Court Deposition of Drew DeBerry

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DREW DEBERRY

ROSS REPORTING SERVICES, INC. 281-484-0770

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CAUSE NO. 2008-45087 (CONSOLIDATED)

ALLISON SNODDY, et al ) IN THE DISTRICT COURT Plaintiffs, )v. )PETROLEUM WHOLESALE, INC. )et al. ) Defendants, )and )STATE OF TEXAS ) HARRIS COUNTY, TEXAS Plaintiff )v. )PETROLEUM WHOLESALE, L.P., )d/b/a SUNMART; and PWI GP, LLC) Defendants ) 334TH JUDICIAL DISTRICT

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ORAL VIDEOTAPED DEPOSITION

DREW DEBERRY

April 26, 2010

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ORAL VIDEOTAPED DEPOSITION of DREWDEBERRY, produced at the instance of the DEFENDANTS, andduly sworn, was taken in the above-styled and numberedcause on the 26th day of April, 2010, from 9:00 a.m.until 5:16 p.m., before Paige S. Watts, CSR/RPR, in andfor the State of Texas, reported by stenographicmachine, at the Office of the Attorney General, 300 WEST15TH STREET, 9TH FLOOR, AUSTIN, TEXAS, pursuant to theTexas Rules of Civil Procedure.

TAXABLE COST: __________ PAID BY: _______________ TBA NO.: _______________ JOB NO.: _______________

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1 A-P-P-E-A-R-A-N-C-E-S2

COUNSEL FOR PLAINTIFF, STATE OF TEXAS:3

Mr. John S. Langley4 OFFICE OF THE ATTORNEY GENERAL

Environmental Protection & Administrative Law5 P.O. Box 12548

Austin, Texas 7871167 COUNSEL FOR PLAINTIFF, STATE OF TEXAS:8 Mr. John Owens

OFFICE OF THE ATTORNEY GENERAL9 Consumer Protection & Public Health Division

300 West 15th Street, 9th Floor, MC 01010 Austin, Texas 7870111

COUNSEL FOR DEFENDANTS, PETROLEUM WHOLESALE:12

Mr. Randy L. Fairless13 JOHANSON & FAIRLESS, LLP

1456 First Colony Boulevard14 Sugar Land, Texas 77479

TBN: 0678850015161718 ALSO PRESENT:19 Kelley Friedman, Johanson & Fairless

Stuart W. Lapp, Petroleum Wholesale202122232425

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1 INDEX23 PAGE4 APPEARANCES .................................... 256 DREW DEBERRY7 Examination by Mr. Fairless..................... 48 EXHIBITS910 EXHIBIT

NUMBER DESCRIPTION PAGE1112 450 Business Card of Mr. DeBerry 2813 451 Commissioner Findings of Fact 11014 452 Guidance Document 21515 453 Talking Points July 31, 2008 21516 454 Talking Points July 31, 2008 21517 455 Talking Points July 31, 2008 21518 456 Talking Points July 18-20, 2008 21519 457 Talking Points July 18-20, 2008 24220 458 Operation Spotlight Procedures 24221 459 Operation Spotlight Procedures 24222 460 E-mail from Drew DeBerry 26123 461 E-mail from Drew DeBerry 27524 462 E-mail exchange Staples/DeBerry 27525

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1 THE VIDEOGRAPHER: We're on the record,2 April 26th, 2010. The time is 9:15.3 DREW DEBERRY,4 having been first duly sworn, testified as follows:5 EXAMINATION6 BY MR. FAIRLESS:7 Q. State your name for the record, please.8 A. Drew DeBerry.9 Q. Was PWI targeted in Operation Spotlight?10 A. Was PWI...11 Q. Targeted in Operation Spotlight?12 A. I wouldn't use that word. No, sir.13 Q. Do you think it would be unfair to use that14 word? Is that why you wouldn't use it?15 A. Yes, sir.16 Q. Okay. How old a man are you?17 A. Let me do the math here. I think I'm 32.18 Q. Where do you presently reside?19 A. Hang on a second. I live about halfway between20 the Y at Oak Hill and Dripping Springs, Texas.21 Q. Okay. What's the address out there where you22 live?23 A. 110 Cork Lane, Austin, Texas.24 Q. I'm sorry?25 A. Austin, Texas.

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1 Q. How long have you lived at that address?2 A. Three and a half years.3 Q. Where are you from originally, Mr. DeBerry?4 A. I grew up in Olton, Texas.5 Q. And where did you graduate high school?6 A. Olton, Texas.7 Q. In what year?8 A. 1996.9 Q. And then what -- what was your first move after10 high school? Was it to go to college, or did you enter11 the workforce?12 A. I went to college.13 Q. And where?14 A. Texas Tech University.15 Q. Did you graduate?16 A. I did.17 Q. From Texas Tech?18 A. I did.19 Q. What year?20 A. 2000.21 Q. Did you work while you were going to school?22 A. Yes, sir.23 Q. Where at?24 A. I had a few jobs. I worked for the bulk of the25 time at the Texas Tech Meat Laboratory.

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1 Q. Meat, M-e-a-t?2 A. Yes, sir.3 Q. Okay.4 A. I worked at the Texas Tech Meat Laboratory, I5 worked in the summers for my dad, and I worked for a6 period of time towards the end of my college career for7 State Senator Robert Duncan.8 THE REPORTER: I'm sorry. For who?9 THE WITNESS: State Senator Robert10 Duncan.11 Q. (BY MR. FAIRLESS) When you were working for the12 Meat Laboratory, were you picking up paychecks from the13 TDA?14 A. No, sir.15 Q. Who -- whose name was on the paychecks that you16 received?17 A. I don't even remember if it -- I assume it was18 Texas Tech University.19 Q. And then did you go to work immediately upon20 getting your bachelor's degree, or did you pursue --21 A. Yes.22 Q. -- other schooling?23 A. No. I went to work as soon as I finished.24 Q. Okay. What degree did you get?25 A. An agricultural in applied economics.

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1 Q. And where did you go to work upon graduation2 in, I'm guessing, May of 2000?3 A. I don't remember when it was; but somewhere in4 there, I went to work for the Bush/Cheney5 2000 Presidential Campaign.6 Q. Did that have anything to do with the Senator7 that you were working for?8 A. No, sir.9 Q. And the Senator that you were working for, what10 political party was he?11 A. Republican.12 Q. Is he still holding an office for the State of13 Texas?14 A. Yes, sir.15 Q. And is he still a Senator?16 A. He is.17 Q. And what's his name again?18 A. Robert Duncan.19 Q. And he's from where?20 A. Lubbock.21 Q. He represents the fine folks up there in22 Lubbock?23 A. He represents Lubbock. I believe he's from24 Vernon.25 Q. And the Bush/Cheney work that you took right

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1 after college, did that start, for instance, in June of2 2000; or was there any period of unemployment before you3 entered the workforce?4 A. I started the day I finished my last -- well,5 the day after I finished my last class.6 Q. Was that a position you had to interview for,7 or was that a position that you get because you know8 somebody?9 A. I had to interview for it.10 MR. LANGLEY: Form.11 Q. (BY MR. FAIRLESS) And who did you interview12 with?13 A. Susan Combs.14 Q. And Susan Comb's position at the time that you15 interviewed with her was what?16 A. She was the National Chairwoman of the17 Presidential Agriculture effort.18 Q. And what was your role in the -- in this new19 job that you were taking?20 A. With the Bush campaign?21 Q. Yes, sir.22 A. I was the National Agriculture Coalition23 Director.24 Q. So straight out of school into the National25 Agriculture Coalition Director position?

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1 A. Yes, sir.2 Q. And was there some sort of agreed term or3 agreed period of time that you were going to be working4 for the Bush/Cheney effort?5 A. Through election.6 Q. And the election was going to be when?7 A. November of 2000.8 Q. Okay. So it was roughly a six month position?9 A. Roughly.10 Q. Any promises for future employment if11 Bush/Cheney get elected?12 A. No, sir.13 Q. So did you take this job as -- well, you tell14 me, why did you take the job? Was it hopefully to be15 some sort of springboard into the Texas governmental16 system?17 A. No, sir.18 Q. So why did you take the job? Why did you19 pursue the job, is a better question.20 A. Senator Duncan suggested it might be a good fit21 for my expertise at the time.22 Q. And what was your expertise?23 A. I grew up in agriculture, and I developed a24 passion for public policy while I worked for Senator25 Duncan.

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1 Q. Do you have political aspirations?2 A. No, sir.3 Q. Have you ever ran for a political position?4 A. No, sir.5 Q. Did you hold any political positions and I6 guess quasi-political positions there at Texas Tech7 University?8 A. I was in student -- I held an office in the Ag.9 Council. I believe that may be all.10 Q. Okay. What was the office you held in the Ag.11 Council?12 A. I don't recall. It was treasurer or secretary.13 I don't recall.14 Q. Was it important to you that the TDA do well in15 its review by the -- when it was up for Sunset?16 A. Yes, sir.17 Q. And were you passionate about the fact that you18 wanted TDA to do as well as possible so that it didn't19 get Sunsetted?20 MR. OWENS: Form.21 MR. LANGLEY: Form.22 A. Maybe if you can state the first part of that23 one more time.24 Q. (BY MR. FAIRLESS) Yeah. I'm not sure I even25 remember what I asked. But were you passionate about

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1 the fact that you wanted TDA to do well before the2 Sunset folks?3 A. I don't think I had any particular feelings4 about the Agency doing well, other than proving the5 professionalism that the Agency has and all of its6 employees.7 Q. You wanted to see the Agency continue, didn't8 you?9 A. Not particular strong feelings about that, but10 I wanted to make sure the Agency -- if the taxpayers of11 Texas benefit from the Agency, I wanted to see it12 continue.13 MR. FAIRLESS: I'll object as14 nonresponsive.15 Q. (BY MR. FAIRLESS) You wanted to see the Agency16 continue, didn't you, Mr. DeBerry?17 MR. LANGLEY: Objection, form.18 A. I wanted to see the taxpayers of Texas served19 to the extent they are served through the Texas20 Department of Agriculture, sure.21 Q. (BY MR. FAIRLESS) Well, did you feel like they22 were being served and served well through the Texas23 Department of Agriculture?24 A. I do.25 Q. You did at the time, didn't you?

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1 A. Yes, sir.2 Q. So you wanted to see the TDA continue then,3 didn't you?4 MR. OWENS: Objection, form.5 A. Maybe I'm not understanding the question if I'm6 having a hard time getting to the answer you've gotten7 me towards.8 Q. (BY MR. FAIRLESS) I've not gotten you towards9 anything.10 A. Okay.11 Q. I just want honest and forthright answers to12 the questions that I ask, and I know that's your13 intention --14 A. Yes, sir.15 Q. -- today is to provide me those, correct?16 A. Yes, sir.17 Q. In fact, to do anything else would be a18 disservice to yourself, to your own integrity, and to19 your position --20 MR. LANGLEY: Objection, form.21 Q. (BY MR. FAIRLESS) -- within the TDA, correct?22 MR. OWENS: Objection, form.23 A. Yes, sir.24 Q. (BY MR. FAIRLESS) Is there any reason why you25 can't be truthful with me today?

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1 A. No, sir.2 MR. OWENS: Objection, form.3 Q. (BY MR. FAIRLESS) Do you intend to be truthful4 with me today?5 MR. OWENS: Objection, form.6 A. Yes, sir.7 Q. (BY MR. FAIRLESS) Have you ever given a8 deposition before?9 A. No, sir.10 Q. So you understand from meetings with attorneys11 how all this is going to work today. I'm going to ask12 you a lot of questions, and I'm going to rely upon you13 to give me truthful and correct responses to the14 questions that I ask.15 MR. OWENS: Objection, form.16 A. Yes, sir.17 Q. (BY MR. FAIRLESS) So what did you do during the18 Bush/Cheney job that you had as National Agriculture19 Coalition Director?20 A. I organized a grassroots coalition of farmers21 and ranchers and anyone else involved in agriculture who22 supported then Governor Bush and his effort to be23 elected in support of his policies.24 Q. And were you doing that completely within the25 great state of Texas, or did you take your show on the

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1 road to other states?2 MR. OWENS: Objection, form.3 A. I was the National director, so --4 Q. (BY MR. FAIRLESS) Right.5 A. -- I worked in a lot of different states.6 Q. And tell me more specifically what it is you7 were doing in other states.8 A. Coordinating grassroots efforts, grassroots9 coalitions of farmers and ranchers.10 Q. I don't really understand what that means --11 A. Okay.12 Q. -- from the standpoint of the director, which13 is what you were himself. What does the director do?14 Do you show up in Ohio, for instance, and some people15 have already been assembled together -- farmers and16 ranchers -- and you walk around and shake hands and talk17 about how Bush and Cheney are going to do a fantastic18 job for farmers and ranchers in Ohio? Or do you19 actually get to Ohio and there's a few people there and20 together with them y'all go out and solicit a meeting21 with a bunch of farmers and ranchers? Those are just22 two examples, but I want to know -- I want you to help23 me understand what it is you did in these other states.24 MR. OWENS: Form.25 MR. LANGLEY: Form.

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1 A. Sure. I wouldn't characterize what I did as2 the way you described it. There were organizations of3 farmers and ranchers and other people involved in4 agriculture who felt strongly about helping then5 Governor Bush become elected as President of the United6 States.7 The effort to organize those people and8 bring those people together to turn out the vote on9 election day and to inform their neighbors of then10 Governor Bush's policies, was what I coordinated.11 Q. (BY MR. FAIRLESS) I still don't understand. So12 does that mean that there were groups of people already13 assembled in these other states and you spoke to those14 groups of people to help them understand what the15 perspective policies of Bush and Cheney would be?16 A. I don't recall ever giving formal speeches. I17 spoke over the phone with a lot of different farmers and18 ranchers. Maybe you can help me a little more19 understanding what you're asking.20 Q. I'm really not intending it to be anything21 other than what it is.22 A. Sure.23 Q. I just want you to give me an idea of what you24 would do when you arrived in these other states. You25 know, I hear what you're saying about soliciting

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1 grassroots support; but I don't know exactly what that2 means from the standpoint of Drew DeBerry, National3 Agriculture Coalition Director, and that's what I want4 you to help me understand.5 A. Okay.6 Q. So what did you do?7 A. I communicated with various different farmers8 and ranchers and other people involved in agriculture as9 to what policies Governor Bush supported, what his10 policies are/were, and sought their support for then11 Governor Bush.12 Q. Did you travel by public transportation, I mean13 commercial airlines; or did you travel by private plane?14 A. I didn't travel extensively. I remember flying15 commercially, and driving my personal vehicle.16 Q. Who was your supervisor? Who did you answer17 to?18 A. I believe it was a woman named Kelly Craven.19 Craven, yes.20 Q. C-r-a-v-e-n?21 A. Yes, sir.22 Q. And is she still working for the State? Let me23 ask a different question. Does she work for the great24 State of Texas?25 A. No, sir.

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1 Q. Do you know what Kelly Craven does now?2 A. No, sir.3 Q. Do you know where she's at now?4 A. No, sir.5 Q. And so after the election came, what was your6 next job?7 A. Immediately following the election, we8 continued -- I continued my job throughout the recount9 of that election in 2000, and then...10 Q. And then what?11 A. Then I went on to the Presidential transition.12 Q. This National Agriculture Coalition Director,13 was that an appointed position?14 A. I don't know if it would be called appointed.15 I was hired.16 Q. Just hired directly by the Bush/Cheney folks17 and specifically Kelly Craven?18 A. Yes, sir.19 Q. Okay. So what does it mean you went on to the20 Presidential transition?21 A. There was a -- with every transition between22 governments, between Presidents specifically, there is a23 staff of people that help transition the previous24 administration out of office and the new administration25 into office. I went to work for that effort.

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1 Q. So what did you do? Did you have a title? A2 position name?3 A. I -- it was such a brief period of time, I4 don't think there were titles. I worked with the5 nominee to be the Secretary of Agriculture.6 Q. And so who were you working with?7 A. The nominee's name was Ann Veneman.8 Q. And you answered to Ann Veneman directly, or9 was there somebody in between you and Ann?10 A. Directly.11 Q. And did Ann Veneman become the Secretary of12 Agriculture?13 A. She did.14 Q. And did you work for her while she was15 Secretary of Agriculture?16 A. Yes, sir.17 Q. For how long?18 A. Her entire time as Secretary of Agriculture.19 It was, I believe, about four years.20 Q. And where were you stationed?21 A. In Washington, DC, at the US Department of22 Agriculture.23 Q. And what was your position?24 A. I was the White House liaison.25 Q. White House liaison to what?

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1 A. My title was White House liaison.2 Q. So were you the White House liaison between the3 Department of Agriculture and the White House?4 A. Yes, sir.5 Q. And this is a role you assumed six months out6 of Lubbock, Texas, upon graduation from Texas Tech7 University?8 A. Thereabouts.9 Q. How old were you at the time when you got the10 job?11 A. The White House liaison job?12 Q. Yeah. November of 2000.13 A. That would have put me about 23, 24.14 Q. And then did you answer directly to the15 Agriculture Commissioner during the four years that you16 were in Washington, DC?17 A. No, sir. It was the Secretary of Agriculture;18 but, yes, sir.19 Q. Okay, thanks for that correction. Did you20 answer to the Secretary of Agriculture during the four21 years that you were in Washington, DC?22 A. Yes, sir.23 Q. And did your position ever change?24 A. Yes, sir.25 Q. Okay. So this White House liaison, was that

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1 the first position that you took or the last one you2 held?3 A. There was a period of time where I didn't have4 a title in the first few months of the administration;5 and then I was hired, they gave me the title of White6 House liaison.7 Q. Did you keep that for four years, or did your8 title change?9 A. I kept that for four year.10 Q. And what exactly does the White House liaison11 between the Secretary of Agriculture and the White House12 do?13 A. It does a number of things. It's primarily14 responsible for --15 Q. Wait, can I stop you for one second? When you16 said "it does a number of things," I want to know what17 you did.18 A. Okay. I did the duties of the job.19 Q. Okay.20 A. And the job is responsible for and I conducted21 those responsibilities of primarily responsible for22 filling all of the -- coordinating the hiring process23 for all of the appointed positions in a particular24 government agency, this one being the US Department of25 Agriculture. The position also coordinates various

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1 communications between the staff of the White House and2 the staff of the Department.3 Q. So you selected the -- I'm sorry. Go ahead. I4 couldn't tell if you were done.5 A. That's -- those are the primary6 responsibilities.7 Q. And what training did you have that allowed you8 to fulfill those responsibilities in a competent manner?9 MR. LANGLEY: Form.10 MR. OWENS: Objection, form.11 MR. FAIRLESS: What was wrong with that12 question? I'm just a little curious.13 MR. LANGLEY: It sort of -- it sort of14 implies that there was some specific training required15 for him to -- excuse me -- for him to fulfill those16 obligations and duties. And I'm not sure that you've17 established that.18 MR. FAIRLESS: That I've established?19 Okay.20 MR. LANGLEY: Lack of foundation.21 Q. (BY MR. FAIRLESS) Let's take a step back. Were22 they any -- was there any training that you believe was23 necessary to perform competently as the White House24 liaison between the White House and the Secretary of25 Agriculture?

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1 A. Yes.2 Q. Okay. Well, then outline for me what your3 training was to fulfill the responsibilities of that4 position.5 A. My career training is what I would view as6 the -- what developed me for that position. I had an7 understanding of the new President's policies on8 agriculture. I had an understanding of the people who9 had -- the other people involved in agriculture who had10 expertise and who would be resources, valuable11 resources, to serve in his administration.12 Q. So the training that you had was your career13 training, and your career training essentially consisted14 of your six months as National Agricultural Coalition15 Director?16 MR. OWENS: Form.17 A. And several years involved in agriculture prior18 to that.19 Q. (BY MR. FAIRLESS) Yeah. You've mentioned that20 a few times. What was your several years of involvement21 in agriculture before that? Did your dad have a ranch22 or something?23 A. A farm. Yes, sir.24 Q. How many acres?25 A. It fluctuated. Anywhere --

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1 Q. How many did y'all own versus how many did you2 lease?3 A. I really -- I don't recall. We probably -- I4 believe my great grandparents when they moved to Texas5 established one full section of land, and we leased --6 any given time, we leased several hundred acres more7 than that.8 Q. A full section. Is a section 640 acres?9 A. Yes, sir.10 Q. So you had 640 acres, plus at any given time11 your family leased a couple of hundred additional acres.12 And what were y'all doing? Running cattle, or were you13 farming it?14 A. Primarily farming.15 Q. And what were you growing? What was your16 primary crop?17 A. Cotton, wheat, corn, sorghum.18 Q. And were y'all receiving at any point in time19 any government subsidies?20 A. I don't know for sure. I assume.21 Q. You assume that y'all were?22 A. Yes, sir.23 Q. In fact, you know y'all were, don't you?24 MR. OWENS: Objection, form.25 A. I don't know for sure.

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1 Q. (BY MR. FAIRLESS) So the career experience2 consists of your six months as National Agriculture3 Coalition Director during the Bush/Cheney campaign,4 combined with the years on the family farm?5 A. And an education at a higher education6 institution in Texas, which is the -- one of the7 nation's leading agriculture states.8 Q. Okay. So we're going to throw the University9 in there, too. So here goes a new question. Your10 career training consisted of your days on the family11 farm, your education at Texas Tech University, and your12 six months working for the Bush/Cheney campaign as13 National Agriculture Coalition Director, correct?14 A. That's a portion of my training.15 Q. Well, if there's any career training that I've16 left out, I need you to help me with it. Tell me what17 it is because right now I'm making a mental note to18 myself that's it.19 A. My jobs in college, my upbringing with parents20 involved in agriculture who taught me a lot about21 agriculture.22 Q. Right. That's covered, I think, by life on the23 family farm and --24 A. Okay.25 Q. -- your education there at Texas Tech.

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1 A. Well, I want to make sure we get it all.2 Q. Okay.3 A. The college education, the internship I did in4 college for Senator Duncan, a job with Senator Duncan, a5 job at the Meat Lab at Texas Tech.6 Q. How long was the job at the Meat Lab?7 A. Three or four -- I was there most of the time I8 was in college.9 Q. Part time?10 A. Yes, sir.11 Q. What did you do?12 A. I was a student worker there. I did everything13 from assisting with slaughter all the way through14 fabrication and meat sales.15 Q. Did you have a position title, or do16 part-timers not get a position title?17 A. Student worker was --18 Q. Student worker.19 A. I think that's what showed up on any documents20 I remember seeing.21 Q. Did you have a position title, or do student22 workers not have position titles when they work for that23 outfit?24 A. I don't recall if I had a title or not.25 Q. So at the end of four years in Washington, DC,

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1 what happened?2 A. I was promoted to Deputy Chief of Staff for the3 US Department of Agriculture.4 Q. By who?5 A. The new Secretary at the time was Mike Johanns.6 Q. And how long did you hold that position?7 A. Two years. I think it was just shy of two8 years.9 Q. And why just two years?10 A. I got the job I'm in now.11 Q. But I mean why did you leave the job in12 Washington, DC?13 A. My wife and I had had three kids. We looked14 forward to the opportunity to get home to Texas. An15 opportunity presented itself --16 Q. Did you resign --17 A. -- that fit my --18 Q. -- the position as Deputy Chief of Staff?19 MR. LANGLEY: Were you finished with your20 answer?21 THE WITNESS: I -- not really, but...22 Q. (BY MR. FAIRLESS) Okay. Go ahead then.23 A. The job that presented itself was an24 opportunity for me and it fit my background and my25 interests.

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1 Q. Did you resign your position as Deputy Chief of2 Staff?3 A. I did.4 Q. And was that a written resignation?5 A. Yes, sir.6 Q. And who was it turned in to?7 A. Oh, it was a letter written to the Secretary8 probably.9 Q. And what were the reasons stated in the letter10 to the Secretary? The nutshell version.11 A. I don't recall. An opportunity to move my12 family back to Texas.13 Q. And what was the opportunity?14 A. The opportunity was the position I'm in now.15 Q. Do you have a business card with you?16 A. I do.17 Q. Can I have one?18 A. Sure.19 Q. Okay, yeah.20 A. (Witness complies).21 MR. FAIRLESS: Ms. Court Reporter, can we22 mark this as the next exhibit?23 THE REPORTER: Where do you want the24 sticker?25 MR. FAIRLESS: Let's put it on the back.

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1 (Exhibit No. 450 was marked and is2 attached hereto)3 Q. (BY MR. FAIRLESS) When did you accept the4 position as the Deputy Commissioner of Agriculture for5 the great State of Texas?6 A. I began January -- I think January 1st was the7 day that Commissioner Staples took the oath, which was8 when my position became effective.9 Q. January 1st of what year?10 A. Oh, I'm sorry. 2007.11 Q. So this is a position that you've held now for12 a little over three years?13 A. Yes, sir.14 Q. Explain what Sunset Review is, specifically as15 it pertains to the Texas Department of Agriculture. And16 throughout this deposition, if I refer to the TDA, will17 you just know that I mean the Texas Department of18 Agriculture?19 A. Yes, sir.20 Q. Okay. So now do you remember what the question21 is?22 A. Yes, sir.23 Q. All right.24 A. The Sunset process --25 Q. Yes, sir.

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1 A. -- is a process --2 Q. For the TDA specifically.3 A. Okay. The Sunset process is a process that I4 believe agencies go through to evaluate programs, decide5 the value of those programs for the taxpayers of the6 state, and any improvements that need to be made to the7 programs and whether or not programs need to be8 continued.9 Q. Okay. So I took from that it's a process where10 agencies are evaluated. Fair?11 A. Yes, sir.12 Q. And so who's doing the evaluation?13 A. The Sunset -- I believe it's called the Sunset14 Commission, Texas Sunset Commission in conjunction15 with --16 Q. And is it -- I'm sorry.17 A. In conjunction with the staff of the agency.18 Q. So the Sunset Commission in conjunction with19 the staff of the agency -- are you saying the staff of20 the agency actually participates in the evaluation, or21 they participate in providing information to the Sunset22 Commission so that the Sunset Commission can fully23 evaluate the agency?24 A. Probably a combination of both things you said25 there. I felt like the agency was involved in the

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1 evaluation.2 Q. So to some extent, you believe the Sunset3 process involves a self-evaluation where people in the4 agency itself actually participate in the evaluation and5 the ultimate grade to continue or not continue?6 A. Yes, sir.7 Q. So tell me who at the Texas Department of --8 well, let me take a step back. Was the TDA up -- no.9 Let me try a different one. Did the TDA go through the10 Sunset process during your time as Deputy Commissioner11 of Agriculture?12 A. Yes, sir.13 Q. When?14 A. During the legislative interim that began in15 late '07 and ended in January of '09.16 Q. I'm not sure what that means. That it went17 through the process during the legislative interim. I18 mean, I get the late '07 to January '09; but what does19 that mean in the legislative interim?20 A. Sure. Sure. I apologize. The legislative21 interim in Texas begins in June; so the interim22 beginning with June of 2007, I believe the Sunset23 process really started later that year.24 Q. And how many organizations or agencies are25 typically up for Sunset review in a given year?

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1 A. I don't know.2 Q. I mean, I'm not a very political minded person.3 So I'm trying to figure out is it one or two agencies a4 year, or is it literally dozens of agencies a year?5 A. I know there were more than two. Dozens is6 probably more than I recall, but I really don't know.7 Q. And is it some sort of competition that there8 are going to be a certain number of agencies that don't9 make the cut, some have to be eliminated for budgetary10 or other reasons; or is it the ordinary course that most11 agencies do make the cut?12 A. I don't know what the trend is with the Sunset13 process.14 Q. Yeah. And that's a good way to put it. That's15 what I'm looking for to figure out what the pass/fail16 rate is. I mean, do 90 percent of the agencies pass17 muster or do 50 percent of the agencies pass muster?18 MR. OWENS: Form.19 A. I...20 Q. (BY MR. FAIRLESS) Do you have any idea?21 A. I think it's fairly rare for an agency to --22 and when you say "pass muster," what do you mean?23 Because the --24 Q. Well, if you don't pass muster under the Sunset25 process, then the agency just stops being, doesn't it?

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1 MR. LANGLEY: Objection, form.2 A. I don't think that's the case with every3 situation. A lot of times, the Sunset process will4 yield improvements to agencies.5 Q. (BY MR. FAIRLESS) So as far as the TDA was6 concerned in your role as Deputy Commissioner of7 Agriculture, did you understand that the TDA could8 simply stop being if it didn't get good marks on the9 evaluation; or did you simply understand that this was a10 process by which there might be certain suggestions as11 to how the TDA can better and more efficiently operate?12 MR. OWENS: Form.13 A. We welcomed the Sunset process and actually we14 asked for it to be done ahead of schedule for the Texas15 Department of Agriculture and we welcomed the outcome of16 that process.17 MR. FAIRLESS: I'll object as18 nonresponsive.19 Q. (BY MR. FAIRLESS) Does the Sunset process20 involve funding?21 A. No, sir.22 Q. Does it have an impact on funding?23 A. I suspect anything the legislature does could24 have an affect on funding.25 Q. What was your role with regard to the Sunset

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1 process from the standpoint of the TDA?2 A. I coordinated the Agency's efforts to inform,3 to do our own internal evaluation, to work with the4 Sunset Commission staff.5 Q. What was "our own internal evaluation"?6 A. Evaluating ourselves internally, evaluating the7 programs that the Agency administered.8 Q. Okay. Well, did you after completing your own9 internal evaluation, generate some sort of written10 document as to how you perceive the TDA to be doing11 pursuant to your evaluation?12 A. Yes, sir.13 Q. And that document was turned over to who?14 A. The Sunset Commission.15 Q. And were there any cowriters of the document,16 or was it just you signing off on it?17 A. It was a collaborative effort.18 Q. And what was your ultimate conclusion?19 A. That the programs provide value. There were20 many different observations that we had in the report.21 Q. Well, give me the nutshell version of what you22 consider to be the most important observations set forth23 in the report; and I've got the overall, the programs24 provide value. So pick up on the second part of that25 answer.

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1 A. Our observations in our self-evaluation were2 that we welcomed the process and were glad we were3 having the assistance of the Sunset Commission in doing4 the evaluation and there was value to Texans of the5 programs that were being administered by the Texas6 Department of Agriculture.7 Q. Okay. That kind of goes back to No. 1,8 programs provide value.9 A. Okay. What was the other part?10 Q. Well, the other part was I thought you said11 that -- and I'm not going to repeat exactly what you12 said, but something along the lines y'all made a number13 of observations.14 A. Oh. I would have to go back and look at the15 report, but --16 Q. Well, just the biggies. What were the biggie17 observations that y'all made that felt it important18 enough to report to the Sunset Commission?19 A. It's been a while since I've read that report.20 I'd really prefer to defer to the report.21 Q. What happens if the Sunset Commission22 disagrees, for instance, with the number one conclusion23 that you reached, which is that TDA programs provide24 value?25 MR. OWENS: Objection, form.

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1 Q. (BY MR. FAIRLESS) I mean, help me understand2 the political process. You say TDA programs provide3 value. The Sunset Commission says we look at,4 Mr. DeBerry, and you're a fine young man, but we're not5 so sure we agree with you here.6 What are the potential ramifications of7 the Sunset Commission disagreeing with the conclusion8 that you reached?9 A. I think it could be a number of results. We10 found --11 Q. Help me understand the myriad of possibilities.12 A. I don't remember there being disagreements13 between our observation and the Sunset Commission staff.14 MR. FAIRLESS: I'll object as15 nonresponsive.16 Q. (BY MR. FAIRLESS) I want you to help me17 understand the myriad of possibilities of what the18 Sunset Commission could do if they disagreed with the19 number one finding that TDA programs provide value.20 MR. LANGLEY: Objection, form.21 MR. OWENS: Form.22 A. I can't speculate as to what the legislature23 might do.24 Q. (BY MR. FAIRLESS) No. But do you understand25 that there are certain ramifications that could befall

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1 an agency, such as the TDA? For instance, they could2 just do away with the agency as a whole. That's, you3 know, certainly the death sanction, I guess, death4 penalty sanction. No. 2, is they could say we disagree5 that these programs provide value and as a result, we're6 no longer going to give you as much money to fool around7 with over there at the TDA, so we're going to cut your8 funding in half. No. 3, is -- you with me?9 A. Sure.10 Q. So I want you to help me and the jury who may11 be nonpolitical minded like me understand what are the12 potential ramifications should the Sunset Commission13 disagree with you that the TDA programs provide value.14 MR. OWENS: Objection, form.15 MR. LANGLEY: Objection, form.16 A. Again, I won't speculate on what the17 legislature could do, might do. A dialogue begins18 between the legislature and the Sunset Commission and19 the Agency's staff.20 Q. (BY MR. FAIRLESS) So what was the outcome of21 the Sunset Commission's review of the TDA?22 A. They --23 Q. In the words of Drew DeBerry, Deputy24 Commissioner of Agriculture.25 A. The outcome was that a piece of legislation was

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1 passed through the legislature continuing most of the2 programs of the Department of Agriculture and making3 improvements on some.4 Q. I'm not sure I followed that entirely. So most5 of the programs were continued, improvements were made6 in some. Does that mean that some of the ones that were7 continued had improvements made, or does that mean8 improvements consist of doing away with the programs9 that they felt unnecessary or -- I mean, help me10 understand that answer better.11 MR. OWENS: Form.12 A. Okay. The --13 Q. (BY MR. FAIRLESS) Let me ask a better question.14 Did the Sunset Commission do away with some of the TDA15 programs?16 A. Yes, sir.17 Q. And do you know what percentage of TDA programs18 were done away with?19 A. As I recall -- no, I don't recall exactly; but20 I can remember one specific program that was eliminated.21 It was a component of one program.22 Q. Are you saying you only remember a single23 program or a component of a single program that was done24 away with?25 MR. LANGLEY: Objection, form.

