Filed: 2/25/2016 1:29:17 PM

Tina M. Freeman
District Clerk
Caldwell County, Texas

CAUSE NO.

Tom and Paula Goynes, individually

16-O-075

Belinda Gonzales

In the District Court

and DBA The San Marcos River Retreat

Plaintiffs

of

v.

RKY, LTD, dba DONS FISH CAMP,

Caldwell County

TEBO III MANAGEMENT, LLC

and TEXAS STATE TUBES, LLC

421ST

Defendants

_____Judicial District

PLAINTIFFS ORIGINAL SWORN PETITION

Plaintiffs Tom and Paula Goynes, Individually and DBA The San Marcos River Retreat
(collectively Plaintiffs) file this original petition against Defendants RKY, LTD, dba DONS
FISH CAMP, TEBO III MANAGEMENT, LLC, and TEXAS STATE TUBES, LLC and allege
as follows:
A. DISCOVERY-CONTROL PLAN

1.

Plaintiffs intend to conduct discovery under Level 2 of Texas Rule of Civil

Procedure 190.3 and affirmatively plead that this suit is not governed by the
expedited-actions process in Texas Rule of Civil Procedure 169 because Plaintiffs
request injunctive relief and seeks monetary relief over $100,000.
B. RELIEF

2.

Plaintiffs initially seek Injunctive Relief requiring Defendants to cease improper

operations permanently or until certain actions are taken; Plaintiffs may seek
additional relief by proper amendment or supplementation.

C. PARTIES

3.

Plaintiffs Tom and Paula Goynes are a married couple and DBA the San Marcos
River Retreat. Their principal residence is at 444 Pecan Park Dr, on the San Marcos
River.

4.

Defendant RKY, LTD, dba DONS FISH CAMP, is a Texas Limited Partnership,
whose agent for service is, Stephen W. Gurasich, 828 W. 6th Street, Austin, Texas
78703.

5. Defendant TEBO III Management, LLC is a limited liability company organized and
existing under the laws of the State of Texas. They are the general partner of RKY,
Ltd. And can be served with process by serving their registered agent, Stephen W.
Gurasich, at 828 W. 6th St., Austin, Texas 78703.
6.

Defendant TEXAS STATE TUBES, LLC, is a Texas Domestic Limited Liability

Company, whose agent for service is Rocco Justin Moses, 101 River Park Drive,
Martindale, Texas, 78655.
D. VENUE

7.

Venue is mandatory in Caldwell County under Texas Civil Practice & Remedies
Code section 15.011 because this suit is for the recovery of damages to real property
and this is the county where all of the property is located. Moreover, venue is proper
as the parties principal places of business are located in Caldwell County, and all
parties reside or work here.
E. FACTS

8. Plaintiffs Tom and Paula Goynes, are a married couple who have been involved in
canoeing, kayaking, camping, guided river tours, and river conservation for over forty
years. They are members and/or founders of conservation organizations which
advocate for river protection, working with the legislature and other Texas
governmental bodies. Tom is a 7 time overall champion of The Texas Water Safari,
billed as The Worlds Toughest Canoe Race, a non-stop 260+ mile canoe/kayak race
from San Marcos to Seadrift, Texas. Paula is also a past champion in the mixed
division with Tom and is a multiple finisher. Tom and Paula have taught canoeing and
kayaking, led guided tours down several of Texas Rivers, and spent a great portion of
their lives encouraging and helping others to enjoy the beauty of Texas rivers, and
appreciate the value of getting away from it all.
9. For over twenty years they have operated a campground on their property, most
recently known as The San Marcos River Retreat. The property is a few miles east of
San Marcos and a couple of miles west of Martindale, in Caldwell County, Texas. The
campground rents primarily to Scout and/or Church groups. One of the camp rules is:

no alcohol. Another is: lights out and quiet at midnight. The campground is family
friendly and, when occupied, often rings with the happy noise of small children. There
is chapel on Sundays, either camp side, in the open air pavilion, or in the cowboy
chapel building, depending on the crowd and weather conditions. Tom Goynes usually
brings a message to the campers, using stories and illustrations that fit the surrounding
countryside and atmosphere. The Goynes had lots of repeat business prior to
Defendants unlawful actions.
10. The Goynes also offer river access for the non-camper who wants to canoe or kayak
down the river and use the Goynes property as a put-in or take-out. The cost for this
service is a modest $2 per person. Campers pay approximately $5 per person per day
depending on group size and the ages of the campers. Many of the campsites have
electrical and water hook-ups, as well as fire rings. There are indoor shower and toilet
facilities. Tom and Paula kept the Campgrounds primitive enough for a wilderness
experience and safe enough that it was not too dangerous; all of nature, the river, the
woods, the vines and grasses and, the animals needed to be respected. Here Scouts
could learn to be Scouts who knew how to canoe and camp.
11. The riverfront part of the property is mainly tree lined, with towering pecan and
cypress trees and fairly thick surrounding vegetation. The far side of the river is a
steep, tree lined hill, with thick vegetation. The banks of the San Marcos are mostly
what are known as cut banks, that is, the banks do not gradually slope towards the
river, but are usually several feet above the surface of the water with a steep, shear
wall leading to the river. The campground, which is a quarter mile crescent moon
shaped parcel, with the river on the outward curve and a steep tree lined hill on the
inner curve, is almost completely invisible from the river. Anyone floating by could
easily believe they were beyond civilization. At the downriver border of the property,
there is a path and/or stairs leading down to a gravel bar which is the gateway to small
rapids downriver and still, deep, smooth water upstream. The size of the gravel bar is
sufficient from which to launch two or three canoes at a time, but the path to the river
is most practical for a single canoe/kayak at a time.
12. The campground is secluded by the river and surrounding hills and trees. Up the hill
from the campground, is the Goynes home place, with attached office, a barn/
workshed/storage area with attached apartment, the Cowboy chapel, and a few other
out buildings, most of which Tom and Paula have had a hand in constructing. Here
Tom and Paula lived a life rich in activity; both work and leisure. A working
campground requires lots of chores to maintain; mowing, chain sawing, brush
clearing, trash removal, plumbing and electrical care, toilet and shower cleaning. Lots
of interaction with the guests. Swimming, hiking, canoeing, tubing. Story telling, both
around a campfire and on Sunday morning.
13. The Goynes place is rare; the type many a working man dreams of retiring to after a
lifetime of toil. Quiet. Country. Peaceful. Full of the native sounds of the river and
countryside; many types of birds, cattle, livestock, coyotes, whitetail deer. The gurgle

of rapids. The type of place most people have to travel hundreds of miles away from
urban centers to find. All within 10 minutes of one of the busiest highways in the state:
the Interstate 35 corridor between San Antonio and Austin. It is here they have made
an experience rich/cash modest living, raised their daughter, and now host their three
young grandchildren several times a month.
14. The San Marcos River, which borders their property, is a spring fed river, with its
headwaters in San Marcos. While the water at its source is crystal clear and very
beautiful as it winds through San Marcos, in past decades it was polluted fairly soon
after crossing underneath Interstate 35. Tom and Paula Goynes were involved with
saving the river from being heavily polluted and today the river still has good
visibility. For over forty years the Goynes have been heavily involved with cleaning up
the San Marcos River. It is completely fair to say that the Goynes are extremely
sensitive to the river and its environment.
15. The river has historically been used recreationally for swimming, fishing, canoeing/
kayaking, and tubing. A tube rental company has operated within San Marcos proper
for many years very peaceably. However, east from San Marcos, the river primarily
meanders through private property, with very limited public access. Upriver from the
Goynes, for instance, anyone from the public wishing to enter the river would have to
do so at Westerfield Crossing, which until recently was a one lane bridge, with limited
parking along the road in the immediate vicinity. Any others would have to park
approximately 100-200 yards away and walk to the access point. Thus, for over two
decades, any water traffic going past the Goynes campground were those who had to
make an effort to get in the water, or had paddled down from San Marcos, some 7
miles upstream, and were typically those who respected the river and those who lived
along its shores.
16. A few years after the millennium, commercial tubing companies, of whom the
Defendants were, or became, entered this quiet river environment and began
operations with the put-in just above Westerfield Crossing. The take-out was, and is
approximately two miles downstream. The companies provide mass parking, rent
tubes, both for people and coolers, provide mass transportation, either to the put in or
back to the parking lot depending on which company it is, (one is located at the put in,
the other at the take out). Either by coincidence or design, the two companies created
the appearance of a closed circuit tubing run, in the middle of nowhere. The companies
later began to rent waterproof speakers so the customer may play the music of his or
her choice during the float. The companies did not provide any meaningful briefing to
its customers to explain the neighborhood through which they would float, and the
rules of conduct indicating what would and would not be appropriate behavior for
floating past others private property.
17. Thus began a seasonal transformation of the river, one which was bothersome and
annoying to Plaintiffs, and one which they spoke out against. They knew what could
be expected if industrial strength tubing continued over time. They were involved with

