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§ § § § § §

CARROLLTON-FARMERS §

BRANCH §

INDEPENDENT SCHOOL DISTRICT §

-.---------- -------s-CnUUL-nISTRICTR(JAmrOy-----------§---------------------- ---- ------ ---- - -- ---- -- .- --- ---

TRUSTEES §

§ § §

§

§ OF DALLAS COUNTY, TEXAS

NO.

SHIRLEY DEMUS TARPLEY AND RACHEL RHODES LEWIS

Plaintiffs,

V.

Defendants.

ORIGINAL PETITION FOR DECLARATORY JUDGMENT

TO THE HONORABLE JUDGE OF SAID COURT:

NOW COME SHIRLEY DEMUS TARPLEY and RACHEL RHODES LEWIS,

Plaintiffs herein, filing this Petition for Declaratory Judgment, pursuant to the Texas Uniform

Declaratory Judgments Act, Chapter 37 of the Texas Civil Practice and Remedies Code, and

would show the Court the following:

I. DISCOVERY CONTROL PLAN LEVEL

Plaintiffs intend that discovery be conducted under Discovery Level 2.

II. PARTIES AND SERVICE

A. Plaintiff, SHIRLEY DEMUS TARPLEY brings this action individually. Plaintiff

resides in DALLAS County, Texas.

B. The last three digits of the driver's license number of SHIRLEY DEMUS

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

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TARPLEY are 864. The last three digits of the social security number for SHIRLEY DEMUS

TARPLEY are 320.

C. Plaintiff, RACHEL RHODES LEWIS brings this action individually. Plaintiff

resides in DALLAS County, Texas.

D. The last three digits of the driver's license number of RACHEL RHODES LEWIS

are 665. The last three digits of the social security number for RACHEL RHODES LEWIS are

880.

E. Defendant CARROLL TON-FARMERS BRANCH INDEPENDENT SCHOOL

DISTRICT BOARD OF TRUSTEES (hereafter referred as "C-FBISD Board of Trustees"), may

be served with process by serving on LYNN CHAFFIN, an Individual who is a resident of

Texas, in her capacity as President of the C-FBISD Board of Trustees, and may be served with

process at the following address: Dallas City Hall, 1500 Marilla Street, Dallas, TX 75201.

Service of said Defendant as described above can be effected by personal delivery.

F. Defendant, C-FBISD Board of Trustees, may be served with process by serving

on NANCY CLINE, an Individual who is a resident of Texas, in her capacity as Vice President

of the C-FBISD Board of Trustees, and may be served with process at the following address:

16801 Westgrove Drive, Addison, TX 75001. Service of said Defendant as described above can

be effected by personal delivery.

G. Defendant, C-FBISD Board of Trustees, may be served with process by serving

on FRANK SHOR, an Individual who is a resident of Texas, in his capacity as Secretary of C-

FBISD Board of Trustees, and may be served with process at the following address: 1620 E

Beltline Rd, Carrollton, TX 75006. Service of said Defendant as described above can be effected Page 2 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

by personal delivery.

H. Defendant, C-FBISD Board of Trustees, may be served with process by serving

on NANCY WATTEN, an Individual who is a resident of Texas, in her capacity as Assistant

Secretary of C-FBISD Board of Trustees, and may be served with process at the following

address: 2744 Bay Meadow Ct., Farmers Branch, TX 75234. Service of said Defendant as

described above can be effected by personal delivery.

1. Defendant, C-FBISD on behalf of C-FBISD Board of Trustees, may be served

with process by serving on BOBBY BURNS, an Individual who is a resident of Texas, in his

capacity as Superintendent of C-FBISD, and may be served with process at the following

address: 1445 N. Perry Road, Carrollton, TX 75006. Service of said Defendant as described

above can be effected by personal delivery.

III. JURISDICTION AND VENUE

A. The subject matter in controversy is within the jurisdictional limits of this court.

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

residents.

C. Venue in DALLAS County is proper in this cause under Section 15.002(a)(3) of

the Texas Civil Practice and Remedies Code because this county is the county of the principal

office of C-FBISD Board of Trustees, Defendant herein. Furthermore, because venue is proper

with respect to Defendant C-FBISD Board of Trustees, venue for this action with respect to all

Defendants is proper under 15.005 of the Texas Civil Practice and Remedies Code.