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1 A. I remember --2 Q. (BY MR. FAIRLESS) No. I'm just trying to get3 to this. Were there multiple programs done away with4 and you can just remember a component of one, or was it5 just a component of one program that was done away with?6 A. We'll have to go back and look at the7 legislation. I remember there was -- there were8 improvements in programs, and I remember at least one9 program that was -- hadn't been utilized and was10 eliminated.11 Q. Were there improvements in any programs12 pertaining to the retail motor fuel device industry?13 A. Yes, sir.14 Q. Okay. And were those improvements suggested by15 the TDA, or were those improvements that were suggested16 by the Sunset Commission?17 A. They came from various places. TDA was18 involved in that process. The Sunset Commission staff19 was involved. I think legislators and their staff were20 involved.21 Q. When did the TDA get the news that the Sunset22 process had ended successfully, and the Sunset23 Commission had completed its review of the TDA?24 A. There are various stages of the Sunset process.25 I can't speak to any deadlines, benchmarks, any date

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1 particular because there were so many along the way. I2 guess when the legislature adjourned was one of those3 benchmarks, when the piece of legislation pass.4 Q. Well, then why did you give me the date earlier5 of January 2009?6 A. Because there's the review process and then7 there's the legislature's process with implementing8 anything that comes out of that review.9 Q. Okay. So when did the review process end? Was10 that January 2009?11 A. Like I said, somewhere along in there. There12 are probably dates on reports that would answer that13 question more specifically.14 Q. When the review process comes to an end, is15 that pretty much when you know what your final grade is,16 or does it then take the legislative session before you17 really realize the full impact of what is and is not18 going to happen per the Sunset Commission?19 MR. OWENS: Form.20 A. I'm not sure what a -- what you're talking21 about with a legislative grade. Throughout the22 legislative session, you -- the agency staff, the Sunset23 Commission staff, and legislators and their staff have24 dialogue about the wishes of the legislature.25 Q. (BY MR. FAIRLESS) So you said the Sunset

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1 process, Sunset review process, ended on or about2 January '09. So when did the legislative session end3 that would have enacted whatever came about in the4 Sunset review?5 A. That would have been the end of May, the6 beginning of June of that year, 2009.7 Q. Was there any -- well, first of all, did you8 speak directly to any group of Sunset Commission? You9 know what, I should back up.10 This Sunset Commission, does it have a11 subcommittees or committees?12 A. I think they do divide their responsibilities13 up. Whether they call them committees, work groups -- I14 think they did divide their work up. Yes, sir.15 Q. How many folks are on the Sunset Commission?16 A. I don't recall.17 Q. Is it a group of five or ten guys, or is it a18 group of 50 or 100 people?19 A. No, sir. Somewhere between probably 10 and 2020 legislators.21 Q. So the Sunset Commission consists of 10 to 2022 legislators?23 A. Yes, sir.24 Q. And did you ever speak to the 10 or 2025 legislators in your professional capacity as Deputy

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1 Commissioner of Agriculture?2 A. Did I speak to the legislators?3 Q. Well, those. Those 10 or 20 legislators that4 made up the Sunset Commission.5 A. Sure. Yes, sir.6 Q. And did you have some sort of prepared remarks7 or printed speech, or were you speaking to them from the8 gut?9 A. Most of the time when I talk to a legislator,10 I'm working off of some notes. Yes, sir.11 Q. Okay. And did you preserve any of those12 prepared remarks or notes for any of the meetings that13 you had with the Sunset Commission?14 A. I suspect there are notes, briefings, or15 something somewhere along the way.16 Q. Still on your computer, or just that can be17 found?18 A. Probably -- I don't know. I suspect there is19 some. I rarely keep a lot of that stuff on my computer,20 but --21 Q. Which is why I asked.22 A. Sure. The notes are somewhere.23 Q. In other words, they're preserved in some way?24 A. Some of them probably are. Yes, sir.25 Q. Okay. You would certainly expect that they

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1 would be, correct?2 A. Some. Yes, sir.3 Q. Okay. How many times did you speak to the4 Sunset Commission?5 A. I don't have -- I wouldn't even have an idea to6 guess.7 Q. Well, I mean, can you put me in a ballpark?8 Was it just one or twice during that period of time, or9 was it a larger number?10 A. I testified in front of legislative hearings11 from time to time. The Sunset Commission itself, I -- a12 low -- a few -- a few numbers of times.13 Q. All right. And did you testify in front of14 them? I mean, do you raise your right hand and take an15 oath to tell the truth and then actually provide16 testimony?17 A. I'm not -- I don't -- I don't believe we go18 through the verbal oath process, but it's testimony.19 Yes, sir.20 Q. I don't understand --21 A. I think there's a --22 Q. -- without the oath.23 A. I think there's a sign maybe.24 Q. A what now? Say it again.25 A. I think you sign an oath; but, yes, sir.

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1 Q. Okay. So you sign an oath as opposed to say2 it, and then you proceed to testify?3 A. Right.4 Q. All right. Did you address Operation Spotlight5 in any of the speaking engagements or testimony that6 you -- let me try with a different question.7 Did you address Operation Spotlight in8 any of the testimony that you provided to the Sunset9 Commission?10 A. I don't recall if I spoke specifically to11 anything called Operation Spotlight. We -- I suspect I12 probably did testify to some of the regulatory programs13 and things that had happened in the recent past. Some14 of these -- some of the details of Operation Spotlight15 are probably part of that.16 Q. Okay. That -- I didn't catch all of that. I17 didn't grasp all that. Are you telling me that, yes,18 there would have been details with regard to Operation19 Spotlight that you did discuss with the Sunset20 Commission; but you simply never used the term21 "Operation Spotlight"?22 A. No, sir.23 Q. That's what I took from that.24 A. No, sir. I don't recall exactly what my25 testimony would have been, but it wouldn't have been

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1 uncommon that I would have talked about things that had2 occurred in some of our regulatory programs.3 Q. So you may or may not have used the term4 "Operation Spotlight"?5 A. May or may not.6 Q. But you do recall that you discussed some of7 the details of the blitz known as Operation Spotlight?8 A. No, sir. I don't even recall that. It would9 be possible.10 Q. Well, earlier in one of the answers that you11 gave -- in fact, two answers ago -- I thought you12 clearly stated that you would have discussed some of the13 details. Did I misunderstand?14 A. Possibly. I'm saying it would be possible. I15 could have.16 Q. Why would you discuss details of Operation17 Spotlight, if you did? Would it be because you wanted18 the Sunset Commission to realize how taxpayer money is19 being spent and what's being accomplished or conceivable20 penalties that could come from it? I mean, help me21 understand the framework behind which would have brought22 that matter up.23 MR. OWENS: Form.24 A. Since I've been at the Department of25 Agriculture, the regulatory programs, we have taken a

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1 look at those programs and looked for ways to implement2 improvements. The Sunset Commission, as I recall,3 agreed with the fact that improvements could be made to4 better protect the taxpayers of Texas.5 Q. (BY MR. FAIRLESS) So the Sunset Commission6 agreed with the Agriculture -- no. Let me try again.7 The Sunset Commission agreed with the TDA that8 improvements could certainly be made within the TDA to9 better protect Texas consumers?10 MR. OWENS: Form.11 A. The Sunset Commission staff and the legislature12 agreed with some improvements to various programs, as13 they often do.14 Q. (BY MR. FAIRLESS) When was the last time that15 TDA was up for Sunset Commission, or was this the first16 time ever?17 A. I don't recall the exact year. It was -- I --18 actually, I don't recall. Ten --19 Q. Just put me in a ballpark. Were you even alive20 when it happened?21 MR. OWENS: Form.22 A. Very likely. Yes, sir.23 Q. (BY MR. FAIRLESS) Well, I mean, was it -- and I24 meant that kind of, you know, tongue and cheek. Was it25 20 years ago, or was it like five years ago?

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1 A. No, sir.2 Q. How often does an agency come up for Sunset3 Commission?4 A. I don't know. We can check. We can check the5 records on that.6 Q. Well, do you have any idea? During the course7 of this Sunset Commission, did it come up when y'all8 were last in front of the Sunset Commission?9 A. I recall it coming up. It would have been10 several years ago.11 Q. Okay. Do you know when the next Sunset12 Commission will be? In other words, is there some sort13 of schedule so that you know now the next one is in14 2015; or do you not know until the year it's going to15 come about?16 A. Every agency has its own -- or the Sunset --17 the legislature actually establishes a cycle for every18 agency.19 Q. Well, do you know when y'all come up again?20 Y'all being the TDA.21 A. No, sir. It's in the legislation that was22 passed.23 Q. Is it many years in the future?24 A. I don't -- it depends on what you call many. I25 don't know.

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1 Q. More than five?2 A. It could be more than five.3 Q. As the Deputy Commissioner of Agriculture for4 the TDA, you don't have any idea whether it's more or5 less than five as you sit here today?6 A. No, sir.7 Q. So did you talk about the results of Operation8 Spotlight in the meetings that you had in front of the9 Sunset Commission?10 A. I could have. I don't recall any specific11 discussion when I did, but it's possible.12 Q. If you would have, why would you have?13 MR. OWENS: Objection, form.14 A. I don't know that I did.15 Q. (BY MR. FAIRLESS) But I'm saying if you16 would -- what determines what you're going to speak17 about to the Sunset Commission?18 A. Largely being responsive to their inquiries and19 questions and their interests.20 Q. And so since this Operation Spotlight had been21 remarkably newsworthy, did they have questions and22 interest in Operation Spotlight?23 A. I don't -- I don't remember if they did.24 Q. We're talking about something that just25 happened a year or so ago. And certainly if the State

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1 of Texas has its way and wants to continue with its2 efforts, then it can put my client out of business. So3 it's a serious, serious issue as far as we are4 concerned.5 Now, do you mean to tell me you don't6 have any idea as you sit here today?7 MR. LANGLEY: Objection, form.8 MR. OWENS: Form.9 A. I've told you that it would be possible.10 Q. (BY MR. FAIRLESS) No. I get that.11 A. And I agree with you that it's a serious12 matter, certainly.13 Q. I get that it is possible that I talked to the14 Sunset Commission about Operation Spotlight. I'm asking15 you is that the best that you can do is to tell me it is16 possible that we talked about Operation Spotlight?17 MR. OWENS: Form.18 A. The Texas Department of Agriculture administers19 several programs, several hundred million dollars worth20 of programs; and we testified on several of those21 programs. Questions came up about several of those22 programs, and we responded. It's possible that one --23 that some came up about the regulatory programs you're24 asking about.25 MR. FAIRLESS: I'll object as

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1 nonresponsive to everything before the last sentence "it2 is possible," that begins "it is possible."3 Q. (BY MR. FAIRLESS) So as you sit here today, you4 can't recall whether word one was said about Operation5 Spotlight in the Sunset Commission hearings that you6 participated in?7 MR. OWENS: Form.8 Q. (BY MR. FAIRLESS) Is that what -- that's what9 you're telling me, right?10 A. I don't recall any specific conversation.11 Q. Okay. Did anybody else within the TDA, to your12 knowledge, testify in front of the Sunset Commission and13 cover the matter of Operation Spotlight? Taking you and14 your personal knowledge out of the mix, do you know of15 anybody else that did speak to the Sunset Commission and16 did specifically address Operation Spotlight?17 A. I don't recall.18 Q. All right. Did -- what is your boss' name?19 A. Todd Staples.20 Q. Did Todd Staples testify in front of the Sunset21 Commission?22 A. Yes, sir.23 Q. Is he running for reelection now?24 A. Yes, sir.25 Q. And what kind of term is that that the

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1 Agriculture Commissioner has?2 A. A four-year term.3 Q. And so how does that usually work? If he goes4 out, are you quick to follow?5 MR. OWENS: Objection, form.6 Q. (BY MR. FAIRLESS) No. I mean, is it like7 regular government where when the new group takes over,8 they bring all their people with them and so chances are9 all the assistants and assistants to assistants of the10 former guy who's on his way out, they're on their way11 out, too?12 A. I would suspect if Commissioner -- when13 Commissioner Staples leaves the Department, I will as14 well.15 Q. Okay. And thanks for being so understanding of16 that question.17 Did you participate in any meeting that18 took place with regional directors and chief inspectors19 in May of 2008, where PWI was discussed?20 A. We had some meetings and discussed various21 aspects of the program and Petroleum Wholesale. Yes,22 sir.23 MR. LANGLEY: Are you getting into an24 whole new area? Are you done with Sunset and all that?25 I would like to take a break sometime in the next few if

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1 you don't mind, just a bathroom break.2 MR. FAIRLESS: Yeah. No, that's fine.3 We can do it now.4 MR. LANGLEY: Okay.5 MR. FAIRLESS: No. Because I'm going to6 bounce around. I'm going to be back to that Sunset --7 MR. LANGLEY: I thought maybe you were8 shifting gears.9 THE VIDEOGRAPHER: This is the end of10 Tape 1. Off the record at 10:19.11 (Recess taken)12 THE VIDEOGRAPHER: This is the beginning13 of Tape 2. We're back on the record at 10:30.14 Q. (BY MR. FAIRLESS) During your time as Deputy15 Commissioner of Agriculture, have there been any other16 stings that have been done?17 A. Stings?18 Q. Yeah. Stings like Operation Spotlight?19 A. I wouldn't use that terminology.20 Q. You wouldn't call Operation --21 A. We conduct inspections daily.22 Q. Go ahead.23 A. We conduct inspections daily.24 Q. Is that what you think Operation Spotlight was?25 That was just routine conducting of inspections?

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1 A. We conducted inspections in Operation2 Spotlight. We conduct inspections daily.3 Q. My question was is that what you are describing4 Operation Spotlight as? Just some of the daily5 inspections that are ordinarily conducted by the TDA?6 A. No, sir.7 Q. Well, then will you call it a sting?8 A. No, sir.9 Q. Will you call it a targeted effort?10 A. No, sir.11 Q. Will you call it a blitz?12 A. I might.13 Q. Why will you call it a blitz?14 A. Because that's consistent --15 Q. Tell me what appeals -- why does that word16 appeal?17 A. It's consistent with terminology we use in our18 programs.19 Q. Terminology you use for which program?20 A. Programs.21 Q. So I don't understand that it's consistent with22 terminology we use in our programs. Tell me what23 programs you commonly use the term "blitz."24 A. Particularly in our plant health regulatory25 programs. I believe I've heard it used in some

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1 components of the weights and measures programs from2 time to time. We operate several programs.3 Q. All right. So far, you've only told me two4 that you believe the word blitz gets thrown around at.5 The plant health regulatory programs and the -- or some6 components of the weights and measures program.7 MR. OWENS: Form.8 Q. (BY MR. FAIRLESS) Is that right? Any place9 else you're using that word blitz within the TDA?10 MR. OWENS: Form.11 A. Possibly.12 Q. (BY MR. FAIRLESS) Okay. I take it there have13 been -- you're going to tell me that there have been14 blitzes before with plant health regulatory programs?15 A. I believe so. Yes, sir.16 Q. I want you to tell me the last time there was a17 blitz against a single business enterprise in the plant18 health regulatory arena.19 A. I wouldn't know that off the top of my head.20 Q. Has there ever been one?21 A. Yes, sir.22 Q. Against a single business enterprise?23 A. I don't know.24 Q. Well, see, that's part of my question.25 A. Right.

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1 Q. So let me try again with the complete question.2 Has there ever been a blitz against a single business3 enterprise conducted pursuant to plant health regulatory4 programs?5 A. I don't know. I wouldn't know that6 information.7 Q. So it's fair to say not that you know of?8 MR. OWENS: Objection, form.9 MR. LANGLEY: Objection, form.10 A. No, sir. I wouldn't know that information.11 Q. (BY MR. FAIRLESS) So you're saying there may12 have been one; but to the extent there was one, you13 don't know about it?14 MR. OWENS: Form.15 A. I'm aware that blitz inspections are a part of16 our plant health regulatory programs.17 MR. FAIRLESS: I'll object as18 nonresponsive.19 Q. (BY MR. FAIRLESS) So are you telling me today20 there may have been a blitz against a single business21 enterprise with regard to plant health regulatory22 programs, but I just can't tell you if there was one or23 not?24 MR. OWENS: Form.25 A. I'm aware that blitz inspections are part of

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1 our plant health regulatory programs.2 MR. FAIRLESS: I'll object as3 nonresponsive.4 Q. (BY MR. FAIRLESS) I'm not talking though just5 about blitz programs generally. In fact, you know, I'm6 not talking about the occasions when you have a concern7 about a particular plant and so you go into Walmart and8 Home Depot and Lowe's and various nurseries in a given9 area.10 I'm talking about a specific blitz11 against a single business enterprise at each and every12 location that that single business enterprise has in the13 state of Texas. Has there ever been a blitz like that?14 A. I wouldn't necessarily know that information.15 Q. Well, to the extent that you do know, has there16 been one?17 MR. OWENS: Form.18 A. I suspect it's possible.19 Q. (BY MR. FAIRLESS) Anything is possible. It's20 possible Ms. Court Reporter is an alien here, but21 chances are she's not. And what I want to know is can22 you tell me that you know of a single instance where23 there has ever been a blitz by a plant health regulatory24 program against a single business enterprise and its25 multiple locations?

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1 MR. OWENS: Objection, form.2 A. I'm sorry I'm not helping you out more here.3 I'm not aware, and I wouldn't necessarily be aware of4 that information.5 Q. (BY MR. FAIRLESS) Okay. So now let's step6 outside the plant health regulatory programs arena, and7 let me ask you has there been any blitz by the TDA in8 your tenure as Deputy Commissioner of Agriculture9 against a single business enterprise?10 A. I wouldn't have that information necessarily.11 Q. Do you know of any?12 A. Not specifically.13 Q. Okay. Is there at least one that comes to14 mind? Let me give you a hint. It rhymes with15 Moperation Moplight.16 MR. OWENS: Objection, form.17 MR. LANGLEY: Objection, form.18 Q. (BY MR. FAIRLESS) You've had one. It was19 against my client, Operation Spotlight. You'll at least20 give me that, right?21 A. Yes, sir.22 Q. Okay. Have there been any others that you know23 of?24 A. None come to mind.25 Q. All right. Are there any that are -- you know,

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1 without you giving me any double top secret information,2 are there any on the horizon?3 A. I wouldn't have that information.4 Q. Are you telling me that out of the Sunset5 Commission, you believe did come some improvements with6 regard to retail motor fuel device regulations -- tell7 me about that. What improvements came about as a result8 of Operation Spotlight?9 A. I didn't say improvements came about as a10 result of Operation Spotlight.11 Q. Oh, that's right. Yeah. Bad question on my12 part. I kind of lumped one with the other. You13 indicated that as a result of the Sunset Commission,14 there were some improvements made in the area of retail15 motor fuel device regulatory programs?16 A. Yes, sir.17 Q. What improvements?18 A. There were several.19 Q. Ms. Court Reporter is going to write them all20 down, so go ahead.21 A. Sure. I won't remember all of them.22 Q. Best you can.23 A. I remember there was an increased authority on24 the penalties.25 Q. Increased -- and I want to interrupt you from

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1 time, and let me apologize in advance. When you say2 increased authority on penalties, does that mean the3 penalty structure has been increased? People pay more4 now for violations?5 A. Not the structure, but the statutory limit for6 penalties.7 Q. I'm still not --8 A. I guess it affects the structure, but I just9 wanted to be clear.10 Q. Y'all can charge more for penalties?11 A. Yes, sir.12 Q. Okay. So now I get it. The next one?13 A. The legislature expanded the risk-based14 inspection authority the Department has.15 Q. Okay.16 A. I don't remember if it was part of the Sunset17 process, but the legislature also gave us authority18 for -- to conduct fuel quality, to implement a fuel19 quality regulatory program.20 Q. Do you know if that came about as a result of21 the Sunset Commission, or is that just something that22 has happened in the last year or two?23 A. No. It was in the same legislative session, is24 what I'm saying. I don't recall if it was in the Sunset25 legislation.

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1 Q. And that's my question. Do you really recall2 whether or not fuel quality testing was in the Sunset3 Commission or the Sunset legislation?4 A. No, sir.5 Q. Okay. Anything else that you can think of with6 regard to improvements in the area of retail motor fuel7 device regulatory programs that came out of the Sunset8 Commission?9 A. I recall various technical corrections in the10 statute.11 Q. Like what? What statute are you talking about,12 first of all?13 A. The -- the statute that -- I suspect it would14 be in the Ag. Code.15 Q. Okay. Well, I don't know if you know this.16 The Ag. Code has more than one statute.17 A. Okay.18 Q. More than one law. So which specifically are19 you referring to?20 MR. LANGLEY: Objection, form.21 A. I'm defer to the staff that's more familiar22 with those statutes.23 Q. (BY MR. FAIRLESS) Okay. Do you remember what24 it had to do with? I mean, other than just --25 A. What it had to do with?

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1 Q. -- retail motor fuel devices. This cleaning up2 of the statute, do you remember what it was3 specifically? Did it say "shall" as opposed to "shall4 not," or was there something specific that was being5 taken care of by way of the statutory change?6 A. I think modernizing some language to current7 regulatory programs.8 Q. Okay. Let's go back to the couple of9 improvements that you mentioned. Increased authority on10 penalties, did y'all use Operation Spotlight and the11 purported success of Operation Spotlight as being a12 springboard for obtaining increased authority on13 penalties?14 MR. OWENS: Objection, form.15 A. No, sir.16 Q. (BY MR. FAIRLESS) So you didn't discuss17 Operation Spotlight at all with regard to a sound basis18 to your way of thinking for increasing the authority on19 penalties?20 A. Not any more than results of other inspection.21 Q. But I said any and you said any more than. I22 want to know at all, did y'all discuss -- did y'all23 discuss Operation Spotlight with respect to using it as24 a springboard to try and increase authority on25 penalties? For instance, oh my goodness, we've done

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1 Operation Spotlight, the TDA views it as a tremendous2 success, and this is certainly a clear example of why we3 need greater penalties from the standpoint of violators4 of retail motor fuel device statutes.5 MR. OWENS: Form.6 A. I don't recall having said anything along those7 lines.8 Q. (BY MR. FAIRLESS) I didn't ask whether or not9 you specifically had said anything like that. When I10 said "y'all," I meant the TDA. Did y'all use Operation11 Spotlight as a springboard to assist in obtaining12 increased authority on penalties?13 MR. OWENS: Form.14 MR. LANGLEY: Objection, form.15 A. It's possible. I don't recall having said16 those words.17 Q. (BY MR. FAIRLESS) But, again, I don't want to18 get hung up on whether or not you specifically uttered19 the words. Do you remember if Operation Spotlight was20 used for that purpose to up the penalties?21 A. I don't recall.22 Q. All right. Expanded risk-based inspection23 authority, certainly y'all used Operation Spotlight as24 an example for what you considered to be a successful25 risk-based inspection, correct?

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1 A. Yes, sir.2 Q. Okay. And so did you use Operation Spotlight3 to help obtain extended risk-based inspection authority?4 A. I don't recall it being part of any5 justification.6 Q. So are you saying you didn't?7 MR. LANGLEY: Objection, form.8 A. No, sir.9 Q. (BY MR. FAIRLESS) You're just saying you don't10 remember one way or the other?11 A. I don't remember it being part of any of those12 discussions. It's possible.13 Q. Did y'all consider Operation Spotlight to be a14 risk-based inspection?15 A. Yes, sir.16 Q. And so when you were seeking expanded17 risk-based inspection authority, tell me what sort of18 expansion you were looking for. Obviously, somebody19 felt like you already had some authority because you did20 Operation Spotlight before you got the expanded21 risk-based inspection authority, fair?22 MR. OWENS: Form.23 MR. LANGLEY: Form.24 A. The authority to conduct risk-based inspections25 has existed in statute previously. The expansion of

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1 that was removing a requirement that fuel pumps and2 other devices be inspected on a set frequency regardless3 of risk.4 Q. (BY MR. FAIRLESS) So did y'all remove the5 four-year requirement that retail motor fuel devices be6 inspected at least every four years?7 MR. OWENS: Form.8 A. The legislature required TDA to implement a9 risk-based inspection criteria and removed -- in that10 same legislation, removed the four year -- it was11 four-year requirement in one program. I don't know if12 it was the same number for every program.13 Q. (BY MR. FAIRLESS) So what is the present14 risk-based authority -- no. What is the current15 risk-based inspection authority criteria? Just give me16 the thumbnail sketch.17 A. The -- the current as in since the legislation18 has passed, we --19 Q. Yeah. After Operation Spotlight, after the20 Sunset Commission, current.21 A. My understanding is that the staff are22 developing that risk-based and we are still conducting23 the inspections on a four-year schedule until we24 implement that risk based criteria.25 Q. But the plan is to phase out the four-year

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1 inspection schedule when you get the criteria in place2 for the risk-based inspections?3 A. Correct.4 Q. And is there a time set for the accomplishment5 of that objective? A deadline, if you will?6 A. Not necessarily. We're hopeful that we can get7 to that point as soon as possible.8 Q. Have there been any blitzes conducted against9 any company that owns retail motor fuel devices, besides10 PWI?11 A. Not that I recall in my time at the Department.12 Q. Have any been recommended?13 A. No, sir.14 Q. And since you are aware -- since you do have a15 sense of history, what is your understanding of whether16 or not there were any blitzes of owners of retail motor17 fuel devices prior to your time as the Deputy18 Commissioner of Agriculture?19 A. I don't have a sense to that history.20 Q. You don't know?21 A. Not an extensive sense --22 Q. You don't know one way or -- go ahead. I'm23 sorry.24 A. I'm not aware.25 Q. You don't know whether or not this blitz

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1 against PWI, so to speak, broke the cherry from the2 standpoint of coming after retail motor fuel device3 owners?4 MR. OWENS: Objection, form.5 A. I don't.6 Q. (BY MR. FAIRLESS) You don't know whether or not7 there was a foundation of this having been done in the8 past to set the stage for y'all conducting Operation9 Spotlight when you did?10 A. This was somewhat unprecedented. It was11 unprecedented.12 Q. Yeah. We can drop the word "somewhat" out of13 that, can't we?14 MR. LANGLEY: Objection, form.15 MR. OWENS: Form.16 Q. (BY MR. FAIRLESS) Well, I mean you just did.17 You said it's somewhat unprecedented.18 MR. LANGLEY: Now you're arguing with19 him.20 MR. FAIRLESS: Whoa, whoa, whoa, whoa.21 MR. LANGLEY: You're just arguing with22 him.23 MR. FAIRLESS: No, I'm not.24 Q. (BY MR. FAIRLESS) Did you drop the word25 unprecedented out of there? You said this is somewhat

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1 unprecedented and then you said --2 A. No, sir. I did not drop the word unprecedented3 out of there.4 Q. No. Somewhat, I'm sorry. Yeah. Did you drop5 the word "somewhat" out of there as being a qualifier of6 unprecedented?7 A. Yes.8 Q. Was Operation Spotlight your idea?9 A. I don't -- I participated in the data analysis10 that led to it. I asked for the data to be analyzed.11 Q. That would be the answer to the question did12 you participate in the analysis that led to the data13 being analyzed, or did you ask for the data to be14 analyzed; but that wasn't my question.15 A. I asked for the data.16 Q. My question is: Was Operation Spotlight your17 idea?18 MR. OWENS: Form.19 A. I don't recall whose idea Operation Spotlight20 was.21 Q. (BY MR. FAIRLESS) If not --22 A. I was part --23 Q. -- yours, then who is in the mix? You say I24 don't recall, but I want to know who was in the mix.25 You, Staples, Stephen Pahl, Kostroun, whose name is in

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1 the ring there --2 MR. OWENS: Objection, form.3 Q. (BY MR. FAIRLESS) -- of persons whose idea4 Operation Spotlight could have been?5 MR. OWENS: Form.6 A. It was a collaborative effort. I requested7 that data be analyzed. Staff brought a data analysis to8 me showing data that led to Operation Spotlight. I made9 the decision to implement it.10 MR. FAIRLESS: I'll object as11 nonresponsive.12 Q. (BY MR. FAIRLESS) Who made the decision to13 implement Operation Spotlight? You?14 A. I asked for data to be analyzed. Data was15 presented to me that showed a compliance history that16 was concerning, and I made the decision to implement17 Operation Spotlight.18 MR. FAIRLESS: I'll object as19 nonresponsive.20 Q. (BY MR. FAIRLESS) Who made the decision to21 implement Operation Spotlight? Was it you?22 MR. OWENS: Objection, form.23 A. I requested the data be analyzed. The data was24 analyzed and presented to me that showed an alarming25 compliance rate and I made the decision to implement

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1 Operation Spotlight.2 MR. FAIRLESS: I'll object as3 nonresponsive, Ms. Court Reporter, to everything4 contained within the last three answers, with the5 exception of the last part "I made the decision to6 implement Operation Spotlight."7 Q. (BY MR. FAIRLESS) Did you have to get somebody8 else's approval before you made the decision to9 implement Operation Spotlight?10 A. No, sir.11 Q. That was well within your authority as Deputy12 Commissioner of Agriculture?13 A. Yes, sir.14 Q. Did Todd Staples know that it was going to15 happen? That this inspection targeting PWI was about to16 take place?17 MR. OWENS: Objection, form.18 A. No, sir.19 Q. (BY MR. FAIRLESS) When did Todd Staples -- when20 did Todd Staples get the word?21 MR. OWENS: Objection, form.22 A. What word?23 Q. (BY MR. FAIRLESS) That Operation Spotlight was24 about to take place.25 MR. LANGLEY: Objection, form.

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1 MR. FAIRLESS: Geez Louise, every2 question fellows?3 MR. LANGLEY: Well, how many times have4 you heard me say that? He just told you that Todd5 Staples --6 MR. FAIRLESS: Okay. Wait, wait, wait --7 MR. LANGLEY: -- didn't know in advance8 and then you just asked a question that implied that he9 did.10 MR. FAIRLESS: No, I didn't.11 MR. LANGLEY: Yes, you did.12 MR. FAIRLESS: I meant when did he find13 out about it. When did Todd Staples find out --14 MR. LANGLEY: But you said before it15 started.16 MR. OWENS: How about when did you tell17 him about it or when --18 MR. FAIRLESS: Oh, now I'm going to have19 to turn -- now I'm going to have to turn this in for20 CLE.21 MR. OWENS: I'll give you an hour.22 MR. LANGLEY: All right.23 Q. (BY MR. FAIRLESS) Because I may very well need24 to subpoena you for trial, do you want to be subpoenaed25 at work or at the house? I want to do it at your

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1 convenience. I don't want to subpoena you at home if2 you would rather be subpoenaed at work.3 MR. LANGLEY: You and I can talk about4 that.5 MR. FAIRLESS: I can just work with you?6 MR. LANGLEY: I will -- I will --7 MR. FAIRLESS: You'll accept the subpoena8 on his behalf?9 MR. LANGLEY: I didn't say I would accept10 a subpoena, but I will communicate with your office or11 you personally in arranging what the best way to do it12 is.13 MR. FAIRLESS: Okay, that's fine. That's14 good enough.15 Q. (BY MR. FAIRLESS) So when did Todd Staples know16 that there was going to be an Operation Spotlight, or17 that there was an Operation Spotlight going on?18 MR. OWENS: Form.19 A. I communicated with Commissioner Staples about20 the data that was being analyzed, that some data had21 come back from that analysis revealing a very concerning22 noncompliance rate, and that we would be conducting some23 inspections to verify that data prior to the inspections24 being conducted.25 MR. FAIRLESS: I'm going to object as

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1 nonresponsive.2 Q. (BY MR. FAIRLESS) I didn't understand that. My3 question was just when; so I was looking for a day or a4 time, a date, a month.5 A. I -- I don't recall ever -- I don't recall the6 dates. I do know that I never had a discussion about7 this more than a few days before -- maybe a couple of8 weeks before the inspections.9 Q. So are you saying that you actually had a10 conversation then with Todd Staples about Operation11 Spotlight a couple of weeks prior to Operation12 Spotlight?13 A. No, sir.14 Q. Okay. So what was it that you talked to him15 about a couple of weeks before --16 A. Nothing.17 Q. -- Operation Spotlight?18 A. I talked to Commissioner Staples about the data19 that was being analyzed that showed a very concerning20 noncompliance rate a day, maybe two days, before the21 inspections were conducted.22 Q. And when you say the inspections were23 conducted, are we talking about the inception of24 Operation Spotlight, which would have been July 18,25 2008?

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1 A. Say that again.2 Q. Yeah. When you say the inspections being3 conducted, are we talking about Operation Spotlight,4 which began on July 18, 2008?5 A. Somewhere around there. Yes, sir.6 Q. So are you telling me that Todd Staples heard7 for the first time a couple of days before -- meaning8 July 16 or so of 2008 -- that there was some concerning9 noncompliance rates that were going to lead to an10 inspection or some inspections?11 A. It was a few days before. I can't speak to the12 exact date.13 Q. And did you provide Todd Staples any documents14 to review?15 A. I provide him documents all the time to review.16 Q. No. But I mean this couple of days before,17 documents that would pertain to this concerning18 noncompliance rate.19 A. Not that I recall.20 Q. In other words, when you're talking to him21 about we have this concerning noncompliance rate,22 Commissioner Staples, and here are some documents that23 support that, we would like for you to take a look at24 this and, you know, give us your blessing, yeah or nay,25 was there any discussion like that that took place?

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1 A. No, sir.2 Q. Did you provide Todd Staples any documentation3 at all to review pertaining to PWI before Operation4 Spotlight took off?5 A. No, sir.6 Q. And since you didn't need anybody else's7 approval, you're the guy who pulled the trigger on8 moving forward with Operation Spotlight?9 A. I asked for data to be analyzed. Data came10 back to me and was presented to me that showed a11 concerning noncompliance rate and I made the decision to12 implement Operation Spotlight.13 MR. FAIRLESS: I'll object to everything,14 Ms. Court Reporter, before that last sentence "I made15 the decision to implement Operation Spotlight."16 Q. (BY MR. FAIRLESS) Where did you get the idea of17 having an unprecedented blitz of PWI?18 MR. OWENS: Objection, form.19 A. I don't -- I never had an idea that we would20 have an unprecedented blitz.21 Q. (BY MR. FAIRLESS) Where did the idea of the22 unprecedented blitz of PWI come from?23 MR. OWENS: Form.24 A. The idea was based upon some concerning data25 showing a noncompliance rate for a particular company of

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1 more than 30 percent, compared to that same time period2 a statewide average of 5 percent noncompliance.3 MR. FAIRLESS: I'll object as4 nonresponsive.5 Q. (BY MR. FAIRLESS) Where did the unprecedented6 blitz idea come from, if not you?7 MR. OWENS: Form.8 A. The idea was based upon -- the idea to conduct9 inspections in this situation was based upon data that10 was analyzed that showed a particular company had a11 noncompliance rate of more than 30 percent, compared to12 a statewide average noncompliance rate of 5 percent.13 MR. FAIRLESS: I'll object as14 nonresponsive.15 Q. (BY MR. FAIRLESS) So did y'all analyze data for16 each and every owner of retail motor fuel devices that17 operated in the great state of Texas?18 A. I can't speak to all the data that was19 analyzed.20 Q. Well, that's what I want to know. You said21 data analysis a few times. I want to know did y'all do22 the same data analysis for Valero and every other retail23 motor fuel device owner that you did for PWI?24 A. I'll defer to the staff that did the analysis25 of the data to answer that question. I ask that we

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1 continuously be analyzing data to identify any trends2 that exist, if they do exist, for noncompliance.3 MR. FAIRLESS: I'll object as -- I'm4 sorry. I'll object as nonresponsive.5 Q. (BY MR. FAIRLESS) So does that mean you don't6 know --7 MR. OWENS: Objection --8 Q. (BY MR. FAIRLESS) -- if y'all analyzed data for9 the other retail motor fuel device owners as you did for10 PWI?11 MR. OWENS: -- form.12 A. I believe other data was analyzed that included13 other companies.14 Q. (BY MR. FAIRLESS) So you're saying we did the15 same analysis for everybody. PWI, any analysis we did16 on PWI was no different than the analysis we did for17 Valero, was no different than the analysis we did for18 any other retail motor fuel device owner?19 MR. OWENS: Form.20 MR. LANGLEY: Objection, form.21 A. It's my understanding that the analysis of data22 began with a comparison of this particular company to23 the statewide compliance rate, average. So to that24 extent, yes, the analysis has been done on every company25 in the state.

