Filed

Caroline Woodburn
District Clerk
4/2/20183:11 PM
Potter County, Texas
1 07298-B-CV By BR Deputy

CLAUDETTE SMITH AND MICHAEL THE DISTRICT COURCO

FISHER,
Plaintiffs
181 St
V. JUDICIAL DISTRICT

GINGER NELSON, IN HER IN AND FOR POTTER COUNTY,

OFFICIALCAPACITY AS MAYOR OF TEXAS
TH1 CITY OF AMARILLO, and
HOWARD SMITH, EDDY SAIlER,
FREDA POWELL AND ELAINE HAYS
iN THEIR OFFICIAL CAPACITIES AS
MEMBERS OF THE CITY OF
AMARILLO CITY COUNCIL,
Defendants

PLAINTIFF’S ORIGINAL PETITION FOR WRIT OF MANJ)AMUS. DECLARATORY

JUDGMENT, AND INJUNCTIVE RELIEF

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COMES CLAUDETTE SMITH and MICHAEL FISHER, Plaintiffs herein

respectfully file this petition for writ of mandamus, declaratory judgment, and injunctive relief to

enforce the requirements of the Texas Open Meetings Act.

I. DISCOVERY CONTROL PLAN LEVEL

Plaintiffs intend that discovery be conducted under Discovery Level 2.

IL PARTIES AND SERVICE

A. Plaintiff, CLAUDETTE SMITH brings this action individually. Plaintiff resides

in RANDALL County, Texas.

B. The last three numbers of CLAUDETTE SMITH’S drive?s license number are

296.

C. Plaintiff, MICHAEL FISHER brings this action individually. Plaintiff resides in

RANDALL County, Texas.

D. The last three numbers of MICHAEL FISHER’S driver’s license number are

630.

E. Defendant GINGER NELSON, the Mayor of the City of Amarillo who is a

resident of Texas and may be served with process at her office at the following address: 509

S.F. Seventh Avenue, Amarillo, Texas 79105.

F. Defendant HOWARD SMITH, a member of the City of Amarillo City Council

who is a resident of Texas and may be served with process at her office at the following address:

509 S.E. Seventh Avenue, Amarillo, Texas 79105.

G. Defendant FREDA POWELL, a member of the City of Amarillo City Council

who is a resident of Texas and may be served with process at her office at the following address:

509 S.E. Seventh Avenue, Amarillo, Texas 79105.

H. Defendant EDDY SAUER, a member of the City of Amarillo City Council who

is a resident of Texas and may be served with process at his office at the following address: 509

S.F. Seventh Avenue, Amarillo, Texas 79105.

I. Defendant ELAINE HAYS, a member of the City of Amarillo City Council who

is a resident of Texas and may be served with process at her office at the following address: 509

S.E. Seventh Avenue, Amarillo, Texas 79105.

K. This suit is brought against the Defendants in their official capacities as members

of the City of Amarillo City Council (collectively, “City Council”). The City Council is a

“governmental body”, as the term is defined by the Texas Open Meetings Act.

Ill. JURISDICTION AND VENUE

A. The subject matter in controversy is within the jurisdictional limits of this court.
 B. This Court has jurisdiction over this action pursuant to the Texas Declaratory

Judgment Act and the Texas Open Meetings Act

C. This court has jurisdiction over the parties because Defendants are Texas

residents.

D. Venue in POTTER county is proper in this cause pursuant TEX. CIV. PRAC. &

REM. 55.015.

IV. WAIVER OF IMMUNITY

A. In addition to the foregoing statement ofjurisdiction, Tex. Gov. C. § 551.001, et seq.,

constitutes a waiver of governmental immunity as such doctrine pertains to this suit. Those

sections include:

1. Sec. 55 1.141 ACTION VOIDABLE. An action taken by a governmental body in

violation of this chapter is voidable.

2. Sec. 551.142. MANDAMUS; INJUNCTION. (a) An interested person, including

a member of the news media, may bring an action by mandamus or injunction to stop, prevent, or

reverse a violation or threatened violation of this chapter by members of a governmental body.