several public forums to protect the river and the surrounding property owners; the
tubing companies were at virtually every one of them admitting to problems and
indicating they were working on solutions.
18. It was always apparent to the Goynes that the tubing problem was a public one, one
affecting the publics river and environment. That no situation was unbearable if the
other side was working to repair it. That any private discomfort and annoyance was
not unreasonable if there was light at the end of the tunnel. While the number of
tubers increased through the years, with the accompanying noise, a certain element of
the tube rental customer also increased. More and more the Goynes saw extremely
drunk, loud and profane tubers on the river binge drinking, littering and trespassing.
That element increased as the companies increased capacity, culminating in 2014,
when, for the first time, the Goynes needed to use security to protect their property,
and they lost camping customers, to the extent that they did not operate the camp in
the Summer of 2015.
19. The Goynes contend that the vast majority of customers would treat the river and
bordering property owners quite properly if given a meaningful briefing.
20. One of the activities in which certain groups of tubers participate is beer bonging, or
shot gunning. Beer bonging and shot gunning are basically methods of drinking
a beer as quickly as possible, with the purpose being to become extremely intoxicated
as quickly as possible. These activities are not typically done while floating, but
requires the group to stop along the bank, which is private property, and invariably
involves trespassing. Integral to either activity is the disposable container, most
specifically, the 12 ounce can, which also litters the river by the ton. Along the
Goynes campground there are two areas known to the tubers as, shotgun beach, and
shotgun cove. Groups that stop to start the process attract other like-minded groups
which join, with the attendant shouting of profanities and other acts, which, while
within anyones right to do so if in a truly isolated area, are completely unsuitable in
public, to the Goynes and to the campground with young children and families.
21. Defendants knew that the property along the river was private property. Defendants
knew that exiting the river at a place other than the Defendants was a punishable
offense, namely trespassing. Defendants knew that their customers should not discard
trash on to the river or others property. Defendants knew that their customers should
not use foul or offensive language, because people lived along the river. Defendants
knew that a percentage of their customers would, if unchecked, behave in a manner,
which would ordinarily result in the customers citation or arrest if there were
sufficient law enforcement personnel to police the length of the float, behavior which
would not be tolerated at an enclosed water theme park, neighborhood, on residential
streets, or most any other public area.
22. Defendants knew that the improper conduct would include, public intoxication,
criminal trespass, disorderly conduct, criminal mischief, unlawful possession of a
substance, consumption of alcohol by a minor, possession of alcohol by a minor. The

