Police still investigating hoax call

The Kyle Police Department continues to investigate the prank call involving an active shooter that alarmed the Silverado subdivision yesterday, a City spokesperson said today.

“At this time, there is an investigation underway but no other updates are available,” Communications Director Samantha Armbruster said late this afternoon. “No arrests have been made.”

Police responded to a call at 4:02 p.m. Wednesday of an active shooter who was harming individuals inside a home in the 100 block of Brazos Lane and also threatening law enforcement officials. The City issued a shelter-in-place alert to residents in the vicinity and police evacuated persons from homes in the immediate area. However, when officers entered the home in question, no one was found inside.

“Kyle Police believed the call was a hoax attempting to lure law enforcement into the area,” another City spokesperson said yesterday in a prepared statement.

"We train our officers and staff to respond to these active-threat situations in the fastest most efficient way possible because lost time can lead to lost lives,” Kyle Police Chief Jeff Barnett said in that same prepared statement. “When someone makes a false report of this nature, they are not only wasting the valuable time and resources of our police department, but they are also engaging in a very costly and dangerous prank."

The City stressed that making a false police report is “a criminal offense.”

Kyle is missing one sex offender

Two weeks after unveiling a proposal to (1) effectively prohibit sex offenders from moving to Kyle and/or (2) creating sex offender ghettos in the city, Kyle Police Chief Jeff Barnett is returning to the City Council Tuesday asking members to pass on first reading an ordinance regulating where, or if, registered sex offenders can live within the city limits. During this two-week interim, it appears the city lost one sex offender.

In his presentation Feb. 2, Barnett presented a memorandum, dated Jan. 14, that included a table listing a dozen Central Texas communities, which one of the dozen cities had ordinances restricting where sex offenders could live, how many sex offenders lived in each community and the ratio of sex offenders to the overall population in each burg. According to that table, 68 registered sex offenders lived in Kyle.

Tuesday, Barnett will come forward with a new memo, this one dated yesterday, the first sentence of which reads: “Today, there are 67 registered sex offenders in Kyle.” I know this is a minor detail, but it bothers me: What happened to that missing sex offender? Did he/she leave on their own accord or was he/she driven out of town? Or was there a miscount? It also bothers me that the memo doesn’t address the discrepancy. I have asked the City for a clarification on the whereabouts of Sex Offender 68, and Chief Barnett replied: “I have checked with our staff to make certain that my assumption was correct. We had one move out of the city during that short time period. This is common as they move in and out of the city from time to time.”

I must also admit I am bothered by other numbers offered with the new ordinance, particularly numbers concerning renters. The latest memo, which is actually one written by Dago Pates, the Kyle Police officer who came up with the idea for the ordinance, to Chief Barnett, states nine of the now 67 sex offenders living in Kyle are renters and only those nine “would eventually be affected by this ordinance when their lease expires.” I am bothered by this because Pates’ memo then says “9 of 67 is 7% of the group that would eventually be affected by this ordinance.” That is simply not true. Nine of 67 is actually almost double that — it’s 13.4 percent. So that makes me suspect all of the math associated with this entire project, including the number of actual registered sex offenders living here, the maps they are offering showing where sex offenders might be allowed to pitch tents in Kyle — all of it. Simply put, I’m quickly losing trust in this whole project.

Among the “Whereas’s” in the ordinance there is one that states “the City Council finds from evidence and statistical reports reveal that the recidivism rate for released sex offenders alarmingly high.” Forget for a moment the strange wording of that whereas. The pertinent question to ask is whether that statement is accurate. Do City Council members actually have in their possession “evidence and statistical reports (that) reveal that the recidivism rate for released sex offenders (is) alarmingly high”?  And, if they do, why don’t they share that evidence with the rest of us so that, for no other reason, some of us who might feel skeptical can feel more reassured about the justification for this action? What do you suppose would happen if you approached your city council representative and asked that person to show you those “statistical reports”? 

What this essentially means is that of the total number of sex offenders living in Kyle today — whether that number be 67 or 68 or even another number entirely — at least 58 or 59 of them, depending on which memo you read, would not be affected by the ordinance because they are homeowners. The ordinance would, once the ordinance goes into effect, simply prohibit anyone listed on the state’s sex offender database from moving to Kyle and establishing “a permanent residence, establish a temporary residence or to be a recurring visitor at a residence, located within 1,500 feet (or 1,000 feet or maybe 500 feet) of any premises where children commonly gather.” The ordinance defines a “premise where children commonly gather” as “all improved and unimproved lots where the following are located or planned to be located: a public park, private or public school (excluding in-home schools), day-care center, or private recreational facility, including a park, water park, pool, playground, skate park, arcade or youth athletic field owned by a residential property owners association, or for which an entrance, admission, or rental fee is charged.”

The reason I added the 1,000 and 500 feet designations is because Barnett has included in his presentation maps that illustrates how much of the city would be declared “off-limits” if the ordinance contained a 1,500-, a 1,000- or a 500-foot restriction. The Police Department is pushing for the 1,500-foot restriction, which, according to its map of that restriction, would essentially create a couple of sex offender districts in Kyle — in the apartment complex on Marketplace Boulevard, parts of the Trails subdivision, parts of the Post Oak subdivision, along Quail Ridge Drive, and an area under development on Opal Lane. Another alternative for registered sex offenders would be to create lofts out of the spaces in the new business parks in North Central Kyle.

Interestingly, there is no public hearing attached to this agenda item, Item No. 24, so anyone from the public wishing to speak on the issue would have to use the Citizen Comment period at the beginning of Tuesday’s meeting. Anyone wishing to speak virtually at the meeting may register to do so by clicking here.

Chief Barnett to propose zones to keep out sex offenders

 Kyle Police Chief Jeff Barnett plans to introduce a proposed ordinance Tuesday that would create “child safety zones” in the city to protect children against sex offenders.

“Study shows specifically child molesters are more likely than any other type of offender to be arrested for a sex crime against a child following release from prison,” according to a memo Barnett will present to the City Council at its next meeting. The memo also states one out of every 830 Kyle residents is a registered sex offender, the largest such ratio for any city surveyed except Seguin and New Braunfels. Sixty of the 68 sex offenders living here, according to Barnett, can be classified as a child sex offender.