(b) The court may assess costs of litigation and reasonable attorney fees incurred by a plaintiff or

defendant who substantially prevails in an action under Subsection (a). In exercising its

discretion, the court shall consider whether the action was brought in good faith and whether the

conduct of the governmental body had a reasonable basis in law.

B. By its adoption of Tex. Gov. C. § 551.001, et seq., the Texas Legislature has waived

governmental immunity in respect of suits against government bodies subject to the Open

Meetings Act and of liability to the extent stated in Section 551.242(b),

C. In light of the foregoing, the defense of governmental immunity from suit and liability
regarding the claims and causes of action asserted by Plaintiffs herein is not available to the

Defendants.

V. FACTS

A. Plaintiffs file this lawsuit to remedy and to prevent City Council’s

actual, threatened, and continuing violations of the Texas Open Meetings Act (the “Act”).

B. The Act was enacted to ensure public access to the decision making of

government bodies. It generally mandates that governmental meetings be open to the public

unless narrow exceptions apply. The Act requires written notice of all meetings. Section

55 1.041 of the Act provides: that members of the news media and the public, like

the Plaintiffs, receive advance written notice of the date, hour, place, and subject of

each meeting by governmental bodies, like the City Council. Generally, at least 72

hours of public notice must be provided.

C. The Act requires that meetings at which there is a quorum of government officials

be posted in advance and be open to the public. Section 551 .OOl(4)(B) defines “meeting” as

follows: except as otherwise provided by this subdivision, a gathering: (1) that is conducted

by the governmental body or for which the governmental body is responsible; (ii) at which a

quorum of members of the governmental body is present; (iii) that has been called by the

governmental body; and (iv) at which the members receive information from, give information

to, ask questions of or receive questions from any third person, including an employee of the

governmental body, about the public business or public policy over which the governmental

body has supervision or control. When a quorum of the members of a governmental body

assembles in an informal setting, it will be subject to the requirements of the Act if the members

engage in a verbal exchange about public business or policy. The Act requires all gatherings of a
quorum of the legislative body must be posted at least 72 hours prior to the gathering.

D. On Wednesday May 24, 2017, three members of City Council, FREDA

POWELL, EDDY SAUER and HOWARD SMITH attended a public forum hosted by

Amarillo Economic Development Corp. The meeting was led by consultants hired by the city to

assess the needs and priorities of Amarillo’s economic fliture. City Council violated the Texas

Open Meetings Act by meeting in quorum and failing to post advance notice to the public before

the meeting.

E. On Tuesday October 31, 2017, the City Council conducted a regularly scheduled

public meeting. After the public meeting was adjourned, Council Members EDDY SAUER,

FREDA POWELL and ELAINE HAYS carried on a conversation that was caught on camera

by local news crews. According to the agenda posted for Tuesdays meeting, there was no

indication that any discussions incidental to issues not posted for the agenda would be held. City

Council violated the Texas Open Meetings Act by meeting in quorum and failing to post advance

notice to the public before the meeting.

F. The Act permits members of the public, like the Plaintiffs, to record open

meetings with a recorder or a video camera:

(1.) A person in attendance may record all or any part of an open meeting of a

governmental body by means of a recorder, video camera, or other means of aural or

visual reproduction.

(2.) A governmental body may adopt reasonable rules to maintain order at a meeting,

including rules relating to:

(a.) the location of recording equipment; and

 (b.) the manner in which the recording is conducted.

(3.) A rule adopted under Subsection (b) may not prevent or unreasonably impair a

person from exercising a right granted under Subsection (a).

G. The City Council conducted a regularly scheduled public meeting on Tuesday,

March 27, 2018. During this meeting, City Council violated the Open Meetings Act when Mayor

GINGER NELSON asked members of the public not to take pictures or record all or any part of

the open meeting of the governmental body.

H. Plaintiffs CLAUDETTE SMITH and MICHAEL FISHER were in attendance

and were required to turn off their video camera recording devices and prohibited from taking

pictures and recording the open meeting of the governmental body on March 27, 2018, along

with several other persons in attendance.

I. The Open Meetings Act requires (I) the City Council to begin it’s meeting with an

open session, (2) the presiding officer to publicly announce that a closed meeting would be held,

and (3) an announcement identifying the section or sections of the Act that would authorize a

closed session.

