READ THE COMPLETE DE-ANNEXATION LAWSUIT AGAINST THE CITY BELOW AND THEN DECIDE!

CAUSE NO. 2010-DCL-4849 IN THE DISTRICT COURT, 103RD JUDICIAL DISTRICT, CAMERON COUNTY, TX CASE WAS MOVED FROM DISTRICT COURT TO FEDERAL COURT
(CHARLES E. LEE VS CITY OF HARLINGEN, CIVIL ACTION NO. B-10-CV-233 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS)

CHARLES E. LEE Plaintiff, VS. CITY OF HARLINGEN, TEXAS Defendant PLAINTIFFS AMENDED PETITION FOR DECLARATORY JUDGMENT AND FOR WRIT OF MANDAMUS TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW, Plaintiff, Charles E. Lee, and complains of Defendant, City of Harlingen, Texas, and for cause of action, would respectfully show the Court as follows: I. DISCOVERY CONTROL PLAN 1. Plaintiff intends to conduct discovery in accordance with a level 3-discovery control plan under Rule 190.3 of the Texas Rules of Civil Procedure. II. PARTIES AND SERVICE 2. Plaintiff is one of the signers of a Petition calling for the disannexation from the City of Harlingen Texas, of two tracts of land annexed into the City of Harlingen, Texas on November 19, 2008, by Harlingen City Ordinance Number

08-65. Plaintiff lives in the annexed area and has standing to bring this suit pursuant to Texas Local Government Code Section 43.141. 3. Defendant, the City of Harlingen (hereinafter Defendant or City), is a home-rule municipality established under its Charter and the laws of Texas and residing in Cameron County, Texas. The City may be served with citation by serving, Sylvia R. Trevino, City Secretary of the City of Harlingen, 118 East Tyler, Harlingen, Texas 78550. III. JURISDICTION AND VENUE 4. Jurisdiction is proper in the District Courts of Cameron County, Texas, pursuant to Texas Local Government Code Section 43.141 (b). 5. Venue is proper in the District Courts of Cameron County, Texas, pursuant to Texas Local Government Code Section 43.141 (b). 6. Plaintiff has standing to bring this action as signer of the Petition because the governing body of the City has failed to disannex the area within 60 days after the date of receipt of the Petition, as well as for other grounds related to the denial of Plaintiffs rights. IV. FACTS 7. On November 19, 2008, the Elected Commission of the City of Harlingen, Texas, enacted Ordinance No. 08-65 extending the corporate limits of the City of Harlingen through annexation consisting of 1039 + acres comprised of two tracts of land (tract 1 containing 392 + acres of land generally bounded on the north by Drury Lane and Brennaman Road, on the east of Stuart Place Road, on the South by Garrett Road and on the west by Baker Potts Road) and (Tract 2 containing 647 + acres of land generally bounded on the north by Wilson Road, on the west by Atlas Palmas Road, on the south by Orange Drive and Queen Sago Drive and on the east by Stuart Place Road ). A copy of Ordinance No. 0865 is attached as Exhibit A hereto. 8. The process by which a municipality may annex an area is prescribed in Texas Local Government Code Chapter 43 and the City was required to conduct the annexation proceedings at issue in compliance with the requirements set out in Chapter 43.

