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Daniel D. Bohmer

From:

Sent:

To:

Cc:

Subject:

Daniel D. Bohmer

Friday, October 02, 2009 4:54 PM 'chaffinl@cfbisd.edu'; 'burnsb@cfbisd.edu'

Robert Luna; Joe Ball; 'dewing1624@aol.com'; 'Fritz Quast' C-FBISD Fleming: Motion to Expedite Appeal

Attachments: Ltr to 5th Crt Appl fw Mtn to Expedite Appeal 100209.pdf; Motion to Expedite Appeal.pdf Ms. Chaffin & Dr. Burns:

Attached please find PDF copies of the following: (1) transmittalleUer to the Fifth District Court of Appeals; and (2) Motion to Expedite Appeal. Please feel free to contact us with any questions or concerns. Thanks.

Daniel D. Bohmer

Law Offices of Robert E. Luna, P.C. 4411 North Central Expressway Dallas, Texas 75205

Phone (214) 521-8000

Fax (214) 521-1738 bohmer@txschoollaw.com

Disclaimer: This message and all attachments are confidential and may be protected by attorney-client and other privileges, and is intended only for the use of the individual or entity to which it is addressed. This message contains information from the Law Offices of Robert E. Luna, P.C., which may be privileged, confidential, and exempt from disclosure under applicable law. If the reader of this message is not the intended recipient, copying of this communication is strictly prohibited. You must delete this message and any copy of it (in any form) without disclosing it. If you have received this communication in error, please notify us immediately by replying to this e-mail. Unless expressly stated in this e-mail, nothing in this message should be construed as a digital or electronic signature. Thank you for your cooperation.

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10128/2009

00616

ROBERT E. tU~M

F1LED IN

LAW OFFICES OF ROBERT E.l1t.nfAJ~l.M()f APPEALS

ATTORNEYS AND COUNSELORS AT LAW

RANDEl B. GIBBS

4411 NORTH CENTRAL EXPRESSWAY 2 PM 2' ,9

DALLAS. TEXAS 75205 ZID9 oel - •

DANIEL K. BEARDEN. JR. GeORGE C. SCHERER JOSEI>H K. BAll ANDREA SHEEHAN DANiEl D. BOHMER

J. DAVID GIDDENS

CHAD D. TIMMONS ELISASETH A. DONLEY JULIE W. ERMAN

LISA MATl, CLERK

EARL lUNA OFCOUtISEL (1922 - 1998)

TElEPHONE (214) 521-8000

FACSIMilE (214) 521-1738.' TOLL FREE (888) 219-2197

YMW.lxschOtJllaw.cOl11

October 2, 2009

VIA HAND-DELNERY

Ms. Lisa Matz Clerk of the Court

Fifth District Court of Appeals George L. Allen, Sr. Courts Building 600 Commerce Street, 2nd Floor Dallas, Texas 75202

Re: Trial Court Case Number: 09-07085; 95th District Court, Dallas County, Texas

Style: Richard Fleming v, Carrollton-Farmers Branch Independent School District and Lynn Chaffin, in her capacity as Presiding Officer

Dear Ms. Matz:

Enclosed please find the original and five (5) copies of Appellants' Motion to Expedite Appeal. Please file the original and two copies per TEX. R. App. P. 9.3(a)(1)(B) and file-mark the remaining copies for return to our office.

Also enclosed is a check in the amount ofTen & No/lOO ($10.00) in payment of the filing fee for the enclosed Motion.

Please feel free to call our office with any questions.

Yours very truly,

JKB/ddb Enclosure (s)

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Ms. Lisa Matz October 2, 2009 Page 2

cc: CERTIFIED MAIL & FACSIMILE (214) 941-1399 Mr. Derrell Coleman

West & Associates, L.L.P.

320 South R.L. Thornton Freeway, Suite 300 Dallas, Texas 75203

FACSIMILE (214) 575-8350 Darlene Ewing

605 Highway 80 East, Ste, A Sunnyvale, Texas 75182

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eirE·...,. n.

"" "l. UIN

,1/ rt COURT OF APPEALS

CASE NO. 05~ -cv

lm9 ocr -.2 PH 2: 19 In the Court of Appeals for USA MATZ '\ . .'

h Fifth D" ict of T n -, CLERK

tel istrict 0 exas

at Dallas

*****************************

CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT and LYNN CHAFFIN, in her capacity as Presiding Officer,

Appellants,

v.