I. Section 55 1.102 of the Act provides as follows: A final action, decision, or vote

on a matter deliberated in a closed meeting under this chapter may only be made in an open

meeting that is held in compliance with the notice provisions of this chapter.273 A governmental

body’s final action, decision or vote on any matter within its jurisdiction may be made only in an

open session held in compliance with the notice requirements of the Act.

K. The City Council conducted a regularly scheduled public meeting on Tuesday,

March 6, 201$. During this meeting, City Council discussed in open session to adopt Ordinance

No. 7717, amending the Code of Ordinances to implement the recently amended Texas Public
Information Act to allow the City to establish monthly and yearly limits on the amount of time

that City personnel are required to spend producing public information for a requestor and to

charge for open records requests. Plaintiff, MICHAEL FISHER raised his hand to speak out on

the matter as a member of the public, to show council members evidence of an estimate received

from the City Attorney’s office, quoting $2,067.00 to provide a copy of one email. Mayor

GINGER NELSON interjected, prohibiting MICHAEL FISHER to comment on the matter,

stating it was a closed session. City Council violated the Texas Open Meetings Act by failing to

announce session was closed, the presiding officer failed to announce that a closed session would

be held, failing to announce identifying the sections of The Act that would authorize such a

closed session and fai]ing to post advance notice to the public of such closed session, before the

meeting.

L. City Council voted on ordinance 7717 in closed session and violated the Act.

M. Upon information and belief, City Council has held other improper closed

sessions in the past and intends to do so in the future.

N Plaintiffs have and continue to suffer harm as a direct result of City Council’s

violations of the Open Meetings Act, and Plaintiffs and all other interested persons will

continue to suffer harm in the future absent final judgment from this Court awarding Plaintiffs

the relief sought herein.

REQUEST FOR WRIT OF MANDAMUS AND DECLARATORY JUDGMENT

A. Each of the foregoing paragraphs is incorporated herein for all purposes.

B. Accordingly, Plaintiffs request that declaratory judgment be entered as follows:

1.) City Council violated the Texas Open Meetings Act by preventing or impairing
Plaintiffs and other interested persons from exercising a right granted under the Texas Open

Meetings Act, to record all or any part of an open meeting of a governmental body by means of a

recorder, video camera, or other means of aural or visual reproduction, failing to give proper

notice of Amarillo City Council closed sessions, holding closed sessions without announcing an

applicable exception and through other improper conduct further described herein and to be

developed through discovery in the case.

2.) The closed sessions were subject to the Open Meeting Act and City Council

violated the Texas Open Meetings Act by holding the closed sessions and other closed sessions;

3.) City Council violated the Texas Open Meetings Act by failing to give proper

notice of the intent and purpose of the closed sessions and other closed sessions;

4.) City Council violated the Texas Open Meetings Act by failing to announce an

exception allowing the closed sessions and other closed sessions;

5.) City Council violated the Texas Open Meetings Act by restricting Plaintiffs and

other persons in attendance from recording all or any part of the open meeting of the

governmental body by means of a recorder, video camera, or other means of aural or visual

reproduction in the March 27, 2018 meeting;

6.) City Council violated the Texas Open Meetings Act by failing to give proper

notice of the meetings attended and held in quorum;

7.) City Council violated the Texas Open Meetings Act by taking a final action,

decision, or vote on a matter deliberated in a closed meeting, when the Act requires fmal actions,

decisions or votes may only be made in an open meeting.

8.) The meetings held and attended in quorum were subject to the Open Meetings Act

and City Council violated the Act by holding meetings in quorum and;
 9.) Any other declaratory relief to which Plaintiffs may justly be entitled.

D. The Plaintiffs further request this Court issue a writ of mandamus and order City

Council to disclose to Plaintiffs any details and information relating to any improper closed City

Council sessions and any improper meetings held in quorum including the March 6, 2018 closed

session and the May 24, 2017 and October 31, 2017 meetings held in quorum.

REQUEST FOR INJUNCTIVE RELIEF

A. Each of the foregoing paragraphs is incorporated herein for all purposes.

B. Plaintiffs have suffered and will continue to suffer irreparable injury from City

Council’s improper conduct for which the Plaintiffs are entitled to relief, but has no adequate

remedy at law.