Under the terms of Barnett’s proposal “It shall be unlawful for a child sex offender to establish a permanent residence, establish a temporary residence or to be a recurring visitor at a residence, located within 1,500 feet of any premises where children commonly gather.” It would also declare it to be “unlawful to let or rent any place, structure or part thereof, manufactured home, trailer, or other conveyance, with the knowledge that it will be used as a permanent residence, temporary residence by any person” known to be a child sex offender if that residence is located “within 1,500 feet of any premises where children commonly gather.”

It also states that on Halloween “A child sex offender shall not … leave an exterior porch light on or otherwise invite trick-or-treaters to the premises.”

Barnett said his staff researched similar ordinances in other Central Texas cities and that his proposed ordinance was largely copied from one in effect in Cedar Park with language also added from a Pflugerville law.

The chief wants the City Council to go on the record in saying “repeat sexual offenders, sexual offenders who use physical violence and sexual offenders who prey on children are sexual predators who present an extreme threat to the health, safety and welfare of children. Sexual offenders are extremely likely to use physical violence and to repeat their offense and most sexual offenders commit many offenses, have many more victims than are ever reported, and are prosecuted for only a fraction of their crimes. This makes the cost of sexual offender victimization to society at large, while incalculable, clearly exorbitant.”

He also maintained his proposed ordinance serves “the city's compelling interest to promote, protect and improve the health, safety and welfare of the citizens of the city by creating areas around locations where children regularly congregate in concentrated numbers wherein certain sexual offenders and sexual predators are prohibited from establishing temporary or permanent residences.”

Barnett said his department’s research shows that out of the 12 Central Texas cities surveyed, Kyle is one of four that doesn’t currently have any form of a ordinance designed to protect children from registered sex offenders. The other three are Seguin, New Braunfels and San Marcos. In addition to the aforementioned Pflugerville and Cedar Park, where Barnett lifted language for his proposal, the other cities the Police Department surveyed with ordinances are Leander, West Lake Hills, Cibolo, League City, Giddings and Fate.

Kyle middle school band director arrested for child pornography

 Kyle police arrested 30-year-old Dahlstrom Middle School assistant band director Tyler Townsend today on charges of possessing or promotion of child pornography and intimated that the suspect could have had in his possession “invasive” photographs of Dahlstrom students taken without their knowledge.

According to a Kyle Police Department prepared statement, police had a search warrant for Townsend’s residence that was granted as part of a child pornography investigation.

“Several electronic devices were seized from Townsend’s home during the execution of the warrant,” according to the statement. “After reviewing the devices, Kyle Police found that invasive visual recordings of unknowing students were on Townsend’s cell phone. Police are working to identify the victims of these visual recordings and will notify victims directly.”

A statement from Hays CISD stated: “During the course of the police investigation, law enforcement notified Hays CISD that invasive, but not pornographic, photos of unknowing female students, possibly while in school at Dahlstrom, were discovered on Townsend’s cell phone.”

The district said it placed Townsend on administrative leave back on July 27, the same day it was notified police were looking at Townsend as part of a child pornography investigation. Townsend resigned four days later.

Townsend’s arrest comes almost five years to the day he first came to Dahlstrom.

“Townsend’s duties as assistant band director at Dahlstrom included directing the campus symphonic and jazz bands, and the percussion program,” the district said today in a prepared statement. “When Dahlstrom was a feeder middle school to Hays High School, Townsend sometimes assisted with the Hays High School marching band program. In August 2019, Dahlstrom became a feeder pattern for Johnson High School, but Townsend did not assist with the Johnson High School marching band program after the school opened last school year.”

Townsend was charged with 10 felony counts of possession or promotion of child pornography and 10 felony counts of invasive visual recordings. Each count of the third degree felony carries a possible sentence of two to ten years in state prison and a fine of up to $10,000. If any of the victims are younger than 14, it becomes a second-degree felony with each count carrying a sentence of two to 20 years in prison and a $10,000 fine.

Townsend was booked into the Hays County jail.

“Child pornography is not a victimless crime and we are dedicated to working this case with the utmost diligence and are leaving no stone unturned,” Kyle Police Chief Jeff Barnett said in statement.

A not-so-peaceful, uneasy feeling

Chalk it up, if you will, to my extreme leftist leanings, but I got squeamish when I read the "Presentation" section of Tuesday’s City Council meeting. It made me uncomfortable. Uneasy.

I guess I really shouldn’t be all that surprised that the council that officially declared in July 2016 that "black lives really don’t matter," has waited until Black History Month is more than two-thirds over before coming out with a "Black History Month Mayoral Proclamation." This is not a recognition, it’s an insult. One of the first things that came to my mind when I saw this on the agenda was "I bet it wouldn’t even be there if it wasn’t for council member Dex Ellison." And, what do you know? In this case, my paranoia proved well-founded. When I mentioned my concerns to Ellison, he wrote me: "I agree that this recognition should have been done back on the February 6 agenda (or even last meeting in January as you suggested), but regretfully neither myself nor another council member/mayor made a proposal for that to be on the agenda until I called for it to be on this upcoming agenda last week. Nevertheless, I feel the recognition is still important (to my knowledge we haven't had such a proclamation since 2012), therefore it will be recognized on next Tuesday's meeting."

The first time since 2012 — that confirms all my previous thoughts about how this council and, by extension, this city views racial issues. Yes, according to 2015 figures, only 5.77 percent of Kyle’s population is African-American, which means it’s relatively safe to ignore this constituency without raising much of a furor. But that doesn’t make it’s the right thing to do. And it certainly isn’t right to rub other facts into the collective face of this constituency.

But that’s exactly what the next two presentation items do. At a time when it has become somewhat of a national outrage that, while African-Americans comprise between 12 to 13 percent of the total American population, they make up 37 percent of the American prison population, Kyle has lumped his abhorrently late recognition of Black History Month with presentations on racial profiling and "enhancements to crime data reporting."

I am not accusing the council of doing this purposely, with the intent of deliberately insulting the city’s black population with the facts arrived at by the NAACP that blacks have nearly six times the prison incarceration of whites or a 2013 study that "confirmed that black men were much more likely to be arrested and incarcerated than white men." No, what I am accusing them of is worse than that: The council is clueless. When it comes to matters of race, especially in dealing with the black constituency, this council appears to be completely ignorant about what is happening in the real world.