IV. STANDING

Texas Education Code § 11.151 (a) reads, "The trustees of an independent Page 3 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

school district constitute a body corporate and in the name of the district may acquire and hold

real and personal property, sue and be sued, and receive bequests and donations or other moneys

or funds coming legally into their hands. Tex. Gov't Code Ann. § 551.002

(http://www.statutes.legis.state.tx.us 2009).

Texas Government Code § 551.142(a) provides, "An interested person, including a

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

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

Tex. Gov't Code Ann. § 551.142 (Vernon 2004). The standing conferred by Texas Government

Code § 551.142 is broader than tax payer standing, and its citizens do not need to prove an

interest different from the general public "because the interest protected in the Open Meetings

Act is in the interest of the general public." Hays County Water Planning P'ship v. Hays

County, 41 S.W.3d 174, 177-8 (Tex. App.-Austin 2001, pet. Denied).

An individual entitled to seek a writ of mandamus or injunction may also seek a

declaratory judgment pursuant to the Uniform Declaratory Judgment Act, chapter 37 of the

Texas Civil Practice and Remedies Code. Cox Enters., 679 S.W.2d 86 (Tex .. App.-Texarkana

1984) (recognizing news media's right to bring declaratory judgment action to determine if the

board had violated the act); See also City of Fort Worth v. Groves, 746 S.W.2d 907 (Tex. App-

Fort Worth 1998, no writ) (resident of Arlington had standing to bring suit for declaratory

judgment and injunction against the city for a violation of the Texas Open Meetings Act).

Plaintiff, SHIRLEY DEMUS TARPLEY, is a resident living within the tax district for

the Carrollton-Famers Branch Independent School District (hereafter called "C-FBISD"; she is a

retired C-FBISD teacher; she began to work in the C-FBISD in 1969; and she is a former City of Page 4 of 31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

Carrollton City Council member. SHIRLEY DEMUS TARPLEY strongly believes that the CFBISD Board of Trustees' actions result in a harm to the children of the district for which she cares so much about.

Plaintiff, RACHEL RHODES LEWIS, is a resident living within the tax district for the C-FBISD, has been a resident of Carrollton since 1971; she taught in C-FBISD for 11 years and

Advisory Committee for the city of Carrollton. RACHEL RHODES LEWIS strongly believes that the C-FBISD Board of Trustees' actions result in a harm to the children of the district for which she cares so much about.

v. STATEMENT ON THE COMPLEXITY OF THIS SUIT

This is a complex case dealing with the Texas Open Meetings Act (also called "the Act").

There are numerous facts to this case and there are numerous statutes and case laws that apply to this case. A memorandum of law will be filed after the filing of this Petition and Defendant's Answer to supplement Plaintiff's case; however, Plaintiffs requests oral argument to state their case in front of this Court.

While this case mentions another case referred to as the Fleming Case, the purpose of this suit is not to discuss the merits of the Fleming case but rather the actions of the C- FBISD Board of Trustees in relation to the Fleming case. It should be noted that the facts of Fleming case are extrinsically intertwined with this case.

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VI. SUMMARY OF PEOPLE DISCUSSED IN THE FACTS AND THE FACTS

1. Summary of People Discussed in the Statement of Fact

Hon. Judge Molberg-95th District Court Judge for Dallas County, Texas whom rendered judgement in the Fleming case.

Mr. Darrell Colman, Esq.-Attorney for Plaintiff, Mr. Richard Fleming, in Cause No. 09-07085 filed in the 95th District COUli of Dallas County, Texas and Attorney for Appellee, Mr. Richard Fleming, in the Texas COUli of Appeals, Dallas Division case assigned Cause No. 05-09-01166- CV

Mr. Bob Luna, Esq.-Purported Attorney for Defendant, C-FBISD Board of Trustees and Lynn Chaffin, in Cause No. 09-07085 filed in the 95th District Court of Dallas County, Texas and Attorney for Appellant, C-FBISD Board of Trustees and Lynn Chaffin, in the Texas COUli of Appeals, Dallas Division case assigned Cause No. 05-09-01166-CV

Ms. Lynn Chaffin-President for C-FBISD Board of Trustees; presiding officer of the canvassing board for the C-FBISD Board of Trustees.

Ms. Nancy Cline-Vice President of C-FBISD Board of Trustees

Mr. Frank Shor-e-Secretary ofC-FBISD Board of Trustees

Ms. Nancy Watten-Assistant Secretary ofC-FBISD Board of Trustees

Mr. James Goode-member ofC-FBISD Board of Trustees

Ms. Karin Webb-member ofC-FBISD Board of Trustees

Mr. Richard Fleming-member ofC-FBISD Board of Trustees

Dr. Bobby Burns-Superintendent of C-FBISD

Mr. Mark Gommesen-a concerned resident living in the C-FBISD with a child attending a CFBISD school.

