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141 S. Main Street Groveton, Texas 75845 Phone (936) 642-1818 14330 US Highway 190 West Onalaska, Texas 77360 Phone: (936) 646-6970 Mailing address: P. O. Box 1629, Onalaska, Texas 77360 Email address: [email protected] Fax: (936) 646-6971 Of Counsel: Joe Scott Evans

Resume of Travis E. Kitchens, Jr. (2011)

Residence: Trinity County, Texas since April 1978 College: attended University of Texas (Austin), McLennan Community College (Waco), Baylor University (Waco) majored in music, political science, criminology; admitted to Baylor Law School Spring 1975 without degree Law School: Baylor Law School - received Juris Doctor degree May 12, 1977 Admitted to State Bar of Texas: November 11, 1977 Courts Admitted to: all State Courts of Texas; United States District Courts, Eastern and Southern Districts of Texas; United States Court of Appeals, Fifth Circuit (1981); United States Supreme Court (1983) Professional and Legal Experience: Texas Youth Council, Gatesville, Texas (1975; Youth Activity Supervisor I) Methodist Home Children's Psychiatric Hospital, Waco, Texas, (1976; In-patient Wing Activity Assistant) Private practice in Waco, Texas; November 11, 1977 to April 1978 Assistant District Attorney, 258 th Judicial District (Polk, Trinity & San Jacinto Counties) ; April 1978- October 1981 Partner, Evans and Kitchens, LLP, Lawyers, Groveton, Texas; November 1, 1981 to December 31, 2010 Solo practice - Travis E. Kitchens, Jr., Lawyer; January 1, 2011 to current Professional Associations: State Bar of Texas, 1977 - current Texas Criminal Defense Lawyers Association 1975 - 1978 Texas District and County Attorney's Association 1978-1981 Texas Criminal Defense Lawyers Association 1981- current Bar Association of the Fifth Federal Circuit (charter member) 1983 - current Writings and Publications: The Effects of Morales v. Turman on the Texas Youth Council, Baylor Law School, (unpublished) 1976 The Survival of Major Kitchens, copyright 1984 (unpublished) Shout the House - The Life and Times of the Famous Soul Stirrers, written by S. R. Crain and Kath Hurren, edited by Travis E. Kitchens, Jr. copyright 1989 (unpublished) The ABCs of POAs in the 21st Century, copyright 2001, 2008, 2010

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(Selected) Appellate Cases: Deed Restriction / Property Owner Association cases: The Whorton cases: The cases of "I can because I have more dollars than you" Robert Whorton held a patent on some electronic parts used in neon signs. He would have the parts manufactured and delivered to his home, where he would repackage the items and ship to various businesses. The parts would be delivered to his home in the Point Lookout West subdivision in San Jacinto County, Texas by Central Freight. After repackaging the items, he would then have UPS pick up boxes for delivery to various businesses. Point Lookout West, Inc., the property owners association, (the "POA"), brought a lawsuit and had a non-jury trial. The Association was not able to get an injunction prohibiting all activity but the Court did enjoin the delivery by Central Freight. Whorton appealed. I was retained on appeal to represent the POA. This resulted in three reported appellate decisions: Whorton v. Point Lookout West, Inc., 736 S.W.2d 201, (Beaumont Court of Appeals, 1987, reversed by Texas Supreme Court): case from San Jacinto County, Texas where property owner, Whorton, was operating a mail order business out of his garage; Court of Appeals affirmed the trial court's opinion which denied the petition of Point Lookout West, Inc. (a property owner's association) seeking to enjoin the Whorton's business, but reversed the trial court's order which enjoined Whorton from using commercial freight trucks and parcel post trucks for his business operations from his home. Point Lookout West, Inc. v. Whorton, 742 S.W.2d 277, (Texas Supreme Court, 1987): case from San Jacinto County, Texas; Texas Supreme Court reversed the Beaumont Court of Appeals' reversal of the trial court's injunction that enjoined Whorton from using commercial freight trucks and parcel post trucks for his business operations from his home. Whorton v. Point Lookout West, Inc., 750 S.W.2d 309, (Beaumont Court of Appeals, 1988, petition for review denied): case from San Jacinto County, Texas; Court of Appeals' decision after partial reversal by Texas Supreme Court in favor of property owners association. After the initial appellate decisions above, Whorton continued operating his business from his garage. Contrary to the Court's injunction, he hired additional employees and was grossing over $3,000,000.00 a year from his garage. A second lawsuit was brought. Whorton demanded a jury trial and the jury ruled against him, and injunction was granted prohibiting his business. There were three written appellate decisions on this second trial, but none of those were reported. They were all in favor of the POA. Whorton was required to pay the POA's legal fees, which amounts to less than one day's income. Whorton moved from San Jacinto County, bought a marina on Lake Conroe and moved this business there. Thus the title "I can because I have more dollars than you." The Morton Cases: The case of "more dollars than sense" Morton v. Paradise Cove Property Owners Association, et al, (No. 11-08-0002-CV from Eastland Court of Appeals, on transfer from Beaumont Court of Appeals, opinion filed September 3, 2009): Property owner, Morton, brought lawsuit against Paradise Cove Property Owners Association (the "POA"), claiming they were allowing homes in violation of a deed restriction that prohibited more than single story buildings on waterfront lots. Morton claimed that because two property owners had utilized attic space the use was in violation of the single story restriction, even though, from the outside, the homes appeared the same as the other homes on the waterfront lots. Trial Court granted summary judgment against Morton. Morton appealed and the Court of Appeals affirmed the trial Court's judgment. The Court of Appeals wrote: "We conclude that the Shotwell and Hanson Homes comply with the one-story restriction because these homes appear to be one-story homes when viewed from the exterior. The fact that the owners of these homes chose to utilize a small portion of the attic space in the homes for use has no effect on the other property owner's view of the waterfront. Moreover, the remaining deed restrictions do not regulate the use of the interior of the homes in the subdivision with the exception that the homes be connected to an approved septic system. Accordingly, we conclude that the trial court did