RICHARD FLEMING,

Appellee.

*****************************

MOTION TO EXPEDITE APPEAL

*****************************

Robert E. Luna

Texas Bar No. 12693000 Joseph K. Ball

Texas Bar. No. 00787033

Law Office of Robert E. Luna, P.C. 4411 North Central Expressway Dallas, Texas 75205

Telephone No.: (214) 521-8000

Fax No.: (214) 521-1738

J. Darlene Ewing

Texas Bar No. 06755450

605 Highway 80 East, Ste, A Sunnyvrue, Texas 75182 Telephone No.: (214) 221-2600

Fax No.: (214) 575-8350

ATTORNEYS FOR APPELLANT, CARROLLTON-FARMERS BRANCH INDEPENDENT SCHOOL DISTRICT

ATTORNEY FOR APPELLANT, LYNN CHAFFIN IN HER CAPACITY AS PRESIDING OFFICER

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CASE NO. 05- wCV

In the Court of Appeals for the Fifth District of Texas at Dallas

*****************************

CARROLLTON-FARMERS BRANCH INDEPENPENT SCHOOL DISTRICT and LYNN CHAFFIN, in her capacity as Presiding Officer,

Appellants,

v.

RICHARD FLEMING,

Appellee.

*****************************

MOTION TO EXPEDITE APPEAL

*****************************

TO THE HONORABLE mSTICES OF THE DALLAS COURT OF APPEALS:

Come now the Carrollton-Farmers Branch Independent School District ('~C-FBISD"

or "School District") and Lynn Chaffin, Appellants in the above-referenced appeal and

Defendants/Respondents in the Trial Court, and file this, their Motion to Expedite Appeal

pursuant to Rules 2 and 40.1 (c) of the Texas Rules of Appellate Procedure. Appellants

believe that this motion should be considered an emergency under rule 10.3(a)(3) such

that the ten day period of that rule does not apply. Appellants would show this Court as

follows:

1. Introduction

The action below is Cause No. 09-07085-D, styled Richard Fleming v. Carrollton-

MOTION TO EXPEDITE APPEAL, PAGE 2 OF 9

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Farmers Branch Independent School District and Lynn Chaffin, filed in the 95th District Court of Dallas County, Texas. This case is an application for writ of mandamus, injunction

and request for declaratory relief challenging an administrative declaration that Appellee Richard Fleming (''Fleming'') is not eligible to be seated as a school board trustee because he

was not a resident of the School District A candidate for school board trustee must reside in

the territory from which the office is elected for at least six months before the due date for

filing an application for a place on the ballot. Tex. Elec. Code Ann. § 141.00I(a)(5)(B) (Vemon Supp. 2008); accord Tex. Const. art. XVI, § 14 (requiring district officers to reside in their districts).

2. Facts

Fleming had, for a period of approximately four (4) years (ending sometime in August of this year) resided at 1101 Shawnee Trail, Carrollton, Texas. 1101 Shawnee Trail is not

within the boundaries of C- FBISD as approved by its Board of Trustees, and never has been.

Fleming was a candidate for Place 4 on the C-FBISD Board of Trustees in the election held on May 9,2009. Fleming received a majority of the votes cast and would have been the winner of that election, if eligible. On June 4,2009, Lynn Chaffin, as President of the School Board, administratively determined Fleming ineligible to hold that office because he did not

reside within the boundaries ofC-FBISD. Tex. Elec, Code Ann. § 145.003( d) (Vemon 2009)

(providing that presiding officer of canvassing authority may declare ineligibility after polls close but before certificate of election issued).

The location of Fleming's residence during the relevant time period is not disputed.

MOTION TO EXPEDITE APPEAL, PAGE 3 OF 9

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The issues in this case will concern where the boundary line between C- FBISD and the

neighboring Lewisville ISD is located in relation to Fleming's residence, and whether an

apparent error made by the appraisal districts concerning the property location for purposes

of taxation is binding on C-FBISD and conclusive for board trustee residency purposes.

When Fleming was administratively declared ineligible, a vacancy was created in

Place 4 of the Board of Trustees. Tex. Elec. Code Ann. § 201.026(b) (Vernon 2009).