Mr. Matt Peterson-Reporter for the Dallas Morning News reporting on C-FBISD and the CFBISD Board of Trustees

Mr. Steve Blow-Columnist for the Dallas Morning News writing on C-FBISD and the CFBISD Board of Trustees

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2. Brief Statement of the Facts

C-FBISD Board of Trustees has not publicly voted to proceed with the filing of an appeal in the Fleming case. The appeal was filed on September 30, 2009. On September 10, 2009, Frank Shor stated, "In light of the pending election -- four candidates are spending money, expending efforts, expending resources -- and to prevent the voters and the community members

_________ ~f thi~istrict frof!l being disenfranchised, it would be mY.J>Eggestion that.the~oaxd's_ att.2rne~ ..

in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to

obtain a legally final decision as expeditiously as possible", (also called the "September 10,2009

'Motion"'). Ms. Lynn Chaffin asked if Frank Shor intended that to be a Motion. Mr. Frank

Shor replied in the affirmative. Neither Frank Shor nor Lynn Chaffin ever restated the "Motion".

There is a disagreement among the C-FBISD Board of Trustees members as to what that

suggestion meant. At least one board member has stated that she did not interpret September 10,

2009 to contemplate an appeal.

It should be noted that the September 10, 2009, "Motion" specifically mentions the case pending in the Hon. Judge Molberg's court and it should be noted that the statement does not mention the word "Appeal". No further or prior public vote regarding the Fleming case has been voted on by the C-FBISD Board of Trustees. When questioned by the public in an open session, Frank Shor stated the suggested "Motion" taken on September 10, 2009 was intended to authorize the appeal. No formal motion or final action clearly indicating that an appeal would be filed or that counsel for the C-FBISD Board of Trustees was authorized to file the appeal has been performed in open session by vote of a majority of members while sitting in quorum.

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September 10,2009, the date of the "Motion", was eleven days prior to the final ruling of the 95th District Court of Dallas County. No public statement was issued by the 95th District

Court of Dallas County prior to its final ruling; therefore there was no indication that the 95th District Court of Dallas County would rule against the C-FBISD Board of Trustees!. The. Hon.

Judge Molberg signed the order finding for Richard Fleming on September 21, 2009. Again,

voted upon by the C- FBISD Board of Trustees. As stated before, the only action taken publicly

regarding the Fleming case was the September 10, 2009 "Motion".

The C-FBISD Board of Trustees through the legal services of the Law Office of Robert

E. Luna filed an appeal in the Fleming case on September 30, 2009. The C-FBISD Board of

Trustees did not publicly announce an appeal until on or about October 7, 2009, when it released

a statement on the C-FBISD website where it mentions an appeal is being pursued in a press

release along with the fees incurred in the Fleming case through June 2009 to August 2009

approximating $230,901.62 and $71,435.94 spent on fees (for a special election) which the C-

FBISD ultimately called off because the seat was no longer vacant according the final ruling of

the Hon. Judge Molberg.

The C-FBISD Board of Trustees has never publicly voted to retain the Law Offices of

Robert E. Luna to proceed with the Appeal; furthermore, the C-FBISD Board of Trustees has

never voted to retain the Law Offices of Robert E. Luna to defend the original law suit filed by

Richard Fleming. Mr. Mark Gommesen requested, by FOIA request, a copy of any and all

1 It is neither suggested nor suspected that the 95th District COUli of Dallas County held ex-parte communication with counsel for the C-FBISD Board of Trustees which would tip off the CFBISD Board of Trustees that it could expect to lose its case on or around September 10,2009.

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retention contracts between the C-FBISD Board of Trustees and the Law Office of Robert E. Luna; Dr Bobby Bums responded by email on November 12, 2009 as follows:, "By follow-up request dated Monday, November 9,2009, you ask whether a written contract exists between the Board and the Law Offices of Robert E. Luna, P.C., with the exception of the written contract for the collection of delinquent taxes dated May 8, 2008, which you state you have already received.

___ . . Attached is an Attorney Rate Schedule with the Law Offices of RobertE. Lun~p:C._ w4i~J!.. __ . _

should have been included in the documents. There is no other written contract which is responsive to your request."