Police Chief Jeff Barnett will be presenting the profiling report which will show that during this most recent reporting period, out of the 3,528 vehicles stopped by Kyle police officers, 7.88 percent were driven by "African" motorists. It’s interesting to note that 7.88 percent is 37 percent higher than Kyle’s black population percentage. Of course, there’s no way of determining how many of those motorists had Kyle addresses. In fact, I posed that exact question to Chief Barnett and he wrote to me around 2:30 p.m. yesterday that "We are running various reports to see what can be extrapolated." That was the last I heard anything about that.

But I want to make it clear that I am not lodging any racial complaints against the Kyle Police Department. In fact, its numbers look pretty good,. Actually, it could be argued that if any population was singled out for motor vehicle stops, it would be the Caucasian one. While 46.9 percent of the city’s population is listed as "White," Caucasians comprised 56 percent of those stopped by the police. And only 34 percent of those stopped were Hispanic while statistics place Kyle’s Hispanic population at 44.8 percent. It’s a mathematical disparity: Because of the relatively small number of African-Americans living in Kyle, any deviation from that base number is going to represent an out-sized percentage differentiation.

So it’s not the numbers on the racial profiling report that bother me. It’s the pairing. It’s combining the overly-late recognition of Black History Month with a report on police racial profiling. And to think it all could have been avoided if this council had recognized the reality that black lives do, in fact, matter and, thus, something like Black History Month should be recognized properly. You don’t begin selling tickets to the baseball game in the seventh inning.

As far as the rest of the agenda goes, the one item that could cause some discussion, consternation and hand-wringing is one to rezone 17.19 acres on Sledge Street to allow for the development of a housing subdivision on the property. There’s a public hearing on this issue and the usual band of no-growth NIMBYs will, no doubt, be out in force to protest the zoning request, just as they were at last week’s Planning & Zoning Commission hearing at which the zoning was recommended by a 5-2 vote. The two who voted against the recommendation argued for less-dense residential zoning than the one being requested, but the fact is this property, which was probably considered to be located "way out in the country" when it was purchased many years ago, is now, in fact, practically near the center of town, which is where the more-dense development should occur. It should also be noted that the city’s latest Comprehensive Plan, approved as recently as late last year, recommends this particular zoning for this property. But that won’t stop certain folks from trying to stick their fingers in the dike.

One other agenda item intrigued me and that’s No. 14 which bears the caption: "Limited Right of Entry License Agreement with Walton Texas, LP." What, in heaven’s name, does that mean? It almost sounds like some kind of restraining order. It could be nothing, of course, but then it could be something. So I asked city spokesperson Kim Hilsenbeck late Thursday night if she could provide some additional explanation, but she has opted to ignore my request, putting another chink into the city’s armor of transparency.

Update: Since the agenda was originally posted Thursday evening, the city has added background information to that Item No, 14. It turns out it is both nothing and something. It’s nothing to be overly alarmed about, but it’s something worth noting. It is an agreement that allows students of Hays High School and others to access portions of the Plum Creek Trail on March 3 for what is being billed as the "Great Texas River Cleanup."

"The City’s planned improvements for the trail include flagging and staking the boundaries of the trail, clearing brush, trash and other debris from the trail and the areas adjacent to the trail, maintaining the trail in a general, ‘native’ state, constructing and installing barriers reasonably necessary to protect public users of the trail from any and all identified hazards on or near the trail, and continuously supervising and inspecting the condition of the trail and promptly performing corrective measures as reasonably necessary to ensure the safety of public users," the proposed agreement states.

Committee accepts 33 of 34 recommendations proposed in KPD Audit

The Operations Review Committee accepted today all but one of the recommendations contained in the recently unveiled audit of the Kyle Police Department and, in the process, enthusiastically endorsed the methodology the auditors employed to arrive at their conclusions.

Of the 34 recommendations the audit suggested, the only one rejected was one to "begin utilizing the victim services coordinator to conduct welfare checks during normal business hours."

Assistant City Manager James Earp told the other committee members that he, City Manager Scott Sellers and Police Chief Jeff Barnett had reviewed the audit and that they agreed they heartily endorsed the audit’s recommendations with the possible exception of the one involving the victim services coordinator. He said he understood the reason for the recommendation was to relieve patrol from having to perform these functions.

"But, after thinking it through, I’m not sure I’m real comfortable with it," Earp said. "One, she doesn’t have a gun. Two, she can’t make entry if she shows up on the scene and realizes there’s an emergency on-going. Those are probably the two biggest things because not all welfare checks are routine. With the exception of that one, we’re completely on board with this."

"I strongly recommend not implementing that one," KPD Capt. Pedro Hernandez said.

Readers can learn more about the current responsibilities of the victim services coordinator here.

Police Association President Sgt. Tim Griffith said he had some concerns about the data the auditing firm used to reach some its conclusions, but added he completely agreed with the methodology used to arrive at those results and believed the department should embrace that methodology in the future when computing certain staffing levels.

Most of the recommendations have budget implications and, as a result, probably won’t begin to be implemented until the next budget cycle. It is expected the city manager will incorporate many, if not all, the audit’s recommendations in his next proposed budget which is expected to be made public the last week of July or the first week of August 2018.

Readers can find a summary as well as a link to the draft of the audit here.

Council to meet in special session Nov. 4

The City Council last night scheduled a special meeting for 9 a.m. Saturday, Nov. 4, to conduct a public hearing on the creation of a Public Improvement District (PID) in connection with a development planned for property immediately west of the railroad tracks, between Opal and Roland Lanes, that, if recent history is any indication, will attract a number of persons who will talk about everything but the subject of the public hearing.

As regular readers are well ware, I am no friend of Kyle’s PID policy, but I have absolutely no problem with this proposal. Let me see if I can explain why. First, let me tell you why I oppose, generally speaking, Kyle’s way of handling these funding mechanisms. As already noted in the first paragraph, the "I" in "PID" stands for "Improvement." Kyle, however, employs PIDs, for the most part, to help finance developments, not improvements. The way a PID is created is quite simple. The owners of the majority of the properties wishing to have a PID for a specific project must formally approve its creation, knowing that by approving it they are pledging to pay for the bonds sold to finance the project as well as the interest on the bonds. Usually they are committing to pay these costs in monthly installments over the life of the PID. However, when it’s used to finance a new development, there is usually just one, perhaps two, owners/stakeholders who agree that a PID should be created, but it’s repaid, not by those original owners/stakeholders, but by all the individuals who purchase homes in the development and had absolutely no voice in the creation of the PID. That’s why I have claimed Kyle’s PID policy amounts to taxation without representation.