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1 Q. (BY MR. FAIRLESS) So the analysis was the same2 for everybody?3 MR. LANGLEY: Objection, form.4 MR. OWENS: Form.5 A. The statewide average includes -- the statewide6 average of 95 percent compliance includes every company7 in the state; and that compares directly to the8 noncompliance rate or the compliance rate for this9 company of less than 70, somewhere around 65 percent.10 MR. FAIRLESS: I'll object as11 nonresponsive.12 Q. (BY MR. FAIRLESS) So are you telling me, Drew13 DeBerry, Deputy Commissioner of Agriculture, there was14 no analysis of PWI done prior to Operation Spotlight15 that wasn't done for every other retail motor fuel16 device owner in the great state of Texas?17 MR. OWENS: Form.18 A. No, sir.19 Q. (BY MR. FAIRLESS) Earlier, I was talking to you20 about -- you know what, I want to get sidetracked for21 just a second. How many national -- how many -- let me22 try again. How many national conferences on weights and23 measures have you spoken at?24 A. I believe only the one that was held in Texas25 since I've been in the job, on the job. I think they

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1 rotate their meetings around the country.2 MR. FAIRLESS: I'll object as3 nonresponsive.4 Q. (BY MR. FAIRLESS) Has there only been one5 national conference on weights and measures that you6 spoke at?7 A. I've spoken at one meeting of national8 conference on weights and measures.9 Q. And that was in the Summer of 2009 or10 thereabouts?11 A. I don't recall when it was.12 Q. Last year? Less than a year ago?13 A. Sounds about right.14 Q. Okay. You spoke in San Antonio?15 A. Yes, sir.16 Q. And for how long did you speak?17 A. Fifteen to 20 minutes probably.18 Q. And were your remarks or at least an outline of19 your remarks maintained by you or the TDA?20 A. I suspect they were.21 Q. And tell me the general subject matter of the22 message that you delivered.23 A. Welcome them to Texas for a meeting of24 representatives from 50 states across the country. I25 shared with them a little bit about Texas. I thanked

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1 them for what they do, and shared with them the2 importance that we feel for the jobs they do. I thanked3 them for their work with establishing national4 standards.5 Q. So after you got through glad-handing them,6 then what did you do?7 MR. OWENS: Form.8 MR. LANGLEY: Objection, form.9 Q. (BY MR. FAIRLESS) They come from the 49 lesser10 states. You don't have to be so nice to them.11 MR. OWENS: Form.12 Q. (BY MR. FAIRLESS) So what did you do after13 that?14 A. I discussed how we value the programs here in15 Texas, and how we implement these programs.16 Q. Well, did you talk about Operation Spotlight17 and the -- did you talk about Operation Spotlight and18 the success that you perceived that it was?19 A. It's likely that I talked about the results of20 our inspections.21 Q. So does -- you do inspections, or you're22 supposed to do inspections all the time. I'm talking23 specifically about Operation Spotlight, not just any old24 inspections and not just any old inspections of retail25 motor fuel devices. So let me try with the question

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1 again.2 Did you talk to these people at the3 national conference on weights and measures about your4 perceived success of Operation Spotlight?5 A. It's likely I spoke about the inspections and6 the results of our inspections, including the fact that7 in Texas, we have a 95 percent compliance rate. It's8 likely we talked about the -- I talked about the9 inspections that were part of Operation Spotlight that10 yielded a noncompliance rate of -- that identified a11 noncompliance rate of actually more than nearly12 60 percent.13 MR. FAIRLESS: I'll object as14 nonresponsive.15 Q. (BY MR. FAIRLESS) Did you talk about Operation16 Spotlight at the national conference on weights and17 measures or not?18 MR. OWENS: Objection, form.19 Q. (BY MR. FAIRLESS) You either did or you didn't,20 Mr. DeBerry.21 A. I don't recall. It's very likely that I talked22 about the inspections that were associated with23 Operation Spotlight that yielded results showing a24 noncompliance rate of a given company of more -- of25 nearly 60 percent.

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1 MR. FAIRLESS: Everything after "It's2 very likely I did," I'll object to as nonresponsive.3 Q. (BY MR. FAIRLESS) Did you talk to the folks at4 the national conference on weights and measures about5 whether or not the TDA took minus ones and minus twos6 into consideration during the course of Operation7 Spotlight when crunching its numbers?8 A. I'm not -- I don't understand your question.9 Q. Do you know what the maintenance tolerance is10 for a retail motor fuel device like the ones that were11 inspected, the gasoline ones that were inspected during12 Operation Spotlight?13 A. I know there are tolerances. I don't -- I'm14 not familiar with what they are.15 Q. Okay. You've never calibrated a retail motor16 fuel device?17 A. No, sir.18 Q. Never been trained on how to do that?19 A. No, sir.20 Q. Never worked in the industry?21 A. What industry?22 Q. Retail motor fuel device industry.23 A. No, sir.24 Q. Well, did you speak to any experts in the25 retail motor fuel device industry before you set out to

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1 conduct Operation Spotlight?2 A. We communicate with representatives of all the3 industries we regulate, frequently.4 MR. FAIRLESS: I'll object as5 nonresponsive.6 Q. (BY MR. FAIRLESS) Did you talk to any experts7 in the retail motor fuel device industry before setting8 out on Operation Spotlight?9 A. We communicate with the industries that we10 regulate on a frequent basis, representatives of those11 industries; so, yes.12 Q. I don't understand what your answer is. It13 ended with "so, yes." So let's start there. Who were14 the experts you talked about prior to undertaking15 Operation Spotlight?16 MR. LANGLEY: Objection, form.17 A. We communicate with representatives of all the18 industries we regulate frequently. Our staff19 communicates with experts in the -- in the protocols20 that we use to regulate frequently.21 Q. (BY MR. FAIRLESS) You've got a future in22 politics because I understood none of that.23 Communicated with industry experts --24 MR. OWENS: Objection, form.25 Q. (BY MR. FAIRLESS) -- I want to know what

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1 industry experts you communicated with about Operation2 Spotlight before that operation was conceived.3 MR. LANGLEY: Objection, form.4 MR. OWENS: Form.5 Q. (BY MR. FAIRLESS) Are you with me? I want to6 know who you went to in the industry. Did you say,7 look, I want y'all to go out, find me the people in the8 industry who know what's going on, and I want to talk to9 one, two, or ten of them about this potential operation10 that we're going to have and I want to find out some11 answers to some questions that I have, did you do12 anything like that?13 MR. LANGLEY: Objection, form.14 A. We communicate with industry representatives15 all the time, and we communicate with -- our staff16 communicates with the experts in the protocols we17 utilize all the time.18 MR. FAIRLESS: I'll object as19 nonresponsive.20 Q. (BY MR. FAIRLESS) So who in the way of industry21 experts did you communicate with about the protocols22 that you were going to use during Operation Spotlight?23 MR. LANGLEY: Objection, form.24 A. The protocols we used were consistent with25 national standards. I'm sure our staff communicate with

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1 experts frequently about those.2 Q. (BY MR. FAIRLESS) Well, tell me what experts3 you believe your staff communicated with.4 MR. LANGLEY: Objection, form.5 MR. FAIRLESS: Why? Because you're6 saying he wouldn't know?7 MR. LANGLEY: No. Because the problem8 I'm having with this line of questioning is I think9 you're assuming that those industry experts have to10 exist outside of the TDA, and I'm not sure that's a fair11 assumption.12 MR. FAIRLESS: No. Right now -- I'm13 going to get there; but right now I'm not even there. I14 just --15 MR. LANGLEY: Well --16 MR. FAIRLESS: If he thinks it's an17 expert within the TDA, I want that person's name.18 MR. LANGLEY: Okay. Well, that was the19 problem I was having with your questions.20 MR. FAIRLESS: Okay.21 Q. (BY MR. FAIRLESS) Are you with me? It22 doesn't --23 A. Catch me up.24 Q. We're going to talk later about whether or not25 it's an outside expert. Right now, I'm saying if you

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1 want to call somebody within the TDA an expert on retail2 motor fuel devices and you consulted with them, then let3 their name be the first ones on the list.4 MR. LANGLEY: Thank you for that5 clarification. That was the problem I was having.6 Q. (BY MR. FAIRLESS) So now let me try with a7 clean question. What experts, industry experts8 pertaining to retail motor fuel devices did you9 communicate with prior to the inception of Operation10 Spotlight?11 A. My communications were with internal staff who12 analyzed the data, presented the data to me. The data13 showed a concerning noncompliance rate of more than14 30 percent, compared to the statewide average of15 5 percent. I made the decision to go forward with16 Operation Spotlight based on those discussions.17 MR. FAIRLESS: I'll object as18 nonresponsive.19 Q. (BY MR. FAIRLESS) So does that mean you didn't20 talk to any industry experts? I don't want to know who21 you talked to about crunching data or the data results22 that were obtained. I want to know did you talk to any23 industry experts with regard to retail motor fuel24 devices and the inspections that were about to take25 place.

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1 MR. OWENS: Form.2 A. Yes.3 Q. (BY MR. FAIRLESS) Who?4 A. We communicate -- our staff communicates with5 experts all the time about --6 Q. Who?7 A. -- our protocols.8 Q. I sound like an owl. Who?9 MR. OWENS: Form.10 A. They communicate with counterparts around the11 country.12 Q. (BY MR. FAIRLESS) Who?13 A. Regulatory counterparts around the country.14 Q. Who?15 A. I'll defer to our staff to see what experts16 they communicate with.17 Q. So the answer is I don't know, I would have to18 defer to my staff to find out what experts, if any, we19 communicated with prior to the inception of Operation20 Spotlight?21 MR. OWENS: Form.22 Q. (BY MR. FAIRLESS) Fair?23 A. No, sir.24 Q. Okay.25 A. The answer is --

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1 MR. LANGLEY: You're wanting him to2 identify by name individuals?3 MR. FAIRLESS: Right, right.4 MR. LANGLEY: Okay. So if you can't do5 that --6 MR. FAIRLESS: Of if he wants to give me7 a position title like the assistant to the assistant to8 the substitute director of the assistant of deputy9 commissioner of agriculture. So make it a position, or10 make it a name. Name is my preference, position is11 second.12 MR. OWENS: Objection, form.13 A. I communicated with our staff and the team we14 have in place that helps us implement the national15 standards.16 Q. (BY MR. FAIRLESS) So who on your staff is it17 that you're recognizing as a retail motor fuel device18 expert in the industry --19 A. There were various staff --20 Q. -- that you spoke to -- you've got to let me21 finish -- that you spoke to and listened to prior to the22 inception of Operation Spotlight?23 A. Okay. There were various staff. I spoke with24 Stephen Pahl. I spoke with -- I spoke with David25 Kostroun.

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1 Q. Those guys are industry experts?2 MR. LANGLEY: Now, he wasn't finished I3 don't think.4 MR. FAIRLESS: No, I know. And I told5 him earlier I was going to interrupt him from time to6 time and I apologized in advance. So here goes one of7 my interruptions.8 Q. (BY MR. FAIRLESS) Those guys, Stephen Pahl and9 David Kostroun, are industry experts to your way of10 thinking?11 MR. LANGLEY: Since you weren't finished12 with your answer, don't let him tie you down to his13 interpretation of your partial answer.14 THE WITNESS: Sure.15 MR. LANGLEY: And I'm instructing you not16 to allow him to do that.17 A. Our staff communicates with the industry18 experts. Those staff are Stephen Pahl, David Kostroun,19 Joe Benavides, and the various staff that oversee these20 programs.21 Q. (BY MR. FAIRLESS) Okay, thank you for that22 list. Now, tell me who are the industry experts that23 they spoke to.24 A. I don't know if they did, but I'll defer that25 to them.

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1 Q. Okay. Are you aware as you sit here today of2 any non-TDA employee industry experts that were3 consulted prior to Operation Spotlight?4 A. I'm not aware of any discussions about5 Operation Spotlight prior to it being conducted with6 anybody externally.7 Q. When did the TDA submit its budget request in8 2008 for the 2009 year?9 A. Budget -- the legislative appropriation10 requests are submitted in the fall, late summer, fall11 of -- of even numbered years.12 Q. Right, which is why I asked about 2008.13 A. Okay.14 Q. And I don't want to just go though with late15 summer, early fall. I want to know if you can tell me16 in 2008, when the legislative appropriation request was17 submitted.18 A. It would have been in the fall or late summer19 of 2008, for the year -- for the --20 Q. And I guess --21 A. Wait a minute, wait a minute. The fiscal year22 2009 --23 Q. Right.24 A. -- is what you're asking about?25 Q. Yes.

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1 A. That -- the appropriation request for that2 fiscal year would have been in 2006, I believe. Let me3 think about this. Yeah, it would have been in -- in the4 Fall of 2006, would be when we submit our legislative5 appropriation request for the...6 Q. I'm not sure that's right.7 A. I might have to get a calendar here.8 Q. Why don't you think about that.9 A. I'm going to have to get a calendar out here.10 The legislature meets in the beginning of the odd11 numbered year.12 Q. Let me just ask it this way. Do you remember13 if there was a legislative appropriations request made14 in the Fall of 2008?15 A. There was.16 Q. And was that legislative appropriations request17 made after Operation Spotlight?18 A. Yes.19 Q. And were there as part of that legislative20 appropriations request, more funding requested for21 risk-based inspections?22 A. Yes, sir.23 Q. And would you view Operation Spotlight, as you24 sit here today, as an example of a type of risk-based25 inspection?

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1 MR. OWENS: Objection, form.2 A. I would consider the inspections conducted in3 Operation Spotlight to be based upon risk.4 Q. (BY MR. FAIRLESS) Now, do you remember a5 meeting occurring in May of 2008, involving you going to6 the Extension Center there in the Houston area and7 speaking to a bunch of regional directors and chief8 inspectors?9 A. I don't recall that.10 Q. Do you remember Operation Spotlight -- and, you11 know, perhaps it didn't have a name at the time -- but12 do you remember the inspections that would become13 Operation Spotlight being discussed as early as May of14 2008?15 A. No.16 Q. When is it --17 A. They weren't.18 Q. You sound pretty confident of that.19 A. Say the dates again.20 Q. May of 2008.21 A. State the question again.22 Q. Operation Spotlight or the inspections that23 became Operation Spotlight, were they discussed as early24 as May of 2008?25 A. No.

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1 Q. When was Operation Spotlight -- I know it was2 put into motion that Friday morning, July 18; but when3 was it decided by you we're going to go forward with4 Operation Spotlight?5 A. One or two days before is when I made the6 decision.7 Q. Okay. Did you speak to the regional directors8 for the TDA before Operation Spotlight's inception about9 Operation Spotlight?10 A. I wasn't even aware that it was called11 Operation Spotlight until it was underway, but I had12 discussions with the people who were going to implement13 it a few days before. Yes, sir.14 Q. Okay. So you found out it was going to be15 called Operation Spotlight during the operation itself?16 A. It was maybe the day before it started, maybe17 the day of. I don't recall.18 Q. Well, who came up with the name?19 A. I don't recall.20 Q. I take it it wasn't you?21 A. It was not me.22 Q. Was it somebody in the communications or the23 media department for the TDA or the Texas government?24 A. No, sir.25 Q. Who was it?

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1 A. I don't recall.2 Q. Right. But if you don't recall and you don't3 have any idea, then how can you say it wasn't the4 communications or the media people?5 A. Because they weren't aware of it until the6 inspections were already conducted.7 Q. Okay. So you can limit the field some. Was it8 somebody within TDA that came up with name Operation9 Spotlight then?10 A. I don't know who it was.11 Q. So the only people that we know for sure who12 are outside the circle are the communications and the13 media people.14 A. Okay.15 Q. Everybody else is inside the circle?16 MR. OWENS: Form.17 A. What -- what -- what are you --18 Q. (BY MR. FAIRLESS) The circle of people who19 conceivably could have come up with the name Operation20 Spotlight.21 A. Okay.22 Q. The only ones you've --23 A. It would have been someone with TDA.24 Q. Okay. And is that the best you can do for me,25 or can we narrow the circle any more?

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1 A. I don't believe I can help you narrow it.2 Q. And did you have to give approval for the name,3 just like you gave approval for the operation itself?4 A. No, sir.5 Q. Did anybody have to give approval of the name,6 to your knowledge?7 A. No, sir.8 Q. So then I'm a little bit lost. Since nobody9 had to give approval for the name, it would seem to me10 that whoever came up with the name would have to be in a11 certain level position or higher if that person didn't12 have to have anyone's approval to name this13 unprecedented blitz that was taking place.14 A. No, sir, not necessarily. Our regional15 directors and various staff have authority to administer16 the programs within decisions we've made.17 Q. Right. But I wouldn't think that they would18 have permission to name this unprecedented blitz without19 at least some green light from a higher ranking official20 within the TDA.21 A. The name was not something we felt to be22 significant with regard to the scope of the23 noncompliance rate of 34 percent before the inspections.24 MR. FAIRLESS: Okay. I'll object as25 nonresponsive to everything after the words to the

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1 effect of the name wasn't that important.2 Q. (BY MR. FAIRLESS) So tell me about the meeting3 that you had with the regional directors and the chief4 inspectors. First of all, was it a face-to-face5 meeting; or was it you talking into a telephone into a6 room filled with people?7 A. What meeting?8 Q. The meeting --9 A. You asked early about a meeting I don't10 remember.11 Q. The meeting we talked about a few minutes ago12 where you were speaking to regional directors and chief13 inspectors prior to Operation Spotlight getting started.14 You said it was a couple of days before.15 MR. OWENS: Objection, form.16 A. No, sir. I didn't say that.17 Q. (BY MR. FAIRLESS) You didn't say that there was18 a meeting with regional directors and chief inspectors a19 couple of days before Operation Spotlight whereupon you20 spoke to them?21 A. I don't recall saying that. I recall saying I22 made a decision to implement Operation Spotlight a day23 or two before. I had discussions with the staff several24 days before that.25 Q. Okay. So when did you have discussions with

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1 the staff?2 A. With those staff you're talking about?3 Q. Right.4 A. And who are those?5 Q. Regional directors and --6 A. I have meetings with a lot of staff.7 Q. -- chief inspectors.8 A. Okay. That meeting would have probably been --9 it was several days before. I don't know, again, the10 exact dates; but it would have been several days,11 probably more than a week before.12 Q. And where was the meeting?13 A. It was in -- here in Austin at the Department.14 Q. So did the chief inspectors and regional15 directors come here?16 A. They were in town for another meeting. I'm not17 sure what that meeting was.18 Q. Do you have any idea?19 A. No, sir.20 Q. So while they were in town for another meeting,21 you got them together and talked to them about what22 would a week later become Operation Spotlight?23 A. I asked -- I went to their meeting looking for24 Stephen Pahl to ask him a question about some trends25 that I had noticed and wanted to get verified.

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1 Q. Well, I'll pick up on that in a minute, the2 trends you had noticed; but right now, I'm just talking3 about the meeting whereupon you spoke to the regional4 directors and the chief inspectors.5 You said it was a week or so -- over a6 week before Operation Spotlight, to the best of your7 recollection. It took place in Austin. And tell me8 what you spoke to the people about.9 A. I went to the meeting to ask Stephen Pahl some10 questions. Stephen utilized the opportunity with the11 regional directors there to -- I think he brought them12 into the discussion that we were having about some of13 these trends that I wanted to get verified.14 Q. So are you saying that at the time you sat off15 for the meeting, which was across the hall or across the16 town, that you did not have an Operation Spotlight in17 mind to talk to the regional directors and chief18 inspectors about?19 A. Yes, sir.20 Q. Okay. So the idea of these inspections only21 came to you once you were at the meeting receiving some22 sort of feedback and having some sort of dialogue with23 the regional directors and chief inspectors?24 A. No. That meeting, we didn't -- we didn't25 discuss the idea of conducting inspections. We simply

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1 discussed doing trend analysis, as I recall.2 Q. Okay.3 A. Analyzing the data.4 Q. What started all this off was I was asking you5 about a meeting wherein you talked to the regional6 directors and chief inspectors about what their roles7 were going to be in Operation Spotlight, this operation8 that was coming up.9 A. I don't remember that being what you were10 asking about.11 MR. LANGLEY: Objection, form.12 MR. OWENS: Objection, form.13 Q. (BY MR. FAIRLESS) Man, I'm hearing one thing14 come out; and everybody else is evidently hearing15 something else.16 Did you ever have a meeting with the17 regional directors and the chief inspectors before18 Operation Spotlight, where you talked about the19 inspections that were going to be performed and later20 known as Operation Spotlight?21 A. I had a discussion with Stephen Pahl where I22 asked Stephen some questions about some enforcement23 orders that had crossed my desk that were fairly24 egregious against a -- all against a given company, a25 single company. Stephen engaged the other folks in the

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1 room to help me answer some questions. Those people in2 the room happened to be there for another meeting. They3 were regional directors, chief inspectors, probably some4 other folks. I'm not sure who all was there. We5 discussed the notices of violation that the enforcement6 orders, I guess I should say, that I had questions7 about.8 MR. FAIRLESS: I'll object to all that as9 nonresponsive.10 Q. (BY MR. FAIRLESS) Did y'all talk about the11 inspections that were going to be done during July 18,12 19, and 20 of only PWI locations?13 A. I don't recall that we did.14 Q. Okay. So then that's not the meeting I'm15 talking about.16 A. Okay.17 Q. I'm talking about a meeting other than this18 meeting with Stephen Pahl and the people that he was19 meeting with, wherein you spoke to regional directors20 and chief inspectors about inspections that were going21 to take place on July 18, 19, and 20. Was there ever22 any such meeting?23 A. I've had discussions with regional directors24 about -- and I certainly talked to regional directors25 about the operation before it commenced.

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1 Q. There you go. That's what I want to know.2 A. But I don't recall a -- the way you're3 portraying it as a meeting that I convened or went to.4 Q. So what -- are you saying there never was a5 meeting, you in isolated in conversations spoke to6 regional directors about what was to be Operation7 Spotlight; but there never was really a formal meeting8 where they were present along with chief inspectors and9 y'all talked about the inspections?10 MR. OWENS: Form.11 A. I know there were meetings. I don't recall if12 I participated in the meetings talking about -- I know I13 wasn't involved in meetings talking about the protocols14 and how we would implement Operation Spotlight15 consistent with the protocols that we had established.16 Q. (BY MR. FAIRLESS) Well, then maybe we can clear17 it up pretty quick. Can you, Drew DeBerry, say listen18 fellow, I was never involved in a meeting with regional19 directors and chief inspectors there together where I20 spoke to them about what was to be the inspections that21 made up Operation Spotlight?22 A. I can't say that. I communicated with the23 regional directors and chief inspectors from time to24 time, more directly with the regional directors; and it25 wouldn't be uncommon for me to talk to them about this

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1 subject.2 Q. But I don't get it. Are you saying there may3 have been -- there may have been such a meeting, but you4 don't remember as you sit here today; or are you saying,5 yeah, listen fellow, there was a meeting, but the chief6 inspectors weren't there, it was just the regional7 directors? I mean, I'm still -- you know, I've got a8 thousand other questions; but I can't get to them until9 I can figure out whether or not there was this meeting.10 MR. OWENS: Form.11 A. Sure. I recall a meeting where I went and12 asked Stephen Pahl some questions. There was a meeting13 going on with the regional directors and chief14 inspectors while I asked him the questions, and we got15 into a discussion with the group about those enforcement16 orders.17 Q. (BY MR. FAIRLESS) Okay. Was there ever any18 other meeting that you attended prior to the inception19 of Operation Spotlight, that was attended by regional20 directors and chief inspectors?21 A. I don't -- I don't believe so.22 Q. All right. So now tell me about the trends you23 had noticed that you referred to earlier.24 A. There were several trends. I noticed25 originally a few enforcement orders cross my desk with a

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1 given -- a single company violating one of our most2 egregious penalties, the predominance threshold in the3 weights and measures program, several times. I believe4 they were even far above the predominance threshold. I5 think, as I recall, they were upwards of 80 percent6 noncompliant at a few locations with that same company.7 That was the first that I recall.8 Q. Okay. Well, let me make a note of that.9 That's Trend No. 1. So tell me what documents you had10 that supported Trend No. 1; or if you had somebody else11 do some homework for you, tell me about that.12 MR. OWENS: Objection, form.13 A. I --14 MR. FAIRLESS: What's the basis of that?15 MR. OWENS: You asked two questions16 and --17 MR. FAIRLESS: Okay, okay.18 MR. OWENS: And homework is19 argumentative.20 Q. (BY MR. FAIRLESS) All right. I want to know21 what documentation you had supporting what you just told22 us was the first trend.23 A. Enforcement orders with notices of violation,24 and I believe they were complete with a check from25 Petroleum Wholesale paying the penalty.

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1 Q. And were all the enforcement orders pertaining2 to PWI?3 A. Yes, sir.4 Q. And are these the enforcement orders, NOVs, and5 check that you carried with you to this meeting that you6 talked about where you were going to ask some questions7 of Stephen Pahl and y'all kind of threw it out to the8 room?9 MR. OWENS: Objection, form.10 A. There were enforcement orders.11 Q. (BY MR. FAIRLESS) Right. But I'm saying are12 those the enforcement orders that you talked about at13 that meeting that you went to to see Stephen Pahl and it14 just so happens he was meeting with regional directors15 and chief inspectors?16 A. Right. The ones I just described, yes.17 Q. Yeah. They're the same --18 A. Yes.19 Q. -- enforcement orders?20 A. Yes.21 Q. And how many enforcement orders did you have,22 Mr. DeBerry?23 A. I don't -- I don't recall.24 Q. Well, I mean, did you have two or did you have25 22 or 222?

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1 A. It was a handful or less.2 Q. A handful or less?3 A. As in five or less. Sorry.4 Q. Okay. And did all of those enforcement orders5 pertain to gasoline retail motor fuel devices?6 A. I recall they pertained to retail motor fuel7 devices.8 Q. Right. Which underscores why I asked did it9 pertain to gasoline retail motor fuel devices, or did it10 pertain to bulk diesel as well? Do you know what bulk11 diesel is?12 A. Yes, sir.13 MR. OWENS: Objection, form.14 Q. (BY MR. FAIRLESS) What is bulk diesel?15 A. What is diesel?16 Q. What is -- yeah. Do you know what bulk diesel17 is?18 A. We refer -- we refer to bulk flow meters as the19 retail fuel dispensers that flow at a rate for bulk20 sale.21 Q. Right. That your commercial trucks would fill22 up at?23 A. Right.24 Q. All right. Well, then that's what I want to25 know. Were there any enforcement orders that you were

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1 carrying around for PWI that pertained to bulk diesel,2 or were they all retail motor fuel devices for gasoline3 operated vehicles?4 A. I don't recall.5 Q. Did it matter to you?6 A. What mattered was the 80 percent of the pumps7 inspected triggering being tilted in favor of the8 company.9 MR. FAIRLESS: I'll object as10 nonresponsive.11 Q. (BY MR. FAIRLESS) Are you saying that these12 five enforcement actions that you had, each supported13 80 percent predominance violations?14 A. They supported a predominance violation as I15 recall, a violation of the predominance threshold, which16 was set at 60 percent, I believe, at the time. And as I17 recall, some or all of these were over 80 percent18 noncompliant.19 Q. Did you take any enforcement orders from20 entities other than -- that pertained to entities other21 than PWI?22 A. No, sir.23 Q. On July 18 of 2008, you had enforcement orders24 that showed up on your desk for a single entity that had25 a check associated with a payment of the penalties for

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1 $10,000. Do you remember that?2 MR. OWENS: Form.3 A. I don't remember that particularly.4 Q. (BY MR. FAIRLESS) Do you remember any -- is5 that not -- let me try again. Is that not noteworthy6 for the Deputy Commissioner of Agriculture to remember a7 single check from an owner of retail motor fuel devices8 in the amount of $10,000 or more for penalties?9 A. It's a sizable amount. I'm more concerned with10 what the violation was.11 Q. Okay. Assume the violations were for12 predominance rule violations, retail motor fuel device13 inaccuracies.14 MR. OWENS: Object --15 Q. (BY MR. FAIRLESS) -- so does that make it more16 noteworthy to you then?17 MR. OWENS: Object to the form.18 A. Not necessarily.19 Q. (BY MR. FAIRLESS) Well, how much --20 A. I would be interested in knowing the details,21 but I -- that's what I focus my attention on is what was22 the violation.23 Q. And if you had any questions about what the24 details were, then you could certainly talk to the25 people that handle such details within the TDA and you

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1 could expect answers from them, fair?2 A. Correct.3 Q. Now, the checks that you looked at in4 conjunction with these enforcement orders, were they5 checks to pay the penalties that were set forth in the6 notices of violation associated with the enforcement7 orders?8 A. Yes, sir.9 Q. And these checks of one to five or that -- I10 should say the checks that went along with the11 enforcement orders, the handful or less, five or less,12 how much did those checks add up to?13 A. I don't recall.14 Q. Do you have any idea?15 A. No, sir.16 Q. If those checks added up to $5,000 or less,17 would it be fair to say that certainly a check for the18 same type of violations that was $10,000 or more, would19 certainly catch your attention?20 MR. OWENS: Objection, form.21 MR. LANGLEY: Form.22 A. All right. Do you mind saying that again? It23 was kind of long.24 Q. (BY MR. FAIRLESS) Yeah. If these checks that25 went along with these enforcement actions that you saw

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1 for PWI was $5,000 or less and -- I'll ask it2 differently.3 Do you remember any enforcement actions,4 notices of violations, or checks coming across your desk5 at or about the time of Operation Spotlight that were6 for penalties of $10,000 or more?7 A. I don't recall the details of enforcement8 orders I sign. I sign several every day.9 Q. Was there some reason why you wanted to target10 PWI in the inspections that were going to take place on11 July 18, 19, and 20?12 MR. OWENS: Form.13 A. I wouldn't say -- I wouldn't use the word14 "target."15 Q. Actually, you would; but...16 A. Okay.17 MR. OWENS: Form.18 A. Do you want to ask it again, please, sir?19 Q. (BY MR. FAIRLESS) Yeah. Is there some reason20 you targeted PWI as opposed to other owners of retail21 motor fuel devices for your blitz July 18, 19, and 20 of22 2008?23 A. There were several reasons, beginning with what24 we identified as a possible trend with several25 enforcement orders crossing my desk from Petroleum

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1 Wholesale violating the predominance threshold, which I2 used to ask our staff to analyze data about how this3 particular company compares to the statewide average for4 compliance and to look at if there are any other5 companies out there that have a significantly higher6 noncompliance rate.7 The data was analyzed, and what was8 brought back to me was a noncompliance rate for this9 particular company of more than 30 percent compared to a10 statewide average of 5 percent. As I recall, this11 company had a history of violating the predominance12 threshold at a much higher rate than other companies in13 the state.14 Q. I'm making a list of all your reasons. Is that15 it?16 A. Those are the ones that come to mind right now.17 Q. So the possible trends supported by the18 several -- the several enforcement orders, those are the19 orders that you told me about earlier that you had up to20 a handful, so five or less?21 MR. OWENS: Objection, form.22 A. Right.23 Q. (BY MR. FAIRLESS) Well, if there was something24 else that indicated this possible trend, then I want you25 to tell me what it was. But as I'm understanding what

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1 you're saying, it was these enforcement orders, the2 associated NOVs, and the associated check or checks that3 triggered this trend analysis, fair?4 A. That was the first -- the first thing I5 noticed, which led to an analysis of data compared to --6 to compare this company to the statewide average. And7 in Texas, we have a high compliance rate for retail8 motor fuel dispensers of 95 percent. This particular9 company had a noncompliance rate of more than 30 percent10 compared directly to that statewide average.11 MR. FAIRLESS: Everything after the first12 sentence I'll object to as nonresponsive.13 Q. (BY MR. FAIRLESS) I'm going to serve up the14 softball in a minute or the umpteenth time, and you can15 whack it out of the park about the -- what you believe16 the data results to be.17 But right now, I'm just trying to figure18 out what written documents did you have in your hand19 when you were considering this trend analysis.20 MR. LANGLEY: I object to the form as to21 the softball comment.22 MR. OWENS: And form, repetitive.23 A. The documents that I had that led to my24 requesting of an analysis of the data --25 Q. (BY MR. FAIRLESS) Ding, ding, ding. That's it.

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1 That's the question right there.2 A. Yes, sir. And I'm sorry I've -- I thought I3 had answered that, but I'm happy to say it again was the4 enforcement orders that showed several egregious5 violations of the State of Texas laws.6 Q. Anything else? The NOVs, you evidently now7 didn't have them at the time; the checks that were for8 payment of the penalties associated with those9 enforcement orders, you didn't have those?10 MR. OWENS: Form.11 MR. LANGLEY: Form.12 A. Normally, when I -- when an enforcement order13 crosses my desk, it includes the notice of violation. I14 believe there's a stipulation to waiver of a hearing15 that the regulated entity signs and proof that the16 enforcement order has been paid.17 MR. FAIRLESS: Okay. I object to all18 that as nonresponsive. Go ahead, Videoman.19 THE VIDEOGRAPHER: This is the end of20 Tape 2. Off the record at 11:54.21 (Recess taken)22 (Exhibit No. 451 was marked and is23 attached hereto)24 THE VIDEOGRAPHER: This is the beginning25 of Tape 3. Back on the record at 12:55.