The documents produced by the C-FBISD on November 12, 2009 was in response to the third such request by Mr. Gommesen requesting any documentation regarding the retention of the Law Office of Robert E. Luna. Hundreds of pages were produced by the C-FBISD-but of the documents produced-no document in any way resembled an attorney-client retention contract. Dr. Bobby Bums admitted in that email on November 12,2009 that C-FBISD Board of Trustees does not have a retention contract with the Law Office of Robert E. Luna related to the Fleming case. Furthermore, there is no general retention contract between the C-FBISD Board and the Law Office of Robert E. Luna where Robert E. Luna is authorized to handle any and all C-FBISD matters.

The C-FBISD Board of Trustees has a rule regarding the retention of attorneys. CFBISD Board of Trustee Internal Governance Rule BDD reads, "The Board shall retain an attorney or attorneys, as necessary, to serve as the District's legal counsel and representatives in matters requiring legal services. Services to be performed and reasonable compensation to be

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paid by the Board shall be set forth in a written contract between the Board and the attorney or

attorneys."

3. September 10, 2009 C-FBISD School Board Meeting

On September 10th 2009 the Board of Trustees met to consider Agenda Item VIII A,

which reads, "Consider All Matters Related to Cause Number 09-07085, Richard Fleming v.

Carrollton-Farmers Branch Independent School District and Lynn Chaffin, Presiding Officer,

______ , , - • • __ " .•• __ ••. , __ .0 .'.'

95th Judicial District Court, Dallas County (Texas Government Code 551.071" Consultation

With Attorney) - Action." It is patently obvious that consideration of an Appeal is not

mentioned.

At the board meeting held on September 10,2009, Mr. Shor made the following motion,

which stands in the minutes as, "Mr. Shor made a motion that, in light of the pending election

and the four candidates expending money, efforts and resources to prevent the voters and the

community members of this district from being disenfranchised, the Board's attorney in the

lawsuit pending in Hon. Judge Molberg's court be authorized to take the requisite action to

obtain a legally final decision as expeditiously as possible. Mr. Goode seconded the motion."

However, the text of the actual motion as stated by Mr. Shor transcribed from the video release

by the C-FBISD Board of Trustee is as follows: "In light of the pending election -- four

candidates are spending money, expending efforts, expending resources -- and to prevent the

voters and the community members of this district from being disenfranchised, it would be my

suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be

authorized to take the requisite action to obtain a legally final decision as expeditiously as

possible." Ms. Chaffin asked if this was a suggestion or a motion, Mr. Shor responded it is a Page 10 of31

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motion. No restatement of the actual motion was ever made. The motion was voted on and

passed by a unanimous vote. No mention of the appeal was made in the motion nor was the

appeal on the agenda. The September lO, 2009 "Motion" only refers to the case pending the

Hon. Judge Molberg's COUli.

On October 8, 2009, Plaintiff Shirley Demus Tarpley, spoke to the board in an open

are the laughing stock of the State and the United States. Additionally, she stated that they want

to know what is going on in C-FBISD. Ms. Tarpley asked the board, "Which law do you break

to fulfill the laws that seek your purpose or your motivation? When will the school district and

the school board stop wasting the taxpayer's money? If you continue to waste money, cut

courses, [and] overload classes, you will not continue to have the VIP programs because you are

not going to get the qualified teachers to teach these children."

As of October 2009, the C-FBISD Board of Trustees was operating on a budget with a

deficit nearing $9 Million for the year. In November 2009, the C-FBISD budget was amended to

increase the budget deficit to over $11 Million for the current year. In September 2009, the C-

FBISD Board of Trustees reduced teacher leave/vacation days from five (5) days a year to three

(3) days a year to save approximately $65,0000.00; yet the C-FBISD can manage to spend $230,901.62 in attorney fees on the Fleming Case through August 2009 and waste $71,435.94

on a special election that was ultimately called off. Legal Fees on the Fleming case in September

2009 were approximately $56,000.00 and now an appeal has been filed. There is no evidence

that the board made the decision to appeal with due diligence and careful consideration-a

Motion to Stay the District Court Judgement was filed on September 22, 2009-even though the Page 11 of31

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actual appeal was not filed until September 30, 2009. Board policy and state law allows the

board to convene a special meeting within 72 hours, and no such meeting was convened to

review the judgment of the District court, nor was such a meeting convened after the court

refused to stay the judgment.

