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PLAINTIFF'S ORIGINAL PETITION AND SUIT FOR DECLARATORY JUDGMENT TO THE HONORABLE JUDGE OF THIS COURT: Plaintiff, DAPHNE SCARBROUGH, hereby files this suit alleging claims and causes of action for Breach of Contract, Declaratory Judgment and Constitutional Impairment of Contract against Defendant, THE METROPOLITAN TRANSIT AUTHORITY OF HARRIS COUNTY,

(hereinafter "Metro") and in support shows as follows:

THE CONTROVERSY 1. Plaintiff files this suit because Metro is not complying with Resolution 2003-93 construction,

approved in Special Election on November 4, 2003 relating to the acquisition,

repair, equipping, improvement or extension of Metro's transit authority system (hereinafter "Resolution''). Despite their non-compliance with the Resolution, Metro has announced that it

intends to en!er into a contract for the construction of a substantial portion of METRORail in the amount of at least one billion dollars. Metro has failed to comply with the Resolution by: I) its tInancing for the METRORail; 2) its switch in technology for the METRORaiI; 3) its. failure to increase bus service; 4) its deviation in the routes for the METRORail; 5) its changes in scope of



the projects authorized; and 6) its General Mobility Fund accountability. II.

2. Plaintiff Daphne Scarbrough is a residential property owner, commercial

businesswoman and taxpayer in the Metro service area, and resident of

Harris County, Texas.

Texas law recognizes the right of parties similarly situated to bring a suit to enforce referenda, Plaintiff voted in the 2003 Referendum. Plaintiff is a landowner on one of the routes that Metro


is proposing to use in contravention of the Resolution and she will suffer significant financial damages if Metro is allowed to proceed in violation of the Referendum. taxpayer would also be affected requirements of the Resolution. 3, Defendant Metro is an authority created pursuant to Chapter 451 of the Texas if Metro undertakes 'action Her interests as a the financial

that violates

Transportation Code which may be served by serving its Chairman of the Board of Directors David Wolff and its President and CEO Frank J. Wilson, both at its headquarters Street, Houston, Harris County, Texas 77002. 1900 Main

4. Texas. Jurisdiction and venue in this action is proper and maintainable in Harris County,

S. In 2003, Mefro proposed a special election involving rail and the expansion of bus The proposition asked the voters to vote "For" or "Against" the for Metro's Transit Authority System,

service in its service area.

authorization of bonds, notes and other obligations

including the Metro Solutions Transit System Plan (hereinafter "Metro Solutions Plan"), as well


as the dedication of 25% of Metro's sales and use tax revenues for road and street improvements through 2014. The ballot stated:

Authorization of METRO to issue bonds, notes and other obligations payable, in whole or in part, from 75% of METRO's sales and use tax revenues in an aggregate principal amount not to exceed $640,000,000 for METRO's Transit Authority System, including the METRO Solutions Transit System Plan (as described in Exhibits A and A-I of METRO Resolution No. 2003-77 and the of.ficial notice of election, which are incorporated herein), which includes bus service expansions and construction of extensions and new segments of METRO's rail system known as "METRORail," approval of such plan and construction of the METRORail and commuter line components (including approximately 64.8 miles of light rail and 8 miles of commuter line, as described in Exhibits A and A-3 through A-9 of such resolution and the official notice of election, which are specifically incorporated herein and generally summarized below), and dedication of 25% of METRO's sales and use tax revenues through September 30, 2014, to street improvements and related projects, as authorized by law, and with no increase in the current rate of METRO's sales and use tax. ***** The following summary lists the components and segments of METRORail and commuter line, as described in Exhibits A and A-3 through A-9 of such resolution and the official notice of the election, and is part of the ballot and the proposition being submitted to the voters at the election. The segments marked * are expected to be completed by the end of 2012 utilizing the proceeds of the $640 million of bonds, if approved at the election. I, North Hardy: *(a) UH-Downtown to Northline Mall (b) Northline Mall to Greenspoint (c) Greenspoint to Bush IAH Airport Southeast: *(a) Downtown/Bagby to Dowling *(b) Dowling to Griggs/61 0 (c) Griggs/610 to Park & Ride in the vicinity of Hobby Airport (d) Sunnyside: Southeast Transit Center to Bellfort (e) Sunnyside: Bellfort to Airport Blvd. Harrisburg: *(a) Dowling to Magnolia Transit Center (b) Magnolia Transit Center to Gulfgate Center (c) Gulfgate Center to Telephone Road *Westpark-Wheeler Station to Hillcroft Transit Center Uptown/West Loop-Westpark to the Northwest Transit Center hiller Katy-DowntowniBagby to Northwest Transit Center



4. 5. 6.