9. In patent disregard for the requirements set out in Chapter 43 the City conducted the annexation proceedings at issue without providing adequate notice, without conducting the required negotiation of the service plan and by preventing any opportunity to arbitrate regarding provisions of services. Specifically, the City committed violations of Chapter 43 as follows: a) by failing to provide notice by certified mail of the public hearings on the annexation to each public entity (county, fire protection service provider, including a volunteer fire department, emergency medical services provider, including a volunteer emergency medical services provider, or a special district) as required by Texas Local Government Code Section 43.0561(c)(1); and b) by failing to provide notice by certified mail of the public hearings on the annexation to each utility provider as required by Texas Local Government Code Section 43.0561(c)(1); and c) by failing to provide notice by certified mail of the public hearings on the annexation to each railroad company that serves the municipality and is on the municipalitys tax roll as required by Texas Local Government Code Section 43.0561(c)(2); and d) by scheming to avoid negotiating the terms of the annexation service plan in good faith, the City admittedly did not advise the County Commissioners Court to select five representatives to negotiate with the City for provisions of services to the annexation area as required by Texas Local Government Code Section 43.0562 (b) 1; and 1 In an email dated December 24, 2008, then City Attorney, Brendan Hall, admitted that the City failed to comply with the requirements of Texas Local Government Code Section 43.0562 (b). Moreover, it was not until initiating subsequent annexations in 2009, that the City made any attempt to comply with Texas Local Government Code Section 43.0562 (b). In a letter, dated February 25, 2009, to the Cameron County Judge requesting that a the Commissioners Court appoint five representatives to negotiate a service plan the City manager, Craig Lonon, admits that, up to that date, the City had failed to comply with the requirement of Section 43.0562. A copy of Mr. Halls e-mail is attached as Exhibit B hereto and a copy of Mr. Lonons letter is attached as Exhibit C hereto.

e) by precluding the landowners from having their representatives exercise the rights to arbitrate the terms of the service plan pursuant to Texas Local Government Code Section 43.0564 (a); and f) by failing to provide notice of an amendment to the three year annexation plan, as required by Texas Local Government Code Section 43.052(f)(2) and (3); and g) by failing to provide notice of the three year annexation plan, or amendment thereto, as required by Texas Local Government Code Section 43.052(j); and h) by failing to compile a comprehensive inventory of services and facilities provided by public and private entities, directly or by contract, in the area proposed for annexation as required by Texas Local Government Code Section 43.053. 10. The City adopted the service plan without any of the legally required negotiations, and did not comply with the requirements of Texas Local Government Code Section 43.056 in that the service plan: (i) did not provide for full municipal services in the annexed area as required by Texas Local Government Code Section 43.056 (b); and (ii) reduced by more than a negligible amount the level of fire and police protection and emergency medical services provided within the corporate boundaries of the municipality before annexation. 11. On September 2, 2009, nearly ten months after the annexation, the City Commission appointed a citizens committee purportedly to prepare written concerns for the service plan. As a result thereof, the service plan was amended. The amendment did not comply with the statutory requirements of Chapter 43, of the Texas Local Government Code in that there is no provision authorizing the City to appoint a citizens committee and such appointment was a brazen attempt to continue to circumvent the requirements of Texas Local Government Code Section 43.0562(b) and Texas Local Government Code Section 43.0564(a) and to preclude the landowners to arbitrate the enforcement of the service plan as required by Texas Local Code Section 43.0565. 12. The amended service plan, referenced in paragraph 11 immediately above, did not comply with the requirements of Texas Local Government Code Section 43.056 in that the service plan: (i) did not provide for full municipal services in the annexed area as required by Section 43.056 (b); and (ii) reduced by more than a negligible amount the level of fire and police protection and emergency

medical services provided within the corporate boundaries of the municipality before annexation. 13. The amended service plan has never been approved by the commission by either ordinance or resolution. 14. The action of the City in the annexation and modification of the Service Plan did not provide Plaintiff with any of the statutory protection required to be afforded them by law and violated the Plaintiff rights to due process of law. 15. As a result of the Citys failure to perform its obligations in accordance with the service plan, and the Citys failure to perform in good faith, qualified voters in the annexed area circulated a Petition in accordance with Texas Local Government Code Section 43.141. A copy of the Petition is attached hereto as Exhibit D 16. The Petition was: (i) written, (ii) requested disannexation, (iii) signed in ink or indelible pencil by voters in the annexed area, (iv) with each voter signing as his or her name appears in the most recent official list of registered voters; (v) contained a note made by each voter stating the persons residential address and the precinct number and voter registration number that appear on the persons voter registration certificate; (vi) described the area to be disannexed and included a plat or other likeness of the area attached; and (vii) presented to the City Secretary on May 10, 2010, in accordance with Texas Local Government Code Section 43.141 (d). 17. Ten days prior to its circulation, the Petition was posted in three public places within the annexed area in accordance with Texas Local Government Code Section 43.141 (f). 18. Before the 15th day before the circulation of the Petition, a copy of the Petition was published in a newspaper of general circulation as required by Texas Local Government Code Section 43.141 (f). 19. Included with the tender of the Petition to the City Secretary on May 10, 2010, was (i) the sworn affidavit of Charles E. Lee stating the dates and place of the postings; and (ii) the publishers affidavit that the notice was published in the Valley Morning Star as required by Texas Local Government Code Section 43.141(f). 20. As of the date of the filing of this suit the City Commissioners have deliberated on the Petition in at least four executive sessions.

