                                                                                                                 ACCEPTED
                                                                                                            03-14-00068-CV
                                                                                                                    3822713
                                                                                                  THIRD COURT OF APPEALS
                                                                                                             AUSTIN, TEXAS
                                                                                                      1/20/2015 10:55:20 AM
                                                                                                           JEFFREY D. KYLE
                                                                                                                      CLERK




                                                                                         FILED IN
                                                                                  3rd COURT OF APPEALS
                                         January 13, 2015                              AUSTIN, TEXAS
                                                                                  1/20/2015 10:55:20 AM
 Third Court of Appeals                                                               JEFFREY D. KYLE
                                                                                           Clerk
 cjo Jeffrey D. Kyle, Clerk
 P.O. Box 12547
 Austin, Texas 78711

 RE: No. 03-14-00068-CV, Larry Mark Polsky v. The State of Texas,
     Response to Appellant's Request for Judicial Notice and Notice of
     Additional Authority, both filed December 29, 2014


 Dear Mr. Kyle and the Honorable Justices of the Third Court of Appeals:

       The State submits this letter brief responding to two December 29,
 2014, filings by Appellant Larry Mark Polsky in this appeal of a jury verdict
 finding that he violated a dune protection permit issued to him by the
 Cameron County Commissioners Court.

        Polsky first requests that this Court take judicial notice of certain
 pages excerpted from Cameron County's Beach Access and Dune Protection
 Plan. 1 Polsky pairs that request with a separate "Notice of Additional
 Authority," again ostensibly attaching a section of the County's Plan, albeit
 different from that accompanying his judicial notice request. In this
 additional authority, Polsky purports to support his claim that his trial
 witness and county parks director Javier Mendez was the "[d]uly
 [d]esignated '[b]uilding [i]nspector' for [b]eachfront [c]onstruction of the
 Cameron County Commissioner's Court."

       Polsky's filings are skeletal. In them he has failed to provide any
 briefing as to why the referenced pages are relevant and any proof that his
 excerpts were taken from the appellate record or an authentic source.




 1   As described below, the full name of the document, which is already part of the
 appellate record, is the Cameron County Dune Protection and Beach Access Plan (the
 Plan).
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Third Court of Appeals
January 13, 2015




         1.   Polsky failed to provide any briefing regarding his
              judicial notice request and notice of supplemental
              authority.

       Polsky's judicial notice request and notice of additional authority
should be denied and disregarded, respectively, due to inadequate briefing.
Polsky failed to provide any substantive arguments or discussion in these
filings. This Court need not wade through the parties' briefing and
appellate record to determine the relevance, if any, of these documents to
Polsky's issues and arguments on appeal.

         2.   The trial court already took judicial notice of the County's
              Plan, which is part of the appellate record.

      Should the Court consider Polsky's judicial notice request, the State
objects to judicial notice of the particular excerpts attached by Polsky.

       First, a complete copy of the County's Plan is already part of the
appellate record as Court's Exhibit 1. 2 Polsky's unauthenticated excerpts
differ from Court's Exhibit 1, suggesting perhaps they derive from another
version of the County's Plan. 3 Second, the trial court took judicial notice of
the Plan on the first day of trial without objection, making judicial notice of
the same material on appeal unnecessary and duplicative. 2 Supp. RR
179:11-182:8; Court's Ex. 1.

      Nevertheless, in the event this Court determines that reference to the
County's Plan is appropriate in deciding this appeal-which it need not, as
demonstrated herein-the Court should consider the copy admitted into the
record. Polsky's excerpts, which lack authentication and are not part of the
appellate record, are unreliable.



2   A copy ofthe Plan can be found in Volume 6 of the reporter's record herein.

3 Although their content appears to mirror that in Court's Exhibit 1, Polsky's excerpts
could not have come from the record exhibit because the page numbering for the Plan
sections is different and Polsky's cover page is missing. Compare Court's Ex. 1 at 3-4
and 26-27 with attachments to Polsky's judicial notice request and notice of additional
authority.

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Third Court of Appeals
January 13, 2015




      3· Neither of the proffered excerpts is relevant to the issues
         briefed on appeal.

       In any event, this Court may disregard Polsky's submissions because
neither portion of the Plan that Polsky cites is relevant to his appeal.
Polsky's request for judicial notice of "Page 21, Section 4, (iii)- (xi)" 4 makes
this clear. The cited pages list factors the Cameron County Commissioners
Court should consider when issuing or denying dune protection permits,
such as the one obtained by Polsky as part of his development activity. But
as the briefing on file clarifies, neither party disputed that the
Commissioners Court issued Polsky a valid dune protection permit, nor did
the State attack the validity or substance of the permit itself. 5 Instead, this
suit concerned whether Polsky violated the terms of his properly issued
dune permit. See State's Am. Br. at 28-30. Polsky's proffered material is
irrelevant on its face and his failure to argue its relevance constitutes
inadequate briefing that should also result in rejection of his request.

      Similarly misguided is Polsky's attempt to provide "additional
authority," which again appears unrelated to any issue in this appeal.
Polsky underlines a section of the excerpt indicating that the Cameron
County Parks Department administers the public beach access component
of the Plan, and authorizing it to give non-binding recommendations to the
Commissioners Court on "action" to be taken regarding beachfront
construction certificates. 6 The paragraph's context suggests that the
4 No such section of the County's Plan exists. The State assumes that Polsky is
referencing section III.E.4.a.iii-xi, found in Court's Ex. 1 at 26-27.

s See Appellant's Reply Br. at 1 ("[T]here was never a contest at the trial that [Polsky]
had not obtained a properly issued dune protection permit."); and see Am. Br. of
Appellee the State of Texas (hereinafter State's Amended Brief) at 28 ("Here, the State
did not dispute that Polsky obtained a properly issued permit, nor claim that the
County's permit violated state law or GLO rules or should have been revoked.").