But this PID is different — markedly different. First, and most important in my mind, is the fact that the most of the money derived from this PID will be used for improvements, not development. Specifically, it will be spent on widening and improving Roland and Opal lanes from the entrances to the development across the railroad tracks. It will also be used to improve drainage in the immediate neighborhood of the development. But even more important than that, the PID will be used to finance the installation of quiet railroad crossings on Roland and Opal Lanes. Those installations, combined with the city-financed quiet crossings at Center and South streets, will eliminate the need for trains to sound those irritatingly loud horns anywhere in the city of Kyle, thus drastically improving the quality of life here. I hope readers noticed I many times I used a form of the word "improve" in this paragraph.

Here’s the second reason I can support this PID. Because of changes to Kyle’s PID policy instituted by council member Travis Mitchell (who joined the council after the original PID policy was adopted) anyone purchasing a home in this development must be made aware, before that purchase, that they are also committing to pay an additional $120 a month — in addition to their mortgage payment, in addition to any homeowners association fees, in addition to their property taxes — as a PID assessment. If that home buyer agrees to that, then that, to me, is tantamount to voting for the creation of the PID in the first place.

Now, why do I say that this planned public hearing "if recent history is any indication, will attract a number of persons who will talk about everything but the subject of the public hearing." It’s because, within the last eight days, two different city panels, the Planning & Zoning Commission and the City Council, had items relating to this development on their respective agendas that attracted individuals who came to talk on a subject that had nothing to do with what was on those agendas. So I don’t see why this Saturday’s meeting should deviate from that norm. On Oct. 10, the Planning & Zoning Commission’s agenda included an item for the commissioners to consider a preliminary plan for the development and to possibly suggest changes to that plan that didn’t violate the Development Agreement already in place for the development but possibly aligned it more closely with the recently approved Design Guide. A number of speakers, most of those living near the planned the development, came to the meeting wanting the commissioners to stop the development, a subject that was not up for discussion. During last night’s city council meeting that contained an item to consider accepting the PID application and petition (by the majority of stakeholders, which, in this case, was one) to create the PID, most of these same individuals who showed up at P&Z the week before came to the council to voice their complaints, not about the PID, but by the proposed density of the project and the fact that it will include (horror of horrors!!!) a multi-family component. Again, not the subject of the agenda item.

So I’m predicting (although I really do hope I am wrong about this) many of these same folks will find the willpower to get to City Hall early on the first Saturday in November to complain some more. Here, however, is why I hope I am wrong. How can anyone in their right mind oppose road improvements, drainage improvements right outside their homes that they don’t have to finance through their own tax dollars? How can they oppose making their community eminently more peaceful by eliminating trains blaring their horns right outside their doors that they don’t have to pay for out of their tax dollars either? But I’m predicting they will. I could even foresee one city council member arguing against it. But their only arguments have to be off the subject, because arguing on the subject simply doesn’t make any sense. At least, as far as I can see. All those coming to speak against the likely agenda item on Nov. 4, regardless of the words that come out of their mouths, will be those still arguing not to locate the development there and refusing to accept the reality of the situation which is, frankly, that ship has sailed, that subject has been off the table for quite some time now. Sisyphus lives in Kyle.

Perhaps as many as three members of the council thought last night’s meeting might be their final one as a member of the council and, in somewhat of an ironic twist, the Nov. 4 meeting adds one more to their list. But Mayor Todd Webster believes it isn’t an added burden.

"My goal in these last few city council meetings is to complete all those projects we started," he told me "That’s why there have been what might be viewed as a large number of items on these recent agendas. "This next meeting will complete those projects.".

The following also happened during last night’s council meeting.

• Of the 20 agenda items the council voted on, 19 of them passed unanimously. However, those unanimous votes were 6-0 because council member Daphne Tenorio, who obviously was suffering from something health related, said at the beginning of the citizens comment period she had just been released from a hospital only hours before the meeting began and was "in a great deal of pain." She asked to be excused from the remainder of the meeting, a request the rest of the council readily agreed to. However, before she left, she said she would have opposed two items related to improvements and changes in the Cool Springs subdivision (although one of those items was the only one on the agenda that received a dissenting vote), all the proposed zoning changes and "the Plum Creek business parks." She was not clear on which of two items involving development in Plum Creek she was referring to, but I’m going to naturally assume it was the one to approve a plat for two commercial lots and not the one involving an agreement with the Plum Creek Development Partners, Ltd., that will save the city close to $10 million.
• It is also worth noting that one of the rezoning items — to allow for RV zoning — was denied by a unanimous vote so her opposition to that proposed change would have made the final tally 7-0 instead of 6-0.
• The city formally accepted the Police Department Audit and I learned the Operations Review Committee will meet at 1 p.m. Monday to decided which one of the audit’s recommendations should be implemented. "We are very excited about the opportunity to discuss and implement the recommendations they brought forward," Police Chief Jeff Barnett told me after the council meeting adjourned at 11:59 p.m. "Because I truly believe all the recommendations can improve our operations, we’re excited about any all of them that will come out of that committee."
• City Manager Scott Sellers made a special presentation to "allow the council to reflect on three great years" and "what we have accomplished together" in that time, before reading from a lengthy and impressive list of those accomplishments. Sellers concluded by telling the council members the city staff had willingly bought into "four core values that truly guide us in all that we do. And those core values spell the word "Kyle" — Knowledge, Yes Attitude, Leading Edge, Employee Accountability. We live by our core values. They are hung in our departments. We wear ‘Team Kyle" wristbands. It is something we live and we’re happy to live it. It has shaped the way our citizens feel about living in our city — they are proud to live in the city of Kyle. All of our new employees quickly learn about our fantastic culture here and that culture is set from the (city council) dias. We couldn’t be happier for the progress we have made or the direction we have received for the tasks and the great projects we have been able to carry through together under your guidance and leadership. And I want to thank your for that. And I want to thank the staff that’s worked tirelessly to bring all that about over the last three years."
• After the vote to deny the RV zoning on Dacy Lane, council member Shane Arabie sharply criticized certain comments made during the public hearing on the item. "Every time we’ve had something come in front of us that somebody didn’t like it was always the sex offender talk or it increased the crime rate. And that’s with every piece of property somebody didn’t like next to them. It’s not about ‘I don’t like it in my back yard," because that doesn’t give you the right to say what can go there. They own that property. Not you. You didn’t buy the property. They bought it. Just like you bought your home and you can decide what to do with it." After mentioning he currently resides in an RV Park, along with a close friend "who makes six figures a year," Arabie told the audience ‘So every time you say there’s a sex offender living there, look at me, because I’m the person that going’s to be living in these upscale, nice RV parks. So remember, when you put that picture out there, you’re talking about me and my friend that works in the physics department whose making the part that works in almost every piece of electronics you hold in your hand — people who I guarantee are among the top 1 percent educated on this planet. So just be mindful of who you’re talking about when you talk about this,"
• After the council heard a presentation that the city can save as much as 75 percent on vehicle maintenance costs and 25 percent on fuel costs, the council voted to implement a one-year pilot program to turn over the city’s acquisition and maintenance of its non-heavy vehicle fleet to Enterprise.
• The council also authorized the purchase of five gateway signs and at least 16 wayfinding directional signs.