4. Public Confusion as to the September 10,2009 Action by the Board

__________________ Qp. September 11th, the Dallas Morniggj'Jews reported that the "September 1 (h20Q~ _

"Motion" was an initiative by the C-FBISD Board of Trustees to get a move on with the final

ruling pending in Judge Molberg's court, (Dallas Morning News, Carrollton Blog Sept 11 2009 2:54 am). It was also reported "[a] hearing last week was rescheduled after the school district's

attorneys amended a motion at the last minute. Could it be that the trustees were unhappy about

that?" On September 21st 2009, Hon. Judge Molberg issued his ruling on Cause Number 09-

07085, Richard Fleming v. Carrollton-Farmers Branch Independent School District and Lynn

Chaffin, Presiding Officer finding in favor of Mr. Fleming and ordering that he be given his Certificate of Election and be seated to Place 4 on the C-FBISD Board of Trustees.

On September 21' 2009 the district issued a press release (also still accessible on the

district's website) that states as follows:

"Statement Regarding Judge's Order in Richard Fleming's

Case The Carrollton-Farmers Branch School District is pleased to

finally receive Judge Molberg's ruling. As Judge Molberg noted,

the facts of this case raise some perplexing issues. We are

currently reviewing the Judge's order and final judgment which

require the District to continue extensive consultation with our Page 12 of31

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attorneys. It has been the District's objective to follow the Texas

election law, which requires a candidate to be a District resident

for at least six months prior to filing for the position. Carrollton-

Farmers Branch School District remains focused on high

achievement for all students while continuing to comply with the

law."

This statement was made eleven days after the motion on September 10th 2009. Again,

no mention of the word appeal is in this press release. Mr. Richard Fleming was seated on the C-

FBISD Board of Trustees on September 24,2009.

Prior to the October 12th 2009 board meeting, columnist Steve Blow of the Dallas

Morning News wrote the article "Seems like Carrollton-Farmers Branch board has crossed the

boundary on trustee fight" where Mr. Blow reported Lynn Chaffin's comments as "We want to

seat him," she said at another. "We just want to make sure we can seat him." and followed with:

"Well, state District Judge Ken Molberg gave the school board all the legal foundation it needs

last month. The judge ruled in favor of Fleming and ordered him seated." Yet, the board

proceeded to appeal the ruling.

5. Public Recognition of the Appeal but still no Public vote to Pursue an Appeal

The district mentions nothing regarding an appeal in any public statements until October

7th 2009, this was after the district had already filed a Motion to Stay the court order (September

22nd 2009), Motion to Suspend Judgement, and perfected an Appeal on September 30,2009. On

October 7, 2009, the C-FBISD Board of Trustees issued a statement saying among other things,

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that "[a] this time, the election will continue pending a decision from the Appellate Court or until

other action is taken by the Board to address that issue."

On October 8th the district held a board meeting where the Special Election was agenda

Item I.E. as a discussion item and agenda item IV.B. Consider All Matters Related to Cause

Number 09-07085, Richard Fleming v. Carrollton-Farmers Branch Independent School District

Government Code 551.071 ( Consultation With Attorney). At this board meeting a special

meeting of the board was called for, which was scheduled on Monday October 12th 2009. No

action was taken on October 8, 2009. However, on October 12, 2009, after an additional closed

session, Ms. Karin Webb made a motion to dismiss the appeal which failed with a vote of two

for the dismissal of the appeal (Ms. Webb and Ms. Watten), three against the dismissal of the

appeal (Mr. Goode, Ms. Cline, and Mr. Shor) and two abstentions (Mr. Fleming and Ms.

Chaffin). This clearly shows that as of October 12, 2009, only three voting member supported

continuing with the Appeal and this cannot be interpreted to show a majority of the board

supports the appeal. At no point did the board publicly announce that it was ratifying its decision

to file an appeal; but rather that it voted not to withdraw the appeal.

At this time, there has still been no formal vote to proceed with the appeal so we really

do not know if the board does in fact approve of pursing the appeal with a majority vote as

required by law. It should be noted that Lynn Chaffin voted on the September 10, 2009

"Motion" whereas she has publicly recused herself on vote to the withdraw of the appeal of the

Fleming case by abstention because she cites a conflict by virtue of her role as the presiding

officer of the canvassing board. The September 10, 2009 "Motion" is made all the more Page 14 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

confusing as to its true meaning because Lynn Chaffin did not recuse herself on that vote-but if

she had a conflict that she was aware on October 12,2009 then surely she would have considered

that conflict on September 10, 2009, if she realized she was voting at that time (September 10,

2009) for an appeal.