Pursuant to both the Texas Election Code and the Texas Education Code, the Board of

Trustees then called a special election for November 3, 2009, to fill that vacancy. Id. §§

201.051, 201.052(a); Tex. Educ. Code Ann. § 11.060(d) (Vernon 2009). On June 4,2009,

Fleming filed the present lawsuit seeking declaratory, injunctive and mandamus relief against

C~FBISD and its School Board President. Fleming sought relief'to allow him to be seated on

the School Board and also to stop C-FBISD from proceeding to fill the vacancy created by

the declaration of ineligibility. A hearing was held on September 11, 2009, that was treated

as a trial on the merits. On September 21, 2009, the Trial Court issued a memorandum

opinion and order granting most of the relief requested and allowing Fleming to be seated on

the board. The Trial Court, however, did not cancel the special election.' A Final Judgment

was signed on the same day. Motions to stay or supersede the judgment pending appeal were

denied on September 30,2009. During the hearing of those Motions, the Trial Court noted

that he believed he had the authority to void the special election if it is held. A Notice of

I The Trial Court correctly recognized that it was beyond the court's authority to do so. Blum v.

Lanier, 997 S.W.2d 259, 263 (Tex. 1999),

MOTION TO EXPEDITE APPEAL. PAGE 4 OF 9

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Appeal was timely filed the same day.

3. Preference Required in the Interest of Justice

A special election for the purpose of filling the vacancy will be held on Tuesday, November 3, 2009. After the election, Wednesday, November 11, 2009 to Monday, November 16,2009 is the period in which the School Board must officially canvass the

results of the election. Tex. Elec. CodeAnn. § 67.003(a) (Vernon Supp. 2008). If the Trial

Court's Order and Final Judgment is eventually affirmed by this Court, then there was never truly a vacancy to fill and the special election called as a result will be void. If the Trial

Court's Order and Final Judgment are reversed, however, then the special election and its

results will be valid.

Appellants request that, in the interest of justice, this appeal be given preference and be accelerated by the Court pursuant to Rule" 40.1(c) of the Texas Rules of Appellate

Procedure because the issue of Fleming's eligibility needs to be decided so that an opinion

and judgment may be issued by this Court before the special election results are canvassed by the School Board. As noted above, the canvassing period is between November 11,2009, and November 16, 2009. It is quite clear that a quick decision giving finality and certainty to Fleming's status, even ignoring the looming election, is certainly in the interest of all the parties involved, the candidates for Place 4 in the special election, and certainly in the interests of the citizens of the C-FBISD.

4. Suspension or Modification of Rules to Expedite Appeal

Pursuant to Rule 2 of the Texas Rules of Appellate Procedure, Appellants respectfully MOTION TO EXPEDITE APPEAL, PAGE 5 OF 9

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request that the Court suspend the operation of or modify certain rules and order an expenited

schedule in this case. Specifically, Appellants request that the following rules and deadlines

be altered and a briefing schedule set to give the Court sufficient time to consider this case

and issue an opinion and judgment before the canvassing period in mid-November. The

dates and other matters stated below are merely suggestions for the Court' s consideration:

1. The appellate record should be filed with the Court no later than Monday, October 12, 2009. The Reporter's Record of the hearing on September 11,2009, has been paid for and compiled. The Court Reporter has stated that she filed the Reporter's Rrecord with the Court on October 1,2009. The record of the hearing on September 30, 2009, regarding motions to stay or suspend the judgment is relatively short. The Clerk's Record is estimated to be between 300 to 400 pages in length.

2. Appellants' brief should be due on Wednesday, October 14,2009. Rule 38,41ength limitation should be reduced to 30 pages. Appellants will begin drafting their brief before the record is filed. Once filed, the record will be checked out to insert correct record references in the brief.

3. Appellee's brief should be due on Wednesday, October 21,2009. Rule 38.4 length limitation should be reduced to 30 pages.

4. Appellants' reply brief, if any, should be due on Monday, October 26, 2009. Rule 38.41ength should be reduced to 15 pages.

5. Submission with oral argument should be on a date sometime during the week of October 26,2009 or November 2,2009.

6. The "mailbox rule" of rule 9 .2(b) for filing with the Court should not apply to briefs.

7. Service by mail under rule 9.5(c)(I) should not be permitted for briefs unless an electronic copy of the brief is emailed to opposing counsel by 5:00 p.m. on the date the brief is due.

8. Motions to extend the time for filing briefs should not be entertained.

9. The Court should deny the parties the right to file a motion for rehearing under rule 49.5.

MOTION TO EXPEDITE APPEAL, PAGE 6 OF 9

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10. The Court should expedite issuance of the mandate under rule 18.1(c).