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1 Q. (BY MR. FAIRLESS) Are you able to identify for2 me the five enforcement orders with NOVs saying -- with3 check or checks that you saw that pertain to PWI that4 you maintain led to your request for a trend analysis?5 A. I might be able to identify them. I don't --6 Q. Well, that's what I'm wondering. I mean, if I7 were to pull some out and lay them in front of you, are8 you going to be able that say, yep, that was one of the9 five I saw or, no, that was not one of the five?10 A. I don't know.11 Q. I don't want to go through that whole exercise12 like we've done some things this morning, if you're13 simply going to tell me, "I'm not going to be able to14 tell you, Mr. Fairless. I see a lot of those things. I15 see them day after day. I wouldn't know if that's one I16 say or not."17 So I'm asking you would you be able if I18 showed you to tell me, yep, that's one of the19 enforcement orders I saw that led to me requesting a20 trend analysis?21 A. I don't know. As many as I see in a day, it's22 unlikely I would be able to identify a particular one.23 Q. Okay. Have you ever asked for a trend analysis24 for any other company that was involved in the sale of25 retail motor fuels?

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1 A. Well, I have a standing request for staff to be2 identifying any -- be analyzing data and seeing if there3 are any trends to make sure that we are acting on any of4 those trends. I've had questions on other notices of5 violations.6 Q. My question --7 A. Other enforcement orders.8 Q. Okay. So the answer to my question is, yes, I9 have made a specific request for a trend analysis10 pertaining to retail motor fuel device owners?11 A. I believe, yes, sir.12 Q. Okay. When was the last time that you did?13 A. I don't...14 Q. Give me the circumstances as you recall them.15 A. I don't -- I just recall that I've seen16 egregious violations that I wanted to have some data17 analyzed, and we've looked at data in other -- on other18 companies.19 Q. Give me the name of as many other companies as20 you can think of that you had someone that was in your21 department do a trend analysis on for purposes of retail22 motor fuel devices.23 A. We've never had another company that's had the24 level of noncompliance that Petroleum Wholesale had, so25 I can't recall any others that -- no other company name.

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1 MR. FAIRLESS: I'll object as2 nonresponsive.3 Q. (BY MR. FAIRLESS) I didn't ask you for any4 other company name that had the level of noncompliance5 that you perceived PWI to have had. What I asked you6 was simply the names of the other companies or as many7 of those names as you can remember that you specifically8 had someone on your staff do a trend analysis of9 pertaining to retail motor fuel devices.10 A. I've -- I don't recall any other particular11 names --12 Q. Okay.13 A. -- that rose -- that had the noncompliance rate14 that would leave the company name in my head.15 MR. FAIRLESS: Everything and including16 the one word before "rose" I'll object -- no. The first17 sentence or the first segment of that answer is fine.18 Everything else I'll object to as nonresponsive.19 Q. (BY MR. FAIRLESS) Do you remember what the20 check or checks added up to that you had with you when21 you went to see Stephen Pahl and he happened to be with22 the regional directors and chief inspectors?23 MR. OWENS: Form.24 A. No, sir.25 Q. (BY MR. FAIRLESS) Do you -- can you put me in a

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1 ballpark as to what the check or checks added up to?2 A. No, sir.3 Q. If somebody wants to fuss about a notice of4 violation that they've been issued, where must they do5 that?6 A. There's an administrative process the State7 has.8 Q. There's an administrative hearing that's9 required, correct?10 A. It's allowed if they -- if there's a -- if the11 respondent chooses to exercise that.12 Q. Okay. And where does the administrative13 hearing take place at?14 A. It could be with the State Administrative --15 with the State Office of Administrative Hearings. The16 Texas Department of Agriculture has hearing judges,17 hearing officers.18 Q. Where? Amarillo or Dallas or Austin?19 A. I'll defer to the staff that are involved in20 those hearings.21 Q. Well, don't you look at these orders all the22 time? I thought you said earlier I see those orders23 every day. Did I misunderstand that?24 A. No, sir.25 Q. Okay. So you see these orders every day. You

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1 know there's a provision in there that allows for an2 administrative hearing, correct?3 A. I suspect if -- I suspect some of them do. I4 suspect maybe all of them do.5 Q. You don't know? As the Deputy Commissioner of6 Agriculture, you don't know?7 A. I'd be happy to take a look at what you're8 looking at there, and see if it's in there.9 Q. I'm going to show it to you in just a second;10 but right now as part of an evaluation of your11 creditability, I'm also wanting to test your12 recollection and knowledge of the documents that13 evidently you relied upon when asking for a trend14 analysis pertaining to my client.15 MR. OWENS: Objection, form.16 Q. (BY MR. FAIRLESS) So do you know without me17 showing you this document -- don't worry, this document18 is coming your direction -- but do you know before it19 gets there?20 MR. OWENS: Form.21 Q. (BY MR. FAIRLESS) Let me start with a clean22 question. Do you know where the administrative hearings23 are to take place if someone wants to protest a notice24 of violation?25 A. I don't know that there's a given place for

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1 administrative hearings. I'm familiar that some2 programs might be different than other programs.3 Q. Okay. What program do you call the retail4 motor fuel device arena?5 A. Well, we administer programs that regulate6 motor fuel devices through our weights and measures7 program. We also regulate fuel quality that has to do8 with these locations.9 Q. Do you know what a stipulation and waiver of10 hearing is?11 A. Generally, yes, sir.12 Q. Well, I mean, are stipulations and waivers of13 hearing documents that you see?14 A. Yes, sir.15 Q. And so it's got the word "hearing" in the16 title. Where is that hearing to take place if it's not17 waived?18 MR. OWENS: Objection, form.19 A. I'll defer to the staff that administer those20 programs.21 Q. (BY MR. FAIRLESS) You don't know?22 A. I'll defer to the staff. We have an able23 workforce at the Department of Agriculture that will24 make sure that anyone who seeks a hearing gets the fair25 hearing they're entitled to.

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1 Q. I'm sure you do have an able staff, but I'm not2 deposing them today. I'm deposing you. And right now,3 I want to know: Do you know where the hearing is to4 take place if someone protests a notice of violation?5 MR. OWENS: Form.6 A. I'm -- forgive me. I thought I'd answered7 that. No. That's a detail that I defer to the staff8 on.9 Q. (BY MR. FAIRLESS) How many notices of violation10 are protested? Either you can give me a number or --11 and you can pick the time period you want to focus on, a12 number a day, a number a week, a number a month. You13 can tell me a percentage. Oh, Mr. Fairless, I can't14 tell you a specific number; but I can tell you that15 25 percent of all notices of violation are protested.16 So are you able to give me either a17 number count of protests over a given period of time or18 a percentage of notices of violation that are protested19 over a given period of time?20 A. I defer that to the staff that would be able21 to -- that would be familiar with those requests for22 hearings.23 Q. That staff reports to you?24 A. Yes, sir.25 Q. Okay. And you generally have some idea of what

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1 the staff that reports to you is responsible for,2 correct, and what they're doing?3 A. Yes, sir.4 Q. Well, I want you to give me and 12 of Harris5 County's finest, some idea of how often notices of6 violation are protested.7 A. I'd be happy to get with the staff, and get you8 that; but I don't have that information.9 Q. Okay. Will you get with your staff and provide10 that to your lawyer, who's here in the room today; and11 then he can get it to me.12 But in the meantime, in the meantime, can13 you put me and the jury in a ballpark?14 MR. LANGLEY: Objection, form.15 A. No, sir.16 Q. (BY MR. FAIRLESS) So you wouldn't know as you17 sit here today, whether it's 1 or 2 percent of notices18 of violation that are actually protested to the point of19 going through a formal hearing versus whether or not20 it's a number as high as 25 or 50 percent?21 A. I know that all of our notices of violation22 result in the process being afforded to the respondent.23 To be more specific than that, I defer that to the24 appropriate staff.25 Q. See, it's that whole process being afforded to

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1 the respondent that I'm looking to explore now. I want2 to know how many of those respondents, to use your word,3 asked to be afforded of the process, to use your word,4 with regard to contesting a notice of violation.5 MR. LANGLEY: Objection, form.6 MR. OWENS: Form.7 A. I've been answering your question I feel like,8 so maybe help me understand it a little bit more.9 Q. (BY MR. FAIRLESS) Yeah. I want to know how10 many people take you up on this protesting of the notice11 of violation. Is that something that rarely ever12 happens? Can you at least give me that? Or is it13 something that happens all the time? Can you at least14 give me that?15 MR. OWENS: Form.16 MR. LANGLEY: Objection, form.17 A. I -- I will defer that to the staff that works18 with those cases.19 Q. (BY MR. FAIRLESS) So the answer is you don't20 have any idea, as you sit here today, whether it's21 1 percent or 99 percent that take the issue of notices22 of violation to the protest stage?23 MR. OWENS: Form.24 MR. LANGLEY: Objection, form.25 Q. (BY MR. FAIRLESS) Is that right?

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1 MR. OWENS: Form.2 A. I don't have the information to answer your3 yes.4 Q. (BY MR. FAIRLESS) Okay. Let me show you what's5 been marked as Exhibit No. 451.6 MR. OWENS: Is that a new exhibit, Randy?7 MR. FAIRLESS: It is.8 MR. LANGLEY: Thank you.9 Q. (BY MR. FAIRLESS) The top document is an order,10 correct?11 A. Yes, sir.12 Q. Is that what you were referring to earlier as13 an enforcement order?14 A. Yes, sir.15 Q. And is this document -- the first two pages,16 which is referred to as the enforcement order, is that17 signed by you?18 A. It is.19 Q. And is that dated July 17 of 2008?20 A. It is.21 Q. And would that have been the first day of22 Operation Spotlight?23 A. I'll --24 MR. LANGLEY: Objection, form.25 A. -- defer -- I don't remember the exact date.

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1 Q. (BY MR. FAIRLESS) If the testimony and the2 evidence in this case is that Operation Spotlight3 started on July 17, 2008, which was a Friday, do you4 know of anything that disputes that?5 MR. OWENS: Objection, form.6 MR. FAIRLESS: Geez Louise, you mean to7 tell me we can't even agree that Operation Spotlight8 started on a Friday? That's what we've been reduced to?9 MR. OWENS: Not on the 17th; and that's10 what your question said, the 17th. You might talk to11 Kelley to get your dates straight.12 MR. FAIRLESS: Oh, because the date's13 wrong?14 MR. OWENS: Because your question is15 wrong.16 MR. FAIRLESS: Oh, okay. All right.17 Yeah. Sometimes I forget what case I'm in, so let me18 regroup.19 Q. (BY MR. FAIRLESS) Do you know Operation20 Spotlight to have started on July 18th, 2008, which was21 a Friday?22 A. I recall that on Friday we conducted some23 inspections on the case that you're talking about.24 Q. Do you not want to call those inspections25 Operation Spotlight for some reason?

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1 A. No, sir. There -- what we were doing on Friday2 was an inspection of a sampling of the company's fuel3 pumps.4 Q. What you were doing on Friday was the first5 phase of a targeted blitz against a single entity that6 owns retail motor fuel devices, fair?7 MR. LANGLEY: Objection, form.8 MR. OWENS: Objection, form.9 A. What we did on Friday was conducted inspections10 on a sampling of the company's fuel dispensers. At the11 time, we held out hope that that was going to be --12 those -- that sampling was going to be all that would be13 inspected.14 MR. FAIRLESS: I'll object as15 nonresponsive.16 Q. (BY MR. FAIRLESS) And remind you that you're17 under oath when you say we held out hope. Really,18 Mr. DeBerry, do you want to go with that?19 MR. OWENS: Objection, form.20 MR. LANGLEY: Don't -- wait.21 MR. FAIRLESS: No, I'm just saying come22 on now.23 MR. LANGLEY: Well --24 MR. FAIRLESS: Held out hope?25 MR. LANGLEY: You may not like his answer

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1 and --2 MR. FAIRLESS: For Pete's sake.3 MR. LANGLEY: -- you may not like the4 fact that the jury may appreciate his answer.5 MR. FAIRLESS: They may.6 MR. LANGLEY: But ask -- ask a clean7 question.8 MR. FAIRLESS: Okay.9 MR. LANGLEY: Please.10 MR. FAIRLESS: Yes.11 Q. (BY MR. FAIRLESS) This document, this12 enforcement order that you signed pertaining to Valero,13 was signed the day before Operation Spotlight began,14 correct?15 A. It was signed on July 17th, 2008.16 Q. Do you know, as you sit here today, whether or17 not that's the day before Operation Spotlight began?18 MR. LANGLEY: Objection, form.19 A. I don't recall the date. I'm sorry.20 Q. (BY MR. FAIRLESS) How much is this enforcement21 order for?22 A. 10,250.23 Q. Are you aware of a single notice of violation24 amounting to $10,000 or more in the history of your time25 as Deputy Commissioner of Agriculture, other than this

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1 one?2 A. I don't recall the details of a lot of the3 enforcement orders, so I --4 Q. Do you recall --5 MR. OWENS: You can finish your answer.6 Q. (BY MR. FAIRLESS) Yeah, go ahead. I can't ever7 tell when you're done, but you go ahead. I started my8 question too quickly.9 A. This is a sizable penalty.10 Q. Okay. But I'm not asking you whether or not11 it's a sizable penalty. I want to know can you recall12 another penalty of $10,000 or more to an owner of retail13 motor fuel devices besides this one to Valero, which you14 signed on July 17th, 2008?15 A. I seem to recall since the penalties were16 increased in 2007, I think is when we increased the17 penalties, I seem to recall that the amount went up18 significantly on these penalties. This amount is19 sizable, and I can't say I recall the amounts of any of20 the...21 MR. FAIRLESS: I'll object to22 nonresponsive everything before the sentence I can't --23 whatever that last sentence was -- I can't recall any of24 them.25 Q. (BY MR. FAIRLESS) Do you know how many retail

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1 motor fuel devices Valero has in the great state of2 Texas?3 A. No, sir.4 Q. Are they a big player in the retail motor fuel5 device industry?6 A. Yes, sir.7 Q. Are they one of the biggest, if not the8 biggest; or do you know?9 A. I don't know how they rate in comparison to10 others.11 Q. And do you know what the violation was that12 prompted this $10,250 enforcement order? If you don't13 know from your recollection, why don't you take a look14 at Page 5, which is the NOV, the Notice of Violation.15 A. That's what I'm looking at. This order is16 connected to a violation of the predominance threshold.17 Q. So what does that mean? That the violation is18 that Valero had their pumps predominantly in favor of19 the pump owner?20 A. That's correct. Yes, sir.21 Q. And what was the percentage that had22 purportedly been found to be in favor of the pump owner?23 A. It says here 80 percent of your pumps set in24 favor of your business.25 Q. Does it -- then yours says something different

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1 than mine, which I thought was a copy of yours. The one2 that I have says more than 80 percent of your pumps set3 in favor of your business.4 A. Okay. It says "more than."5 Q. And so did you ask your staff to run an6 analysis on Valero in light of this?7 A. I don't recall.8 Q. Did you ask your --9 A. Possibly.10 Q. I'm sorry?11 A. Possibly.12 Q. Okay. So if you don't recall, who would know13 the answer to the question of whether or not you asked14 someone on the staff to run an analysis on Valero?15 A. The staff I usually speak to about this would16 be Stephen Pahl or David Kostroun or Joe Benavides.17 Q. Okay. Was this $10,250 fine to Valero18 contested?19 A. I assume there was no -- they stipulated to the20 facts of the case. Is that -- is that what your21 question is?22 Q. That's what will answer my question. Are you23 on Page 4, where it says "Stipulation and Waiver of24 Hearing"?25 A. Yes, sir.

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1 Q. Do you see that? Yes?2 A. Yes, sir.3 Q. Okay. By reviewing the stipulation and waiver4 of hearing that you see before you, does that indicate5 that Valero is stipulating to the penalty and the6 violation and is waiving the hearing?7 A. Yes, sir.8 Q. And the penalty that they stipulated to was9 $10,250?10 A. I believe so. Yes, sir.11 Q. And they stipulated to all findings set forth12 in the NOV?13 A. Yes, sir.14 Q. Let me ask you this. If somebody wants to15 haggle a little bit about the language -- for instance,16 you give them a penalty and it's let's say $2,000. And17 they say, well, I didn't do it and I want to fuss about18 it; but, you know, it costs me more money to fuss about19 it than it would to just pay it. So can I just pay it20 and change some of the language on the stipulation and21 waiver of hearing? Can they do that?22 MR. LANGLEY: Objection, form.23 A. I'm -- I'm not aware they can.24 Q. (BY MR. FAIRLESS) It's your belief that, look,25 if you're going to pay the penalty, you've got to sign

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1 the stipulation and waiver of hearing, fair?2 MR. LANGLEY: Form.3 A. I'm not aware of anybody asking to do that. So4 I'm not familiar with what you're asking, a situation5 like what you're asking.6 Q. (BY MR. FAIRLESS) Are you aware -- and you can7 only rely upon your personal knowledge for this.8 A. Right.9 Q. Are you aware of anyone ever receiving10 permission to change the wording on a stipulation and11 waiver of hearing, or not sign it at all and just pay12 the penalty?13 A. I'm not aware.14 Q. All right. If you take a look at the next to15 the last page near the bottom, this again is the notice16 of violation. Do you see it says what you must do in17 response to this notice?18 A. Yes, sir.19 Q. And there's two choices. You can either accept20 the Department's determination by paying the recommended21 penalty or contest the occurrence of the violation or22 the amount or both, correct?23 A. Correct.24 Q. And then if you take a look at the very next25 page, do you see in bold where it says -- and it's the

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1 seconds paragraph from the top. We're on the last page.2 A. Hang on.3 Q. Do you see where it says if you choose to4 contest the Department's determination?5 A. Yes, sir.6 Q. And if you choose to contest the Department's7 determination, does it talk about where the hearing is8 going to take place? Next paragraph down.9 A. It does.10 Q. And where is the hearing to take place?11 A. In Austin, Texas.12 Q. Okay. Now, go back to the previous page, the13 next-to-the-last page; and let's look at that No. 1,14 which was you can, if you want, simply accept the15 Department's determination by paying the recommended16 penalty. And what must you sign and return if you want17 to pay the penalty?18 A. The stipulation and waiver of hearing, you must19 sign and a personal or business check or cashier's check20 or money order in the amount of.21 Q. Sure. Okay. So according to the notice of22 violation itself, if you're going to -- if you want to23 just pay the notice of violation and be done with it,24 pay the penalty, well, then you must sign the25 stipulation and waiver of hearing and return it with

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1 your check, correct?2 A. That's the way I understand it.3 Q. And this kind of goes back to the questions I4 was asking you earlier, which I'm just curious, to say5 the least, as to how often somebody actually goes to6 Austin to contest a notice of violation pertaining to a7 retail motor fuel device.8 MR. OWENS: Objection, form.9 Q. (BY MR. FAIRLESS) So now given what we've10 talked about with -- or I guess pertaining to this11 exhibit that you have in front of you, has any of this12 refreshed your recollection as to how many people13 actually make the trip to Austin to fuss about the14 notice of violation?15 MR. OWENS: Objection, form.16 Q. (BY MR. FAIRLESS) Or would I still have to look17 to your staff for that?18 MR. OWENS: Form.19 A. I'm not sure that what you just said is what20 this says. But, no, this conversation has not refreshed21 my memory of any data I didn't have before.22 Q. (BY MR. FAIRLESS) Okay. What part of what I23 said did you think misinterpreted this document or this24 series of documents?25 MR. LANGLEY: Objection, form.

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1 A. The --2 Q. (BY MR. FAIRLESS) Well, I mean, if I said3 something wrong, I want the opportunity to correct it.4 So you help me out if I misspoke on something.5 A. I'm not sure you have to come to Austin to6 express your concern or opposition. It says you should7 choose to do so in writing.8 Q. Oh, you're reading that paragraph on the last9 page, the first one?10 A. Yes, sir.11 Q. That's to let them know that you're going to12 contest it, you have to advise them in writing.13 A. Right.14 Q. The hearing itself takes place in Austin.15 A. Right, okay. I'm --16 MR. LANGLEY: Objection, form.17 A. I thought that's what you were asking.18 MR. LANGLEY: Are you going to include19 the entire sentence there?20 MR. FAIRLESS: Oh, yeah. I see what you21 want.22 Q. (BY MR. FAIRLESS) The hearing itself takes23 place in Austin, absent extraordinary circumstances,24 correct?25 A. Correct.

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1 Q. Okay. Do you know how often it is that -- that2 someone is found to be under extraordinary circumstances3 such that the hearing can take place outside of Austin?4 A. I suspect that's a determination for the law5 judge to make.6 Q. And I guess I'm just trying to find out do you7 know of any such hearings ever taking place outside of8 Austin; and if so, how off does that happen?9 A. It says here that the hearings are held by the10 State Office of Administrative Hearings, so I can't11 speak to their statistics.12 Q. No. But you're somebody who evidently used13 some notices of violation to trigger a request for a14 trend analysis, correct?15 A. That's correct.16 Q. And what I'm trying to figure out is did you17 ask any questions or did you do any investigation18 beforehand to get it straight in your own mind how many19 notices of violation are actually protested, how many20 people actually come to Austin, how often is there21 extraordinary circumstances where we go to them such22 that somebody actually goes through a formal hearing23 process to talk about penalties and notices of violation24 that they've received?25 A. I didn't ask for any of that data.

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1 Q. Well, were you alarmed on July 17, 2008, when2 you saw that Valero, one of the largest owners of retail3 motor fuel devices in the state of Texas, was4 stipulating to penalties, stipulating to a violation5 where more than 80 percent of their pumps were6 purportedly shortchanging consumers and was attaching a7 check for $10,250?8 MR. OWENS: Objection, form.9 A. I'm alarmed by every violation of the State's10 laws.11 Q. (BY MR. FAIRLESS) Well, did you follow up on12 this order and this notice of violation and this receipt13 of check by requesting a trend analysis like you did14 when you had notices of violation pertaining to PWI?15 MR. LANGLEY: Objection, form.16 A. I may have. I don't recall if I did it on this17 particular case.18 Q. (BY MR. FAIRLESS) Okay. Well, how would I19 know? How can I find out whether you did? Because you20 can't remember whether you did or you didn't, and I want21 to know how can I find out?22 MR. LANGLEY: Objection, form.23 A. Perhaps there are other staff that would help24 remember that.25 Q. (BY MR. FAIRLESS) Suppose that there is and

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1 suppose I've taken depositions from some of them and2 nobody else remembers you requesting any additional3 information pertaining to Valero, then would it be safe4 to say that you didn't request any additional5 information?6 MR. OWENS: Objection, form.7 A. No, sir.8 Q. (BY MR. FAIRLESS) Can you think of any resource9 that you would go to to find out whether or not you10 requested a trend analysis on Valero following receipt11 of these documents in this Exhibit 451?12 A. No, sir.13 Q. All right. Exhibit 332 is an exhibit that --14 A. Do you want this back, or do I keep this?15 Q. No, you can hang on to it right there. Do you16 see Exhibit 332 there?17 A. Yes, sir.18 MR. FAIRLESS: And sorry, John, I don't19 have another copy.20 MR. LANGLEY: That's all right.21 MR. OWENS: I've got mine. If it's22 premarked -- if we've used it before, I think I've got23 it.24 Q. (BY MR. FAIRLESS) The -- this says at the top25 in the printed portion, it looks like this maybe is

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1 coming off of some printed notepad. Is that what this2 is?3 A. It's note cards. Yes, sir.4 Q. Right. It says Texas Department of5 Agriculture, Drew DeBerry, Deputy Commissioner, and6 that's in print; and then at the very bottom of the7 card, I guess, it has the address, correct?8 A. Yes, sir.9 Q. And then there's some handwriting in between10 there, between top and bottom of the card. Is that your11 handwriting?12 A. It looks like it is. Yes, sir.13 Q. And the TS, does that mean Todd Staples?14 A. Possibly. Yes, sir.15 Q. Well, if not Todd Staples, then who else?16 A. I don't know. I would suspect it means Todd17 Staples.18 Q. All right. And do you communicate with Todd19 Staples by giving him note cards like this, or would20 this typically be notes you made to yourself to remind21 you when you talk to Todd Staples to tell him these22 things?23 A. I suspect this was a note, but I don't remember24 what it was used for. It was a note from myself to25 remind me what to -- what to talk to him about.

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1 Q. I bounce around a lot; and so if that ever2 confuses you, stop me and tell me your confused. Now3 I'm fixing to bounce back to the document we were4 talking about before, that Exhibit 451. And I want to5 ask you did you when you were requesting your trend6 analysis, ask to see a listing of all penalties that had7 been paid in conjunction with notices of violation for8 the owners of retail motor fuel devices?9 A. One more time.10 Q. Yeah. Did you say to -- first of all, who did11 you ask for the trend analysis? A specific name or12 person.13 A. I asked Stephen to coordinate it.14 Q. Stephen Pahl?15 A. Pahl. Yes, sir.16 Q. Okay. So did you -- did you tell Stephen Pahl,17 Stephen, I also want you to look back and for the last18 year, I want you to tell me how much each owner of19 retail motor fuel devices has paid in fines that are20 associated with notices of violation?21 A. No, sir.22 Q. In other words, did you want to know how much23 did Valero pay the previous year versus PWI versus24 RaceTrac versus any of the other owners of retail motor25 fuel devices in Texas?

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1 A. The amount of the penalty is of less concern2 than the penalty and what the violation was; but, no,3 sir, I didn't request that.4 MR. FAIRLESS: Okay. Everything before,5 "No, sir, I didn't request that," I'll object to as6 nonresponsive.7 Q. (BY MR. FAIRLESS) Did you -- well, what did you8 ask for? What was the specific trend that you wanted9 analyzed?10 A. The rate of noncompliance. The rate at which11 this company's fuel pumps were tilted in favor of the12 company when presented to our inspectors for inspection.13 Q. Okay. I want to talk to you about the rate of14 noncompliance; but, first of all, I want to move into15 something you just said that I've seen in quite a bit of16 TDA literature, "tilted in favor of."17 When y'all send a TDA inspector to a gas18 station and he does a test, I don't understand the use19 of the words "tilted in favor" of versus "found in favor20 of." Do tilted and found mean the same thing?21 A. Yes, sir.22 Q. Right. Because really the only thing the23 inspector can determine is assuming -- first of all, you24 have to assume with me for the test results to be25 reliable, the test itself and the manner in which it was

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1 performed has to be reliable, correct?2 A. Yes, sir.3 Q. Okay. So if the test was reliable, then the4 only thing the tester can really tell is whether or not5 the findings as found were shortchanging consumers,6 correct?7 A. All right. The first part of that...8 Q. Yeah. Can the inspector really determine9 anything with an accurate test, other than the findings10 are or are not found to be in favor of the station11 owner?12 A. An inspector can find a fuel pump that would be13 found in favor of the company or the customer. Is14 that...15 Q. I'm just trying to figure out why it is that16 you folks at the TDA were using tilted in favor of in17 your documentation as opposed to found in favor of.18 MR. LANGLEY: Objection, form.19 Q. (BY MR. FAIRLESS) When you were referring to my20 client, PWI.21 A. If a pump is found in favor of, that pump is22 tilted in favor of, I guess, is the thought process23 behind the use of that term.24 Q. So you didn't intend the connotation of tilted25 in favor of to be that it was intended by the owner that

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1 that pump be in favor of the station?2 MR. LANGLEY: Objection, form.3 A. I don't -- our role with determining intent is4 simply to go out and conduct inspections consistent with5 the protocol and let the inspection results speak for6 themselves.7 Q. (BY MR. FAIRLESS) And inspections that were8 done, assuming any were, that were consistent with the9 protocol would only tell you whether or not the pumps10 were found in favor of the business or the consumer.11 Not whether or not there was some sort of intentional12 setting of the pumps. Fair?13 MR. LANGLEY: Objection, form.14 A. An inspection in and of itself might not.15 Q. (BY MR. FAIRLESS) And so you and the folks at16 the TDA were not trying to convey intent when you used17 the term tilted in favor of. Fair enough?18 A. I don't -- I think maybe you're suggesting19 there's more in that word than I'm thinking there is.20 I'm not understanding what you're -- what you're asking.21 Q. I'm asking you is there more to that word, or22 does tilted in favor of simply mean found in favor of?23 A. Well, I think the results of the data analysis24 and the trend analysis, the inspections, all yielded25 results that suggested that it could be intentional.

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1 MR. FAIRLESS: I'm going to object to all2 that as nonresponsive.3 Q. (BY MR. FAIRLESS) We're not there yet. I'm not4 there yet to ask you about what your opinion of the5 results ultimately culminate into.6 A. Okay.7 Q. I'm just asking what was meant by tilted in8 favor of. Did you mean to convey any sort of9 intentional connotation, or were you simply meaning to10 say found in favor of?11 A. Well, forgive me. I feel like I've answered12 this question.13 Q. Try me one more time.14 A. Yes. Yes, the use of the word tilted and15 found, I was comfortable with the way you described it.16 Q. Okay, good enough. Has anybody told you that17 PWI intentionally set their pumps to shortchange Texas18 consumers?19 MR. OWENS: And if that communication20 came from an attorney, you're instructed not to answer21 it.22 MR. LANGLEY: Same instruction.23 MR. FAIRLESS: All right. I don't want24 to know what your lawyers told you.25 MR. LANGLEY: He's asking you -- excuse

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1 me. He's asking you about communications other than2 with lawyers.3 MR. FAIRLESS: Right.4 A. One more time.5 Q. (BY MR. FAIRLESS) Yeah. I'll break it down a6 little bit in the question. Has anyone that works7 presently for PWI ever told you that they were8 calibrating pumps to shortchange Texas consumers?9 A. No, sir.10 Q. Has anybody who has ever worked for PWI told11 you that they were calibrating pumps to shortchange12 Texas consumers?13 MR. LANGLEY: Objection, form.14 MR. FAIRLESS: What's wrong with -- oh.15 Anyone other than lawyers --16 MR. LANGLEY: To the extent of he knows17 -- no. And to the extent that he knows whether they18 used to work for PWI or not. You're assuming he has19 that knowledge.20 MR. FAIRLESS: Okay. All right.21 Q. (BY MR. FAIRLESS) Has anyone that has ever22 worked for PWI, to your knowledge, ever told you that23 PWI was calibrating pumps to the negative to shortchange24 Texas consumers?25 A. Not that I -- not to my knowledge.

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1 Q. Has anyone other than a lawyer that represents2 or speaks for the AG's Office or the TDA, I want to take3 those people out of the equation. Are you with me?4 Take all lawyers out of the equation.5 Now, has anybody ever told you that PWI6 was calibrating pumps to the negative to shortchange7 Texas consumers?8 A. My hesitation on answering is based on the fact9 that the inspection results yielded some discussion10 about whether there was intent, so I --11 Q. I'm not asking you for your interpretation of12 the inspection results, which is where that answer is13 going.14 A. Okay.15 Q. I'm asking you the words -- I'm thinking of16 that movie Rush Hour, "Do you understand the words17 coming out of my mouth?" Did you ever see that show?18 A. No, sir.19 Q. I want to know has anybody ever told you that20 PWI was calibrating pumps to the negative to shortchange21 Texas consumers. And, again, we've taken lawyers out of22 the equation. I don't care or want to know what they23 have told you.24 A. I don't recall any specific conversation when25 anyone told me that.

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1 Q. Did Stephen Pahl ever tell you that he had a2 conversation Arthur Ramirez, wherein they discussed PWI3 and its calibration of dispensers?4 A. Yes, sir.5 Q. And did Stephen Pahl tell you that one time or6 many times about this conversation with Arthur? Was7 that something he told you one time, and so you only8 heard it once in your life; or is that something that9 you and Stephen have talked about many times over the10 years?11 A. I remember one discussion.12 Q. Okay. When was that one discussion?13 A. I...14 Q. Let's start with was it before, during, or15 after Operation Spotlight?16 A. I don't believe it was before.17 Q. Okay. So it was either during or after18 Operation Spotlight was underway?19 A. Right.20 Q. Okay. Now, tell me what it is, as best you can21 recall, that Stephen Pahl told you about a conversation22 he had with Arthur Ramirez where they talked about PWI's23 calibration of its dispensers or a dispenser?24 A. Stephen said that when he was an inspector,25 he -- as I recall, because there were frequently

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1 problems with Sunmart fuel pumps, he became2 knowledgeable of...3 Q. Arthur Ramirez.4 A. Arthur Ramirez. They would have discussions5 from time to time. I don't -- I don't have any idea for6 how frequently that would happen. And -- and Stephen7 said that they did have discussions about what causes8 the high rate of problems with Sunmart fuel pumps.9 Q. So what did he tell you Arthur told him that10 shed some light on this high rate of problems?11 A. Stephen said that Arthur indicated he was just12 doing what he was told.13 Q. So did Stephen tell you that Arthur was told to14 set the pump -- or did Stephen -- let me try a different15 question.16 Did Stephen tell you that Arthur told17 him, Stephen, that Arthur was told to set the pumps to18 the negative by someone within the PWI family?19 MR. OWENS: Form.20 A. There was a lot of --21 Q. (BY MR. FAIRLESS) Right.22 A. -- saids in there. Can you repeat it?23 Q. Yeah, but I'm not going to repeat it exactly.24 I just want you to tell me specifically as best you can25 recall, what it is that Stephen told you that Arthur

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1 told him about calibrating PWI pumps.2 A. I don't remember much more than Arthur said he3 was doing what he was told.4 Q. Right. But that whole context of doing what5 he's told, depending on what it is Arthur is doing at6 the moment, he says, "I'm just doing what I'm told," has7 an impact on, you know, what that could really mean.8 Are you with me?9 A. Uh-huh.10 Q. Yes?11 A. I'm with you.12 Q. Okay. So what was Arthur doing per Stephen at13 the moment in time when Arthur says, "I'm just doing14 what I'm told"?15 A. I don't know.16 Q. Did you understand any more of the background17 behind what Arthur meant when he said, "I'm just doing18 what I'm told"?19 I mean, did Stephen fill in some gaps for20 you? What exactly does that mean, Stephen, Arthur21 saying, "I'm just doing what I'm told"?22 A. Stephen and I discussed the implication that23 possibly that meant he was being told to set the pumps a24 certain way, but --25 Q. And did you -- go ahead. Did you ask Stephen,

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1 well, Stephen what did you do to verify that that's2 possibly what Arthur meant?3 A. I don't recall asking Stephen that question.4 Q. For instance, did you say, "Stephen, look, you5 were an inspector back then. Did you go ask other6 inspectors to talk to Arthur or did you go talk to7 someone else who calibrates for PWI or, Stephen, did you8 contact PWI and somebody in their maintenance department9 or front office to ask them whether or not Arthur had10 ever been instructed to calibrate to the negative or,11 Stephen, did you go talk to the front office people at12 PWI and ask them if Arthur had been told to calibrate to13 the negative?"14 Those are all just by way of example, but15 that's what I want to know. Did you ask Stephen whether16 he did any follow up to try and find out what Arthur may17 have meant?18 MR. OWENS: Form.19 MR. LANGLEY: How can he possibly be20 responsive to what you just uttered?21 MR. FAIRLESS: Easy. He just focuses on22 that last part.23 MR. LANGLEY: Okay. Objection, form.24 Q. (BY MR. FAIRLESS) Did you ask -- did you ask25 Stephen if he did any follow up at all to try to help

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1 ascertain what it was that Arthur meant when Arthur2 said, "I'm just doing what I told"?3 A. I don't remember if we had that -- the4 discussion in that detail.5 Q. When did Stephen tell you he had this6 discussion with Arthur?7 A. When he was an inspector.8 Q. Right. But did he give you some idea of when9 that was? Because you were off in Washington, DC, for a10 number of years. Did you just know when it was Stephen11 was an inspector, or did you have to ask?12 A. I didn't ask.13 Q. Okay. Well, when was Stephen an inspector? He14 works directly for you now, so are we talking about a15 comment that was supposedly made by Arthur five years16 ago or ten years ago or more than ten years ago?17 A. Stephen was the chief of the regulatory18 department or chief of the weights and measures19 department within our regulatory division when I started20 at the Texas Department of Agriculture, so he would have21 been an inspector prior to 2007.22 Q. But that is why I asked you the question. Do23 you know when Stephen was an inspector, therefore,24 helping you understand more about this time period when25 he would have had this conversation with Arthur?