Defendant Tubing Companies do not sell alcohol as such, they are not required to be
licensed but the companies know that a myriad of unlawful alcoholic activities are
carried on by some of their customers, including, public intoxication, consumption of
alcohol by a minor, possession of alcohol by a minor, as well as making alcoholic
beverages available to a minor, all of which may be punishable by fines and jail
sentences. Defendants knew that the Goynes operated the type of campground they
did, with the type of customers they had, and knew for how long they had so operated.
Defendants further knew that the county law enforcement resources were inadequate
for the amount of petty (and sometimes greater) criminal activity that was occurring
because of defendants operations.
23. By Memorial Day, 2014, Defendants caused, created, and facilitated conditions that
substantially interfered with the use and enjoyment of the Goynes land, by causing
discomfort or annoyance at a level which would be unreasonable to a person of
ordinary sensibilities. Defendants knew that they were causing bother and annoyance
to the Goynes and others and, testified to State Legislative Committees in 2015, that
there were, significant public safety, law enforcement, and litter problems, and that,
our businesses helped create that. They also stated that the current law enforcement,
we think is inadequate.
24. Defendants know that social media describes their tubing operations as the place to
really party in an out of the way place, even posting comments to that effect from
their customers on the Defendants web sites. The float route has gained a reputation as
a wilderness area where anything goes. Defendants contribute to this reputation by the
very primitive nature of their facilities: their lands are mainly cleared land for parking
and are barren and lacking in amenities, save for a snack bar and a couple of Portapotties, insufficient to meet the needs of the thousands of people Defendant Tubing
Companies control.
25. On information and belief, Defendants do not brief their customers on the nature of the
river and the adjoining property through which they will float. The damages to the
Goynes are irreparable. The Goynes way of life, for which they have forgone much
money for their chosen lifestyle and profession, is irreplaceable by mere dollars;
injunction is the only practical remedy.
26. Defendants have failed to take the actions that would significantly ameliorate or
completely terminate the nuisance by which they profit. Plaintiffs ask this Court to
enter a permanent injunction which would do so.
27. Alternatively, a proscriptive injunction could require the Defendants to operate their
business properly by mandating several actions:
a. On information and belief, the Defendants currently require liability waivers from
their customers; the waiver would be amended to include consent to inspection of
all coolers and other containers which would accompany the customer down the
river, as well as an agreement to obey all rules and requests of security personnel
and the recognition that failure to do so will result in confiscation of the tube;
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b. The waiver would also include, in bold print, Your float of approximately 2
miles is completely through private property, including a Scout and Church
Camp. Respect the rights of others. Absolutely no loud, offensive and/or profane
language. Thank you.
c. No beer bongs allowed, and no participating in bonging with any noncustomer on the river;
d. No leaving your tube or stopping along the way, except for emergencies;
e. Music Players will not be audible beyond 50 feet;
f. If, in the opinion of our friendly off duty officers at the put-in, you are
intoxicated, and/or behaving erratically, you will not be allowed to enter the river
but will take a time-out at the put in until such time as you are deemed ready to
enter the water.
g. Defendants will be required to card their customers and provide a color coded
wristband for customers over 21 years of age. (color to be determined on
information and belief Defendants currently provide color coded wristbands that
show what services the customer is renting.)
h. Defendants will be required to play a video for all customers before they enter the
water with substantially this script: Welcome. Or Welcome back if you have
been with us before. You are about to enjoy a wonderful float trip of
approximately 2 miles down the beautiful San Marcos river. Although it might
appear that you are out in the middle of nowhere, that is not the case. All of the
trip will be through our neighbors private property and includes besides private
residences, a Scout and Church Camp. In order for us to be good neighbors it is
important that there are a few rules that you must follow. These rules were stated
on the form you signed earlier and are restated here as a reminder: [b-g above].
We want you to have an excellent, relaxing time; we also want to be good
neighbors. It is important that you, our valued customer, know that violations of
the rules will not be tolerated.
i. At the put-in, Defendants will be required to provide funds for at least 2 off duty
officers, part of whose job it will be to require any customer who appears
intoxicated or behaving erratically to wait at the put-in until such time they appear
to the officer to be able to function properly;
j. Defendants will also be required to furnish to Goynes at least two off duty officers
for specific protection of the Goynes Campground, at Goynes direction. Among
the officers duties would be to remove any person appearing intoxicated with the
option of arrest for public intoxication or transportation back to the respective
Defendant with Defendant paying the cost both of transport and a $5 per person
take out fee payable to Goynes.
k. No disposable beverage containers.

l. Any beverage container used must float when empty.