C. The circumstances of this case suggests that City Council is improperly using

closed meetings to discuss business that should be conducted in public under the Open Meetings

Act and is unreasonably impairing Plaintiffs and other members of the public from exercising a

right granted under the Act; to record all or any part of an open meeting of the governmental

body by means of a recorder, video camera, or other means of aural or visual reproduction.

0. Therefore, Plaintiffs request this Court grant temporary and permanent injunction

granting equitable relief as follows:

1.) Prohibiting Defendants from failing to give proper notice to the public relating to

the intent and purpose of closed City Council sessions;

2.) Prohibiting Defendants from failing to announce an appropriate exception

allowing for closed City Council sessions;

3.) Prohibiting Defendants from holding improper closed City Council sessions;

4.) Prohibiting Defendants from failing or refusing to disclose any details and
information relating to any improperly closed City Council sessions;

5.) Prohibiting Defendants from holding improper meetings in quorum;

6.) Prohibiting Defendants from failing to give proper notice of meetings held or

attended in quorum;

7.) Prohibiting Defendants from restricting Plaintiffs or persons in attendance from

recording all or any part of open meetings of the governmental body by means of a recorder,

video camera, or other means of aural or visual reproduction;

8.) Prohibiting Defendants from failing to give proper notice to the public of closed

City Council sessions;

5.) Ordering City Council to maintain detailed written minutes or audio recordings of

all future executive sessions, subject to judicial review, if good cause exists that suggests the

Open Meetings Act is being violated;

6.) Ordering City Councils final action, decision, or vote on a matter deliberated in a

closed meeting, only be made in an open meeting.

7.) Such other similar and further conduct that causes harm to Plaintiffs and for

which Plaintiffs have no adequate remedy.

VI. ATTORNEY’S FEES

Each of the foregoing paragraphs is incorporated herein for all purposes.

Pursuant to the Declaratory Judgments Act, section 3 7.009 of the Texas Civil Practice

and Remedies Code, the express authority granted in the Texas Public Information Act, TEX.

GOV. CODE § 552.323, the Texas Open Meetings Act and TEX. GOV. CODE § 551.142,

request is made for all costs of litigation and reasonable and necessary attorney’s fees incurred by

Plaintiffs herein, including all fees necessary in the event of an appeal of this cause to the Court
of Appeals and the Supreme Court of Texas, as the Court deems equitable and just.

VII. REQUEST FOR DISCLOSURE

Pursuant to TEX. R. CIV. P. 194, City Council is hereby requested to disclose to

Plaintiffs, within fifty (50) days of service of this request, the information and/or materials

described inTEX. R, CIV. P. 194.2.

RULE 193.7 NOTICE

Pursuant to TEX. R . C IV. P. 193.7, Plaintiffs hereby give actual notice to City

Council that any and all documents and materials produced in response to written discovery may

be used as evidence against the party producing the document(s) at any pretrial proceeding

and/or at the trial of this matter, without the necessity of authenticating the document and/or

materials produced in discovery.

PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that Defendants be cited

to appear and answer herein, and that on final trial hereof declaratory judgment, writ of

mandamus and injunctive relief be granted as requested herein and that this Court enter the

following relief:

a) A temporary injunction to preserve the status quo prior to the conduct by

defendants in violation of the Open Meetings Act;

b) On final trial, that the temporary injunction be made permanent;

c) The court issue appropriate mandamus or declaratory relief;

d) An order awarding Plaintiffs reasonable attorneys’ fees, taxable costs of court,

and all other costs of litigation; and

e) All other relief Plaintiffs are entitled to receive at law or in equity.

Respectfully submitted,

By: /s/ (‘laudette Smith

CLAUDETTE SMITH, Plaintiff
4410 VAN KRISTON DR.
AMARILLO, TX 79121
Tel. ($06) 678-5261
Pro Se

By: /s/ Michael fisher

MICHAEL FISHER, Plaintiff
4410 VAN KRISTON DR.
AMARILLO, TX 79121
Tel. ($06) 584-7550
Pro Se

Filed
Caroline Woodburn
District Clerk
4/2/20183:11 PM
Potter County, Texas
By Deputy