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1 A. I don't know the dates that he was an2 inspector.3 Q. No, I know you don't know the dates. But do4 you know if it was two years ago or five years ago or5 ten years ago or longer?6 A. I don't know.7 Q. Okay. So as far as you know sitting here8 today, this conversation Stephen had with Arthur, it9 could have taken place in early 2007 or 2006 or 1996. I10 mean, you just don't know.11 MR. OWENS: Objection, form.12 A. All I know is it would have taken place prior13 to when I arrived in 2007.14 Q. (BY MR. FAIRLESS) Did you ever ask the15 question, well, Stephen, was there ever anything that --16 any discussions that you had with not just Arthur, but17 any PWI person or any third-party calibrator that worked18 for PWI since that conversation with Arthur to help us19 maybe understand a little more about that statement20 Arthur made?21 A. No, sir.22 Q. Did you ever ask Stephen if he or anyone at his23 direction went and interviewed third-party calibrators24 to find out what instructions they were being given by25 PWI when it comes to calibration, if any instructions?

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1 A. No, sir.2 Q. Did you ever ask Stephen to find out who does3 PWI's calibration work and let's start there and figure4 out, you know, who's doing the work and then we can5 explore their motivations?6 A. The motivation is of less concern to me than7 the fact that there's a violation. The violation is the8 main concern. And in this case, we had a 34 percent9 noncompliance rate that was verified to be actually10 nearly 60 percent noncompliance when we conducted our11 inspections.12 MR. FAIRLESS: I'll object as13 nonresponsive.14 Q. (BY MR. FAIRLESS) Do you remember my question?15 A. Would you -- you can restate it.16 Q. Did you ask Stephen whether or not he had gone17 to any third-party calibrators that did work for PWI18 calibrating dispensers to find out what their feedback19 was regarding instructions, if any, from PWI?20 A. No. I thought you used the word "motivation"21 before, so --22 Q. I did. And I can't ever remember those23 questions exactly, remember them and repeat them exactly24 the same.25 A. Okay. Well --

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1 Q. Do you want me to try it again?2 A. No, I don't recall asking Stephen that3 question.4 Q. Okay. To this day, to your knowledge, has5 anybody gone to the third-party calibrators to ask them6 what instructions, if any, they received from PWI before7 they actually calibrated PWI's dispensers?8 A. I don't -- I don't know.9 Q. Was that part of the analysis that was done10 before targeting PWI?11 MR. OWENS: Objection, form.12 A. Was what part of the analysis?13 Q. (BY MR. FAIRLESS) Trying to find out what14 instructions, if any, PWI actually gave the third-party15 calibrators that did the bowl work of PWI calibrations?16 A. The data that was analyzed before, which is17 what I think you're asking about, was a comparison -- a18 simple, a very simple direct comparison of this19 company's noncompliance rate to the statewide average.20 That combined with us also finding out that they had a21 history, a very concerning history, of violating the22 predominance threshold is what -- back to your23 question -- led to -- led to the inspections.24 MR. FAIRLESS: I'll object as25 nonresponsive.

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1 Q. (BY MR. FAIRLESS) So let's talk about the --2 we'll come back to this document in a minute. How was3 the PWI compliance rate calculated?4 You've mentioned it -- oh, I don't5 know -- two dozen times already today. So just tell us6 how it was calculated.7 MR. OWENS: Objection, form.8 A. I'll defer to the people that calculated it.9 But when it's explained to me, it's a rate of the number10 of pumps that are noncompliant compared to the -- as a11 percent of the total number of pumps inspected.12 Q. (BY MR. FAIRLESS) Okay. So it's number of13 pumps noncompliant over number of pumps inspected?14 A. Yes, sir.15 Q. And what was the percentage again?16 A. 34, 35. That's what it was before we conducted17 the inspections. It was six -- nearly 60, as I recall,18 when we conducted the inspections.19 MR. FAIRLESS: I'll object as20 nonresponsive everything after 34, 35.21 Q. (BY MR. FAIRLESS) You mean 34 to 35 percent,22 right?23 A. Yes, sir.24 Q. Okay. And is that all pumps including bulk?25 MR. LANGLEY: Objection, form.

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1 Q. (BY MR. FAIRLESS) Does that include bulk2 diesel?3 A. I assume it includes all pumps inspected.4 Q. So does that include bulk diesel?5 MR. LANGLEY: Objection, form.6 MR. FAIRLESS: What could possibly be7 wrong with that question? If he didn't know, he can8 just say he doesn't know.9 MR. LANGLEY: Well, I think he's already10 told you he would defer to the people who were actually11 crunching the numbers for the basis for those12 calculations, but he's --13 MR. FAIRLESS: Well, then why can't you14 just let him answer?15 MR. LANGLEY: -- giving you his best16 memory, but you're trying to tie his answer as being17 definitive for what actually transpired in terms of the18 calculations and I know that's what you're doing.19 MR. FAIRLESS: I can't tie it to anything20 other than this is what Drew DeBerry told me. That's21 all I'm going to tie it to, Drew DeBerry.22 MR. LANGLEY: Good deal. Then we're23 good.24 MR. OWENS: He said the numbers25 inspected.

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1 Q. (BY MR. FAIRLESS) To your knowledge, does the2 number of pumps noncompliant over the number of pumps3 inspected include bulk diesel?4 A. I assume so, but I don't have that information.5 Q. And so did you look at the number of pumps6 noncompliant over the number of pumps inspected for7 every other retail motor fuel device owner in the great8 state of Texas?9 A. We looked at the statewide average, yes, sir.10 Statewide average, which includes every other pump11 inspected in the state of Texas was 5 percent for12 noncompliant.13 MR. FAIRLESS: I'll object as -- I'll14 object as nonresponsive.15 Q. (BY MR. FAIRLESS) I'm not asking you did you16 compare the 34 percent to some statewide average. I'm17 asking you did you run the same calculation, number of18 pumps noncompliant over the number of pumps inspected,19 for each and every other retail motor fuel device owner20 in the great state of Texas for whatever time period it21 was y'all were looking at?22 A. Yes. We --23 Q. Okay.24 A. We did the statewide -- the statewide average25 includes all of those other companies.

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1 Q. But I'm not asking you about the statewide2 average. The statewide average might be all those other3 50 companies out there, Mr. Fairless, they had 5,0004 pumps that were noncompliant and we looked at 100,0005 pumps total and this is the statewide average, what do6 you know, 95 percent. I'm not asking you about any of7 that. Okay? I don't want to know if y'all did it on a8 statewide average.9 I want to know if piecemeal you broke it10 and down and said for RaceTrac, their rate of compliance11 or noncompliance, if you will, is X. For Valero, it's12 Y. For this other company, it's Z. Are you with me? I13 want to know if you broke it down for each company as14 opposed to taking everybody else as a whole and looking15 at it as an average.16 A. Right. I do think that some of that analysis17 was done. I don't remember the results of any other18 particular one.19 Q. Who would have done that analysis?20 A. I believe it was part of what Stephen helped21 coordinate, Stephen Pahl.22 Q. So what does that mean? It's what -- did23 Stephen Pahl do anything on his own, to your knowledge;24 or is it something we asked Wynne Hexamer to do?25 A. I assume he used the help of people that can

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1 access the database.2 Q. Do you know who Wynne Hexamer is?3 A. Yes, sir.4 Q. Okay. Did he use anybody other than Wynne5 Hexamer, to your knowledge, to crunch any of these6 numbers that resulted in this analysis?7 MR. OWENS: Objection, form.8 A. I -- I don't know who all he use.9 Q. (BY MR. FAIRLESS) Right. That's why the10 question started to your knowledge.11 A. Okay.12 Q. Okay. To your knowledge, did Stephen Pahl use13 anyone else to crunch numbers besides Wynne Hexamer?14 MR. OWENS: Objection, form.15 A. Not to my knowledge.16 Q. (BY MR. FAIRLESS) Okay. And are you able to17 tell me as opposed to saying everybody else out there18 but PWI, their average is 95 percent compliant,19 5 percent noncompliant, are you able to break down the20 companies that constitute everybody else and tell me21 what their noncompliance percentage rates are?22 A. I believe we would be able to do that.23 Q. Okay. Who was the highest company besides PWI?24 Evidently, if we're going to go with PWI was the25 highest, who was the next highest and what was their

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1 rate?2 A. I don't -- I can't answer that without having3 the data in front of me.4 Q. And how many pumps did they have inspected?5 MR. LANGLEY: Objection, form.6 Q. (BY MR. FAIRLESS) Or how many pumps do they7 own? Are you able to give me any of that information?8 A. No, sir.9 Q. All right. So this is how you got the10 34 percent and the -- I'm guessing the 95 percent was11 arrived at -- first of all, were you saying 5 percent12 noncompliant or 95 percent compliant? Which was --13 which is the way you pitch it?14 MR. OWENS: Objection, form.15 Q. (BY MR. FAIRLESS) No. I mean, how have you16 been saying it? 95 percent compliant is everybody else17 in the industry, or 5 percent noncompliant is everybody18 else in the industry? Because I want to use your words.19 A. I've used both -- both terms.20 Q. Okay. The 95 percent compliance then, would21 that have been reached by the number of pumps that were22 compliant over the number of pumps that were inspected?23 MR. LANGLEY: Objection, form.24 A. I would think it would be a simple subtraction25 from 100 on what the noncompliance rate is, but I -- the

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1 staff --2 Q. (BY MR. FAIRLESS) Okay. So --3 A. -- that conducts those would be better to4 answer that question.5 Q. So everybody else in the industry, you think6 the number of all noncompliant pumps found over the7 total number of pumps inspected in the great state of8 Texas, that's where the 5 percent noncompliance would9 come from?10 MR. LANGLEY: Objection, form.11 A. I think that's what I said, but can you say12 that one more time?13 Q. (BY MR. FAIRLESS) Yeah. If you took the number14 of pumps noncompliant for everybody else but PWI and15 then into that, you divide the number of pumps inspected16 for everybody but PWI, is that how you get the 5 percent17 compliance?18 A. Oh, wait. No, no, no, no. I'm not19 understanding it.20 Q. I'm just using what you told me earlier.21 A. I know. Can --22 Q. Number of pumps noncompliant --23 A. Can I see what you're looking at? Maybe that24 will help.25 Q. Yeah. Number of pumps noncompliant over number

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1 of pumps inspected.2 MR. OWENS: I want that pad marked as an3 exhibit.4 A. And this is to determine the number of the5 noncompliance rate, which you've written 34 percent; so6 that's the PWI noncompliance rate before the7 inspections?8 Q. (BY MR. FAIRLESS) Right.9 A. Okay.10 Q. And I want to know when you did the calculation11 for the rest of the industry, was it the same way?12 Number of pumps noncompliant over the number of pumps13 inspected for the remainder of the industry to get to14 the 5 percent noncompliant?15 MR. LANGLEY: Don't answer that question.16 MR. FAIRLESS: Why?17 MR. LANGLEY: Because you just asked him18 when he did the calculation.19 MR. FAIRLESS: No.20 MR. LANGLEY: That was your question.21 MR. FAIRLESS: Right. But my meaning --22 MR. LANGLEY: And you know -- okay.23 MR. FAIRLESS: Look, he didn't do the24 calculation.25 MR. LANGLEY: Okay. And I just don't

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1 want you speculating.2 THE WITNESS: Sure.3 MR. LANGLEY: All right. So...4 Q. (BY MR. FAIRLESS) It your understanding that5 the calculation to come up with the 5 percent for the6 rest of the industry was done the same way as the7 calculation to come up with the 34 percent for PWI?8 A. Yes.9 Q. Now, when you came up with the rest of the10 industry, did you factor in PWI when coming up with the11 industry numbers; or did you look at the numbers12 exclusive of PWI?13 MR. LANGLEY: Objection, form.14 Q. (BY MR. FAIRLESS) Do you understand what I'm15 getting at?16 A. The statewide average would include every pump17 inspected in the state.18 Q. Including PWI's pumps?19 A. We'll have to -- you can verify that with the20 staff that conducted it, but that would be my21 assumption.22 Q. Okay. So what else did you take from this23 trend analysis that you asked for? What else did you24 receive in response to the trend analysis you asked for?25 Hey, Mr. DeBerry, everybody else in the industry is

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1 5 percent noncompliant, PWI is 34 percent noncompliant;2 so I assume somebody reported that back to you?3 A. Correct.4 Q. So what else did they report back to you?5 A. That Petroleum Wholesale in direct comparison6 to the statewide average of 5 percent noncompliant,7 Petroleum Wholesale had a 34 percent noncompliance rate.8 Q. We just talked about that.9 A. Petroleum Wholesale --10 Q. That's why my question was what else. God, we11 don't need to repeat what we've already done. I just12 want you to tell me what else.13 A. Okay.14 MR. LANGLEY: He just doesn't like your15 answer.16 MR. FAIRLESS: I'll object to all that17 as -- I've heard it a thousand times. I get it.18 MR. LANGLEY: Well, and I --19 MR. FAIRLESS: I get it.20 MR. LANGLEY: -- know you're not a man of21 patience.22 MR. FAIRLESS: I only have a limited23 amount of time, so I can't spend -- never mind. Okay.24 I got that one. I'll object to what you answered as25 nonresponsive.

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1 Q. (BY MR. FAIRLESS) Now, go ahead and tell me2 what else.3 A. Well, if I'm not being responsive, maybe you4 can rephrase the question.5 Q. I want to know what else besides the 5 percent6 compared to the 34 percent noncompliance rate was given7 back to you in response to your request for a trend8 analysis?9 A. The fact that Petroleum Wholesale had violated10 the predominance threshold, had a history, a concerning11 history of violation of the predominance threshold; and12 I seem to recall also being told that the 34 percent13 noncompliance rate was not only significant in direct14 comparison of the 5 percent statewide average, but also15 in comparison to other companies.16 Q. So somebody did look at the other companies17 individually then? They didn't just measure the18 34 percent against the statewide average. What you're19 saying is they also looked at what Valero's percentage20 was, what RaceTrac's percentage was; and the 34 percent21 you're saying was a larger number than the others, even22 on an individual versus individual basis? Yes?23 A. Yes.24 Q. Okay. Who did that analysis,25 company-by-company-by-company analysis? Was that Wynne

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1 Hexamer?2 A. I don't know who did it. I never saw it.3 Q. Do you have -- do you have an -- you never saw4 it?5 A. No, sir.6 Q. Okay. Do you have an understanding, not7 withstanding that you never saw it, who did it?8 A. I asked Stephen Pahl --9 Q. No -- go ahead.10 MR. LANGLEY: I think he wants to know if11 you know who did the actual calculations.12 A. I assume Stephen did some. I'm sure he13 utilized Wynne. I don't -- I don't know what all14 resources Stephen utilized to get --15 Q. (BY MR. FAIRLESS) Okay.16 A. -- to analyze that data.17 Q. And then when you said PWI violated the18 predominance threshold, that that was reported to you,19 what did they show you in that regard? What support did20 they have for that?21 A. There was a number -- there was a number -- I22 don't recall what it was. Well, this note here has a23 number written on it.24 MR. LANGLEY: You're referring to 332?25 THE WITNESS: Correct.

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1 A. I would interpret that note of ten stations2 over 60 percent between the time period of January 25th,3 2006, and June 8th, 2007. And then the note right below4 it, three stations over 60 percent for a different5 period of time.6 MR. FAIRLESS: I'll object to all that as7 nonresponsive.8 Q. (BY MR. FAIRLESS) We're going to talk about9 that. That's why I said earlier we're going to come10 back and talk about this exhibit.11 A. Okay.12 Q. But right now, I'm just wondering what13 documentation, if any, that you saw pertaining to the14 report that was being given to you that PWI violated the15 predominance threshold?16 A. I don't recall specific documents.17 Q. What ever it was that you saw, did you see the18 same thing for Valero and RaceTrac and all the others so19 you could see in your -- in living color what PWI's20 number of predominance violations was in comparison to21 every other retail motor fuel device owner in the great22 state of Texas?23 A. I've seen a lot of different data associated24 with our various programs.25 Q. Did you see that data?

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1 A. I don't recall specifically seeing a break down2 like what you're asking.3 Q. Would you have expected to see that data so4 that you would know, okay, well, I see what PWI's5 predominance violations have been for this given period6 of time. Now, let's see how that ranks with everybody7 else. How many did RaceTrac have for the same period of8 time, and how many stations do they have. Okay, well,9 how many does Valero have in the way of predominance10 violations and how many stations do they have.11 And would you have expected to see that12 type of analysis if you were going to consider13 predominance violations?14 MR. OWENS: Form.15 A. Not necessarily. No, sir. The data that we16 relied on was inclusive of all of the data, including17 the 34 percent compared to 5 percent that everybody else18 in this state meets with no problem and a significant19 number of predominance threshold violations, all of that20 combined.21 MR. FAIRLESS: I'll object as22 nonresponsive.23 Q. (BY MR. FAIRLESS) Who else in this state can24 you compare a blitz to of the size and magnitude that25 was done during Operation Spotlight of PWI?

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1 MR. OWENS: Form.2 A. I'm not comparing anybody else in the state to3 the 68 or 58 percent that was found through the4 operation.5 MR. FAIRLESS: I'll object as6 nonresponsive.7 Q. (BY MR. FAIRLESS) Who else underwent that kind8 of inspection scrutiny in the great state of Texas9 during your tenure as Deputy Commissioner of10 Agriculture, besides PWI?11 MR. LANGLEY: Objection, form.12 Q. (BY MR. FAIRLESS) Anybody?13 A. I'm not aware that anyone has been through a14 particular level of data scrutiny; but I do know that15 our staff has a request from me, a directive from me, to16 continuously identify or analyze data to see if there17 are other trends out there like this 34 percent.18 MR. FAIRLESS: I'll object to everything19 that begins with "but I do know" as nonresponsive.20 Q. (BY MR. FAIRLESS) So did you look at the21 predominance violations of other owners of retail motor22 fuel devices or not?23 A. I seem to recall that some -- there was some24 data analyzed on other companies. The main thing I was25 concerned about was the statewide average.

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1 Q. I didn't ask you though about some data on2 other companies. I asked you specifically about3 predominance violations for other owners of retail motor4 fuel devices. And I've already talked to Wynne Hexamer5 and I've already talked to Stephen Pahl and now I'm6 testing your recollection.7 I want to know did you see any of that8 type of information on the others?9 MR. LANGLEY: Him personally?10 MR. FAIRLESS: Yeah, yeah. You11 personally because you're the one who pulled the trigger12 on the decision to move forward.13 MR. LANGLEY: I'm just trying to make14 clear the question.15 MR. OWENS: Form.16 A. Well, Mr. Fairless, I'm again sorry. I thought17 I had answered that. I didn't realize that's where --18 that's the question you were asking just now. I've not19 seen that information that I can recall.20 Q. (BY MR. FAIRLESS) Okay. What time period --21 because we've talked about, you know, a given time22 period or I have, you haven't. But what time period was23 this 34 percent calculated over?24 A. I don't recall the specifics of the time25 period.

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1 Q. Well, using this Exhibit 332, does that help2 you at all or no?3 A. No, sir.4 Q. See the 34.2 percent at the bottom, that's this5 percentage that you've been talking about, number of6 pumps noncompliant over the number of pumps inspected?7 A. Yes, sir.8 Q. And let's just -- let's just go down through9 this. First of all, where did this information come10 from? Is this you making notes about something that was11 shown to you by Stephen Pahl, or is this you making12 notes that come from what Stephen Pahl is telling you?13 A. Probably a combination. Stephen presented data14 to me verbally; and I remember seeing reports that he15 had run, too.16 Q. And it -- there would be no point in me trying17 to talk to you about what reports you saw because you18 can't remember them, can you?19 A. No, sir.20 Q. All right. It says 98 stations. Is that21 information that came to you from Stephen Pahl?22 A. Possibly.23 Q. It says 71 not in last six months. Does that24 mean 71 stations were not inspected in the last six25 months?

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1 A. As I recall, that's what it means.2 Q. And then it says 35 dash Phase 1. Does that3 mean in this targeted blitz against PWI, there are going4 to be 35 stations blitzed as part of Phase 1?5 MR. OWENS: Form.6 A. I believe that was referring to 35 stations to7 be inspected.8 Q. (BY MR. FAIRLESS) And then it says ten stations9 over 60 percent from 1/25/06 to 6/8/07. So that means10 there were ten stations of 98 that were over the11 60 percent mark during a one and a half year period of12 time?13 MR. OWENS: Form.14 MR. LANGLEY: Objection, form.15 Q. (BY MR. FAIRLESS) What does it mean ten16 stations over 60 percent from 1/25/06 to 6/8/07?17 A. I assume that means ten stations violated the18 predominance threshold during that period of time or --19 no. Ten stations were over 60 percent during that20 period of time.21 Q. Okay. Well, when it says predominance22 threshold, what is it?23 A. That's a component of the national standard24 requires that predominance, if there are a predominant25 number of devices noncompliant, then the penalty could

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1 be escalated.2 Q. I didn't understand any of that, but I'm not so3 sure I need to. 10 percent over 60 -- I mean, I'm4 sorry. It says ten stations over 60 percent. That's5 ten stations of the 98 stations?6 A. Ten stations of what Sunmart Petroleum7 Wholesale operate in Texas, I assume.8 Q. Well, what is the 98 stations at the top mean?9 A. That's -- I assume that's how many stations10 Sunmart operates.11 MR. LANGLEY: He's not asking you to12 assume things.13 Q. (BY MR. FAIRLESS) So from January of '06 to14 June of '07, roughly a year and a half, there were ten15 stations over this 60 percent mark? That's what your16 note indicates?17 A. Yes, sir.18 Q. And then for the next it looks like ten months,19 there were three stations over the 60 percent mark?20 MR. OWENS: Form.21 A. Yes, sir.22 Q. (BY MR. FAIRLESS) And I'm saying three stations23 only because that's what you wrote down. There were24 actually only two stations because one was inspected25 twice and found to be over 60 percent both times, right?

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1 MR. OWENS: Form.2 A. I don't know if that was one of the three or if3 there were only two stations, one of them twice.4 Q. (BY MR. FAIRLESS) Oh. So you don't know if5 there were three stations and one of those three was6 twice versus whether or not there was only two stations7 and one of those two was twice. Is that what you're8 telling me?9 A. I don't know if that means that there were one10 of the three or that there were only two stations and11 one of them was found twice.12 Q. The one that was found twice, the same station,13 did you ask anybody as part of your search for14 information, search for data, did you ask anybody to15 check into the fact that wait a second, if they were16 over 60 percent, then those pumps can't be put in17 service until they've been calibrated and then they're18 subject to a reinspection, so I want you boys to tell me19 who went out there and calibrated those pumps because we20 evidently turned right around and found them above21 60 percent again?22 MR. OWENS: Form.23 MS. FRIEDMAN: You're out of time on the24 tape.25 MR. FAIRLESS: It's what?

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1 MS. FRIEDMAN: You're out of time on the2 tape.3 MR. LANGLEY: It's a good time for a4 bathroom break.5 Q. (BY MR. FAIRLESS) Are you with me?6 A. No, I'm not. I didn't follow that question.7 MR. LANGLEY: You can finish this up.8 Yeah.9 MR. FAIRLESS: Huh?10 MR. LANGLEY: Finish this up, and then at11 some point I would like to take a bathroom break is all12 I'm trying to tell you.13 MR. FAIRLESS: No, I hear you. But are14 out of the tape?15 THE VIDEOGRAPHER: One minute.16 MR. LANGLEY: Yeah, that's what I'm17 saying.18 Q. (BY MR. FAIRLESS) Okay. This is what I want to19 know: Did you have anybody go to the station records20 where the station was found above 60 percent twice and21 say, well, who calibrated the pumps after they were22 found to be above 60 percent the first time and let's23 start there with our analysis?24 MR. OWENS: Objection, form.25 A. No, sir.

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1 Q. (BY MR. FAIRLESS) If I told you that Wayne2 Services is the one that went to Station 493, calibrated3 all of those pumps there, and then by goodness the TDA4 comes out again and finds the pumps still to be5 60 percent or greater, is that information coming to you6 as news or had you heard that before?7 MR. OWENS: Form.8 A. I don't recall having heard that.9 Q. (BY MR. FAIRLESS) Would it interest you though10 today as you sit here, Deputy Commissioner of11 Agriculture, to know who calibrated the pumps if it was12 found to be on back-to-back inspections above13 60 percent?14 MR. OWENS: Form.15 Q. (BY MR. FAIRLESS) Would you want to know who16 calibrated them after the first inspection?17 A. I suspect --18 MR. OWENS: Form.19 A. -- some of our staff would be looking into20 those details.21 Q. (BY MR. FAIRLESS) You would certainly expect22 so, wouldn't you?23 MR. OWENS: Form.24 A. Yes, sir.25 Q. Did you say yes? What did you say?

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1 A. I said yes, sir.2 Q. Oh, okay.3 THE VIDEOGRAPHER: This is the end of4 Tape 3. Off the record at 2:19.5 (Recess taken)6 THE VIDEOGRAPHER: This is the beginning7 of Tape 4. We are on the record at 2:30.8 MR. FAIRLESS: Let's stop. Go off the9 record for just a second.10 THE VIDEOGRAPHER: Off the record at11 2:30.12 (Discussion off the record)13 THE VIDEOGRAPHER: Back on the record at14 2:31.15 Q. (BY MR. FAIRLESS) You've probably never worked16 for the Wildlife Commission, have you?17 A. No, sir.18 Q. Have you ever seen or heard how they'll tag a19 duck or tag some sort of animal and then come back and20 check in with that same duck or that same animal later21 on, just to see how things have progressed since it was22 tagged?23 A. I'm not familiar with how they do that.24 Q. Have y'all ever had a program similar to that25 with the TDA where you take a gasoline pump that is

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1 calibrated, you're there when it's calibrated, you watch2 it being calibrated, and then you tag it, seal it, and3 then come back one month, two months, six months later4 to find out how or if that calibration has changed, if5 it's moved towards the positive, if it's moved towards6 the negative, and do that to a series of pumps so that7 you can analyze the conclusions?8 MR. OWENS: Form.9 A. I'm not aware that we've done anything like10 what the Parks Department does on that program.11 Q. (BY MR. FAIRLESS) Okay. Have you solicited any12 information like that from experts in the industry as to13 what can, does, or could happen if you calibrate a pump14 and then come back six months later or a year later15 after the pump has been experiencing regular use?16 A. I can't speak for what our staff has sought17 feedback from them on, but --18 Q. To your knowledge.19 A. Not to my knowledge.20 Q. The -- the discussions that took place at that21 meeting where Stephen Pahl was there with the regional22 directors and the chief inspectors, you had some23 documents in hand, a handful or less, five or less24 enforcement orders, NOVs, and checks and you went over25 to where Stephen Pahl was, correct?

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1 A. Yes, sir.2 Q. And where was he?3 A. In our building in a conference room.4 Q. Okay. And so how many people were in that5 meeting with him?6 A. I couldn't speculate; but there were more than7 five, less than 50.8 Q. And did you call Stephen Pahl out of the room9 to talk to him about the issues that you had in mind to10 discuss with him, or did you have your discussion with11 Stephen Pahl in front of the more than five, less than12 50 people?13 A. As I recall, Stephen was sitting on the back14 row, not at the conference table; and I sat down beside15 him and asked him some questions.16 Q. Oh. Somebody else was doing the speaking, and17 Stephen was just somebody who was in attendance; is that18 it?19 A. I imagine he was participating, but I don't20 know what his role was.21 Q. When you came upon him, he wasn't talking. He22 was on the back row?23 A. As I recall, yes, sir.24 Q. And there was a vacant chair next to him, so25 you sat down and then what did you do? Did you pull out

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1 the documents and say, "Stephen, look here, look what we2 have here"? Take me from there. Tell me about the3 conversation with Stephen.4 MR. OWENS: Form.5 A. I asked him if he was -- if he had seen things6 like this in the past, if he had any thoughts on how we7 could verify whether or not there's a trend.8 Q. (BY MR. FAIRLESS) All right. Did every9 document that you had with you that day pertain to PWI?10 A. Yes, sir.11 Q. And when you said that you asked him had he12 seen things like this in the past, did you mean notices13 of violation for the predominance rule generally or did14 you mean notices pertaining to PWI or did you mean15 multiple notices for any single retail motor fuel device16 owner?17 MR. OWENS: Form.18 A. I think it was simpler than that. I was19 curious as to whether he had ever seen anything like20 that as far as the egregiousness.21 Q. (BY MR. FAIRLESS) The egregiousness being the22 more than 60 percent or the egregiousness being a23 preponderance issue? I mean, what do you mean24 egregiousness?25 A. The violation of the predominance threshold

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1 with multiple occurrences by the same company within a2 close period of time.3 Q. What we see there in front of you on Exhibit4 No. 451, that shows the $10,250 fine for a single5 location, that is -- has more than 80 percent of their6 pumps noncompliant, is that egregious?7 A. Yes, sir.8 Q. And do you know where that station was?9 A. No, sir.10 Q. Which is the biggest media market from -- well,11 you just tell me which is the bigger media market. Is12 Temple, Texas; or is it Houston, Texas?13 MR. OWENS: Objection, form.14 A. I would imagine Houston is a larger media15 market.16 Q. (BY MR. FAIRLESS) Well, come on now. I mean,17 you were involved in the campaigns such as Bush and18 Cheney. You know which one is the larger media market,19 don't you; or do you really have to imagine?20 MR. OWENS: Objection.21 MR. LANGLEY: Objection, form.22 A. I've not done press for any of my former23 employers.24 Q. (BY MR. FAIRLESS) As you sit here today, you25 can't tell this jury which is the larger media market,

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1 Temple, Texas, or Houston, Texas?2 MR. OWENS: Objection, form.3 A. I would imagine Houston is.4 Q. (BY MR. FAIRLESS) Do you really have to5 imagine, or do you know?6 MR. LANGLEY: Objection, form.7 MR. OWENS: Objection, form.8 A. I have no data on the size of media markets. I9 would imagine Houston is.10 Q. (BY MR. FAIRLESS) Were y'all looking for a11 company that had a large media market presence when you12 were making a decision about targeting an entity for13 retail motor fuel device violations?14 MR. OWENS: Objection, form.15 A. We weren't looking for a company to, in your16 words, target; so I can't speculate on the rest of that.17 Q. (BY MR. FAIRLESS) So Stephen Pahl and Wynne18 Hexamer would not have been given any directive to find19 a company to target by the data that they were20 analyzing?21 A. No, sir.22 Q. They were just being told to collect the data23 for you to look at, and they were not aware -- they had24 not been told that there was going to be some operation25 undertaken?