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not err in determining that the Shotwell and Hanson Homes are one-story homes under the deed restrictions." In addition to paying her attorney over $80,000.00 in legal fees and costs, Morton was ordered to pay the POA's attorney's fees for trial and appeal, which were in excess of $60,000.00. Thus the "more dollars than sense" title.

The Humble Case: The case of the weekend rentals Bernard and Attaway v. Humble and Point Lookout Estates Property Owners Association, 990 S.W.2d 929, (Beaumont Court of Appeals, 1999, petition for review to Texas Supreme Court denied): another case from San Jacinto County where Bernard and Attaway attempted to rent their lake front properties as weekend rentals; Court of Appeals affirmed judgment in favor of property owners association that any rental for less than 90 days was a violation of the single family residential deed restrictions. Bernard and Attaway, who married during the litigation, eventually sold their lakefront homes and the subdivision has been a lot quieter since that time. CONSTITUTIONAL LAW The Nesloney Cases: The case of the "curiosity killed the cat(fish) searches" Nesloney v. State of Texas, 653 S.W.2d 582 (Houston Court of Appeals, 14th Distric, 1983): A Trinity County game warden wanted to search the home of Nesloney, a part-time commercial fisherman, because he, the game warden, watched Nesloney's home being constructed and saw fish tanks being constructed inside the home. Section 47.037 of the Texas Parks and Wildlife Code, first adopted in 1933, allowed law enforcement "to search for aquatic products" at any time and any place and allowed for a criminal prosecution if a person refused to allow the search. The Trinity County Court found Nesloney guilty of refusing the search and fined him $50.00. Nesloney was a hard-headed person who felt his rights had been violated and hired me on appeal. The Court of Appeals found the statute to be in violation of the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution, and reversed the conviction. The State of Texas appealed. Nesloney v. State of Texas, 711 S.W.2d 636 (Texas Court of Criminal Appeals, 1986): The Texas Court of Criminal Appeals agreed with the Houston Court of Appeals in finding that Section 47.037 of the Texas Parks and Wildlife Code, was in violation of the Fourth Amendment of the United States Constitution and Article 1, Section 9 of the Texas Constitution. The reversal of the conviction and the $50.00 fine by the Court of Appeals was affirmed. In 1987 the Texas Legislature amended Section 47.037 to allow the search only of commercial establishments and prohibits the search of a residence without a search warrant. The statute does not provide for a penalty for refusing the search, only states that "no person who possesses or handles aquatic products for commercial purposes may refuse" the search "during normal business hours". To my knowledge, no one has yet challenged the amended statute.

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