28. On information and belief, at all times, Defendant Tubing Companies controlled their
customers by providing a point of entry and exit solely for their benefit and required
those customers to utilize those facilities only.

F. COUNT 1 PRIVATE NUISANCE

29.The above facts and allegations are incorporated into this claim by reference.
30.Plaintiffs Tom and Paula Goynes own the San Marcos River Retreat.
31.Defendants negligently interfered and invaded Plaintiffs interest. Defendants knew
or should have known that their conduct involved an unreasonable risk of interfering
with or causing an invasion of anothers interest in the use and enjoyment of land.
Defendants introduce their customers to the river by providing transportation,
equipment, ingress and egress points and other services that allow them to occupy
the river in the vicinity of Plaintiffs property. Defendants knew or should have
known that their customers are intoxicated, behaving in a loud and obnoxious
manner, littering and engaging in wide range of criminal activity. Defendants have
done little or nothing to stop these activities. Defendants have admitted that they
know these activities have been going on when they testified before a Texas
legislative committee.
32.Defendant Tubing Companies negligently interfered and invaded Plaintiffs interest
by admitting the problems with its businesses but taking no action to minimize,
avoid, or stop its direct actions in permitting loud, obnoxious, and illegal behavior.
33.Defendant Tubing Companies intentionally and unreasonably interfered with and
invaded Plaintiffs interest by permitting customers to proceed with items that
obviously would be discarded, by encouraging loud and obnoxious behavior, by
permitting underage drinking in violation of Texas law, and by admitting it should
exercise greater control over its customers in multiple venues.
34.Defendant Tubing Companies interfered with and invaded Plaintiffs interest by
conduct that was abnormal and out of place in its surroundings. Defendant Tubing
Companies actions are outside the normal business practices of any outdoor
recreation business, and outside the law regarding noise, sanitation, and alcohol,
among others.
35.Goynes do not claim at this time that the sheer number of tubing customers causes a
nuisance; the customers have simply not been properly briefed and Goynes have not
seen or experienced what occurs when properly briefed tubing customers pass
through.
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36.Defendants conduct resulted in Plaintiffs business being extensively damaged and

which substantially interfered with Plaintiffs private use and enjoyment of their
property.
37.Defendants interference with and invasion of plaintiffs interest caused injury to
plaintiff, which resulted in the following damages:
a. Market-value damages caused by the permanent nuisance. Specifically, the San
Marcos River Retreat no longer can operate through the Spring and Summer and
has lost business profits to be proven at trial and within the jurisdictional limits of
this Court.
b. Damages for loss of use and enjoyment caused by the nuisance.
c. Personal-injury damages, specifically the intentional infliction of emotional
distress Defendant Tubing Companies imposed on Tom and Paula Goynes as they
have watched their life work disappear and be ruined by Defendants actions.
d. Personal-property damages.
e. Economic damages from the loss of their business.
38. Exemplary damages. Plaintiffs injury resulted from defendants gross negligence or
malice, which entitles plaintiff to exemplary damages under Texas Civil Practice &
Remedies Code section 41.003(a).
39.Plaintiff has been damaged within the jurisdictional limits of this Court; however, the
Goynes will opt to forgo those damages if the Defendants simply solve the problem.
On information and belief, one of the owners of at least one of the defendants is/has
ties to an advertising agency which is responsible for the famous (and probably award
winning) campaign, Dont Mess With Texas.
Plaintiffs believe that, should
Defendants care to, they could put their collective marketing, advertising, and media
genius to work and create an equally brilliant, effective, (and, yes, award winning)
program which would cure the nuisance. Defendants will know as well as anyone the
importance of clarity, repetition, and authenticity in conveying the proper message to
its consumers, especially when trying to change a prevailing attitude which they
created: namely, that the river ride is out where anything goes.
40.Court supervision and control is needed because Defendants have repeatedly stated in
numerous forums that they were working together to fix the problem, but they have
not followed through.
G. COUNT 2 NUISANCE PER SE

41.The above facts and allegations are incorporated into this claim by reference.