6  "Beachfront construction certificates are required under Natural Resources Code
§[]61.015 (c) - (h) for any construction within 1000 feet of mean high tide or up to the
first public road, whichever distance is greater. The Cameron County Park System,
operating through the Cameron County Commissioners' Court and advised by the
County Parks Advisory Board, is hereby charged with responsibility for administering
the beach access component of this plan .... Cameron County Commissioners' Court
will review and take action on beachfront construction certificates as advised by parks
system staff and the county Parks Advisory Board, whose recommendations will be
considered but are not binding on court action." Court's Ex. 1 at 3, 4.
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Third Court of Appeals
January 13, 2015




"action" is limited to decisions regarding applications for beachfront
construction certificates. See Court's Ex. 1 at 3 ("Neither the County nor
State shall unreasonably delay review or action on an application, and shall
make a final determination on an application no later than 6 weeks from
application receipt."). Again, Polsky cites to a Plan provision governing
permit-granting rather than permit-enforcing procedures. Moreover, this
provision concerns the beach access issues addressed in beachfront
construction certificates-not the dune protection issues addressed in the
instant appeal.

       Accordingly, that the Plan may allow the Parks Department to offer
non-binding recommendations relating to beachfront construction
certificates does not concomitantly authorize the Parks Department or its
employees to advise the Commissioners Court on actions concerning dune
protection permits. 7 And nowhere does the Plan elevate the Parks Director
to the position of "duly designated building inspector" in Polsky's
nomenclature. See State's Am. Br. at 32-33 (summarizing Mendez's
testimony regarding his position and responsibilities). Neither Polsky nor
Mendez presented any authority or authorization at trial that Mendez-
even in his position as parks director-was testifying on behalf of the
Commissioners Court or as its representative on any matter, including dune
protection.

      To be sure, Mendez did testify at trial that he had visited Polsky's
building site and believed the construction did not violate Polsky's dune
protection permit. See, e.g., 4 RR 23:11-25:2. But, as the State previously
explained, the jury heard Mendez's testimony, evaluated its credibility and
veracity, and properly disregarded Mendez's contradictory testimony& in
favor of the overwhelming evidence of violation. State's Am. Br. at 12-26.

      The proffered portions of the Plan, moreover, do not advance Polsky's
legal argument that Mendez's contrary opinion could veto the State's
7According to the Plan, when issuing a dune protection permit, the Commissioners
Court should consider comments from the Cameron County Dune Protection
Committee, the General Land Office, the Attorney General's Office, and the general
public. Court's Ex. 1 at 21, 26.

8  Mendez conceded on cross-examination that he once labeled Polsky's activity
"questionable" and discussed his concerns with the County attorney. See State's Am. Br.
at 25-26.

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Third Court of Appeals
January 13, 2015




parallel permit enforcement authority under Tex. Nat. Res. Code § 63.181.
Thus, even if Mendez were the County's designated authority on dune
protection permit violations-which he is not-the State could nonetheless
disagree with his opinion, bring a suit for permit violations, and seek a jury
verdict such as the one obtained herein. State's Am. Br. at 30.

                                 PRAYER

      Polsky's judicial notice request should be denied and his
supplemental authority disregarded for inadequate briefing and lack of
relevance. If the Court grants Polsky's judicial notice motion, it should take
notice of Court's Exhibit 1, the complete 2010 Cameron County Dune
Protection and Beach Access Plan found in Volume 6 of the reporter's
record. Finally, this Court should affirm the trial court's judgment in all
things.

                              Respectfully submitted,

                              KEN PAXTON
                              Attorney General of Texas

                              CHARLES E. ROY
                              First Assistant Attorney General

                              JAMES E. DAVIS
                              Deputy Attorney General for Civil Litigation

                              JON NIERMANN
                              Chief, Environmental Protection Division


                              Is/ Shelly M. Doggett
                              SHELLY M. DOGGETT
                              Assistant Attorney General
                              State Bar No. 24069619
                              Shelly.Doggett@texasattorneygeneral.gov



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Third Court of Appeals
January 13, 2015




                         KEN CROSS
                         Assistant Attorney General
                         State Bar No. 05135800
                         Ken.Cross@texasattorneygeneral.gov

                         OFFICE OF THE ATTORNEY GENERAL
                         Environmental Protection Division (MC-o66)
                         P.O. Box 12548
                         Austin, Texas 78711-2548
                         Tel: (512) 463-2012
                         Fax: (512) 320-0911

                         ATTORNEYSFORAPPELLEESTATEOF
                         TEXAS




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Third Court of Appeals
January 13, 2015




                     CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), I certify that

this computer-generated document, excluding the contents listed in the

rule, contains approximately 1,485 words. I relied on the word count of the

computer program used to prepare the document.


                         CERTIFICATE OF SERVICE

      On January 13, 2015, a true and correct copy of the foregoing letter

brief was served on the following counsel and Appellant as indicated by e-

filing and Certified Mail, Return Receipt Requested:



Larry Mark Polsky, Esq.
5508 Padre Blvd., Suite A
South Padre Island, TX 78597
mossad194 7@sbcglobal.net
Pro se attorney and Appellant


                                                fs/Shelly M. Doggett
                                                Shelly M. Doggett
                                                Assistant Attorney General




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