On October 22nd at Regular Board Meeting, Mr. Gommesen during the public

comments section addressed the board and inquired (under §551.042 of the Texas Government

Code) from the board where in all the minutes of the board they took action to direct their

attorney to file an appeal. Mr. Gommesen also asked for assurances that this direction was not

given in executive session. Ms. Chaffin responded at the conclusion of this inquiry that the

district indeed used the motion made on September 10, 2009 as its basis of taking action. Mr.

Fleming also asked this question and at this time, Ms. Chaffin stated that they would go back and

pull all the minutes to find exactly where this action was given. Mr. Shor interjected that he

would "be happy to respond" to the inquiry on the floor and stated that his motion was an

"expeditious resolution of a legally final decision" and stated that he made the motion as legally

final as to "all levels of appeal." It should be noted that "all levels of appeal" was never

mentioned when Frank Shor made the September, 10, 2009 "Motion."

Black's Law Dictionary defines/inaljudgment as the written determination of a lawsuit

by the judge who presided at trial (or heard a successful motion to dismiss or a stipulation for

judgment), which renders (makes) rulings on all issues and completes the case unless it is

appealed to a higher court. It is also called a final decree or final decision. Mr. Gommesen asked

Ms. Webb what her understanding of the motion was, and her response was, "I took it to mean

the final decision in Judge Molberg's court." This statement by Ms. Webb in response to Mr.

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Gommesen was reported in the Dallas Morning News as such by Matt Peterson on October 22nd

at 1 0:30PM on the Dallas Morning News blog.

6. Background Information on the Fleming Case and Appeal

On May 9, 2009, an election was held for Place 4 of the C-FBISD Board of Trustees. On

May 18th, the canvassing board of the C- FBISD Board of Trustees, which is only required to be

..... .Lmem~rs of the school board, canvassed the vote and declared Mr. Fleming the winner of the ... __ ._. _

Place 4 seat. At some point in March 2009, Rudy Durham, Deputy Chief with the Denton

County Appraisal District, stated a phone call was placed to the Denton County Tax Assessor by

an unknown person regarding the location of Mr. Fleming's house and whether it was in C-

FBISD or Lewisville Independent School District (hereafter called, "LISD"i.

No action was taken on this information until it was determined that Mr. Richard Fleming

was winning Place 4 on the C-FBISD Board of Trustees but before the final tally had been made.

No appraisal was completed prior the filing of the Fleming case. Plaintiffs can submit evidence

there are members of the public that believe that some unknown person did not expect Mr.

Fleming to win but when it was determined that he was winning someone wanted to prevent him

from taking seat as representative for Place 4 of the C-FBISD Board of Trustees-be it because

of his race or his profession as an auditor.

Mr. Richard Fleming was first notified as to his residence being located in LISD on May

9, 2009. At this point, James Goode had certified Mr. Richard Fleming as eligible to run for

Place 4 on the C-FBISD Board of Trustees on or about March 23, 2009. On or about May 18,

2 It should be noted that the boundaries between C-FBISD and LISD are convoluted the respective tax authorities for these entities was not aware of the mistaken zoning for Mr. Fleming house until it was brought to their attention by an anonymous tip

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2009, the C-FBISD Board of Trustees acting s canvassing board to the public election certified to the Secretary of State of Texas that Richard Fleming won Place 4 on the C-FBISD Board of Trustees. After The Secretary of State was notified that Mr. Fleming won but before he received his Certificate of Election, Lynn Chaffin as the presiding officer of canvassing board refused to issues a Certificate of Election based on a TRO filed by Stanley Ingram. Coincidently the TRO

_____ " __ "_:vv'as_ di~solved and the Stanley Ingram case was dismissed with prejudice because Stanl~ngram __ . _

lacked standing. After the TRO was dissolved, Lynn Chaffin still did not issue the Certificate of Election to Mr. Richard Fleming.

On May 28th a board meeting was held, and Mr. Coleman presented evidence in the fOlm of cancelled checks, previous tax statements from C-FBISD and school records for Mr. Fleming's dependents. On June 3, 2009, Mr. Fleming presented himself to a notary public who administered the Oath of Office and he signed the Officer's statement. On June 4, 2009, a filing was made with the 95th District court for a Writ of Mandamus filed by Richard Fleming, case number 09-07085 titled Richard Fleming v, Carrollton-Farmers Branch Independent School District and Lynn Chaffin to force the presiding officer to do her ministerial duty to provide a certificate of Election to Mr. Fleming.