Southwest Commuter Line-Fannin Line 1

South Park & Ride to Harris County


On November 4, 2003, the Resolution passed by a small majority, with 51.7%

(189,465) voting for and 48.3% (176,890) voting against it. Beginning in late 2005, Metro began changing the Referendum Plan and, on September 22,2005, Metro's Board of Directors passed a resolution to implement Phase II of the METRO Solutions Plan2 which had "morphed" by that

time into something different than that which has been passed by the voters in the Resolution. 7. The Resolution stated that Metro could not "undertake the construction of any

new segment of Phase II of METRORail with proceeds of the bonds, notes or other obligations authorized at the Election without first obtaining approvai of the segment for federal capital assistance under applicable federal law and regulations or the commitment of substantial private funds." According to a Metro press release, Metro has entered into a contract that calls for early construction activities. This contract was entered into prior to the above requirements being met. In addition, the proposed aggregate principal amount of bonds, notes or other obligations Metro intends to issue to complete the entire Phase II of the METRORail cannot exceed

$640,000,000.00. 8. Additionally, pursuant to the Resolution, Metro agreed to extend the "Street

Improvement Dedication" in effect at the time of the election to continue through September 14, 2014. This Dedication is a fund that Metro is obligated .to pay to the City of Houston, Harris County, and the fourteen participating cities up to twenty-five (25%) percent of Metro's sales tax revenues. Metro has entered into Referendum mandated extensions .of the Dedication with


A true and correct copy of the ballot is attached hereto as Exhibit A. According to METRO'S website, the METRO Solutions Plan "is a comprehensive transit plan that provides a range of technologies and services to address the varying mobility needs of specific corridors and the community at large through 2025_"


fourteen participating cities, but has failed to do so with the City of Houston and Harris County. Plaintiff further alleges that Metro is neither distributing the funds as was required by the ballot nor accounting for them in a manner required by law. 9. Additionally, the technology Metro is utilizing for the various routes in the Metro proposes to use some form of

METRORail system does not comply with the Resolution.

Bus Rapia Transit when the voter approved plan was for light raiL 10. The ballot, the educational material distributed by Metro to the public, and the

studies undertaken by Metro contained specific maps for the rail lines. Metro is not complying with the routes specified in the Resolution. 11. Metro is not increasing its bus service as required by the Resolution.

V. CAUSES OF ACTION A. Breach of Contract 12. 13. Referendum. Plaintiff incorporates the foregoing paragraphs herein by reference. Plaintiff entered into a contract with Defendant by the terms of the 2003 actions, has

As will be shown at trial, Defendant, through its aforementioned

breached the contract. B. Suit for Declaratory Judgment 14. 15. Plaintiff incorporates the foregoing paragraphs herein by reference. Plaintiff seeks a declaration saying that:

Metro must fully comply with the financing restrictions contained in the Resolution;


Metro cannot switch technologies

for the METRO

Rail without first


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obtaining voter approval; iii. Metro must increase bus services as promised or call a new election to obtain voter approval to decrease;

Metro cannot deviate from the routes of the lines that were approved by the voters without calling a new election; and


Metro shall not change the scope of the projects which were authorized without first obtaining voter approval.


Constitutional Impairment of Contracts 16. 17. Plaintiff incorporates the foregoing paragraphs herein by reference. Since Metro has substantially altered the rights and expectations of Plaintiff

through the aforementioned Consti tution.

actions, they are in violation of article I, section 16 of the Texas

VI. CONCLUSION For the reasons detailed above, Plaintiff Daphne Scarbrough respectfully requests that this Court determine the following: a. b. Metro breached its contract with Plaintiff; Metro must fully comply Resolution; with the financing restrictions·' contained in the


Metro cannot switch technologies voter approval;

for the METRORail

without first obtaining

d. e.

"Metro must increase bus services as promised; Metro cannot deviate from the routes of the lines that were approved by the voters without calling a new election; Metro shall not change the scope of the projects which \vere authorized without first obtaining voter approvaL






g. h.

Metro violated article I, section 16 of the Texas Constitution; Reasonable and necessary attorneys fees;

All costs of sillt; and
All other and further relief to which Plaintiff may show herself to be justly entitled.


Respectfully Submitted, ANDY TAYLOR & ASSOCIATES, P.e. ~~




~ ~ State Bar No. 19727600 Amanda Peterson State Bar No. 24032953 405 Main Street, Suite 200 Houston, TX 77002 713-222-1817 (telephone) 713-222-1855 (facsimile) ATTORNEYS FOR PLAINTIFF DAPHNE SCARBROUGH