Chief says city doesn’t want to tip its hat to bad guys

Police Chief Jeff Barnett said today the section of the Police Department audit that will be presented tonight to the city council that’s marked "CONFIDENTIAL (NOT FOR PUBLIC DISCLOSURE)," was deliberately withheld from the public to prevent revealing strategic information to "would-be criminals."

According to a news release distributed by the city today and available here on the city’s web site, the blank page near the end of the audit "contains information about police deployment and response times. Another section of the appendix discusses the security features of our facilities."

The title of the blank page is Appendix C — Patrol Staffing and Property and Evidence Analysis and Recommendations,

"By providing the number of police officers on duty at any given time or providing our average response time to calls, we could inadvertently compromise the safety of our officers and the community at large," Barnett was quoted as saying in the city’s release. "Telling would-be criminals about our security procedures and facilities is also not in the interest of public safety."

The city’s staff believes the audit endorses previous actions the city has taken in regards to the Police Department, according to today's release.

"The results of this comprehensive review of Kyle Police Department show that the steps we’ve taken to date to hire more staff and upgrade technology have had the desired effect," the release quoted Assistant City Manager James Earp as saying. "When combined with implementing the recommendations from the audit, we are confident that our police department will be even better able to meet the needs of our growing community well into the future."

However, the release also suggests it’s still open to question concerning which, if any, of the audit’s recommendations will be implemented. According to the release, if the city council signs off on the audit during tonight’s meeting, it will then go to something called the Operations Review Committee, the five-member board created by the city to select the company to conduct the audit. That committee will then "review the report and decide which recommendations to implement," the release said.

The release offered no clue as to when this committee might reconvene. There also doesn’t appear to be any information on the city’s web site as to the makeup of the Operations Review Committee.

Signs point to 30-day grace period on car calling ban enforcement

Kyle Police Chief Jeff Barnett said today all the required notification signs are in place to enforce the city’s ban on using a wireless communications while operating a motor vehicle or bicycle, but it might be as long as 30 days until the city knows if the wording on those signs passes state muster and KPD can begin ticketing violators.

The city council voted unanimously Tuesday to adopt the ban. The 7-0 approval means the ordinance didn’t need to come back for a second reading. Kyle adopted such a ban in 2016, but earlier this year, the Texas Legislature passed and the governor signed legislation that prohibited texting while driving. That legislation also effectively revoked all city ordinances on the subject, but gave municipalities room to adopt stronger rules. The only caveat was that, if stricter city regulations were put in place, signs had to be placed at the city limits on all roads bearing numbered highway designations.

Barnett said those signs are in place in Kyle "and we are consulting with our legal representation to review current wording and to recommend any additional language, if necessary. Enforcement on the city ordinance will take place only after the wording is adjusted and posted. If we do need to adjust the currently posted language, I would estimate the placing of those signs to be less than 30 days."

It is a common practice for police officers to position themselves along major arterials with devices designed to measure whether a motorist is exceeding the posted speed limit. Barnett said the KPD will not employ such tactics to snare drivers using their wireless devices illegally.

"Officers will enforce the new state law as they perform their patrol duties," the chief said.

Kyle may get an IDEA

Look at this. You should really look at this if you have school-age children living with you in Kyle. This is the Washington Post’s most recent rankings of "America’s Most Challenging High Schools." If you’re like me, the first thing from this list that jumps off the page is that six of the top 10 ranked high schools are in Texas and the names of five of those six schools begin with the word "IDEA."

IDEA, in this case, is an acronym for "Individuals Dedicated to Excellence and Achievement." It is a growing network of 61 tuition-free pre-K to 12^th grade public schools serving 35,000 students in Austin, San Antonio and the Rio Grande Valley. Approximately 85 percent of its student body is economically disadvantaged. It was founded in Weslaco, Texas, just before the turn of the century by two former Teach for America corps members, Tom Torkelson and JoAnn Gama, with the mission of serving impoverished students. They opened their first school in Donna, Texas, in 2002. By 2008, IDEA had expanded to 10 schools serving 4,000 students and it currently has 14,000 students on its waiting list for its schools in the Rio Grande Valley. At the invitation of former NBA great David Robinson of the San Antonio Spurs, IDEA opened its first school in San Antonio in 2012, the same year it launched in Austin, where it recently received a $16 million donation so that it could expand to 26 schools in the Austin area.

According to figures released last year, 95 percent of IDEA’s student body is Hispanic and English is a second language for 33 percent. About 5 percent of students have special education needs. Admission is initially carried out by lottery, but students who have a juvenile record or a history of disciplinary problems may be excluded.

The schools have the reputation for being academically rigorous. In the sixth grade, students begin to take the classes needed for Advanced Placement courses (college-level courses and examinations for high school students) and they take their first AP course in the ninth grade, By the time they graduate, students are required to complete 11 AP courses.

IDEA likes to boast that 100 percent of its graduates attend college, but that braggadocio can be somewhat misleading; the truth is being admitted to a four-year college or university is one of the requirements needed for a student to graduate from an IDEA school. According to the IDEA student handbook, a student may graduate "only if the student successfully completes the curriculum requirements identified by the SBOE (State Board of Education), has been accepted into a four-year college or university, has completed a minimum of 125 hours of community service, and has performed satisfactorily on required end of course assessment instruments." Again, referring to last year’s numbers. 65 percent of the students who enter the ninth grade at an IDEA school do not graduate at an IDEA school.

