Gregg County Judge Vincent Dulweber, pictured here, sided with the plaintiffs in a years-long tax case against Kilgore ISD earlier this year. The district then filed an appeal with the Twelfth Circuit Court of Appeals in Tyler, which affirmed Dulweber’s decision for the plaintiffs Dec. 22. KISD, which has accrued over $4 million of the funds in question in a separate account, may now be finally forced to return these funds to Gregg County taxpayers.

A years-long legal battle over the collection of taxes in Kilgore ISD’s tax base may be edging closer to a conclusion, as attorneys representing the plaintiffs in the case have filed a “Motion to Compel” and a request for a status conference with Gregg Co. Court at Law No. 2 Judge Vincent Dulweber.

The latest motion, filed on behalf of Gregg County taxpayers who allege KISD improperly collected tax revenues and seeks to bring all involved parties to the table to hash out the final dispensation of the case, including the appropriate distribution of tax refunds.

Cause No. 2016-1850-CCL2, with plaintiffs Darlene Axberg, John Claude Axberg and Sheila Anderson is a suit filed against the entire KISD School Board, including past members no longer on the board, and Gregg County Tax Assessor-Collector Kirk Shields. The original suit has been expanded to a class-action lawsuit, pending class certification.

Originally, the lawsuit was filed by Gregg County residents Darlene Axberg, John Axberg and Sheila Anderson. The expanded class-action suit includes plaintiffs Sheila Anderson, John Mills, Brenda Mills, James Nicks, Judy Nicks, Philip Eugene Patterson, Dale Hedrick, Laura Hedrick, Karen Wilson and Patrick R. Gatons.

The latest motion also takes issue with alleged “disrespectful” behavior by KISD attorney and legal counsel Dennis Eichelbaum in his responses to the plaintiffs’ requests for information which could help settle the case.

“Plaintiffs desire to bring this years-long lawsuit to conclusion,” the motion reads.

“They have asked Defendant Kilgore Independent School District (“KISD”) to produce information that would assist in calculating the amount of tax refunds that are owed. KISD, however, refuses to provide such information. Instead, KISD’s counsel sends mean-spirited and harassing emails likening Plaintiffs’ counsel to dog abusers. This is consistent with his uncivil behavior throughout this litigation. Plaintiffs respectfully ask the court to compel KISD to produce the requested information so that we can move this lawsuit forward.”

The motion goes on to describe plaintiffs’ pursuit of a refund of taxes collected after KISD repealed a Local Optional Homestead Tax Exemption in 2015, along with a number of other Texas school districts, when the Texas legislature began working to make such exemptions mandatory. KISD had voluntarily maintained the local tax exemption since the 1980s.

A 2016 lawsuit filed by local taxpayers sought to force KISD to reinstate the LOHE and refund taxes collected after its repeal. KISD has been keeping these funds, totaling more than $4 million, in a separate, untouched account as they await the final outcome of the case.

The case has carried on for years, with KISD appealing the case by stating their right to maintain and repeal their own tax exemptions at their own discretion and arguing they did not violate state law in the process of the repeal.

KISD’s appeals have been rejected by Texarakana Court of Appeals and Tyler Court of Appeals, who agreed KISD improperly rescinded their local tax exemption and deemed their repeal legally null and void.

The latest motion to compel also claims plaintiffs’ attorney tried to get KISD’s attorney to turn over certain documents to help them bring an end to the case in October 2020 and as recently as March 17 of this year.

The motion states KISD’s attorney replied to their requests by likening them to vicious pet owners who abuse their dogs, sending emails with bizarre, insulting song lyrics and claims courts “ignored the rules” in handing down their decision. The motion alleges this type of behavior has continued for years, up unto the present day.

“Just recently, on March 24, 2021, he (KISD’s legal counsel) threatened to turn Plaintiffs’ counsel into the State Bar simply because a request was made to sit down with KISD in an effort to resolve this litigation. He wrote, ‘You will not be sitting down with my clients. If you try to communicate directly with my client, we will move this matter to the State Bar,’” the motion read.

The motion states the attorney has exhibited unusual behavior in other cases, in some instances insulting the Texas Attorney General and replying to legal requests with song lyrics and poetry similar to those found in Disney movies and the writings of Shakespeare.

The motion, signed by attorney Daniel Smith, of the Popp Hutcheson property tax law firm in Austin, requests Judge Dulweber to compel KISD to produce information which would facilitate the end of the case and begin the process of issuing the tax refunds.

KISD Superintendent Dr. Andy Baker responded to a KNH request for further information, saying he, along with the rest of the KISD school board, absolutely wanted to reach an end to the case and were awaiting further direction from the involved courts for the next step forward.

“Both the Plaintiff’s Attorneys, Popp Hutcheson PLLC, and our Kilgore ISD Attorneys at Eichelbaum-Wardell-Hansen-Powell & Munoz P.C. appear to now be entering into a debate over words and perceived behavior in which Kilgore ISD is now entangled,” Baker wrote.

“In reading through this latest Motion to Compel filed by the Popp Hutcheson Attorneys, they look to be accusing Kilgore ISD of refusing to cooperate as we continue to try to find an end to this lawsuit. Please understand: This is absolutely the desire of the Kilgore ISD School Board of Trustees as well — for the Popp Hutcheson Attorneys to imply that Kilgore ISD wishes to prolong this lawsuit is absurd. Each one of our School Board Members is also a member of our Kilgore community. Both individually and collectively, they understand the challenges this years-long lawsuit has brought to our community, and, like our community, eagerly await some court direction and guidance to help begin these conversations.”

In his response, Baker also stated the information repeatedly requested by plaintiffs’ attorneys was already freely available to them.

“As has been repeatedly responded by the KISD Attorneys to the Popp Hutcheson Attorneys, the information they continue to ask for and continue to request from KISD is 100% available to the Popp Hutcheson Attorneys under the Texas Public Information Act through both the Gregg County and Rusk County Appraisal Districts”

Additionally, Baker states KISD does not have the requested records in their possession, and those records are kept by tax assessors in Gregg and Rusk counties. He also stated plaintiffs’ attorneys were already in possession of the requested records and had even acknowledged receipt of them.

“More to the point, and more to my added confusion in reading this latest Motion…as I understand it, this requested information that the Popp Hutcheson Attorneys are accusing KISD of refusing to provide them has already been sent to them. Last May, almost one (1) year ago, the Popp Hutcheson Attorneys sent Open Records Requests to our Gregg County Appraisal District and our Rusk County Appraisal District asking for this exact same information. Both Appraisal Districts complied with this request and sent the requested information to the Popp Hutcheson Attorneys, and their firm acknowledged receipt of the information,” Baker wrote.

He concluded by saying he, along with the entire school board, was fully ready to see the case come to its conclusion and pledged his and the board’s cooperation with the involved courts in reaching said conclusion.

“Again, please understand that our Kilgore ISD School Board of Trustees is equally as eager to see a successful conclusion to this years-long lawsuit and we all look forward to soon receiving some court direction and guidance to help resolve this issue.”

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