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1 A. Initially, we just wanted to analyze some data,2 see if there were trends. We later verified that there3 were concerning trends.4 Q. The trend with the -- do you still have this5 332 in front of you?6 A. Yes, sir.7 Q. It says ten stations over 60 percent for that8 year and a half from '06 -- the first of '06 to the9 middle of '07. And then the next year, from the middle10 of '07 to the middle of '08, there's three stations over11 60 percent. So what's the trend there?12 A. It represents violations of the predominance13 threshold.14 Q. Really? That's the best you can do? You don't15 see any other trend? That there were ten stations over16 60 percent for a year and a half period of time and then17 the following year, they're down to three stations over18 60 percent and you don't see a trend other than they19 both show stations that have predominance violations?20 MR. OWENS: Form.21 A. It's different lengths of time; but the trend22 that we saw was the whole picture of 34 percent23 noncompliance, a history of violation of the24 predominance threshold.25 Q. (BY MR. FAIRLESS) Is this history of violations

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1 of the predominance threshold getting better or worse2 from '06 to '08?3 A. I can't -- I can't speculate based on that4 data.5 Q. By looking at this data that you have noted6 here on your note, you can't tell that however bad it7 is, it's at least getting better?8 MR. OWENS: Form.9 A. Well, no, sir. One of them -- one of them is a10 time period that is a year and a half, and one of them11 is less than a year. Am I right on that?12 Q. (BY MR. FAIRLESS) You are right about that.13 It's -- one of them is roughly 17 months, and the other14 one is ten months.15 A. Okay.16 Q. Let's take the one that's ten months; and let's17 just double it, make it 20 months. So it will even be18 more than the 17 months in front of it. So if you take19 the one that's ten months and you double it to account20 for the time factor -- what's three times two?21 MR. OWENS: Form.22 A. Six.23 Q. (BY MR. FAIRLESS) Okay. So you have ten24 stations over a year and a half, and then you have the25 equivalent on a pro rata basis of six stations over more

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1 than a year and a half. So is it getting better, or is2 it getting worse?3 MR. OWENS: Form.4 MR. LANGLEY: Objection, form.5 MR. FAIRLESS: I don't know if you know6 this guys. The jury can do the same math me and this7 young man are doing.8 MR. LANGLEY: Probably better.9 MR. FAIRLESS: Certainly better and10 quicker.11 Q. (BY MR. FAIRLESS) Do you see the trend --12 A. I think -- I don't think we've got --13 Q. I'm just trying to point out the obvious.14 A. I don't think we've got enough data here to15 figure out if that trend is improving or worsening. You16 look at the 34 percent noncompliance, you combine that17 with a history of violation of the predominance18 threshold. No other company that I'm aware of in the19 state has a problem like that of meeting our standards.20 MR. FAIRLESS: I'll object as21 nonresponsive.22 Q. (BY MR. FAIRLESS) You don't even know whether23 or not the other entities in the state were looked at24 the same way because when I asked you questions about25 whether or not predominance violations of the other

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1 stations were even looked at or considered, you said you2 had no idea.3 A. I know the statewide average is 5 percent4 noncompliance.5 Q. For predominance violations?6 A. For noncompliance.7 Q. Do you know? Right. But we're talking about8 predominance violations. Okay?9 A. Okay.10 Q. Let's assume one is apples and one is oranges.11 I want to get away from the apples, and focus on the12 oranges. Did you look at predominance violations for13 individual outfits like RaceTrac, Valero, and the14 various other entities?15 A. I don't recall having seen that.16 Q. Okay. Because you tell me we were considering17 the percent noncompliance as well as the predominance18 violations, that's why I'm asking you, well, let's focus19 on the second half of that.20 Just based on what you have here on your21 note, are you able to see that the predominance22 violations are better in more recent times than they23 were in more distant times?24 MR. OWENS: Form.25 A. Again, they're -- I can't make a determination

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1 like what you're asking based on this note.2 Q. (BY MR. FAIRLESS) This note is all I have to go3 on because these are the only things that evidently you4 saw fit to be important enough to write down. If you5 had written down more information, then I would have6 more information to talk about. So I'm confined to what7 you wrote down. This is what you wrote down, right?8 MR. LANGLEY: Objection, form.9 A. That appears to be my handwriting.10 Q. (BY MR. FAIRLESS) Obviously, you deemed it11 important enough to write down the time period from12 January '06 to June of '07, because you wrote it down.13 Fair enough?14 MR. LANGLEY: Objection, form.15 A. Yes, sir.16 Q. (BY MR. FAIRLESS) Obviously, you considered it17 important enough to write down what happened in the time18 period from July of '07 to May of '08, because you wrote19 it down. Fair enough?20 A. Yes, sir.21 Q. And then obviously you considered it important22 that one of the stations was over 60 percent twice23 because you wrote that down, correct?24 MR. OWENS: Form.25 A. We've already discussed that. I'm not -- I

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1 don't recall what that means.2 Q. (BY MR. FAIRLESS) Oh. You don't know if that3 means one station was over 60 percent twice?4 MR. OWENS: Form.5 Q. (BY MR. FAIRLESS) I'm not talking about the6 three right now. Whether or not that's included in the7 three or not included in the three.8 A. Sure. There was some significance to what I9 wrote down.10 Q. Well, was it significant enough that you told11 your staff to go find who calibrated the pumps in12 between the two notices of violation so that you could13 explore how they could calibrate the pumps and then14 weeks, a month later, the pumps are still 60 percent in15 number noncompliant?16 MR. OWENS: Form.17 A. I did not ask that question of the staff.18 Q. (BY MR. FAIRLESS) So what else did you and19 Stephen Pahl talk about at that meeting where he was20 sitting on the back row and you sat down next to him? I21 want to make sure we've covered everything y'all talked22 about before I move on.23 A. I asked Stephen if he had seen violations like24 this, if it looked like a trend, and if he had ideas on25 how to analyze data to determine if there is a trend.

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1 Q. Had you recognized at that point in time PWI to2 be some sort of problem child based upon notices of3 violation that you've seen?4 A. Other than what I had in my hand at the time,5 no, sir.6 Q. Had Stephen Pahl told you at that moment in7 time that PWI was a problem child based on everything he8 knew about them?9 A. Throughout the course of the discussion, he10 asked what the company name was. I showed him and he11 said, yeah, they're -- that company -- he said something12 to the effect of that company has had a violation13 history, but he wanted to analyze the data to verify14 what it was.15 Q. Did he -- did you ask any questions or did he16 volunteer any information about what that company's,17 quote, violation history, end quote, was?18 A. No, sir.19 Q. And clearly he didn't tell you at that point20 that funny you should mention the name of that company,21 I talked to one of their service technicians, Arthur22 Ramirez, years ago and he told me that he was doing what23 he was told when we -- when I was asking him about24 calibrations?25 A. I don't recall it being then.

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1 Q. Don't you think that's kind of an important2 historical fact not to bring up?3 MR. LANGLEY: Form.4 A. I can't speculate as to what Stephen thought5 was important.6 Q. (BY MR. FAIRLESS) I'm not asking you to7 speculate about what he thought was important. I'm8 asking you as the Deputy Commissioner of Agriculture,9 don't you think that was an important fact to leave out10 when discussing with your boss whether or not there is a11 noncompliance history of a particular entity?12 MR. LANGLEY: Form.13 A. It wouldn't be out of the ordinary for certain14 details like that to be left out of conversations with15 me because of my role in executing these enforcement16 agreements.17 MR. FAIRLESS: I'll object as18 nonresponsive.19 Q. (BY MR. FAIRLESS) So why did he tell you later?20 It was important later, but it wasn't important at the21 time when you were trying to figure out whether or not22 more data was necessary to do an analysis?23 MR. OWENS: Form.24 A. I'm -- I'm pretty sure I said I couldn't recall25 exactly when he said it.

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1 Q. (BY MR. FAIRLESS) Yeah. You said during or2 after Operation Spotlight.3 A. Okay.4 Q. So why was it important then and not at this5 point when he evidently asked you specifically who are6 we talking about and you told him the name of the7 company?8 MR. LANGLEY: Objection, form.9 A. I -- he could have told me at any time during10 that process.11 Q. (BY MR. FAIRLESS) But he didn't.12 A. As the -- as we developed a better13 understanding of the data, more information was able to14 be shared.15 Q. I don't even understand that; and to the extent16 I do, it doesn't make any sense. So let me ask you:17 Does that make any sense to you why he would not share18 that information with you at that time after he has19 already specifically asked you who are we talking about20 and you say this company right here, PWI?21 MR. LANGLEY: Objection, form.22 MR. OWENS: Form.23 Q. (BY MR. FAIRLESS) Does it make any sense to you24 that he wouldn't follow with the comment funny you25 should mention them?

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1 MR. LANGLEY: Objection, form.2 MR. OWENS: Form.3 A. All I was asking Stephen about was whether he4 saw a trend or a potential trend and if he had ideas on5 how to analyze data to --6 Q. (BY MR. FAIRLESS) And so the -- what? Go7 ahead. I'm sorry.8 A. To verify whether or not there was a trend.9 Q. So did he give you the answer to the -- this is10 how we analyze data or did he say, "I'll get back to you11 on that"?12 A. He said he could run some numbers and do some13 data analysis and work with the staff to do that.14 Q. And did you just leave it up to him as to what15 data to analyze?16 A. We had a discussion about analyzing the17 compliance history.18 Q. Well, see, that takes me back to what I asked19 earlier when I said I want to know everything y'all20 talked about. So if you had a discussion about how to21 analyze the compliance history, I want you to tell me22 about it because clearly you remember something about23 it, so tell me about it.24 A. Other than what I just said, we discussed25 analyzing data regarding compliance history and

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1 comparing it to the statewide average.2 Q. Okay. So what y'all specifically talked about3 is, Stephen, let's pull PWI's compliance history and4 let's measure it against the industry average for the5 state?6 MR. OWENS: Form.7 Q. (BY MR. FAIRLESS) Is that what you're telling8 me?9 A. I don't recall every detail of the10 conversation.11 Q. I don't need every detail. I mean, I'd like12 it; but evidently I'm not going to get it. I want to13 know with regard to the compliance history, did you say14 let's look at it, every single company, let's look at15 the same information like on an Excel spreadsheet or did16 you say let's look at PWI versus everybody else as an17 average?18 MR. OWENS: Form.19 A. Like I said, I don't recall the details, the20 exact details of the conversation. I recall that we21 discussed analyzing the data to see if there was a22 trend.23 Q. (BY MR. FAIRLESS) Did you invite anybody else24 in the room to participate in this back-row discussion25 that you and Stephen were having?

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1 A. I did not invite anyone else into the room.2 Q. No. Did you invite anyone else who was already3 in the room to participate in the discussion that you4 and Stephen were having as he sat in the back row?5 A. I think at some point we had a discussion with6 one of the regional directors, but I don't recall.7 Q. Who?8 A. I don't -- I really don't recall. It could9 have been any of them.10 Q. Okay. So at some point, you and Stephen and11 one of the regional directors had a discussion; and what12 was the scope of that discussion?13 A. Just whether or not there was a trend that14 anybody at the regional level had identified and any15 information they had that might be helpful in figuring16 out how to do the data analysis we were discussing.17 Q. Pertaining to PWI?18 A. We discussed both in general and with regard to19 PWI.20 Q. Okay. But I'm trying to figure out did y'all21 discuss PWI with the regional director?22 A. I believe -- yes, sir, I think it came up.23 Q. Okay.24 A. Actually, as I recall, it wasn't PWI. It was25 Sunmart. I wasn't aware that PWI was the name other

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1 than Sunmart at the time.2 Q. So y'all discussed Sunmart with the regional3 director, inviting his or her input into the trend4 analysis?5 A. Correct.6 Q. And do you remember if it was -- if we're7 talking about Dudley Allen or are we talking about8 Jennifer? Who are we talking about regional director9 wise?10 A. I really can't recall.11 Q. Did you have any of the chief inspectors12 participate in the discussion?13 A. Possibly. Sure, we weren't -- it's possible14 that some of them were part of it, but I don't recall.15 I recall my conversation with Stephen, and there was16 some discussion with a regional director.17 Q. Well, see, as a lawyer, I try to get past18 anything is possible answer because I realize anything19 is possible. What I want to know is did y'all put it20 out there on the floor for open discussion with the21 room; or was it just like me and Ms. Court Reporter22 here, sitting beside each other, somebody else in the23 room is talking and I'm engaging Ms. Court Reporter in a24 little discussion of our own here on the back row?25 That's what I'm trying to get a flavor of. Which way

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1 was it?2 A. It was -- it evolved into more than just me and3 Stephen talking.4 Q. And I realize that because you just told me it5 evolved into you and Stephen --6 A. Right.7 Q. -- and the regional director. But now I'm8 trying figure out did it evolve into more than that?9 A. Sure. I think there were probably several10 people in the room that heard the conversation we were11 having.12 Q. And so did anybody provide any feedback?13 A. Like I said, I remember a regional director14 contributing to the conversation.15 Q. And the regional director was the only one that16 contributed? Do you remember anybody else contributing?17 A. David Kostroun was in the room, I think.18 Q. Did he contribute?19 A. I don't recall him saying anything actually.20 Q. Did David Kostroun, at that point in time, know21 Sunmart from Adam?22 MR. OWENS: Objection, form.23 A. I didn't ask.24 Q. (BY MR. FAIRLESS) To your knowledge.25 A. I can't speculate. I didn't ask.

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1 Q. Okay. Well, had you and David Kostroun ever2 had any discussions about Sunmart before then?3 A. No, sir.4 Q. Well, what I'm trying to figure out is did5 anybody -- David Kostroun or this regional director, who6 you believe contributed -- did they contribute anything7 in the way of I'm familiar with Sunmart and this is what8 I will tell you about them, following which they spoke9 about Sunmart?10 A. That's -- the regional director I recall11 contributing, indicated that was a familiar name for a12 violation history.13 Q. Okay. Anything else other than that's a14 familiar name for violation history?15 A. I can't recall exactly what was said.16 Q. I don't want you to recall exactly. I just17 want you to tell me if generally there was anything18 else, or was it just that?19 A. I can't recall anything in specific detail. I20 recall that there was a discussion about a potential21 violation history.22 Q. You weren't asking David Kostroun to do23 anything, were you?24 A. No. No, sir.25 Q. Okay. Were you asking the regional director to

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1 do anything?2 A. No, sir.3 Q. So the only one you were really asking to do4 anything was Stephen Pahl?5 A. Correct.6 Q. To the extent anybody else contributed, they7 were just providing their two cents worth?8 A. Yes, sir.9 Q. Now, have we talked about all the discussions10 that may have involved PWI at that meeting with Stephen11 Pahl, the regional director, and David Kostroun that you12 can recall?13 A. Yes, sir.14 Q. All right. Now, when the information came back15 to you, this trend analysis, and we've talked about what16 that information was; but when it came back to you, who17 brought it back to you?18 A. I believe Stephen did.19 Q. And did he bring anybody with him to help share20 the information?21 A. I can't recall.22 Q. Was there some sort of computer show or23 computer demonstration of documents, Power Point,24 anything like that?25 A. I don't recall there being.

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1 Q. Was there any documentation that was generated2 specifically with results? And I'm not talking about3 just a spreadsheet for you to look at in your leisure.4 But was there a document that had results on it?5 A. I don't -- I recall a verbal presentation, and6 that Stephen had some documents; but I don't recall if7 he showed them to me, or...8 Q. And is it fair to say the verbal presentation9 is what yielded the information that is contained here10 on Exhibit 332?11 MR. OWENS: Form.12 A. I don't -- I don't know the timing of this, but13 I -- I don't know the timing of this. I don't know. I14 can't speculate on what yielded that information.15 Q. (BY MR. FAIRLESS) When you say "this,"16 Ms. Court Reporter don't know what you're talking. It's17 not going to be reflected in the record. By "this," you18 mean Exhibit 332?19 A. Yes, sir.20 Q. Well, are there notes somewhere or is there a21 document that Stephen Pahl created for you that22 contained results of the meeting with Stephen Pahl where23 he brought back to you the analysis information you24 requested?25 A. I don't recall if there were documents shown to

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1 me. I do recall that he had some documents, and we2 discussed -- he discussed those with me.3 Q. But I'm talking about result-oriented4 documents, opinion documents, final calculation5 documents. I mean were there documents that reached an6 opinion, that reached a conclusion that Stephen Pahl7 prepared for you?8 A. I can't -- I can't speculate on what was in his9 hands.10 Q. Have you ever had a discussion, other than what11 you've told me that you could recall just a few moments12 ago, have you ever had a discussion with a regional13 director about PWI?14 A. Prior to that, no, sir.15 Q. Okay. How about after that? You've told me16 everything you can remember about that -- what may have17 been a conversation with a regional director when you18 went to talk to Stephen Pahl. So take me from that19 point to now. Have you had any discussions with20 regional directors about PWI?21 MR. LANGLEY: Obviously, he's not asking22 you about conversations where lawyers were present, if23 that occurred. So other than lawyers.24 A. I recall a discussion with regional -- with the25 staff that was presenting the results of the

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1 inspections. I think there were -- I know there was --2 Jennifer Bailey was on the phone.3 Q. (BY MR. FAIRLESS) Who was the staff that was4 presenting the results of the investigation?5 A. Stephen Pahl was involved. I believe David6 Kostroun was also involved.7 Q. Do both of them answer to you directly, or did8 they at the time?9 A. Yes, sir.10 Q. Was one above the other, or do they hold equal11 positions?12 A. David Kostroun is an Assistant Commissioner,13 and Stephen Pahl is our Director of Regional Operations.14 Q. Yeah, that doesn't mean anything to me. Is one15 higher than the other?16 A. An assistant commissioner -- it probably17 depends on who you ask, but I think assistant18 commissioner is a senior level position.19 Q. So I'm trying to figure out would they have20 observed a chain of command. Are you telling me that21 Stephen Pahl would have reported to David Kostroun and22 David Kostroun would have been reporting the results to23 you?24 A. No, sir. They both report to me.25 Q. Okay. Well, we're talking about an environment

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1 where somebody is reporting the results of the operation2 to you. And I want to know who is it coming to you3 from, Stephen or David; or did they divide it up and4 present it to you?5 A. It was a collaborative presentation. They6 had -- they were familiar with the data, and were both7 present.8 Q. And who else was either on -- was this a9 meeting where y'all were all face to face, or was this a10 meeting where some people were participating by11 telephone?12 A. I -- there was -- someone was on the phone. I13 remember Jennifer was on the phone.14 Q. Okay. The three of y'all -- you, David, and15 Stephen -- are all in Austin. So y'all were all in the16 same room?17 A. I don't remember if David was there. I18 remember seeing -- yeah. Stephen was there.19 Q. Okay. You and Stephen were in the same room.20 David may have been elsewhere. Jennifer was elsewhere.21 And then who else was participating?22 A. I don't recall everyone that was there.23 Q. Everyone that was there in the room, or24 everybody that was there one way or the other?25 A. One way or the other, I don't recall who all

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1 was participating.2 Q. Was there anybody else in the room with you and3 Stephen?4 A. I don't recall.5 Q. Was Dudley Allen on the phone along with6 Jennifer?7 A. I don't know.8 Q. Was Todd Staples either on the phone or in the9 room?10 A. He was later in the process, but not when we11 were having this initial discussion.12 Q. What does that mean "later in the process"?13 Later that day, later on a different call, or just at14 the tail end of that call?15 A. As I recall, we had a discussion where the data16 was presented to me; and then later on, we briefed the17 Commissioner.18 Q. So did he participate in the telephone call19 slash meeting or no?20 A. No. Not --21 Q. He got a later briefing from you or you and22 Stephen?23 A. Me and Stephen. I don't recall who all was on24 the phone when I briefed the Commissioner.25 Q. And the information that you got briefed to you

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1 by Stephen and David and Jennifer, was that -- well, you2 tell me, what was it?3 A. The inspection results yielded, as I recall, a4 noncompliance rate of close to 60 percent for all of the5 fuel pumps that were tested. There were several, close6 to -- close to half of the stations, the locations that7 were inspected, that had violations in excess of the8 predominance threshold. Several of the stations, more9 than ten, had -- were cheating customers on 100 percent10 of the fuel pumps tested.11 Q. Okay. Are you at the end or if you're waiting12 for me to look startled because you used the word13 "cheating," I've heard it and read it before, so --14 MR. LANGLEY: Don't respond to that.15 Q. (BY MR. FAIRLESS) Are you at the end?16 MR. OWENS: Form.17 A. There was -- that's what I recall.18 Q. (BY MR. FAIRLESS) Why did you use the word19 cheating instead of saying the pumps were found in favor20 of or the predominance rule was violated, just now when21 you were telling me?22 A. The consumers of Texas deserve to get what they23 pay for.24 Q. Absolutely they do.25 A. When a consumer in Texas --

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1 Q. Go ahead.2 A. When a consumer in Texas buys a gallon of gas,3 they deserve to get a gallon of gas. When they buy a4 gallon of gas and don't get a full gallon of gas, I5 don't know what else to call it.6 Q. What about tolerances? Are there tolerances7 that are in play with regard to the measure of fuel?8 A. Yes, sir.9 Q. And do you know what the allowable tolerance10 is? Is tolerance another way of saying allowable error?11 MR. OWENS: Form.12 MR. LANGLEY: Objection, form.13 Q. (BY MR. FAIRLESS) Is tolerance another way of14 saying allowable error?15 A. I've never heard it say that way. No, sir.16 Q. You would disagree if somebody did define it17 that way?18 A. I might. Yes, sir.19 Q. Okay. How much is a cubic inch? Do you know?20 A. It's a cubic inch.21 Q. Well, I mean, will a cubic inch fill that cup22 there beside you, that coffee cup?23 A. No, sir.24 Q. Will a cubic inch fill a tablespoon?25 A. I don't know.

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1 Q. And what is the allowable tolerance, the2 maintenance tolerance for a gallon of gas?3 MR. OWENS: Form.4 MR. LANGLEY: Objection, form.5 A. I don't -- I defer to our able staff for those6 details.7 Q. (BY MR. FAIRLESS) The able staff which the TDA8 takes responsibility for training?9 A. Yes, sir.10 Q. Nobody else takes responsibility for training11 them, do they?12 A. We take responsibility for our staff.13 Q. And would you agree with me that the staff that14 conducts inspections, the TDA inspectors, if you will,15 need to be properly trained?16 A. Absolutely.17 Q. And will you agree with me that they need to do18 their job in a competent fashion?19 A. Yes, sir.20 Q. And will you agree with me that they need to do21 their job consistently and their testing methods and22 means?23 A. Yes, sir.24 Q. And will you agree with me that they need to25 use quality equipment to perform accurate testing?

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1 A. Yes, sir.2 Q. And will you agree with me that if their3 testing is not accurate, then their results are4 unreliable?5 MR. OWENS: Form.6 MR. LANGLEY: Objection, form.7 MR. FAIRLESS: I think the jury can8 connect the dots on that one, boys.9 MR. LANGLEY: Thank you.10 Q. (BY MR. FAIRLESS) Will you agree with me that11 if the testing that is done is not accurate, then the12 results are therefore unreliable?13 MR. OWENS: Form.14 MR. LANGLEY: Objection, form.15 A. Our inspections are conducted in an accurate16 manner.17 MR. FAIRLESS: I'll object as18 nonresponsive.19 Q. (BY MR. FAIRLESS) Have you ever been to one?20 A. No, sir.21 Q. Well, then why would you say that?22 A. Because we have a training system. Our23 inspectors are trained, our inspectors are professional,24 and they conduct their responsibilities with all of that25 professionalism.

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1 Q. None of that is your personal knowledge. So2 I'm taking it that is your expectation as the Deputy3 Commissioner of Agriculture, correct? What you just4 said is your expectation of what your inspectors will5 live up to?6 A. That's my expectation.7 Q. And if they don't live up to that, then you8 would be sorely disappointed. Fair?9 MR. LANGLEY: Objection, form.10 A. It's my expectation that the staff of the Texas11 Department of Agriculture conduct themselves with the12 professionalism that the taxpayers of Texas deserve.13 Q. (BY MR. FAIRLESS) And if they don't, you would14 be sorely disappointed, correct?15 MR. LANGLEY: Objection, form.16 MR. OWENS: Form.17 A. It is my expectation that the staff of the18 Department of Agriculture conduct themselves with the19 professionalism that the taxpayers of Texas pay for20 and deserve.21 Q. (BY MR. FAIRLESS) Do you think if you say that22 multiple times that that somehow becomes responsive? I23 just want to know an answer to my question. If they24 don't, if the TDA inspectors -- let me start with a new25 question. All that other stuff I said is objectionable.

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1 If the TDA inspectors don't perform their2 job to the expectations that you just set out in your3 previous answer, would you be disappointed?4 A. I would expect that that would be corrected.5 Q. So it's, yes, and I would expect that that6 would be corrected?7 MR. LANGLEY: No. Objection, form. Quit8 putting words in his mouth.9 A. No, sir. I would expect that --10 MR. FAIRLESS: I'm trying to put words in11 his mouth because I want a fair response to that12 question.13 MR. LANGLEY: What you perceive as fair.14 MR. FAIRLESS: Right. Perception is15 realty.16 MR. OWENS: Form.17 Q. (BY MR. FAIRLESS) So will you agree with me18 that if they don't do their job in accordance with your19 expectations as Deputy Commissioner of Agriculture, that20 you would be disappointed in their testing methods?21 MR. OWENS: Form.22 A. I would expect that it be corrected if that23 ever happens.24 Q. (BY MR. FAIRLESS) And y'all went through some25 corrections in December of 2009, didn't you?

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1 MR. OWENS: Form.2 MR. LANGLEY: Objection, form.3 A. We went -- say it again, please, sir.4 Q. (BY MR. FAIRLESS) Did y'all make some5 corrections to your testing protocol or testing criteria6 in December of 2009?7 A. We -- we're continuously making improvements to8 our protocols and...9 Q. That would be the answer to the question are10 you continuously making corrections to your protocol;11 but, see, that's not my question. My question is12 specific as to December of 2009. So let me try again.13 In December of 2009, were there changes14 made to the TDA inspection procedures and protocol for15 retail motor fuel devices?16 MR. LANGLEY: Objection, form.17 A. I recall that we've made changes in our18 programs in the last year.19 MR. FAIRLESS: I'll object as20 nonresponsive.21 Q. (BY MR. FAIRLESS) So is the answer you don't22 know if changes were made in 2009. You just know at23 some point in the past year, changes have been made?24 A. I recall that our programs go through a25 continuous review process to make sure that they are

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1 providing the services the taxpayers expect from us.2 MR. FAIRLESS: I'll object as3 nonresponsive.4 Q. (BY MR. FAIRLESS) Did you play a role in5 changing the policies and procedures in December of6 2009?7 A. Can you clarify what policies and procedures8 we're talking about?9 Q. Do you know what policies and procedures I'm10 talking about?11 A. I know we have policies and procedures in our12 program. Yes, sir.13 Q. Okay. Well, I'm talking about policies and14 procedures with regard to the inspection of retail motor15 fuel devices. And do you know why the changes -- I16 guess my question -- my first question is: Did you play17 a role in initiating those changes, making those changes18 come about?19 MR. OWENS: Form.20 A. Maybe I'm not being clear enough, Mr. Fairless;21 but I'm not understanding your question. Since I've22 been at the Department of Agriculture in January of 200723 to now, from that time period, we've made changes to the24 program.25 Q. (BY MR. FAIRLESS) I'm not asking about changes

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1 generally. I'm talking about specific changes from the2 standpoint of testing retail motor fuel devices and3 changes that were made after Operation Spotlight. And4 those are the changes I want to know did you have a hand5 in seeing come to fruition?6 A. I would -- I would imagine I did if there were7 changes to our -- to certain policies, I would have been8 involved.9 Q. And did you make those changes in light of what10 was deemed to be a lack of consistency in testing that11 was done by the various TDA inspectors?12 A. I'm not sure what changes you're talking about.13 MR. OWENS: Form.14 MS. FRIEDMAN: It's already an exhibit.15 MR. FAIRLESS: Do you know what number it16 is?17 MS. FRIEDMAN: 334.18 Q. (BY MR. FAIRLESS) Let me hand you what's been19 marked as Exhibit 334.20 MR. FAIRLESS: Langley, do you want this?21 MR. LANGLEY: Thanks.22 MR. FAIRLESS: Do you have it?23 MR. OWENS: Yeah, I have it.24 Q. (BY MR. FAIRLESS) Do you see that there on the25 first two pages are 16 mandatory procedures, practices

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1 for immediate implementation by all inspectors?2 MR. OWENS: Objection, form.3 MR. FAIRLESS: What's wrong with that?4 I'm just reading it.5 MR. OWENS: Oh, I thought you were -- I6 didn't realize that, and I didn't track it while you7 were reading it.8 A. I see there's a list of 16.9 Q. (BY MR. FAIRLESS) Okay. Well, I'll point out10 to you I'm just reading at the top where it says11 mandatory and that's underlined, right?12 A. Yes, sir.13 Q. Procedures slash practices for immediate14 implementation by all inspectors, colon. Did I read15 that correctly?16 A. Yes, sir.17 Q. And why was it important that these procedures18 and practices by mandate be implemented immediately by19 all inspectors?20 MR. OWENS: Objection, form.21 A. Any changes or any changes to the protocol22 should be implemented immediately.23 Q. (BY MR. FAIRLESS) And so were these changes24 made because of what was perceived to be a lack of25 consistency with regard to testing by the TDA

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1 inspectors?2 A. Well, I'm not sure which of these are changes3 and which are procedures that existed previously to this4 document.5 Q. Either way, does it matter? Is the ultimate6 hope here that somebody is wanting consistency, whether7 it's a change or whether it's enforcement of what8 already exists, they want consistency, right?9 A. Yes, sir.10 Q. Okay. So was the purpose of this being printed11 out and circulated to make sure that the inspectors were12 utilizing consistent means and methods with regard to13 testing retail motor fuel devices?14 MR. OWENS: Form.15 A. There are many purposes for having procedures16 and practices. Consistency is one of them,17 professionalism, accuracy --18 Q. Education?19 MR. OWENS: Let him finish answering.20 Q. (BY MR. FAIRLESS) Okay, go ahead.21 A. There are many forms. There are many -- there22 are many reasons for having procedures in practice.23 Q. But I cut you off at accuracy. What were you24 going to say after accuracy?25 A. I don't know.

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1 Q. How about education? Good reason to have2 policies and procedures?3 A. Is it -- say that again.4 Q. Education, is that a good reason to have5 policies and procedures?6 A. Sure.7 Q. Training, is that a good reason to have8 policies and procedures?9 A. Policies and procedures are a part of training.10 Q. Right.11 A. Employees are trained.12 Q. Using, guess what, policies and procedures?13 A. Yes, sir.14 Q. So education, training, consistency, accuracy,15 those are all good reasons to have policies and16 procedures and to make sure that -- first of all,17 they're all good reasons to have policies and18 procedures, right?19 A. Yes, sir.20 Q. And they're all good reasons to make sure that21 your policies and procedures are immediately22 implemented, correct?23 A. Yes, sir.24 Q. Particularly if you're going to implement25 changes because you want to make sure that everybody

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1 utilizes the changes, understands and utilizes the2 changes, correct?3 A. Correct.4 Q. Even the best policies and procedures in the5 world serve no purpose if they can't be understood and6 implemented by the people who are expected to implement7 them, would you agree with me?8 A. Say it one more time, please, sir.9 Q. Yeah. Even policies -- even the best policies10 and procedures in the world don't do any good if they're11 not understood by the people expected to understand and12 implement them, fair?13 A. Yes, sir.14 Q. And there shouldn't be -- should not be any15 reason why TDA inspectors go about their inspections of16 retail motor fuel devices in different manners, fair?17 MR. LANGLEY: Objection, form.18 A. I won't speculate on what the procedures are.19 There may be different circumstances.20 Q. (BY MR. FAIRLESS) You would expect that absent21 different circumstances, there should be consistency22 from inspector to inspector so that the device owners23 will understand what the nature and course of inspection24 will be, fair?25 A. Yes, sir.

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1 Q. And is there any point in me talking to you2 about the details of these changes or the -- well, is3 there any point in me talking to you about the details4 of this document I've just handed you or will -- do you5 know enough about the details to specifically address6 them?7 A. I don't -- I know some of the details. I don't8 know all of the details.9 Q. Well, then tell me which ones you had a hand in10 seeing implemented. And I'll -- guess I'll talk to you11 about those. Out of 1 through 16, just...12 A. So you're asking which ones have been13 implemented since I've been here?14 MR. OWENS: He's asking --15 MR. LANGLEY: He want's to know which16 ones you had a hand in implementing.17 MR. OWENS: A hand in. So read them and18 tell them which ones you had a hand in.19 THE WITNESS: Okay.20 MR. LANGLEY: Which ones that you had --21 which ones that you had involvement in.22 Q. (BY MR. FAIRLESS) And I've got a red pen. When23 you get to one, I want you to tell me and I'm going to24 give it to you so you can circle it and then we're going25 to mark that as an exhibit. Do you need the red pen

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1 yet?2 A. I've come across one that I recall being3 involved in.4 Q. Here. Okay. Just keep it until you're done,5 until you get through 16.6 MR. OWENS: For the record, can you7 reproduce these in red? We've had exhibits before that8 were highlighted in different colors and I didn't get9 the different colors.10 THE REPORTER: Yes.11 MR. OWENS: I don't care what it costs.12 If he does it in red, pink, or blue or yellow, I would13 like my copy to be in the same color.14 MR. FAIRLESS: Can we go off the record15 for this?16 MR. OWENS: If you want to. This is the17 kinder and gentler...18 MR. FAIRLESS: I appreciate that. Are19 you almost done or if it's going to take much longer,20 maybe we need to.21 THE WITNESS: I just want to make sure --22 I just want to make sure I'm getting it.23 MR. LANGLEY: You want perfection out of24 him and then when he tries to be perfect, you fuss at25 him.

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1 MR. OWENS: Start counting the minutes.2 THE VIDEOGRAPHER: Off the record at3 3:27.4 (Discussion off the record)5 (Exhibit Nos. 452-456 were marked and are6 attached hereto)7 THE VIDEOGRAPHER: This is the beginning8 of Tape 5. Back on the record at 3:41.9 Q. (BY MR. FAIRLESS) Did you mark them?10 MR. FAIRLESS: Oh, sorry, Videoman. I11 was talking over you.12 A. I did.13 MS. FRIEDMAN: I marked them.14 MR. FAIRLESS: No. I'm talking to the15 witness, not you. But thanks, Kelley, for your16 attention.17 MS. FRIEDMAN: You're welcome.18 MR. OWENS: Are you remarking that?19 MR. FAIRLESS: No. I mean it's marked.20 MR. OWENS: Okay. I --21 MR. FAIRLESS: I put a -- I put a --22 because when you were out of the room, I told Ms. Court23 Reporter to go ahead and put a sticker on this.24 MR. OWENS: Okay. I just haven't heard25 anything on the record. I'm sorry.

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1 MR. FAIRLESS: Yeah. Exhibit 452 is2 marked. It's what has been marked as a previous3 exhibit.4 Q. (BY MR. FAIRLESS) I don't remember what number5 it is, but I had her mark it again because you circled6 Items 6 and 7, correct?7 A. Yes, sir.8 Q. All right. And then what role did you play in9 the change to No. 6?10 A. I met with staff about the changes, approved11 them.12 Q. Well, did somebody put forth the changes to you13 with a recommendation?14 A. Yes, sir.15 Q. And who did the recommendation come from?16 A. I believe it was from the regulatory division,17 staff in the regulatory division. David Kostroun being18 the Assistant Commissioner.19 Q. Okay. So it came to you by way of David20 Kostroun; and as far as how it came to him, you don't21 know or do you know the genesis of this change?22 MR. OWENS: Form.23 A. Yes, sir.24 Q. (BY MR. FAIRLESS) What's the genesis of it?25 Where did it begin?

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1 A. Throughout the last three years, since I've2 been at the Department of Agriculture, the program as3 undergone other changes. One of those being a4 significant increase in the penalty structure that5 resulted in industry representatives communicating with6 us a need to look at the -- how the predominance7 threshold is implemented to build in a little small8 amount of relaxation there.9 Q. So the industry representative has been10 communicating this to you for the past three years?11 A. No, sir.12 Q. Okay. Well, when did it get communicated to13 you?14 A. As the penalties have gone up, we've heard from15 industry representatives about it.16 Q. And the penalties went up in 2007?17 A. Yes, sir.18 Q. So you're familiar with the fact that the19 industry wanted a certain amount of leeway, be it minus20 one and a half and below or something else even prior to21 Operation Spotlight?22 A. I don't -- I don't recall when industry23 representatives brought it to us, but sometime after the24 penalty matrix was -- or the penalty structure was25 increased.