5. Verification

Verification of this motion is not required pursuant to Rule 10.2 of the Texas Rules of Appellate Procedure because the facts in support of this motion are within the personal knowledge of the undersigned counsel and are found in the appellate record.

REQUEST FOR RELIEF

For the reasons stated, the Appellants request that this Court grant this Motion and expedite this case. Appellants request that this Court suspend and alter certain rules to expedite this appeal and set an accelerated briefmg schedule, either as set forth above in Part 4 or as otherwise determined by this Court in the interests of justice.

MOTION TO EXPEDITE APPEAL, PAGE 7 OF 9

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Respectfully submitted,

Rob'ert E. Luna Texas Bar No. 12693000

Joe Ball

Texas Bar. No. 00787033

The Law Offices of Robert E. Luna, P .C. 4411 North Central Expressway

Dallas, Texas 75205

Telephone No.: (214)521-8000

Fax No.: (214)521-1738

ATfORNEYS FOR APPELLANT, CARROLLTON·FARMERS BRANCa

. ENDENT Be OL DISTRICT

~

Iene Ewing

T Bar No. 06755450

605 Highway 80 East, Ste. A Sunnyvale.Texas 75182

Telephone No.: (214) 221-2600

FaKNo.: (214) 515 .. 8350

ATTORNEY FOR APPELLANT,

LYNN CHAFFIN IN HER CAPACITY .AS PRESIDING OFFICER

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CERTIFICATE OF SERVICE

The undersigned authority hereby certifies that a copy of this motion was forwarded by United States certified mail, return receipt requested, on October 2, 2009, to the following parties pursuant to Rule 9.5 of the Texas Rules of Appellate Procedure:

Den-ell Coleman

West & Associates, P.C.

320 South R.L. Thornton Freeway, Suite 300 Dallas, Texas 75203

Attorney for Appellee

Jos K. Ball

CERTIFICATE OF CONFERENCE

I certify that I have made a reasonable. attempt to confer with Derrell Coleman, counsel for Appellee; bye-mail and phone call on October 2,2009, but counsel has not as of the time of signature responded to my attempts.

MOTION TO EXPEDITE APPEAL, PAGE 9 OF 9

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11

Carrollton- Farmers Branch

Independent School District

o to 0 All Innovative Leader in Learning $""

October 7,2009

There has been much discussion in the community and reports in the media regarding the May 9th School Board election. As School Board President, I want to give you an update.

The district and Mr. Richard Fleming, the winning candidate for Place 4, were impacted by inaccuracies made by other governmental entities. These inaccuracies were discovered during the period of early voting. Our goal from the beginning was to solve matters without legal action, but we were unsuccessful. As a result of those inaccuracies, Texas State Law dictated that Mr. Fleming was not eligible to serve; on June 4th, I took the administrative steps necessary to declare him ineligible and the Place 4 seat to be vacant.

Since that time, the district and I have been defendants in a lawsuit. The school district did not initiate this lawsuit, but it was necessary to respond.

When there is a vacancy on the Board, Texas State Law requires the position to be filled by election or special appointment within 180 days. To remain in compliance with Texas law, on August 13th, the district called a special election to be held on November 3rd• The district contracted with the Dallas and Denton County Election Departments and scheduled the election to be held with the General November Elections to minimize costs. The fees for holding the election are non-refundable.

On Friday, September is", the 95th District Court ruled that Richard Fleming should be seated as the Place 4 Trustee. Mr. Fleming took his seat at the September 24th Work Study Session. The Judge's Order did not address the upcoming special election. At this time, the election will continue pending a decision from the Appellate Court or until other action is taken by the Board to address the issue.

The Board and I are defendants in this case. We have incurred legal fees that we want to share with the public. It is important to note that the district cannot control who else may file in the future over this issue. Further research is being done to try to better understand this risk. An Appellate Court decision based on the full record that is already available may be the best way to minimize the risk and potential cost.

Legal Fees Related to the Lawsuit
Paid June 2009 - August 2009 $122,266.21
Billed but not yet Paid $69,881.25
Subtotal $192,147.46
Related Legal Fees Paid Prior to Lawsuit $38,754.16
Total Legal Fees $230,901.62

Special Election Costs
Total $71,435.94 The Board is committed to focusing the district's time and resources to the education of our children.

Lynn Chaffin President

C-FB ISD Board of Trustees

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