Normally, a new IDEA school will contain three grades, kindergarten, first and second (in what IDEA calls an ‘’academy,’ its name for primary schools) and sometimes a sixth grade which is used to seed its "college preparatory," IDEA’s name for its grades 7-12. It establishes and fills the rest of the grades over a subsequent six or seven year period.

There’s an excellent chance that Kyle residents will have the opportunity to see this process unfold up close and personal. Tuesday’s City Council agenda includes this item "Discussion regarding the Mayor’s signature requirement to comply with federal tax law for tax-exempt financing for bond financing documents, IDEA Public Schools." Now there is really no reason this item has to be on the council’s meeting agenda. These bonds do not indebt the City of Kyle in any way; there’s no municipal liability here. Their authorization does not require council approval. State law simply requires the signature on these documents of the "highest elected official" of any city where IDEA plans to locate. Therefore, the only reason I can see for its inclusion on the council’s agenda is so that a public announcement can be made that IDEA plans to locate a campus in Kyle.

It will be interesting to see the reaction to the announcement, especially from the existing public school community. However, if that community is truly interested in education and not in its own entrenched fiefdoms, that community should applaud any and all efforts to increase the number of Kyle students who will graduate from high school and attain a post-secondary degree. We may get a glimpse of the actual priorities of local school officials and their hangers-on during Tuesday’s council session.

Overall, Tuesday’s council agenda appears on the surface to be comparatively routine (and possibly even briefer than average — an executive session may not be necessary). The only other items worth noting on the agenda are:

• A public admission that the cameras installed in police vehicles have, in the words of Police Chief Jeff Barnett, "failed to perform." In a memo Barnett sent to City Manager Scott Sellers, the chief said "These failures have caused a tremendous amount of work for both PD and IT staff, as well as being costly and detrimental to the quality of services provided to the citizens of Kyle." To remedy the problem, as well as to outfit Kyle police officers with body cameras and tasers, the council’s agenda includes an item that authorizes Sellers to enter negotiations with an outfit call Axon of Scottsdale, Ariz., (formerly known as Taser International) for a possible contract to provide some or all of this equipment. It is worth noting that three days ago television station WWLP in Springfield, Mass., reported that Axon made an offer to Springfield Mayor Domenic Sarno to deploy body cameras to every police officer, with all supporting storage and training, for a full year at zero cost. The station’s report added "It’s a sort-of 'try before you buy,’ meant to help the city see how well they work before committing to using them. The offer will also include docks, use of Evidence.com software and accessories." Perhaps the council’s authorization should include instructions for Sellers to seek a similar deal.
• A presentation from Planning Director Howard J. Koontz on a "grant request" from the Rail House, the reconverted restaurant/entertainment facility current undergoing extensive renovations and expansion across Center Street from City Hall. No details were provided on the reason for the request or, for that matter, exactly what the grant will be used for.

City, Chief Barnett victorious in appellate court decision

In a major victory for the City of Kyle and its Police Chief Jeff Barnett, the three-year legal battle waged by Louisiana anesthesiologist Dr. Glen Hurlston against the city and Barnett has appeared to come to an end with yesterday’s ruling by the U.S. 5^th Circuit Court of Appeals dismissing Hurlston’s appeal.

The decision from justices Fortunato Benavides, Gregg Costa and Edward Prado concluded there was no evidence to support Hurlston’s claims that Barnett violated Hurlston’s civil rights and, thus, "a municipality (i.e., Kyle) cannot be held liable under section 1983 if no constitutional violation has been committed by a municipal actor (i.e., Chief Barnett)."

Hurlston claims Barnett used his capacity as Kyle’s police chief and as the former police chief in Princeton, Texas, to have Princeton Police Lt. Robert Mitchnik, another defendant in Hurlston’s suit, arrest Hurlston on New Year’s Day 2012 on charges that Hurlston physically assaulted his wife, Suzanne, who had previously had an affair with Barnett and gave birth to his son, a child Hurlston said he originally thought was his. Suzanne has repeatedly claimed Princeton police simply responded to her 9-1-1 calls for help.

The appellate court saw it Suzanne’s way.

"Hurlston contends that Barnett conspired with Mitchnik and others to have him arrested for the assault/choking incident on January 1, 2012, in Princeton," the three judges said in their decision. "However, neither Barnett nor Mitchnik were present at that arrest. Indeed, Barnett was the Chief of the Kyle Police Department when the Princeton Police Officers arrested Hurlston after Ms. Hurlston called 9-1-1, stating that Hurlston had choked her."

"Oh it's not over till it's over that's what great about the legal system," Hurlston told me via e-mail in reaction to the appellate court’s decision. "There can be justice just like in the OJ Simpson case."

The 5^th Circuit’s opinion, however, would seem to block Hurlston’s current contentions that the city and Barnett conspired with authorities in Princeton to deny Hurlston his civil rights.

"Hurlston’s claim of conspiracy fails because there is no evidence that Barnett conspired with Mitchnik," the court said."Mitchnik cannot conspire with himself." Additionally, the judges said. "no fact-finder could reasonably infer from this record that Barnett and Mitchnik conspired to violate Hurlston’s constitutional rights."

"The ruling by the appellate court confirms the City’s position that the case was malicious, frivolous and unsupported," Kyle Mayor Todd Webster said in a prepared statement. "It is our hope that with this ruling, we can move past this issue and continue with all the good work we’re doing in the City of Kyle."

Hurlston’s attorney James B. Doyle said he was not surprised by the court’s decision.

"The hurdles were pretty high for a citizen claiming misconduct on the part of a police official," Doyle said by phone from his offices in Lake Charles, La,. "As the court said directly in its opinion, you want to give them an operating space in which to work and you would have to present what we consider a jury trial-able issue to get to that point. The court certainly was in its bounds in writing that opinion and it was not completely unexpected."

Doyle said his only legal avenue left to pursue would be to appeal the decision to the U.S. Supreme Court, but that he has already advised Hurlston such an appeal would be fruitless. He said the next steps were really up to Kyle to determine how the city wants to react to what Doyle referred to as Barnett’s character issues.