On June 4, 2009, at a board meeting, Plaintiff Shirley Demus Tarpley, asked Ms. Chaffin if she had finished her deliberation on the eligibility of Mr. Fleming and the answer was they had not finished. The reason for this question was to determine if Lynn was withholding the certificate contrary to Texas Election Code § 145.004 requiring "[a] candidate's entitlement to a place on the ballot or to a certificate of election is not affected by a judicial determination that

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the candidate is ineligible until a judgment declaring the candidate to be ineligible becomes

final. "

Yet on that same day, June 4, 2009, Mr. Fleming was declared ineligible by the presiding

officer of the canvassing board (specifically by Ms. Lynn Chaffin as presiding officer of the

canvassing board). At that time, Lynn Chaffin acted in contravention to the Texas Election Law.

On June 22nd the District's attorneys made a plea to jurisdiction and filed a motion to dismiss.

_________ ". 0· ---

Such plea and motion were denied by the district court. On September 21, 2009 Hon. Judge

Molberg issued his ruling mandating that Richard Fleming be seated as a member of the board.

VII. STATEMENT OF LAW

The Open Meetings Act ("the Act") requires meetings of governmental bodies to be

publicly held when exercising governmental authority where all discussions are open to the

public subject to a few exceptions that allow deliberations and discussions to take place in closed

sessions. Regardless of whether a particular item is discussed in an open or closed sessions--

before the governmental authority can take any action-- the "decided action" must be finalized

and voted on in an open (public) session. The Act also requires advance notice for each meeting,

and the Act provides for civil and criminal enforcement when a governmental body violates the

Act.

Texas Education Code § 11.051 regarding governance of an independent school district

and the number of trustees that may be elected reads as follows: "(a) An independent school

district is governed by a board of trustees who, as a body corporate, shall: (l) oversee the

management of the district; and (2) ensure that the superintendent implements and monitors

plans, procedures, programs, and systems to achieve appropriate, clearly defined, and desired Page 18 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

results in the major areas of district operations. (a-I) Unless authorized by the board, a member

of the board may not, individually, act on behalf of the board. The board of trustees may act

only by majority vote of the members present at a meeting held in compliance with Chapter 551,

Government Code, at which a quorum of the board is present and voting. Tex. Gov't Code Ann.

§ 551.002 (http://www.statutes.legis.state.tx.us 2009).

Texas Government Code § 55 1.001 (3)(E) indicates that a school board is a governmental

______ .. __ ~·_M .. _ .. _ _ _

body to which the Act will apply." (http://www.statutes.legis.state.tx.us 2009). "Every regular,

special, or called meeting of a governmental body shall be open to the public, except as provided

by this chapter". Tex. Gov't Code Ann. § 551.002 (http://www.statutes.legis.state.tx.us 2009).

The Act applies whether the meeting is a regular session, a special session, or a called

meeting; the Act reads as follows:

a "Meeting" as (A) a deliberation between a quorum of a

governmental body, or between a quorum of a governmental body

and another person, during which public business or public policy

over which the governmental body has supervision or control is

discussed or considered or during which the governmental body

takes formal action; or

(B) except as otherwise provided by this subdivision, a gathering:

(i) 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 Page 19 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

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"

.Tex.

Gov't

Code

Ann.

§

551.001(4)

The Texas Government Code § 551.04 reads, "[a] governmental body shall give written

notice of the date, hour, place, and subject of each meeting held by the governmental body."

(http://www.statutes.legis.state.tx.us 2009).

A governmental body must give the public notice

of the subjects that will be discussed and considered in an open meeting or a closed session. Cox

Enters., Inc., 706 S.W.2d at 958; Porth v. Morgan, 622 S.W. 2d 470 (Tex. App.-Tyler 1981,

writ ref'd n.r.e).

The Act's exceptions, however, do not extend to any "final action, decision, or vote." Cox

Enters ... Inc., 706 S.W.2d at 958. Texas Government Code § 551.102 reads, "[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."

(2009).

A governmental body can only take steps to put into action a governmental decision only

after a "final action, decision, or vote" in open session is voted upon at a time when a majority of

the board is present-constituting a quorum, Tex. Gov't Code Ann. § 551.001(6)

(http://www.statutes.legis.state.tx.us 2009); Tex. Gov't Code Ann. § 311.013(b)

(http://www.statutes.legis.state.tx.us 2009). Furthermore, once a quorum is present, a

Page 20 of 31

PLAfNTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

governmental decision can only be put into action only after a "final action, decision, or vote" in

open session is voted in the affirmative by a majority of the quorum present and voting at such

time. Tex. Ed. Code § 11.051 (http://www.statutes.legis.state.tx.us 2009).

