him competent to stand trial. Judge Parks
said that trial is set for March 18.
Forfeiture motions on a 1989 Ford Bronco, $4,276 in cash, a digital
scale, 1985 Chevrolet pickup and 1985 stock trailer seized in the
Dutchover-Pando case were continued.
Ernesto and Orfa Carmenates appeared in 143rd District Court this
morning for appointment of attorneys on their indictments for theft.
District Judge bob Parks appointed Walter Holcombe to represent Ernesto
Carmenates and David Zavoda to represent his wife.
The former Reeves County squash farmers are in custody on the grand jury
indictments, which stem from a loan default.
Carmenates borrowed $60,000 from Reeves County's revolving loan fund to
finance the squash operation. When he was unable to deliver the crop to
market as it matured in July, 1993, Carmenates abandoned the project and
left town.
A previous indictment was dropped when Carmenates agreed to repay the
loan. However, no payments were made to the county.