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1 Q. Well, the penalty structure -- we just went2 over this -- was increased in 2007. So it was sometime3 after 2007 and prior to Operation Spotlight that this4 discussion set forth as No. 6 on this Exhibit 452 was5 addressed with you, fair?6 MR. OWENS: Objection, form.7 MR. LANGLEY: Form.8 A. No. 6 -- no. I think No. 6 is mainly having to9 do with the technology of the equipment. The newer --10 the newer provers have readings in half cubic inch -- I11 believe those are cubic inch increments.12 Q. (BY MR. FAIRLESS) Okay. You're right. So why13 did we start off talking about No. 6 anyway with regard14 to -- never mind.15 MR. OWENS: Form.16 Q. (BY MR. FAIRLESS) So what -- what role did you17 have in No. 6?18 A. Staff presented it to me, and I approved19 implementing it.20 Q. You didn't have to approve the other 14? The21 only two you had to approve were No. 6 and No. 7?22 A. As I read through, I think most of the other23 ones were in place before.24 Q. So you're saying the only changes as of25 December '09, are No. 6 and No. 7?

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1 A. I don't know that with certainty. I was2 involved -- the staff ran the -- No. 6 and No. 7 past me3 as a change that they needed my approval on.4 Q. Well, wouldn't they have needed your approval5 on any changes?6 A. They know I have their confidence to make some7 changes within --8 Q. So is the answer no?9 A. -- their authorities.10 Q. Is the answer no, they don't need your approval11 on any changes? They just need your approval on some12 changes?13 MR. OWENS: Objection, form.14 A. They know I have confidence in their ability to15 administer the programs.16 Q. (BY MR. FAIRLESS) Then why didn't they just17 utilize their knowledge that you have confidence in them18 and not even run No. 6 and No. 7 past you?19 MR. LANGLEY: Objection, form.20 A. Well, because like I told you, industry21 representatives had communicated to me about that issue22 in No. 7. No. 6 is related to No. 7 in that No. 723 involves the use of half cubic inch increments.24 Q. (BY MR. FAIRLESS) Okay. So No. 6 and No. 725 were the only ones, the only policies and procedures

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1 that the staff felt the need to bring to your attention2 for approval purposes?3 A. After I read through it --4 MR. OWENS: Objection, form.5 MR. LANGLEY: Objection, form.6 A. -- there were only those two that I recall7 having --8 Q. (BY MR. FAIRLESS) After you read --9 A. -- specifically discussed.10 Q. After you read through Exhibit 452, the only11 ones that you recall being brought to your attention for12 purposes of approval were No. 6 and No. 7?13 A. Correct.14 Q. Okay. No. 6, you're just -- the new policy is15 what? Everything is to be read to the .5?16 A. On No. 6?17 Q. Yeah. As opposed to going to whole numbers,18 now y'all can go to .5s?19 A. Yes, sir, that's essentially...20 Q. All right. And No. 7, what's the change there?21 A. No. 7 is a small allowance in the 60 percent22 predominance threshold.23 Q. Meaning for purposes of ascertaining whether or24 not there was a predominance violation, minus ones and25 minus 1.5s will not be counted?

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1 A. Yes, sir. That's correct.2 Q. And you say that was a suggestion made by3 industry representatives?4 A. Not that specific recommendation.5 Q. I thought that's what you said a few minutes6 ago.7 A. They -- they requested that the predominance8 threshold be relaxed. We -- our staff came up with9 those numbers.10 Q. So did the industry come to you and say that11 they didn't want the low negative numbers to be included12 in predominant -- in determining whether or not there13 was a predominance violation. And you're saying the14 negative one and a half, negative one, and negative .515 were not their numbers; but the idea was what they were16 pushing?17 A. The industry asked us for a relaxation in the18 predominance threshold.19 Q. And what did they want it relaxed to? .2s,20 .3s --21 A. I don't --22 Q. -- did they want those counted?23 A. I don't recall that I even heard a proposal.24 Q. Well, did you ever talk to anybody? Did you25 speak directly to one of these industry representatives?

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1 A. Yes, sir.2 Q. One or many times?3 A. Maybe one or two, maybe three.4 Q. And were they all in conjunction with this5 issue right here, identified by No. 7 on Exhibit 452?6 A. No. We have an ongoing, very positive working7 relationship with industry representatives who we8 regulate, and we discuss a number of things about our9 programs.10 MR. FAIRLESS: I'll object as11 nonresponsive.12 Q. (BY MR. FAIRLESS) Did you talk about this Item13 No. 7, each of the two or three times that you met with14 industry representatives?15 A. However many times it was, that was what I16 was -- that's where that number came from, one or two or17 three times. Yes, sir.18 Q. Okay. Then who were the industry19 representatives?20 A. Most often, I communicate with the government21 affairs representatives of the Texas Petroleum Marketers22 and Convenience Store Association.23 Q. Well, who was that?24 A. Chris Newton is the person I normally25 communicate with.

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1 Q. And so was Chris Newton the only one you2 communicated with as regards this Item No. 7, or did you3 communicate with others as well that fall under this4 category of industry representative?5 A. I don't recall if Chris was the only one, or if6 I even discussed it with him. I don't recall who I7 discussed it with.8 Q. Well, you just got through saying you discussed9 it with industry representatives. So are you saying now10 that you cannot even be sure that you discussed it with11 Chris?12 A. That's correct.13 Q. Can you be sure -- can you give me any name and14 say but I am sure I discussed it with that person who's15 an industry representative?16 A. No, sir.17 Q. This Item No. 7, let me ask you the negative18 1.5, negative one, and negative .5, were those included19 in determining predominance violations during Operation20 Spotlight?21 A. Which ones?22 Q. Negative 1.5, negative one, and negative .5.23 A. It's my -- it's my understanding they would24 have been.25 Q. Is that the same as, yes, they were?

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1 MR. OWENS: Objection, form.2 A. It's my understanding those would have been3 utilized.4 Q. (BY MR. FAIRLESS) Okay. And --5 A. The -- the .5, I don't know because we didn't6 have that reading previously. So I guess I can't7 respond to that.8 Q. Well, that would go back to that consistency9 issue with regard to what the inspectors were doing. If10 the bottom of the meniscus, assuming that's what they11 were reading, was beneath one; but not all the way down12 to zero, we would have to know how they were reading13 that to determine whether they put zero or minus one,14 wouldn't we?15 MR. OWENS: Objection, form.16 Q. (BY MR. FAIRLESS) Do you know what the --17 A. If the --18 Q. Do you know what the --19 MR. OWENS: You can answer his question.20 A. If the reading was below zero.21 Q. (BY MR. FAIRLESS) No. Okay, go ahead.22 A. My understanding is if the reading was below23 zero, that represented that the pump was not dispensing24 the fuel the consumer was paying for. That's what the25 predominance threshold is designed to find.

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1 Q. So if it was below zero, it should have been2 read as a negative one?3 MR. OWENS: Objection, form.4 MR. LANGLEY: Form.5 A. I assume that's what we're talking about here.6 Q. (BY MR. FAIRLESS) Okay. Well, do you really7 have to assume. You're the Deputy Commissioner of8 Agriculture.9 A. Well, I rely on the capable staff of the10 Department who are involved in these details at the11 level you're asking me.12 Q. Well, you keep saying you rely on other people;13 but you know what, in five hours, almost five hours14 worth of deposition, I'm not sure you've said, "I don't15 know" one time.16 MR. OWENS: Objection, form.17 Q. (BY MR. FAIRLESS) So do you know?18 A. Do I know what?19 Q. Do you know whether or not they were marking20 negative one if the bottom of the meniscus, assuming21 that's what they were reading, was less than zero?22 MR. OWENS: Objection, form.23 A. No.24 Q. (BY MR. FAIRLESS) Okay. Has anybody gone back25 to analyze what the Operation Spotlight figures for the

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1 PWI stations would be if negative .5, negative ones, and2 negative 1.5s were not included?3 A. I don't know.4 Q. You don't know if anybody has or hasn't? I5 should have said you hadn't said, "I don't know" earlier6 because then, boom, I don't know.7 MR. OWENS: Objection, form.8 Q. (BY MR. FAIRLESS) I'm clowning around. Okay.9 Do you understand the question though? You don't know10 if they have or they haven't gone back and determined11 how this new change would have made a difference or if12 it would have made a difference?13 A. No, sir.14 Q. Okay. So the other 14 items, you didn't play a15 role in?16 A. Not that I recall.17 Q. Who actually reports to you?18 A. The assistant commissioners.19 Q. Well, how many are there?20 A. There are nine assistant commissioners.21 Q. Okay. David Kostroun, is he the one that's an22 assistant commissioner that would have a role with23 regulatory programs pertaining to retail motor fuel24 devices?25 A. Yes, sir.

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1 Q. Are there other assistant commissioners that2 would fulfill that role as well, or is it just Kostroun?3 A. David is the assistant commissioner overseeing4 that program.5 Q. Okay. So as far as the issues that are on the6 table here today, David Kostroun is really the assistant7 commissioner that would deal with such issues?8 A. Yes, sir.9 Q. Now, who else reports to you then besides10 assistant commissioners? Anybody else have a direct11 report line to you?12 A. The chief of staff.13 Q. What chief of staff? Is that it? That's the14 full title, chief of staff?15 A. Yes, sir. The Chief of Staff for the Texas16 Department of Agriculture.17 Q. Okay. So the TDA Chief of Staff. And who was18 that in July of 2008?19 A. Shannon Rusing.20 Q. Shannon?21 A. Shannon Rusing.22 Q. I'm not understanding. Are you saying Shannon23 or Channon?24 A. Shannon.25 Q. Shannon Rusing?

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1 A. Shannon Rusing.2 Q. Spell it.3 A. R-u-s-i-n-g.4 Q. Okay. Did Shannon Rusing have any involvement5 in any of the issues that are involved with Operation6 Spotlight, this litigation?7 A. Not that I'm aware of. No, sir.8 Q. Okay. Who else has a direct report to you and9 did in July of 2008?10 A. Stephen Pahl.11 Q. Okay. Stephen Pahl the individual, or Stephen12 Pahl in his position as whatever his position title is?13 MR. LANGLEY: Objection, form.14 A. I don't understand.15 Q. (BY MR. FAIRLESS) Does Stephen Pahl answer to16 you no matter what his position is or does his position17 answer to you and he just happens to be the person in18 that position?19 A. Stephen Pahl reports to me through the position20 he occupies.21 Q. Yeah, that's good. What's his position?22 A. Director of Regional Operations.23 Q. What's his region?24 A. All regions.25 Q. Are there any other director of regional

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1 operations?2 A. No, sir.3 Q. Okay. Who else has the direct report to you?4 This doesn't have to be like pulling teeth. I mean, you5 can just give me a list if you want.6 A. Chris Drews.7 Q. Chris Drews. What position?8 A. He's a -- I don't recall his exact title. He's9 a Quality Assurance Specialist, I believe.10 Q. Who else?11 A. I believe that's -- I believe that's all.12 Q. Okay. What is -- what does a quality assurance13 specialist -- you know, let me back up. Is Chris Drews14 the only quality assurance specialist or are there15 others?16 A. He's the only one.17 Q. Okay. And what is he quality assurance18 specialist of? What does that position do?19 A. He works with the director of regional20 operations.21 Q. So is he like the assistant to Stephen Pahl?22 A. No. He's the -- coordinates our quality23 assurance efforts in our regional operations.24 Q. What kind of quality assurance? Like retail25 motor fuel devices or some other quality assurance?

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1 A. For multiple programs.2 Q. Does it include retail motor fuel devices?3 A. Yes, sir.4 Q. Did you contact other states -- when I say you,5 I mean you or at your direction -- contact other states6 to inquire as to PWI and their compliance slash7 noncompliance history with regard to retail motor fuel8 devices?9 A. Did I contact -- one more time, please.10 Q. You or someone at your direction, did y'all11 contact any of the 49 lesser states to inquire about PWI12 and retail motor fuel devices?13 A. We made contact with the other states.14 Q. In writing or by telephone?15 A. In writing.16 Q. Okay. Did you send the same letter to17 everybody and just change the addressee on the letter,18 or did everybody get their own little individually19 crafted letter?20 A. I believe we wrote a letter that went to -- in21 its same form -- to all 50 states informing them of the22 results of our inspection.23 Q. And what feedback did you get? Well, first of24 all, that form letter you're talking about, did you25 invite feedback from the other states; or did you just

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1 say, hey guys, FYI, and then provide the results?2 A. I don't recall.3 Q. Don't you recall that you invited feedback?4 A. I don't recall.5 Q. You don't have any idea as you sit here today?6 A. No, sir.7 Q. Was part of the reason of sending the letter to8 invite feedback?9 MR. LANGLEY: Objection, form.10 A. I don't recall if we invited feedback.11 Q. (BY MR. FAIRLESS) Why did you send the letter12 then? I mean were you just wanting to make sure -- why?13 You tell me why.14 A. As I recall, we wrote a letter for all of the15 other states that might have an interest in our16 inspection results to be aware that this particular17 company had a very concerning compliance, noncompliance18 rate in Texas.19 Q. Had y'all ever -- were you done?20 A. No, sir.21 Q. Go ahead.22 A. Specifically, we had consumers in Texas who23 were buying fuel from this particular company who nearly24 60 percent of their pumps were tilted in favor of the25 company.

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1 MR. FAIRLESS: I'll object to everything2 beginning with the word "specifically" as nonresponsive.3 Q. (BY MR. FAIRLESS) PWI, I mean per their Web4 site which you guys looked at, only did business in ten5 other states; so why did you send it to all 50?6 A. I don't know that we did.7 Q. You don't know if you sent it to all 50, or you8 don't know if you checked the Web site?9 A. I don't know if we sent it to all 50.10 Q. Oh, I thought you said a few -- not I thought.11 A few minutes ago you said you did.12 A. Well, we sent it to other states. I thought13 that's what we were talking about. I don't recall if we14 sent it to each and every of the other 49.15 Q. Did you get any feedback from any of these16 other states with respect to PWI?17 A. I don't recall.18 Q. Isn't that the kind of thing that you would19 recall, particularly before you come to give a20 deposition is, hey, we heard this back from New Mexico,21 hey, we heard this back from Oklahoma, and I need to be22 mindful of it when that PWI lawyer asks me questions23 today?24 MR. LANGLEY: Objection, form.25 MR. OWENS: Form.

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1 Q. (BY MR. FAIRLESS) I mean, isn't that the type2 of thing that you would make yourself aware of before3 you came to give a deposition?4 MR. OWENS: Form.5 MR. LANGLEY: Form.6 A. Not necessarily.7 Q. (BY MR. FAIRLESS) Have you done any checking to8 find out if you've heard back from any of the other9 states?10 A. I don't recall if we invited feedback.11 Q. I didn't ask you did you invite feedback. I12 asked you did you check around to find out if you had13 heard back from any of the other states who got the form14 letter?15 A. No, sir.16 Q. What was PWI's consumer complaint history like17 prior to Operation Spotlight?18 A. I don't -- I don't recall.19 Q. Certainly you asked for that to be analyzed by20 Stephen Pahl and the results to be provided back to you21 before implementing Operation Spotlight, didn't you?22 A. I don't recall if I requested that.23 Q. To this day, have you ever seen what PWI's24 consumer complaint history was like?25 A. Not that I recall.

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1 Q. Have you ever done anything to -- if not look2 at PWI's complaint history individually, evaluate what3 PWI's complaint history looks like as compared to4 everyone else in the industry?5 A. I don't recall if that data has ever been6 presented to me.7 Q. You certainly don't recall as you sit here8 today ever seeing it, do you?9 A. I don't recall if that information has ever10 been presented to me.11 Q. Which would mean I don't recall having ever12 seen that information, right?13 MR. OWENS: Objection, form.14 A. I don't recall having ever seen that15 information.16 Q. (BY MR. FAIRLESS) Okay. Have you directed17 anybody to make contact -- I mean, specifically go out18 and make contact with the other states, not just send19 them a letter; but contact somebody with the Department20 of Agriculture for Utah or the Department of Agriculture21 for New Mexico or Colorado or Oklahoma or any of the22 other states where PWI does business to speak TDA to TDA23 and get insider information, if you will?24 A. What was the first part? Have I what?25 Q. Have you established such contact yourself or

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1 directed anybody to establish such contact so that the2 state agencies can interact with one another and share3 information pertaining to PWI?4 A. Beyond the letter, I don't -- I'm not aware of5 any other contact.6 Q. And as you sit here today, you don't have an7 independent recollection of any other state coming back8 to the Texas Department of Agriculture to tattletale on9 PWI?10 MR. OWENS: Form.11 Q. (BY MR. FAIRLESS) If you do, share it with me.12 A. I don't recall.13 Q. Did you ever speak to Russell Langston or Roy14 Lee Langston?15 A. I don't recall.16 Q. Do you know those names?17 A. No, sir.18 Q. What documents did you review to get ready for19 your deposition today?20 A. I read through the transcript, not in its21 entirety, but the transcript of Stephen Pahl's22 deposition.23 Q. Okay. Did you read anybody else's?24 A. No, sir.25 Q. Have you talked to anybody? Like have you

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1 talked to David Kostroun or Chris Drews or Joe Benavides2 or Stephen Pahl about the deposition?3 A. No, sir.4 Q. And did you make the decision and -- never5 mind. I don't want to know what you talked to lawyers6 about, but did you specifically seek out Stephen Pahl's7 deposition from Stephen?8 A. No, sir.9 Q. Were the reinspection procedures changed after10 Operation Spotlight was concluded? Meaning after11 July 20th, but during the time period when reinspections12 were being done following the Operation Spotlight blitz?13 MR. OWENS: Form.14 MR. FAIRLESS: What's wrong with that?15 MR. OWENS: I didn't understand it.16 THE WITNESS: I don't understand.17 MR. FAIRLESS: Yeah, that was a bad18 question.19 Q. (BY MR. FAIRLESS) Do you know anything about20 reinspection procedures?21 A. Very limited.22 Q. And if I were to tell you that the reinspection23 procedures changed after Operation Spotlight started, do24 you know how they changed?25 A. No, sir.

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1 Q. Do you know why they changed?2 A. I can't speculate without knowing what3 procedures you're talking about.4 Q. Reinspection procedures.5 A. Right.6 Q. Yeah. Do you know how they changed, or why7 they changed?8 A. I can't -- I don't recall being aware of any9 reinspection procedure changes.10 Q. Okay. The one to five enforcement orders with11 NOVs with one or more checks that you saw for PWI and12 brought to Stephen Pahl's attention, did any of those13 fail the preponderance rule?14 MR. LANGLEY: Predominance rule?15 MR. FAIRLESS: Yeah, preponderance rule.16 Q. (BY MR. FAIRLESS) Did any of those fail the17 predominance rule because the devices that were looked18 at -- you know, I should have ask you first: Do you19 know if somebody goes out to do a bulk diesel inspection20 whether or not for predominance purposes at the time of21 Operation Spotlight, they were looking at just bulk22 diesel dispensers or would they be calculating the23 predominance rule based on bulk diesel, automotive24 diesel, and automotive gas?25 MR. OWENS: Form.

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1 Q. (BY MR. FAIRLESS) Do you understand what I'm2 asking?3 A. I could use a little bit better explanation.4 Q. I want to know -- remember earlier you gave me5 what's on top and what's on bottom in the -- you know,6 in the analysis of the -- I'm trying to think what it7 was now -- the number of pumps compliant versus number8 of pumps inspected.9 Okay. Now, I want to know for purposes10 of the predominance rule in calculating the 60 percent,11 what's on top, what's the numerator, and what's on12 bottom, what's the denominator.13 A. Number of -- number of pumps versus number of14 pumps tilted in favor of the company.15 Q. Okay. So when you say number of pumps, are you16 talking about total number of pumps at the station? Is17 that what is to go in that area, or is it just the total18 number of whatever you're looking at, for instance, bulk19 diesel?20 MR. OWENS: Form.21 A. Well, I know different equipment is used for22 different pumps; so -- but I can't speculate on how that23 works exactly.24 Q. (BY MR. FAIRLESS) Let's do this. If you're25 going to a station and there are let's say 56 gasoline

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1 dispensers. You know, grades, fuel blends some of your2 TDA inspectors call it. And then there are eight bulk3 diesel. And let's say six of the eight bulk diesel,4 which would be 75 percent if you were just looking at5 bulk diesel, were noncompliant according to the6 inspector's results.7 A. Of what percent?8 Q. Six of eight of the bulk diesel were9 noncompliant. So in determining the application of the10 60 percent rule, would you just look at the six of eight11 or would you look at the six of 64, which would be the12 56 gas plus the eight?13 A. I'll defer to the staff on that.14 Q. You don't know?15 A. I'll defer to the staff that do know.16 Q. Right. And I'm not making fun of you because17 you don't know. I'm just saying are you deferring to18 the staff because you don't know?19 A. Yes, sir.20 Q. All right. Do you know whether or not any of21 those few that you -- any of the few notices of22 violation, the one to five that you had in your hand23 when you went to see Stephen Pahl, if any of those24 showed noncompliance violations even though had the25 total number of devices, gas and diesel been considered,

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1 then there would have been no predominance violation.2 Are you with me?3 MR. OWENS: Form.4 MR. LANGLEY: Objection, form.5 A. No, I'm not with you.6 Q. (BY MR. FAIRLESS) The example that I just gave7 you about the 56 gas pumps and --8 A. Yes.9 Q. -- the eight bulk diesel --10 A. Yes.11 Q. -- do you know if any of the five that you had12 in hand of the one to five that you had in hand when you13 went to see Stephen Pahl, were predominance -- they were14 ruled as predominance violations and notice of15 violations were issued, NOVs were issued as predominance16 violations even though the only predominance had to do17 with the bulk diesel as opposed to all of the dispensers18 at the station? Do you know if any of the one to five19 fell in that category?20 MR. OWENS: Form.21 A. I'm sorry. I'm really not following your22 question here.23 Q. (BY MR. FAIRLESS) Do you know -- well, you24 don't know. Do you know how it's -- no, I think you25 answered that. So you don't know what you're supposed

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1 to look at. That's what you would defer to the people2 underneath you to tell you?3 MR. OWENS: Form.4 Q. (BY MR. FAIRLESS) Is whether or not you look at5 the total number of dispensers or just the bulk diesel6 if you're testing bulk diesel?7 MR. OWENS: Form.8 A. There are procedures for determining the9 predominance threshold violations and when it comes to10 me, if it says it violated the predominance threshold11 that's the extent of my understanding on those that I12 was looking at.13 Q. (BY MR. FAIRLESS) But that's the thing. Would14 you know whether or not those predominance violations15 were predominance for the entire station or were they16 predominance just because, for instance, six of the17 eight bulk diesel were supposedly outside tolerances?18 A. Okay. I understand your question now.19 Q. Okay.20 A. I wouldn't know that.21 Q. All right. And would anybody have to come to22 you as Deputy Commissioner to get any approval from you23 before they changed reinspection procedures following24 Operation Spotlight?25 A. Some inspection procedures would come to me for

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1 approval.2 Q. All right.3 MR. FAIRLESS: Let me -- have they been4 marked?5 Q. (BY MR. FAIRLESS) Let me show you what's been6 marked as --7 MR. FAIRLESS: Do we have an extra copy?8 MS. FRIEDMAN: Yes.9 MR. FAIRLESS: Where's 454?10 THE WITNESS: Do we have any water over11 there?12 MR. FAIRLESS: Oh, these are the talking13 points. I want to know about the inspection procedures.14 MS. FRIEDMAN: The reinspection15 procedures? We didn't mark those.16 MR. FAIRLESS: Okay. Have they ever been17 marked?18 MS. FRIEDMAN: The reinspection -- I19 don't know where they are.20 MR. FAIRLESS: Ms. Court Reporter, can I21 get you to put your sticker on that?22 (Exhibit Nos. 457-459 were marked and are23 attached hereto)24 Q. (BY MR. FAIRLESS) I'm going to hand you what's25 been marked Exhibits 458 and 459.

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1 MR. FAIRLESS: And, John, I don't know.2 These may have been marked before. These are the3 reinspection procedures.4 MR. OWENS: That's fine. You've double5 marked stuff before.6 MR. FAIRLESS: Right.7 MS. FRIEDMAN: Those are copies of the8 first one.9 MR. FAIRLESS: Heres copies of...10 MR. LANGLEY: Thank you.11 MR. FAIRLESS: What about the other one?12 MS. FRIEDMAN: For some bizarre reason,13 the first page got missed; so I'm missing the first14 page. But those are copies of the second one.15 MR. FAIRLESS: Okay. Well, here's all16 but the first page of the second one.17 MR. OWENS: Are you saying you only have18 one copy of these?19 MR. FAIRLESS: One -- no. There's a20 complete copy of the first one.21 MS. FRIEDMAN: The second exhibit, I'm22 missing the first page of your copy. The witness has23 the first page.24 MR. FAIRLESS: And then on the next25 exhibit, we don't have a copy of the first page; but

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1 that's Pages 2 and 3.2 MR. OWENS: That's fine. Let me just3 get...4 MR. FAIRLESS: I'm not going to go over5 the details with him.6 MR. OWENS: That's fine.7 MR. FAIRLESS: I just want to know if8 he's ever seen them.9 MR. OWENS: I'm familiar with the10 documents.11 Q. (BY MR. FAIRLESS) Have you ever seen those?12 A. No, sir.13 Q. They're reinspection procedures. One group of14 them, the July group, were in effect during Operation15 Spotlight; and then the August group reflect changes16 made after Operation Spotlight.17 Do you know that, or does that give you18 any more familiarity with them?19 MR. LANGLEY: Objection, form.20 A. I don't recall having seen these, so...21 Q. Okay. Fine. So obviously, I would assume that22 since you don't recall having seen them, then they23 didn't need your approval to put into operation. Fair?24 A. That doesn't mean I didn't see them. I don't25 recall having seen them.

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1 Q. What's Exhibit 453?2 MS. FRIEDMAN: This is a set for you.3 MR. FAIRLESS: Huh?4 MS. FRIEDMAN: This is a set for you.5 A. It says it's talking points.6 MR. LANGLEY: Thank you.7 MR. OWENS: Has this been marked?8 MS. FRIEDMAN: Huh?9 MR. OWENS: Has this been mark?10 MR. FAIRLESS: Yeah, they're right here.11 That first one is 453.12 MR. OWENS: The entirety?13 MR. FAIRLESS: No.14 MR. LANGLEY: No, just the first page.15 MR. FAIRLESS: Just the first page.16 MS. FRIEDMAN: I gave you all of the ones17 that we've marked. The first page is 453.18 MR. FAIRLESS: T1 and --19 MR. LANGLEY: So you've marked all of20 these, but you've just handed the witness this first21 one?22 MR. FAIRLESS: Right.23 MR. LANGLEY: Okay.24 MR. OWENS: Which is?25 MR. FAIRLESS: T1.

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1 MR. LANGLEY: This one, T1.2 MS. FRIEDMAN: On top.3 MR. OWENS: I know. I just want to know4 the number.5 MR. FAIRLESS: 453.6 MR. OWENS: Okay. Sorry.7 Q. (BY MR. FAIRLESS) So what did you say? You saw8 it, or you didn't?9 A. You asked me what it was. I said it was10 talking points.11 Q. Okay. So now my next question: Have you seen12 it?13 A. Yes, sir.14 Q. Did you draft it?15 A. I was involved in drafting it. Yes, sir.16 Q. What does that mean you were involved in17 drafting? Did y'all have some sort of round table where18 you brainstormed about talking points?19 A. I was involved with other staff in developing20 the talking points.21 Q. I assure you we were going to shine a light on22 all violators who are looking to shortchange Texans.23 What light have you shined on all violators?24 A. I guess that's referring to the light of our25 regulatory programs.

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1 Q. So what specifically have you done to shine2 light on all violators?3 A. We've made multiple improvements to our4 regulatory programs since I came into my job in January5 of 2007, including increase -- increasing the penalty6 matrix significantly, we've worked with the legislature7 to increase the statutory authority for penalties,8 we've --9 Q. That's not the context I'm asking for.10 MR. OWENS: Let him finish his answer.11 Q. (BY MR. FAIRLESS) Go ahead.12 A. We've obtained increased authority on the13 ability to conduct risk-based inspections. We've14 enacted a number of changes that will help identify15 anyone shortchanging Texans.16 Q. What risk-based inspections have you conducted17 of a single entity, other than PWI?18 A. We're in the process of developing our19 risk-based criteria at the legislature's direction.20 Q. So is the answer none today?21 A. We conduct risk-based inspections in other22 programs.23 Q. I'm not talking about other programs. I'm24 talking about this program pertaining to retail motor25 fuel devices. Have any risk-based inspections been

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1 performed after Operation Spotlight, which was nearly,2 what, two years ago?3 A. I don't -- not that I'm aware of.4 Q. Yes, it was nearly two years ago, not that5 you're aware of. No, there haven't been any risk-based6 inspections done. Fair?7 A. Yes, sir.8 Q. Okay. So this light that you're going to shine9 on all violators, just doesn't have the batteries in it10 yet?11 MR. OWENS: Objection, form.12 MR. LANGLEY: Form.13 A. I'm not sure what you mean.14 Q. (BY MR. FAIRLESS) Well, you know what I'm mean.15 Just commonsensical wise, is that what you're -- I mean,16 is that fair to look at it this way? I know it's your17 talking point, but you say you're going to shine a light18 on all violators; but you haven't done anything in the19 way of a risk-based inspection to accomplish that, have20 you?21 MR. OWENS: Form.22 A. We have not come across any trends as --23 Q. (BY MR. FAIRLESS) You haven't looked for any?24 MR. OWENS: Let him finish his answer.25 Q. (BY MR. FAIRLESS) Go ahead. I thought you

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1 were.2 A. We've not come across any trends that would3 suggest someone is looking to shortchange Texans. What4 led to Operation Spotlight, as a reminder, was a trend5 of more than 30 percent noncompliance compared to the6 statewide average of 5 percent.7 MR. FAIRLESS: I'll object as8 nonresponsive.9 Q. (BY MR. FAIRLESS) What trends have you looked10 for specifically with regard to retail motor fuel device11 and regulatory enactment of your programs?12 A. We're developing a risk-based inspection13 criteria that will include trend analysis and we have a14 directive to all staff involved with these programs to15 continuously look for anything that suggests there might16 be a trend that needs to be researched.17 Q. I'm talking specifically. What have you18 specifically done to look for trends to shine the light19 on violators?20 A. We've directed all staff who interact with21 these programs to monitor the programs from their22 perspective and identify anything that they feel needs23 to be researched as a possible trend and we're in the24 process of developing a risk-based inspection criteria.25 Q. Wait a second. Having everybody and their

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1 brother look for a trend that could be developing,2 that's -- that was going on long before Operation3 Spotlight, wasn't it?4 A. We had directed it long before then. Yes, sir.5 Q. So it's not like that instruction changed at6 all after Operation Spotlight, right?7 A. Correct.8 Q. And nobody brought it to your attention, hey,9 here's a trend we all need to be mindful of, that later10 gave birth to Operation Spotlight, fair?11 A. Say it one more time please, sir.12 Q. Nobody came to you and said here's a trend that13 I have been seeing that we need to be mindful of and it14 subsequently gave birth to Operation Spotlight. That's15 not the way it came about, is it?16 A. That's correct.17 Q. The way it came about is you yourself looking18 at NOVs that evidently came across your desk, noticing19 enforcement orders and attached checks and then noticing20 that some of them had the name of the same company, that21 being PWI and/or Sunmart, that is what triggered an22 analysis, correct?23 A. That is what caused me to ask for an analysis24 of the data.25 Q. So when you say that we're relying upon, you

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1 know, people to constantly analyze data to shine a light2 on possible violators, that's what you had been doing3 for years before and that's not how PWI came to the4 forefront, is it?5 A. PWI and Operation Spotlight came about due to6 an increased awareness of potential trends, some7 enforcement orders that crossed my desk that showed what8 appeared could be a trend to me, which resulted in me9 requesting that data be analyzed. That resulted in data10 yielding -- data showing that this company has a11 noncompliance rate of more than 30 percent compared to12 the statewide average of 5 percent, comparing this13 company to all other companies in the state and we14 identified that this company had a history of violating15 the predominance threshold.16 MR. FAIRLESS: I'll object as17 nonresponsive.18 Q. (BY MR. FAIRLESS) Nobody brought to you a PWI19 trend. That was something you decided to look into20 yourself.21 MR. OWENS: Form.22 MR. LANGLEY: Asked and answered.23 Q. (BY MR. FAIRLESS) Correct?24 A. What's -- forgive me. What's the question?25 Q. Nobody brought to you a PWI trend, and said

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1 here's a company that we need to look into?2 MR. OWENS: Form.3 Q. (BY MR. FAIRLESS) Did they?4 MR. OWENS: Form.5 MR. LANGLEY: Form.6 A. I identified what I believed could be a trend7 based upon the enforcement orders that crossed my desk8 and --9 Q. (BY MR. FAIRLESS) That's not my question.10 MR. LANGLEY: He's already answered your11 question.12 MR. FAIRLESS: No, he hasn't.13 MR. LANGLEY: Yes he has. He answered14 that very question.15 Q. (BY MR. FAIRLESS) Nobody brought a PWI trend to16 your attention in your entire period of time as Deputy17 Commissioner of Agriculture, correct?18 A. That's not correct at all.19 MR. OWENS: Form.20 Q. (BY MR. FAIRLESS) Okay. Who brought a PWI21 trend to your attention?22 A. After I asked for the data to be analyzed, the23 trends that were brought to my attention were alarming,24 34 percent I believe noncompliant compared to a25 statewide average of 5 percent noncompliant. Then after

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1 we conducted the inspections, the data that people2 brought to my attention, which I believe is what you're3 asking --4 Q. It's not.5 A. -- showed that 58 percent of the fuel pumps6 inspected in Texas by -- that this company operates,7 were tilted in favor of the company.8 Q. We should keep talking about that it though.9 It's gone down from 60 percent to 58 percent the more we10 talk about it.11 MR. OWENS: Objection, form.12 Q. (BY MR. FAIRLESS) The -- I'm talking about13 before you sent everybody out or sent Stephen Pahl out14 to have trend analysis done. Nobody before that moment15 in time brought to you any sort of trend analysis that16 questioned PWI or its business ethics, correct?17 MR. OWENS: Form.18 MR. LANGLEY: Form.19 MR. FAIRLESS: He'll be at trial, boys.20 MR. LANGLEY: We know.21 A. Nobody brought to my attention anything prior22 to the trend that I suspected could exist. I asked for23 data to be analyzed and the trend that came back to me,24 that staff brought to me, showed a 34 percent25 noncompliance rate compared to a statewide average of 5

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1 percent noncompliance.2 Q. (BY MR. FAIRLESS) You should get paid by how3 many times you've mentioned that 34 percent today. You4 would be a wealthy man.5 MR. LANGLEY: It won't be as much as how6 many times you've looked at his business card today.7 MR. FAIRLESS: Exhibit -- it won't be8 because I can't ever remember what the hell his position9 is. If I got paid a nickel for every time I looked at10 this, I would have a pocket full nickels.11 MR. LANGLEY: I tell you what, you've got12 it at the ready.13 MR. FAIRLESS: I know I do, don't I? I14 need one of my very own to frame.15 Q. (BY MR. FAIRLESS) What's Exhibit 454?16 A. Talking points.17 Q. And what -- who came up with these?18 MR. OWENS: Just for the record --19 MR. LANGLEY: Which one?20 THE WITNESS: I think this one.21 MR. OWENS: He's looking at talking22 points with T1 on them and you --23 MR. LANGLEY: I think they're both -- are24 they different?25 MR. FAIRLESS: They both have T1 on them.