"The decision was really limited to the question of not whether we had proved the various things that Chief Barnett had engaged in — the factual stuff — but whether that factual stuff would rise to a level that would overcome his status as a police officer."

Doyle singled out that section of the court’s decision that said ‘Although Barnett advised Ms. Hurlston about covering up evidence of their affair, this was a private act, and the evidence does not show that it was connected to his authority as the Kyle Police Chief."

"The City of Kyle now employs as its police chief a man who was proven to have conspired with a person we contend was fraudulently trying to steal our client’s money and he told that person not to turn herself in," Doyle said. "He told her how to destroy evidence in a case from a law enforcement perspective. I wonder how the City of Kyle feels about that. I wonder if they think that requires any further action."

I have also sought reaction from Chief Barnett and his attorneys will include those reactions if and when the parties reply to my requests.

The big question now — and a question left unanswered by the Mayor Webster’s prepared statement issued through the city’s official spokesperson — is when hearings will resume in the appeal of the disciplinary actions taken against former Kyle Police Sgt. Jesse Espinoza, who was suspended indefinitely for violating a police department directive that prohibited Kyle police officers from having any contact with Hurlston and later dismissed from the force for insubordination, based on allegations he was untruthful when questioned by superiors concerning his involvement in events surrounding Hurlston’s lawsuit. Those hearings were continued until after the 5^th Circuit rendered its decision.

In his suit, Hurlston further claimed Barnett conspired to have Hurlston arrested for violating an emergency protective order a few weeks after Hurlston's New Year's arrest.

In summary, the appellate court ruled "by the time of Hurlston’s arrests, Barnett had moved from Princeton to Kyle, and was not present at either arrest. Although it is undisputed that Barnett had an affair with Hurlston’s wife and such evidence provides a motive to harm Hurlston, Hurlston relies on speculation and innuendo but no competent summary judgment evidence that creates a material fact issue suggesting that Barnett used his job to harass Hurlston."

"Hurlston contends that Barnett used the position as Police Chief to harass him and have him arrested," the 5^th Circuit Court’s decision states. "However, the evidence does not raise a genuine issue of material fact with respect to Barnett’s using his state authority to have Hurlston harassed and arrested."

The decision also says: "Hurlston’s affidavit states that during the ‘last week of May 2012, I called Barnett at work and told his secretary that I am coming to the next Kyle city council meeting on June 5, 2012 to expose him (Barnett) to the council.’ Hurlston contends that after he called Barnett, ‘Barnett scrambled to have a warrant issued’ for his arrest before the council meeting to be held on June 5. To support this contention, Hurlston states that ‘no action was taken on Ms. Hurlston’s complaint until’ he made the phone call to Barnett. Hurlston is mistaken. After Ms. Hurlston made her complaint that Hurlston had violated the court protective order, and prior to Hurlston’s call to Barnett, law enforcement officials did take action."

The court also rejected Hurlston’s claim that Barnett caused the DPS to produce a "Threat to a Peace Officer Investigation" report on the doctor.

"My client got his day in court with respect to some of this and there are still questions to be answered," Hurlston’s attorney told me today. "Not in any legal sense, necessarily, although we’re going to make that decision down the road. People have to stand up and say what they believe and what they’re for and what they’re against."

Hurlston wrongfully accuses Espinoza's lawyer of lying to hearing examiner

Dr. Glen Hurlston, the Louisiana anesthesiologist implicated in the legal case of former Kyle Police officer Jesse Espinoza, is claiming Espinoza’s attorney lied when he told a federal examiner hearing Espinoza’s appeal that a gag order prevented Espinoza from getting a fair hearing.

Attorney Grant Goodwin sought and won a continuance in Espinoza’s hearing earlier this month by convincing hearing examiner Dr. Paula Ann Hughes that a gag order issued in connection with a lawsuit Hurlston has filed against the City of Kyle, Kyle Police Chief Jeff Barnett and others prevented Goodwin from eliciting the testimony he needed from Barnett.

"Let me enlighten you their (sic) is no gag order because it was issued by a lower court which dismissed the case so it no longer is in effect," Hurlston, using his favorite alias "Law Abiding Citizen," said Saturday in an e-mail. "The case is in a higher court so Barnett Attorney (sic) are hiding behind a gag order they know isn't inforceable (sic) or even applicable anymore."

However, an independent verification I conducted today with legal officials involved in the suit argues that Hurlston’s claims are simply not true. It is true the gag order was issued in a lower court case which was decided then appealed to a higher court. However, the legal sources in Fort Worth and Dallas I talked to today said the gag order accompanied that appeal and, thus, is still in effect.

It’s also strange that Hurlston would, in effect, call the attorney of someone representing the person alleged to be his co-conspirator in a plot to discredit Barnett a liar. However, in all fairness, I must add that Hurlston added language in his e-mail to suggest he was actually calling me a liar for writing a story suggesting Hurlston was defying the gag order by threatening to sue the City of Kyle until "I will bankrupt them into submission." The last sentence of Hurlston’s e-mail to me, in response to that story, said "So everything you said is just simply a lie an (sic) I am a Law Abiding Citizen and a (sic) stand by everything I said with proof unlike the author of this post who made many misleading statements."

Regardless of his motivations, his apparent misstatement that "their (sic) is no gag order" directly contradicts what Goodwin told Dr. Hughes and others at the opening day of the re-hearing on the appeal of Espinoza’s indefinite suspension and later dismissal from the Kyle Police force on grounds of insubordination. And one of the attorneys I spoke with today told me I was absolutely correct to interpret Hurlston's comments as ones calling Goodwin a liar. One of the allegations against Espinoza is that he accepted cash and family vacations among other things from Hurlston in return for providing the doctor inside information that could be damaging to Barnett in the lawsuit Hurlston filed against Barnett, Kyle and others.

Continuance granted in Espinoza hearing

Saying her "interest is in a clean hearing," examiner Dr. Paula Ann Hughes granted former Kyle Police Sgt. Jesse Espinoza’s request for a continuance today in the arbitration hearing stemming from his suspension from the force because, she said, a gag order issued in a related lawsuit could prohibit Espinoza’s attorneys from obtaining complete  testimony from Kyle Police Chief Jeff Barnett. Dr. Hughes did, however, stop the clock on back pay that might be awarded to Espinoza should he win his appeal.