42.In addition to other counts, Defendant Tubing Companies negligence described in

Count 1 can be considered a nuisance at all times, under any circumstances, and in
any location.
I. COUNT 3 INJUNCTIVE RELIEF

43.The above facts and allegations are incorporated into this claim by reference.
44.Plaintiffs seek an immediate temporary injunction as described above. Under Texas
Rules of Civil Procedure 682, Plaintiffs swear the allegations above are true and
correct to the best of their knowledge.
45.Plaintiffs are entitled to this relief as there is imminent threat of harm to their ongoing campground and the loss of their business should the Defendant Tubing
Companies be permitted to continue to operate improperly prior to this lawsuit
being determined.
46.Plaintiffs have no adequate remedy at law and Defendant Tubing Companies have
admitted, in multiple venues, that these problems are on-going, illegal, disruptive,
and problematic for Plaintiffs and others similarly situated.
47.Plaintiffs likelihood of success is great. Defendant Tubing Companies have admitted
these problems are on-going, have admitted that something must be done, and
Plaintiffs have suffered irreparable harm to their livelihood and to their enjoyment of
the home.
48. Additionally, a proscriptive permanent injunction should require the Defendant Tubing
Companies to operate their business properly by mandating several actions:
a. On information and belief, the Defendants currently require liability waivers from
their customers; the waiver would be amended to include consent to inspection of
all coolers and other containers which would accompany the customer down the
river, as well as an agreement to obey all rules and requests of security personnel
and the recognition that failure to do so will result in confiscation of the tube;
b. The waiver would also include, in bold print, Your float of approximately 2
miles is completely through private property, including a Scout and Church
Camp. Respect the rights of others. Absolutely no loud, offensive and/or profane
language. Thank you.
c. No beer bongs allowed, and no participating in bonging with any noncustomer on the river;
d. No leaving your tube or stopping along the way, except for emergencies;
e. Music Players will not be audible beyond 50 feet;

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f. If, in the opinion of our friendly off duty officers at the put-in, you are
intoxicated, and/or behaving erratically, you will not be allowed to enter the river
but will take a time-out at the put in until such time as you are deemed ready to
enter the water.
g. Defendants will be required to card their customers and provide a color coded
wristband for customers over 21 years of age. (color to be determined on
information and belief Defendants currently provide color coded wristbands that
show what services the customer is renting.)
h. Defendants will be required to play a video for all customers before they enter the
water with substantially this script: Welcome. Or Welcome back if you have
been with us before. You are about to enjoy a wonderful float trip of
approximately 2 miles down the beautiful San Marcos river. Although it might
appear that you are out in the middle of nowhere, that is not the case. All of the
trip will be through our neighbors private property and includes besides private
residences, a Scout and Church Camp. In order for us to be good neighbors it is
important that there are a few rules that you must follow. These rules were stated
on the form you signed earlier and are restated here as a reminder: [b-g above].
We want you to have an excellent, relaxing time; we also want to be good
neighbors. It is important that you, our valued customer, know that violations of
the rules will not be tolerated.
i. At the put-in, Defendants will be required to have at least 2 off duty officers, part
of whose job it will be to require any customer who appears intoxicated or
behaving erratically to wait at the put-in until such time they appear to the officer
to be able to function properly;
j. Defendants will also be required to furnish to Goynes at least two off duty officers
for specific protection of the Goynes Campground, at Goynes direction. Among
the officers duties would be to remove any person appearing intoxicated with the
option of arrest for public intoxication or transportation back to the respective
Defendant with Defendant paying the cost both of transport and a $5 per person
take out fee payable to Goynes.
k. No disposable beverage containers.
l. Any beverage used must float when empty.
49.Plaintiff will suffer irreparable harm because money damages while necessary to
recover from the harm Defandant Tubing Companies caused, does not adequately
compensate Plaintiff for the destruction of the river, their home, their ability to
conduct business, and their relationship with prior customers.
M. JURY DEMAND

50.Plaintiffs demands a jury trial and tenders the appropriate fee with this petition.

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