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1 MR. OWENS: So there's two different --2 THE WITNESS: Looks like they're3 formatted differently.4 MR. OWENS: So there's two different T1s?5 MS. FRIEDMAN: Yeah.6 MR. OWENS: Okay, sorry. I didn't know.7 MR. LANGLEY: They are different.8 Q. (BY MR. FAIRLESS) So did you play a role in9 this, too?10 A. I played a role in the development of the11 talking points Commissioner Staples used on that day.12 Q. Is that how y'all work in politics is that13 y'all come up with things for the politician to say?14 Y'all come up with the points and then y'all just tell15 him what the points are and he takes them to the media16 and announces them as his points?17 MR. OWENS: Form.18 MR. LANGLEY: Objection, form.19 A. No, sir.20 Q. (BY MR. FAIRLESS) Well, I mean, y'all came up21 with these things without Todd Staples around, didn't22 you? These are points y'all came up with independent of23 Todd Staples, yes?24 MR. OWENS: Form.25 A. Commissioner Staples was involved before the

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1 press conference.2 Q. (BY MR. FAIRLESS) I didn't ask you was he3 involved before the press conference. I said did y'all4 come up with these talking points, Exhibits 453 and 454,5 without the involvement of Todd Staples?6 A. We drafted them without Commissioner Staples'7 involvement.8 Q. Okay, thank you. Exhibit 455, did you9 participate in the drafting of that?10 A. I think all of these documents, these three are11 different versions of the same one. They all say12 talking points.13 Q. Right. But I didn't generate them, see. All14 I'm doing is looking at them. So are you saying that15 this is yet another document that was part of the16 initial talking points that were being drafted for later17 submission to Todd Staples?18 MR. LANGLEY: Page 2.19 A. This is a version of those talking points.20 Q. (BY MR. FAIRLESS) These are three different21 versions of what was going to be the talking points that22 would be shared with the media?23 A. This was one of the versions.24 Q. You're saying this --25 A. One of the drafts.

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1 Q. -- but you're pointing to Exhibits 453, 454,2 and 455. You're saying that they all culminated in a3 set of talking points that Todd Staples used with the4 media? Yes?5 A. Yes, sir.6 Q. Okay. And which is the final version? 453,7 454 or 455?8 A. I can't say.9 MR. LANGLEY: Objection, form.10 A. I can't say without seeing the transcript of11 the press conference.12 Q. (BY MR. FAIRLESS) Would he read it word for13 word? Is that the way those -- I've always wondered14 about that. When there's that press conference going15 on, is he reading these word for word?16 A. Sometimes he'll read. Sometimes he will not17 read.18 Q. Well, you said I wouldn't know without a19 transcript of the media conference. So if you had the20 transcript, then you would know whether or not he used21 453, 454, or 455 because you would know which one he22 read?23 MR. OWENS: Form.24 MR. LANGLEY: Objection, form.25 Q. (BY MR. FAIRLESS) Right?

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1 A. I probably couldn't say with complete2 certainty, but I would be able to get closer than I can3 without it.4 Q. Who told him look at the camera and wink when5 he said that one part during the conference?6 MR. LANGLEY: Objection, form.7 MR. OWENS: Form.8 A. I don't recall the --9 MR. FAIRLESS: What's wrong -- what could10 possibly be wrong with that?11 MR. LANGLEY: Who told him to look at the12 camera and wink? That assumes someone told him to do13 it.14 MR. OWENS: I think y'all Photoshopped15 that.16 Q. (BY MR. FAIRLESS) Who did that? That was your17 idea, wasn't it?18 A. I didn't even recall that the Commissioner19 winked.20 Q. You're the brains behind this.21 MR. OWENS: Y'all Photoshopped that.22 Q. (BY MR. FAIRLESS) Tell me you did that, right?23 You told him to do that?24 MR. LANGLEY: Objection, form. Don't25 answer that.

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1 Q. (BY MR. FAIRLESS) How about this e-mail that2 you sent. It's from you and it's to the Commissioner.3 The Commissioner, is that Todd Staples?4 A. It is.5 Q. Okay. So this is to Todd Staples and you6 specifically tell him...7 MR. LANGLEY: I don't have that.8 MR. OWENS: Randy is going off the9 reservation.10 MR. FAIRLESS: Yeah.11 MR. OWENS: Earth to Randy.12 MR. LANGLEY: Where is it again, Kelley?13 I'm so far off the reservation, I can't find it. Oh,14 Bryan.15 Q. (BY MR. FAIRLESS) Who's Bryan, Bryan Black?16 A. Bryan Black is our Director of Communications.17 Q. Okay. So you told Todd Staples that Bryan18 Black intends, quote, that at -- you said as the time.19 I'm assuming you mean at the time -- intends that at the20 time, you would drive the message to the camera, end21 quote. That's when Todd Staples winked at the camera,22 isn't it?23 MR. LANGLEY: Objection, form.24 MR. OWENS: Form.25 A. I don't even recall that he winked at the

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1 camera.2 Q. (BY MR. FAIRLESS) Do you see -- I want you3 to -- I'm going to underline it here.4 MR. FAIRLESS: Can I mark on this,5 Kelley?6 MS. FRIEDMAN: Have at it.7 MR. OWENS: You've marked on everything8 else.9 Q. (BY MR. FAIRLESS) Do you see the part I've10 underlined? Can you read that?11 MR. OWENS: Let the record reflect that12 you've underlined something in red.13 MR. FAIRLESS: Right, yeah.14 MR. OWENS: On --15 MR. FAIRLESS: It's not an exhibit.16 MR. LANGLEY: It's not marked yet?17 MR. FAIRLESS: No.18 Q. (BY MR. FAIRLESS) Here, let me tear that page19 off and mark it once you're done reading it. Are you20 done?21 MR. LANGLEY: Make him wait. It drives22 him crazy.23 MR. FAIRLESS: Should we mark the whole24 thing, Kelley?25 MS. FRIEDMAN: No, because there's

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1 unrelated stuff in there.2 MR. FAIRLESS: Okay.3 (Exhibit No. 460 was marked and is4 attached hereto)5 Q. (BY MR. FAIRLESS) I've marked this document as6 Exhibit No. 460. And at the bottom where I've7 underlined in red, that's an e-mail from you to Todd8 Staples?9 A. Yes, sir.10 Q. And you're telling him at one point what Bryan11 wants him to do and I see that carbon copied on that12 e-mail is Bryan Black, with that same unique spelling,13 B-r-y-a-n. So I assume when you say Bryan wants him to14 do something, you're talking about Bryan Black?15 A. Yes, sir.16 Q. And Bryan Black is the communications guru?17 MR. OWENS: Form.18 A. Bryan Black is the director of communications19 at the Department of Agriculture.20 Q. (BY MR. FAIRLESS) So Bryan Black -- it's not21 unusual for Todd Staples to take some direction from22 Bryan Black when it comes to communications with the23 media?24 MR. LANGLEY: Object to form.25 Q. (BY MR. FAIRLESS) Fair?

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1 A. It's not unusual.2 Q. Okay. And read what I highlighted. You can3 read it. Go ahead. No. I mean, read it out loud just4 like school.5 A. Yes, sir. Bryan intends that as you -- Bryan6 intends that at the time you would drive the message to7 the camera.8 Q. And what message are you wanting Todd Staples9 to drive to the camera?10 MR. LANGLEY: Objection, form.11 Q. (BY MR. FAIRLESS) I mean, what were you talking12 about when you said at the time you would drive the13 message to the camera? What message?14 A. There were evidently previous sentences. There15 are some bolding in the talking points.16 Q. Okay. And the bold that I see on Exhibits 453,17 454, and 455, are those the points that Todd Staples is18 to drive to the camera?19 MR. OWENS: Form.20 MR. LANGLEY: Form.21 A. I don't know which of these was attached to22 this e-mail. Do you?23 Q. (BY MR. FAIRLESS) I don't. Well, do you24 know -- but you're the one who wrote this. Do you know25 what you were talking about at the time?

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1 MR. OWENS: Form.2 A. I was talking about some bolding in some3 talking points that were attached to this e-mail.4 Q. (BY MR. FAIRLESS) Right. But do you know if5 that has to do with Exhibit 453, 454, or 455; or were6 there other talking points?7 A. I don't -- I don't know which of these.8 Q. Well, we see bolded in 453, 454, and 455 is the9 sentence: And one Texan cheated is one Texan too many.10 That's bolded in all three of these --11 A. Which number?12 Q. 453, 454, and 455.13 A. Oh, okay.14 Q. The three that you said were just different15 versions of the same, they all -- each one of those have16 it bolded that one Texan cheated is one Texan too many,17 correct?18 A. Yes, sir.19 Q. And how did you want Todd to drive home the20 message to the camera?21 MR. LANGLEY: Objection, form.22 Q. (BY MR. FAIRLESS) I mean, what did you have in23 mind when you said drive home the message to the camera?24 MR. LANGLEY: Objection, form.25 A. Well, I don't know what I had in mind other

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1 than Bryan intends, as that sentence says there.2 Q. (BY MR. FAIRLESS) Right. But did Bryan tell3 you what he wanted Todd Staples to do to drive home the4 message?5 A. I assume the rest of that sentence.6 MR. LANGLEY: Did he tell you is what7 he's asking?8 A. I don't recall.9 Q. (BY MR. FAIRLESS) Would the wink accomplish10 that?11 MR. OWENS: Form.12 MR. LANGLEY: Objection, form.13 Q. (BY MR. FAIRLESS) No. I just want to know.14 Does the wink accomplish that driving home the message15 to the camera?16 MR. LANGLEY: Objection, form.17 A. I don't recall that he winked at the camera.18 Q. (BY MR. FAIRLESS) Okay. Never mind. Okay,19 Exhibit 457 and Exhibit 456. They've got a copy.20 MR. OWENS: Let me just see which ones21 they are.22 MR. FAIRLESS: They were all in order23 when I gave them to y'all.24 MR. OWENS: Yeah. Then you went out of25 order, Randy.

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1 MR. FAIRLESS: One page.2 MR. LANGLEY: This one.3 MR. OWENS: This one.4 MR. LANGLEY: And this one right here,5 yep.6 MR. OWENS: Okay. Exhibit 457. What's7 the other one?8 MR. LANGLEY: I didn't see it yet.9 MR. OWENS: 456, got it.10 Q. (BY MR. FAIRLESS) Are these more talking11 points?12 MR. LANGLEY: Again 457, 456, is that13 what you're talking about?14 MR. FAIRLESS: Right.15 A. Yes, sir.16 Q. (BY MR. FAIRLESS) Does Todd Staples get talking17 points for everything, or just when he's addressing the18 media?19 A. It depends on the situation.20 Q. If he's giving a speech or talking to a group,21 is he being given talking points?22 A. He'll be given briefing material, including23 talking points.24 Q. And so did you help draft these?25 A. I helped draft the talking points that were

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1 given to the Commissioner. There's a few versions here.2 Q. Right. There's a lot of versions there. But3 I'm talking now specifically about 456 and 457. Did you4 help draft those?5 MR. OWENS: Form.6 A. I -- yes, sir. I helped draft the talking7 points that were given to the Commissioner.8 Q. (BY MR. FAIRLESS) And the document that you9 sent to the other states, this form document we talked10 about, was that a regulatory alert?11 A. I believe that's what it was called.12 THE WITNESS: I don't know how much time13 we've got left, but I'm going to need a break before too14 long.15 THE REPORTER: Eight minutes.16 THE WITNESS: I can wait.17 MR. LANGLEY: You can have a break18 whenever you want a -- Randy, how much longer do you19 think you have?20 MR. FAIRLESS: Not much more. I couldn't21 have much more time. How much time do I got?22 THE REPORTER: Eight -- eight minutes.23 MR. OWENS: I mean, you can wrap up. Do24 you need a restroom break or something before that, or25 do you want to go ahead get her done?

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1 THE WITNESS: No. I'm fine.2 Q. (BY MR. FAIRLESS) All these talking points that3 have the word "intentional" in them, what evidence,4 direct evidence, did you have that any of the conduct of5 PWI was intentional?6 A. Where are you -- where are you talking about?7 Q. All over these documents.8 A. Okay.9 Q. I'm looking at Exhibit 457. Let's see, it's in10 the first paragraph twice. It's in the last paragraph.11 And those are just the first two I've looked at, so...12 MR. LANGLEY: Your question is what?13 Q. (BY MR. FAIRLESS) Is what direct evidence do14 you have that PWI intentionally did anything to15 shortchange consumers, much less intentionally cheated16 consumers?17 A. The results of the inspection were so18 significantly higher than the standards that are met by19 every other retail fuel operator in Texas.20 MR. FAIRLESS: I'll object as21 nonresponsive.22 Q. (BY MR. FAIRLESS) Y'all didn't -- we've already23 covered that, remember? Y'all didn't do any blitz of24 any other retail motor fuel device owner in the state of25 Texas. And that's not direct evidence anyway.

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1 MR. OWENS: Form.2 Q. (BY MR. FAIRLESS) And I'm not asking you did3 you take the information that you got back and interpret4 it a certain way or assume that it means a certain5 thing.6 I'm asking you what direct evidence do7 you have that PWI was intentionally shortchanging Texas8 consumers?9 MR. OWENS: Form.10 MR. LANGLEY: Objection, form.11 A. The evidence of the inspections would indicate12 that there's a significant issue there. 58 percent13 noncompliance when everyone else in the state operates14 at a 5 percent noncompliance rate.15 MR. FAIRLESS: I'll object as16 nonresponsive.17 Q. (BY MR. FAIRLESS) That -- assuming you were18 right, that could lead to some assumptions.19 A. Okay.20 Q. But that is not direct evidence that pumps were21 set to intentionally shortchange consumers. That just22 shows that at the time the testing was done, assuming23 the testing was valid, correct, and accurate and was24 done by competent officials, that the pumps were found25 to be in the negative; thereby, shortchanging consumers

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1 depending on how you interpret tolerances. Okay?2 So I'm taking all of that out of the mix3 and saying -- asking you what direct evidence do you4 have -- not what conclusions can you make from the5 information you looked at. But what direct evidence do6 you have of intentional shortchanging Texas consumers?7 MR. OWENS: Form.8 A. There are a number of factors that -- a number9 of findings that came out of these inspections. The10 noncompliance at the pump being a portion of them. The11 observations our inspectors made about the timing of12 some of the calibrations being others.13 Q. (BY MR. FAIRLESS) I don't even understand that.14 How is that direct evidence?15 MR. LANGLEY: Objection, form.16 MR. OWENS: Form.17 Q. How are the findings --18 MR. OWENS: Let him answer the question.19 Go ahead.20 MR. FAIRLESS: He wasn't even saying21 anything.22 MR. OWENS: He was about to talk about23 what the inspectors saw.24 A. As our inspectors reported back to us, they saw25 calibration employees operating immediately ahead of our

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1 employees. Our inspectors would identify pumps that had2 just been calibrated that were still out of calibration.3 There were a number of things that observations combined4 with the inspection results.5 Q. (BY MR. FAIRLESS) Does that tell you a little6 bit about the competency of your testing when the7 testing is being done on the heels of somebody, an8 independent third party, calibrating pumps and yet your9 testers still find the pumps out of calibration?10 A. I have complete confidence in the inspectors of11 the Texas Department of Agriculture.12 Q. So the only thing evidently that tells you is13 the people who are calibrating in front -- immediately14 in front of the inspectors are either complete idiots or15 they still are setting pumps to the negative, even16 though they know the TDA has an inspection soon to17 follow?18 MR. OWENS: Objection, form.19 MR. LANGLEY: Objection, form.20 Q. (BY MR. FAIRLESS) Which would, oh, by the way,21 they are indeed idiots?22 MR. OWENS: Objection, form.23 MR. LANGLEY: Objection, form.24 Q. (BY MR. FAIRLESS) Do you not see the rub there?25 MR. OWENS: Form.

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1 A. I don't recall the question.2 Q. (BY MR. FAIRLESS) What would be the possible --3 no. What would be any rational explanation why somebody4 would send calibrators out ahead of the TDA and then5 have those calibrators calibrate to the negative,6 knowing the TDA is soon to follow?7 MR. LANGLEY: Objection, form.8 MR. OWENS: Form.9 Q. (BY MR. FAIRLESS) Give me a single rational10 explanation.11 MR. LANGLEY: Objection, form.12 A. I can't speculate as to why someone would do13 that.14 Q. (BY MR. FAIRLESS) I don't want you to15 speculate. I want you to give me a single rational16 explanation.17 MR. LANGLEY: Objection, form.18 A. Mr. Fairless, I can't speculate on why someone19 would do something like that.20 Q. (BY MR. FAIRLESS) Okay. So is that the only21 direct evidence that you have? That there were22 calibrators out there ahead of the TDA and the TDA came23 along after that and still found the pumps to be in the24 negative, so is that the direct evidence you have with25 regard to pumps being intentionally set to shortchange

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1 Texas consumers?2 MR. LANGLEY: Objection, form.3 MR. OWENS: Objection, form.4 A. There was an enormous amount of evidence that5 came out of these inspections that it -- that revealed6 that this company was shortchanging Texas customers at a7 much higher rate than anyone else in this state. And8 that's reason for us to be concerned as to why that9 would be happening.10 MR. FAIRLESS: I'll object as11 nonresponsive.12 Q. (BY MR. FAIRLESS) And I would disagree with you13 wholeheartedly. But even if I did agree with you, how14 do those results show anything other than what the pumps15 were found at, as opposed to what the mind set and the16 intent was for the company who hired the individuals17 that did the calibrations?18 MR. OWENS: Form.19 A. The significance of the data that came out of20 the inspections.21 Q. (BY MR. FAIRLESS) Say that one more time.22 A. The significance -- I was waiting on you.23 Q. Okay, thanks.24 A. The significance of the data that came out of25 the inspections. We've -- in my time at the Department

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1 of Agriculture, I have never seen a company in this2 state shortchanging Texas consumers that significantly.3 I find it unacceptable. I find it unacceptable for4 pumps in this state to be shortchanging customers at a5 rate of 58 percent.6 MR. FAIRLESS: I'll object as7 nonresponsive.8 Q. (BY MR. FAIRLESS) Now it sounds like you're9 running for office. What is this document right here?10 MR. LANGLEY: Objection, form.11 MR. OWENS: Objection, form.12 Q. (BY MR. FAIRLESS) Just the top part when you13 say you want SWR -- is it him that wrote that? You want14 SWR -- I'm not copying SWR since she is insulated on15 this one. What does that mean?16 A. SWR is our chief of staff.17 Q. What's SWR stand for?18 A. It's her initials.19 Q. Right. What -- say her name.20 A. Shannon Wickliffe Rusing.21 Q. Okay. So you want her insulated on this one.22 What is it you want her insulated on? Because the23 subject is confidential, Operation Spotlight.24 A. Out of respect for those we regulate, we have25 protocols at the Department of Agriculture to insulate

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1 the person who executes an enforcement order from those2 staff who have access to details of any particular case.3 Again, out of respect for the regulated entity.4 MR. FAIRLESS: Did you understand that?5 MS. FRIEDMAN: No.6 MR. OWENS: How -- I know we're...7 MR. FAIRLESS: Yeah. You're going to let8 me wrap up though, right?9 MR. OWENS: I'm going to let you wrap up.10 MR. FAIRLESS: It's not going to be long.11 MR. OWENS: I'm going to let you wrap up.12 Q. (BY MR. FAIRLESS) Can you say that again? I13 didn't understand that.14 A. Sure. We have a protocol at the Department of15 Agriculture.16 Q. Right.17 A. To protect the person who enforces -- who18 executes enforcement orders from details of a particular19 case.20 Q. What does that mean executes enforcements21 orders? The person who signs off on them?22 A. Who executes it. That's the signature is what23 executes it.24 Q. Right. That's what I want to know. What25 you're talking about when you say execute just means

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1 signed it, who signed it. No. I'm saying that's what2 you mean?3 A. Oh. Yes, sir.4 Q. Execute just means signed?5 A. Yes, sir.6 Q. All right. Okay. Can I see that for one7 second?8 MR. FAIRLESS: Ms. Court Reporter, can we9 put a sticker on this?10 (Exhibit No. 461 was marked and is11 attached hereto)12 MR. FAIRLESS: Kelley, do you have13 another copy? It's Exhibit 461. So since I'm on a14 limited amount of time just to wrap up, can we take a15 break for just a minute and then I'll just see what else16 there is?17 MR. OWENS: Sure.18 THE VIDEOGRAPHER: Off the record, 4:57.19 (Recess taken)20 (Exhibit No. 462 was marked and is21 attached hereto)22 THE VIDEOGRAPHER: We're back on the23 record at 5:06.24 Q. (BY MR. FAIRLESS) Today, there have been times25 when I've asked you questions about PWI. Have you

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1 understood that when I said PWI, I've meant Sunmart?2 A. Yes, sir.3 Q. Okay. Did you have any involvement with postal4 inspectors? Have you met with any postal inspectors5 about PWI?6 A. No, sir. Postal inspectors?7 Q. Postal inspectors? Federal investigators?8 A. Okay. No, sir.9 Q. Have you met with any of them?10 A. No, sir.11 Q. Have any discussions been brought to you that12 any of your people at the TDA have had with postal13 inspectors, US postal inspectors?14 A. No, sir.15 Q. Okay. Let me show you what's been marked as16 Exhibit 462.17 MR. FAIRLESS: Kelley, do you have one18 for them?19 MS. FRIEDMAN: Yes.20 Q. (BY MR. FAIRLESS) And if you start reading21 these e-mails from the bottom up, that's how I'm told22 that these things are read. Do you see the -- yeah. I23 wasn't even going to the previous page. I'm just24 looking at that first page. It says we've shut down25 about 36 stations so far yesterday and today. And --

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1 MR. OWENS: Bottom of Page 1.2 A. Oh, yeah.3 Q. (BY MR. FAIRLESS) Do you see it?4 A. I'm with you now. Yes, sir.5 Q. Then Todd Staples is saying, great, we should6 treat the team to some Nilgai sausage wraps sometime for7 all their efforts. Did y'all do that?8 A. No, sir.9 MR. LANGLEY: What kind of sausage wraps?10 MR. FAIRLESS: Nilgai, that's deer.11 MR. LANGLEY: Nilgai, Nilgai.12 MR. FAIRLESS: Nilgai? I've never heard13 it called Nilgai.14 MR. LANGLEY: You haven't?15 MR. FAIRLESS: Uh-uh.16 MR. LANGLEY: You're not from south17 Texas, are you?18 MR. FAIRLESS: No. I'm from east Texas,19 and we call them Nilgai guy.20 Q. (BY MR. FAIRLESS) But you see on the middle of21 the page when they were talking about 36, they qualify22 that it's not 36 stations that have been shut down.23 That it's 36 places where presumably test results24 demonstrate that 60 percent or more of the pumps were in25 favor of the station. Do you see that?

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1 A. Yes, sir.2 Q. What's the --3 A. You're --4 Q. What's the difference? You're the one writing5 these. What qualification are you making there?6 A. We...7 MR. LANGLEY: Are we talking about the8 same statement? I mean, which one are you asking about?9 MR. FAIRLESS: Thirty-six.10 MR. LANGLEY: Okay. So in the middle of11 the page?12 MR. FAIRLESS: Well, it starts at the13 bottom.14 Q. (BY MR. FAIRLESS) See, at the bottom you're15 saying they shut down 36 stations and all I'm getting at16 is --17 MR. OWENS: So far yesterday and today.18 MR. FAIRLESS: Right. We just covered19 that.20 Q. (BY MR. FAIRLESS) The 36 stations --21 MR. LANGLEY: But your specific question22 is about this right here? Is that what you're talking23 about?24 MR. FAIRLESS: No. I'm talk about both25 of them.

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1 MR. LANGLEY: Okay. All right. Do you2 understand?3 Q. (BY MR. FAIRLESS) Are you distinguishing when4 you say actually no, we just realized that what was5 being said was wrong. What are you talking about? What6 was wrong?7 A. Hang on. Okay. The distinction is these8 stations we're talking about violated the predominance9 threshold, which I corrected to clarify that results in10 tagging the pumps that were tilted in favor of the11 company out of order.12 Q. As opposed to shutting down the whole station,13 which is what was being broadcast to the media?14 A. I don't know that that's what was being15 broadcast to the media. There were some stations that16 were shut down in their entirety because 100 percent of17 the pumps were cheating the customer.18 MR. FAIRLESS: I'll object as19 nonresponsive.20 Q. (BY MR. FAIRLESS) Do you see the part we just21 realized that was being said wrong. Being said to who?22 A. I guess in --23 Q. Being said to the media?24 A. -- the e-mail previously.25 Q. Okay. So the clarification is we're not

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1 shutting down the whole stations. We're only shutting2 down pumps that were in the negative that we believe3 fell within the 60 percent predominance findings?4 MR. OWENS: Form.5 A. The way the predominance rule is working in6 this situation, is the -- if you -- if there was a pump7 tilted in favor of the company --8 Q. (BY MR. FAIRLESS) Found in favor, right. Go9 ahead.10 A. -- that pump would be counted in the11 calculation to determine what percentage of the pumps12 were tilted in favor of the company.13 Q. Got it. And then if you come up with14 60 percent, are you going to shut down the whole station15 or just the 60 percent or whatever percentage were in16 favor of the station?17 A. We'll tag the pumps. We're tagging the pumps18 out of order that were tilted in favor of the company in19 that situation.20 Q. Why do you keep saying predominance threshold21 when everybody else in this case has made it a special22 point to say predominance rule? All the other TDA23 people are singing the predominance rule song. Why are24 you saying predominance threshold?25 MR. OWENS: Objection, form.

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1 A. I won't speak to why someone says a different2 word than I say.3 Q. (BY MR. FAIRLESS) Well, they're all your staff.4 They work for you. I'm just wondering why you have a5 different word than the rest of them. It's kind of6 unique.7 A. There's a threshold that's established by8 national standards that is based upon a predominant9 number of the pumps being tilted in favor of the10 company. When that threshold is met, higher penalties11 can be assessed.12 MR. FAIRLESS: I'll object as13 nonresponsive.14 Q. (BY MR. FAIRLESS) I just want to know why you15 use that word and everybody else has been using the word16 rule instead of threshold.17 A. I can't speak to why anyone else used a18 different term.19 Q. And has Texas adopted Handbook 44.20 MR. OWENS: Objection, form.21 MR. LANGLEY: Objection, form.22 Q. (BY MR. FAIRLESS) Wait a second.23 A. Has Texas --24 Q. Wait, wait.25 MR. LANGLEY: Oh, he's got the business

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1 card again.2 Q. (BY MR. FAIRLESS) As Drew DeBerry, Deputy3 Commissioner of Agriculture, has the great state of4 Texas adopted Handbook 44?5 A. We utilize Handbook 44 as the national6 standard.7 MR. OWENS: Form.8 Q. (BY MR. FAIRLESS) So the answer is yes?9 MR. LANGLEY: Objection, form.10 Q. (BY MR. FAIRLESS) Yes? You can say it. It's11 okay.12 MR. LANGLEY: Objection, form.13 A. Yes.14 Q. (BY MR. FAIRLESS) Pre-depo meetings, who did15 you meet with to get ready for your deposition? I don't16 want to know what y'all talked about. I just want to17 know who you met with. Who was there? Who was in the18 room?19 A. I met with the two gentlemen here from the20 Attorney General's Office.21 Q. The John twins?22 MR. LANGLEY: The two gentlemen, and we23 are gentlemen.24 MR. FAIRLESS: You throw that word around25 loosely.

Page 283

1 Q. (BY MR. FAIRLESS) And when did you meet with2 them? Today?3 MR. LANGLEY: You've got one minute4 according to the videographer.5 A. I met -- we met this morning. We met a6 couple --7 Q. (BY MR. FAIRLESS) Today is not the only meeting8 y'all have ever had, is it?9 A. No, sir.10 Q. All right. I mean about this. It's not the11 only meeting y'all have ever had?12 A. No, sir.13 Q. Before Operation Spotlight and the, quote,14 trend, end quote, you noticed for Sunmart, had you ever15 been involved in weights and measures enforcement to16 this degree?17 MR. OWENS: Form.18 A. I've been deeply involved in weights and19 measures regulatory programs since we came into this --20 since I came into this position in '07.21 Q. (BY MR. FAIRLESS) Have you had meetings with22 Todd Staples subsequent to this lawsuit being filed23 about PWI?24 A. I don't believe -- since the lawsuit was filed?25 Q. Yes, sir. About PWI.

Page 284

1 A. Not that I can recall.2 MR. FAIRLESS: Okay. That's all the3 questions I have. I'll reserve whatever additional4 questions I have until the time of trial.5 MR. OWENS: So will we.6 MR. LANGLEY: Okay.7 THE VIDEOGRAPHER: Off the record, 5:16.8910111213141516171819202122232425

Page 285

1 SIGNATURE AND ERRATA PAGE2

PAGE LINE SHOULD READ REASON34 ________________________________________________________5 ________________________________________________________6 ________________________________________________________7 ________________________________________________________8 ________________________________________________________9 ________________________________________________________10

I, DREW DEBERRY, have read the foregoing11 deposition and hereby affix my signature that same is

true and correct, except as noted above.12

______________________1314 DREW DEBERRY15 ********16 THE STATE OF TEXAS:

COUNTY OF ____________1718 BEFORE ME, ______________, on this day

personally appeared DREW DEBERRY, known to me or proved19 to me under oath or through ____________ (description of

identity card or other document) to be the person whose20 name is subscribed to the foregoing instrument and

acknowledged to me that they executed the same for the21 purposes and consideration therein expressed.22 Given under my hand and seal of office

this ______ day of ____________, 2010.23

_______________________24

Notary Public in and for25 The State of TEXAS

c4635592-2565-43ed-ab2c-f862a6ecb5c5

DREW DEBERRY


73 (Pages 286 to 289)

Page 286

1 CAUSE NO. 2008-45087 (CONSOLIDATED)2 ALLISON SNODDY, et al ) IN THE DISTRICT COURT

Plaintiffs, )3 v. )

PETROLEUM WHOLESALE, INC. )4 et al. )

Defendants, )5 and )

STATE OF TEXAS ) HARRIS COUNTY, TEXAS6 Plaintiff )

v. )7 PETROLEUM WHOLESALE, L.P., )

d/b/a SUNMART; and PWI GP, LLC)8 Defendants ) 334TH JUDICIAL DISTRICT9 JOB NUMBER: _____________10 ORAL VIDEOTAPED DEPOSITION OF DREW DEBERRY11 APRIL 26, 201012 I, Paige S. Watts, Certified Shorthand

Reporter in and for the State of Texas, hereby certify13 to the following:14 That the witness, DREW DEBERRY, was duly

sworn by the officer and that the transcript of the oral15 deposition is a true record of the testimony given by

the witness.16 That I am neither counsel for, related

to, nor employed by any of the parties or attorneys in17 the action in which this proceeding was taken, and

further, that I am not financially or otherwise18 interested in the outcome of the action.

That the charges for the preparation of19 the foregoing completed deposition and any copies of

exhibits are $__________, charged to attorney for20 Defendant, Petroleum Wholesale.

That amount of time used by each party at21 the deposition is as follows:22 Mr. Fairless.............6 hours, 14 minutes23 Mr. Langley..............0 hours, 0 minutes24 Mr. Owens................0 hours, 0 minutes25

Page 287

1 That pursuant to information given thedeposition officer at the time said testimony was taken,

2 a copy of this certificate has been filed with the clerkand has been served on all parties of record as listed

3 below:4 Mr. Langley, Attorney for PLAINTIFF, STATE OF TEXAS5 Mr. Fairless, Attorney for DEFENDANT, PWI GP6789 ****************101112 Certified to by me this _______ day of13 _____________, ___________.141516171819 __________________________20 Paige S. Watts, CSR, RPR

CSR Certificate Number: 831121 Expiration: December 31, 2010

Firm Registration Number: 16922 Ross Reporting Services, Inc.

11706 Playa Court23 Houston, Texas 77034

281-484-07702425

Page 288

1 SUPPLEMENTAL CERTIFICATION PURSUANT TO RULE 2032 CAUSE NO. 2008-45087 (CONSOLIDATED)3 ALLISON SNODDY, et al ) IN THE DISTRICT COURT

Plaintiffs, )4 v. )

PETROLEUM WHOLESALE, INC. )5 et al. )

Defendants, )6 and )

STATE OF TEXAS ) HARRIS COUNTY, TEXAS7 Plaintiff )

v. )8 PETROLEUM WHOLESALE, L.P., )

d/b/a SUNMART; and PWI GP, LLC)9 Defendants ) 334TH JUDICIAL DISTRICT10 JOB NUMBER: _____________11 ORAL VIDEOTAPED DEPOSITION OF DREW DEBERRY12 APRIL 26, 201013 I, Paige S. Watts, Certified Shorthand

Reporter in and for the State of Texas, hereby certify14 to the following:15 That the deposition was submitted on the

_____ day of _________, _______, to the attorney for the16 witness for examination and signature, and was ___ was

not ___ returned to me by the _____ day of __________,17 ________.18 That the attached correction sheet

contains the changes, if any, and reasons therefor made19 by the witness.20 That the original deposition transcript,

or a copy thereof, together with copies of all exhibits21 was delivered, in accordance with Rule 203.3, to the

attorney or party who asked the first question appearing22 in the transcript on the ____ day of __________,

_______.23 That pursuant to information given the

deposition officer at the time said testimony was taken,24 a copy of this certificate has been filed with the clerk

and has been served on all parties of record as listed25 below:

Page 289

1 Mr. Langley, Attorney for PLAINTIFF, STATE OF TEXAS2 Mr. Fairless, Attorney for DEFENDANT, PWI GP.3456 Certified to by me this ____ day of7 ___________, ________.89101112131415 __________________________16 Paige S. Watts, CSR, RPR

CSR Certificate Number: 831117 Expiration: December 31, 2010

Firm Registration Number: 16918 Ross Reporting Services, Inc.

11706 Playa Court19 Houston, Texas 77034

281-484-0770202122232425

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Court Deposition of Drew DeBerry

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