The decision leaves the case somewhat in limbo, although Bettye Lynn, the attorney representing the city in the arbitration hearing, indicated the city might want to press forward with a hearing on a related issue. Lynne told me after the hearing it is her policy not to talk on the record with the media and attempts to reach officials at City Hall have so far proved unsuccessful, but I’m guessing even if they could be reached their answers would be something along the lines of "We really can’t comment on any of this until we consult with our attorneys." I’ve been involved in enough matters of this sort to know how the game is played.

Dr. Hughes’s decision was predicated around a gag order imposed in connection with a federal lawsuit filed in December 2013 by Louisiana anesthesiologist Dr. Glen Hurlston against Chief Barnett, the cities of Kyle and Princeton, Texas, and other police officers in Princeton, a town of about 6,800 located just east of McKinney in North Central Texas. Barnett was the chief of police in Princeton before assuming his current position here.

Without getting into details about the suit and all the allegations surrounding it, Espinoza’s attorney Grant Goodwin argued today Espinoza would be denied a fair hearing because the gag order instituted against all the parties in that suit would prohibit him from eliciting the testimony he needed from Barnett. Goodwin’s original motion asked for a continuance until all legal matters had been decided — including a federal lawsuit Espinoza recently field against the City of Kyle — but Dr. Hughes stressed "the issue is the gag order" and that she was granting the continuance only until such time as the Hurlston lawsuit is decided.

"My objective is to provide a just hearing," she said in her ruling, "If I can’t get the whole story, I can’t make a fair decision."

Espinoza is seeking to receive all back pay lost because of his suspension. Dr. Hughes ruled back pay would not be counted between today and when the court makes its decision in the Hurlston suit.

This hearing was necessitated because the hearing examiner who heard Espinoza’s original appeal died before he could render a decision. Goodwin maintained he was denied the opportunity to properly cross-examine Barnett during that first hearing because the chief was accompanied by attorneys who objected to testimony that could conflict with the gag order.

Lynn tried to argue the gag order in the Hurlston suit was not applicable to the proceedings in Kyle because that lawsuit involved Barnett’s actions before he came to Kyle. Dr. Hughes said, however, she wasn’t sure the two could be separated that easily.

"I operate on the fact that I would like as clean a hearing as possible and that’s what I want to happen," Dr. Hughes said. "We don’t even know what Chief Barnett would testify to today if a gag order wasn’t in place and those attorneys weren’t there. We just don’t know. If we knew, we wouldn’t be having this conversation. And that’s where I see the limitations. He was limited before and he may say exactly the same thing or he may not. I don’t know that. That is the dilemma here."

"I must have the opportunity to make sure my client receives a fair hearing at a later date," Goodwin told the examiner. "We know from the last time we could not get a fair hearing. We know the limitations from what happened at the earlier hearing. We know we’re not going to be presented with our fair day in court if we proceed."

"You make some very good points," Dr. Hughes told Lynn, "but my interest is in a clean and fair hearing, and I don’t feel we can ignore the fact that Mr. Goodwin feels that he didn’t have as fair and clean access to Chief Barnett as he should have for the benefit of his client."

Although Lynn would not make a public statement after the ruling, Goodwin told me "I know eventually we will breach the issues, but today this was the correct decision based upon the playing field and wanting to make it fair for my client."

Today’s hearing was an appeal of Barnett’s decision in February 2015 to place Espinoza’ on administrative leave. He was later dismissed from the force by a police chief temporarily assigned to head the Kyle Police Department who said Espinoza was guilty of insubordination. Lynne hinted during the hearing the city might decide to press forward with the appeal of that dismissal decision because, she indicated, that would make any testimony concerning the Hurlston lawsuit and its gag order irrelevant.

Espinoza’s suit claims city violated his freedoms of speech, assembly, privacy, due process

Former Kyle Police Sergeant Jesse Espinoza, indefinitely suspended from the force in May 2015 for insubordination, filed a suit against the City of Kyle last week in federal district court claiming the city violated his freedoms of speech, assembly, privacy and due process and asks for money from the city "in an amount sufficient to do substantial justice," the exact amount to be determined by the jury he is seeking to decide the case.

The suit argues these actions by the city are contrary to the First, Fourth, Fifth and Fourteenth amendments to the U.S. Constitution, which grants the U.S. District Court of Western District of Texas jurisdiction in the case.

The suit claims the city violated Espinoza’s freedom of speech by "discriminating against" him "based on the content and viewpoint of his speech," specifically by not sufficiently listening to Espinoza’s claims against Kyle Police Chief Jeff Barnett.

He is claiming the city violated his rights of privacy by issuing subpoenas to obtain cell phone records from both his and wife’s cell phones. In addition , the suit claims the city "fraudulently signed the name of the Hearing Examiner" to one of those subpoenas. "Kyle took advantage of the Hearing Examiner's failing health to its benefit and Plaintiff's detriment and harm," the suit claims..

The suit claims Espinoza was denied due process because the city dismissed him for actions that took place more than 180 days from the date on which he was suspended and that city never seriously looked at material Espinoza gave the city regarding Chief Barnett, information the suit describes as "a matter of importance and public concern." The city has argued that Espinoza was not dismissed because of incidents that occurred more than six months before his dismissal but because he lied immediately prior to his dismissal when he was questioned about those incidents.

The suit fails to describe how the city violated his right of assembly.

Espinoza appealed his suspension and an arbitration hearing, presided over by Examiner Michael McReynolds, began Sept. 29, 2015 and ended a year ago tomorrow. However, McReynolds died of cancer Feb. 29, before he could render a decision on the case.

Although the city has yet to post any official confirmation of this, I have heard a second arbitration hearing on Espinoza’s appeal is scheduled to begin next week. There is also no word on whether Espinoza’s federal lawsuit will have any impact on the arbitration re-hearing. The Kyle City Council did spend almost an hour discussing the lawsuit in executive session Tuesday evening during its regularly scheduled meeting.

The entire episode reads like the plot of a Grace Metalious novel. A few, but definitely not all, of its more lurid details can be found in this story that appeared a week ago in the Austin American-Statesman along with this one published in May, and especially this one that appeared last May in the Austin Chronicle. Happy reading.

I would have asked the City for its response to the lawsuit but having dealt with these matters of this kind for many more years than I dare to count, I know in advance the city's response would be it doesn't comment on matters in litigation.