21. On July 22, 2010, after the City Commissioners had deliberated on the matter of the Petition in executive session the preceding evening, the City Attorney notified Plaintiffs Attorney by email that the Harlingen Elective Commission will not deannex the tracts of land annexed by the City of Harlingen under Ordinance No. 08-65 based on your client's disannexation Petition or threatened litigation. A copy of the email is attached hereto as Exhibit E. 22. The decision, noted in paragraph 21 immediately above, was made in closed session in violation of the State of Texas Open Meetings Act. V. ARGUMENTS AND AUTHORITIES 23. A home rule municipality may not annex an area in a manner that violates the procedural rules of Texas Local Government Code Chapter 43. See Texas Local Government Code Section 43.021. 24. As more specifically asserted in the paragraphs above, and in patent disregard to the requirements of Texas Local Government Code Chapter 43, the City annexed the subject area without providing the requisite notifications and without negotiating a service plan with representatives of the proposed annexed area appointed by the Commissioners Court. 25. Rather, the City initially adopted a service plan without consultation with any of the impacted landowners and almost a year after adopting the Ordinance, approving the annexation, handpicked landowners to negotiate an Amended Service Plan, which has never been approved by the Commission by Ordinance or Resolution. 26. The acts and omissions by the City described in the preceding paragraphs describe a pattern of bad faith on behalf of the City. The City has failed to comply with a valid Service Plan as required by Section 43.141 of the Texas Local Government Code, and the City never even created a valid Service Plan as required by Texas Local Government Code Section 43.056, and therefore, has both failed to comply with a Service Plan and failed to perform in good faith as required by 43.141 as a matter of law. V. FIRST CLAIM FOR DECLARATORY RELIEF

27. Pursuant to the Texas Uniform Declaratory Judgment Act, Plaintiff requests that the Court declare the rights, status and interests of the parties herein under Texas Local Government Code Section 43.0562 (a) and (b), to, prior to the adoption of the Ordinance approving the annexation, have five (5) representatives appointed by Commissioners Court to negotiate with the municipality for the provision of services to the area after annexation, and a declaration that the City violated this statutory requirement. VI. SECOND CLAIM FOR DECLARATORY RELIEF 28. Pursuant to the Texas Uniform Declaratory Judgment Act, Plaintiff request that the Court declare the rights, status and interests of the parties herein under Texas Local Government Code Section 43.0564 to, prior to the adoption of the Ordinance approving the annexation, allow the five (5) representatives appointed by Commissioners Court to request the appointment of an arbitrator to resolve any service plan issue in dispute, and a declaration that the City violated this Statutory required provision. VII. THIRD CLAIM FOR DECLARATORY RELIEF Pursuant to the Texas Uniform Declaratory Judgment Act, Plaintiff request that the Court declare the rights, status and interests of the parties herein under Texas Local Government Code Section 43.141 to establish and declare that the City (a) failed to comply with a service plan in good faith; b) has failed or refused to disannex the area identified in the Petition within 60 days after receipt of the Petition as required by Texas Local Government Code Section 43.141; and c) that the Plaintiff has met the requirements of Texas Local Government Code Section 43.141 to establish the grounds for the Court to disannex the Property identified in the Petition for disannexation. In furtherance thereof, Plaintiff asks that the Court advances this matter on its docket pursuant to Texas Local Government Code Section 43.141(b), and enters an order -disannexing the Property identified in the Petition as provided for under Texas Local Government Code Section 43.141(b). VIII. EQUAL PROTECTION VIOLATION 29. The Citys arbitrary and capricious disregard of the requirement to negotiate a service plan with five representatives appointed by Commissioners Court precluded Plaintiff from the protections afforded by Texas Local Government

Code Section 43.0562 (a) and (b), and of Texas Local Government Code Section 43.0564. By its disregard of the requirements of Texas Local Government Code Section 43.0562 (a) and (b), and of Texas Local Government Code Section 43.0564, the City treated Plaintiff differently than persons whose property was annexed in compliance with Texas Local Government Code Section 43.0562 (a) and (b), and of Texas Local Government Code Section 43.0564, and the City had no rational basis for such differential treatment. IX. DUE PROCESS CLAIMS 30. The Citys failure to comply with the notice and negotiation requirements mandated by Sections of Texas Local Government Code Chapter 43 cited infra has deprived Plaintiff of due process under the law. X. FAILURE TO PROVIDE SERVICE OR FAILURE TO PERFORM IN GOOD FAITH 31. The City has failed to perform its obligations in accordance with the "Service Plan. 32. In the alternative, the City has failed to perform its obligations in good faith. XI. ATTORNEYS FEES 33. Plaintiff seeks recovery of its costs, as well as reasonable and necessary attorneys fees pursuant to Tex. Civ. Prac. & Rem. Code 37.009. WHEREFORE, PREMISES CONSIDERED, the Plaintiff respectfully prays that upon hearing or trial of this cause that the Court grant the relief prayed for herein, including: a) Judgment declaring that after holding public hearings on the proposed annexation, the City was required to negotiate with five representatives appointed by Commissioners Court for the provision of services to the area after annexation; and b) Judgment declaring that the five representatives, reference immediately above, if they had been appointed as required by law, would be entitled to demand the appointment of an arbitrator to resolve any service plan issue in dispute; and

c) The entry of an order disannexing the property pursuant to Section 43.141(b); d) In event that this Honorable Court determines that disannexation should be by an act of the Citys Commissions rather than by an order of the Court, as requested in 33. subparagraph (c), immediately above, and in the alternative to such request, Plaintiff asserts he has no other clear, adequate remedy at law or equity to compel the Disannexation and therefore requests the Court to issue a writ of mandamus against defendant directing it to take action to disannex the area identified in Exhibit D, of this petition, as provided in Section 43.141(b) of the Texas Local Government Code and Plaintiff respectfully request the following relief: i) A day be appointed for a show cause hearing on the question of a writ of mandamus; ii) Defendant be cited to appear and answer on that day; iii) At the conclusion of the hearing a Writ of Mandamus issue from this Court to Defendant commanding it to disannex the area identified in Exhibit D, of this Petition, as provided in Section 43.141(b) of the Texas Local Government Code; iv) Costs of this proceeding be taxed against Defendant, and v) Require Defendant to take action Disannexing the area identified in Exhibit D, of this Petition, Within 14 days from the date of issuance of the Writ of Mandamus. e) Award to the landowners of the area disannexed the amount of money collected by the municipality in property taxes and fees from those landowners during the period that the area was a part of the municipality less the amount of money that the municipality spent for direct benefit of the area during that period; f) Judgment awarding Plaintiff monetary damages for the Citys denial of Plaintiffs constitutional rights to equal protection and due process under the United States and Texas Constitutions; and g) Judgment awarding Plaintiff reimbursement of his reasonable and necessary attorneys fees and costs incurred during the preparation and prosecution of this action; and

h) Judgment for such other and further relief as the Court may find the Plaintiff entitled. Respectfully submitted, EARL & ASSOCIATES, P.C. 15303 Huebner Road, Bldg. 15 San Antonio, Texas 78248 Telephone: (210) 222-1500 Facsimile: (210) 222-9100 By:____________________________________ DAVID L. EARL State Bar No. 06343030 ATTORNEY FOR PLAINTIFF