Only certain deliberations may be held in closed sessions. In Cox, decided by the

Supreme Court of Texas, the court held, "The Texas Open Meetings Act requires every regular,

_________ ~pecial, or called meeting of a governmental body to be open to thel2!!bl~ witll_ certain _

narrowly-drawn exceptions. See Tex.Rev.Civ.Stat.Ann. mi. 6252--17 § 2(a), and the exceptions

set out in § 2(e), (f), (g), (h), 0), (rn), (n), (0), and (p)." Cox Enters., Inc., 706 S.W.2d at 958.

The Supreme Court of Texas in Cox states, "The Act's purposes cannot be circumvented by mere

reference to one of the section 2 exceptions. The advance notice given under section 3A(a)

should specifically disclose the subjects to be considered at the upcoming meeting." Cox Enters.,

Inc,. 706 S.W. 2d at 959. Finally the Supreme COUli of Texas in Cox held, "The Act's

exceptions, however, do not extend to any "final action, decision, or vote." Id. The reference to

the section 2 exception has been codified into the current Texas Government Code and is

described in detail under subchapter D of §551 of the Texas Government Code.

In the case at bar, the only authorized closed session deliberation exception that would

apply is the "Consultation with Attorney" provision located in the Texas Government Code

§551.071. Texas Government Code §551.071 reads, "A governmental body may not conduct a

private consultation with its attorney except: (1) when the governmental body seeks the advice of

its attorney about: (A) pending or contemplated litigation; or (B) a settlement offer; or (2) on a

matter in which the duty of the attorney to the governmental body under the Texas Disciplinary

Rules of Professional Conduct of the State Bar of Texas clearly conflicts with this chapter.

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PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

(2009).

This provision allows the attorney to perform his duty to counsel his client while

upholding notions of attorney-client privilege and the attorney's duty to preserve client

confidences. Tex Att'y Gen. Op. Nos. JC-0506 (2002) at 4; JC-0233 (2000) at 3; JM-238 (1984) (as modified by Tex. Att'y Gen. Op. No. JC 0506 (2002)); H-816 (1976); M-1261 (1972). It

allows the governmental body to seek the attorney's advice regarding pending or contemplated

litigation or settlement offers. Lone Star Greyhound Park, Inc. v. Tex. Racing Cornrn 'n, 863

S.W.2d 742, 748 (Tex. App.-Austin 1993, writ denied). However, "General Discussions of

policy, unrelated legal matters, is not permitted under the language of [this exception] merely

because an attorney is present" Tex. Att'y Gen. Op. No. JM-100 (1983) at 2.

Texas Government Code § 551.142(a) provides, "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."

Tex. Gov't Code Ann. § 551.142 (Vernon 2004). Additionally, Texas Government Code §

551.142(b) provides, "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).

Tex. Gov't Code Ann. § 551.142 (Vernon 2004). (http://www.statutes.legis.state.tx.us 2009).

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." Tex. Gov't

Code Ann. § 551.142 (Vernon 2004).

The only way that the general public can monitor its governmental body is by notification

of topics to be discussed in both open and closed sessions-this is done by way of publishing an Page 22 of 31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

agenda. The courts have ruled that the more important a particular issue is to the community, the

more specific the posted notice in the agenda must be. See Cox Enters., Inc. v. Bd ofIrs. Cf

Austin Indep. Sch. Dist.,706 S.W.2d 956, 958-59 (Tex.l986); Point Isabel Indep. Sch. Dist. v.

Hinojosa, 797 S.W.2d 176,179-81 (Tex. App.-Corpus Christi 1990, 'Writ denied). Underlying

these considerations is the fact that the provisions of the Act "are mandatory and are to be

liberally construed in favor of open government." City of Farmers Branch v. Ramos, 2~5 S.W.3L ._ ....

462,467 (Tex. App.-Dallas 2007, no pet.).Cox Enters., Inc., 706 S.W.2d at 957. After explaining

that notice under the Act "should specifically disclose the subjects to be considered at the

upcoming meeting" the court held that those general terms "did not provide full and adequate

notice, particularly where the subject slated for discussion was one of special interest to the

public." Id. at 959.

"Compliance with the Open Meetings Act is mandatory, and actions taken by a

governmental body in violation of the Act are subject to judicial invalidation." City of Bells v.

Greater Texoma Util. Auth., 744 S.W.2d. 636, 640 (Tex. App.-Dallas 1987, no writ). See

Lower Colorado River Authority v. City of San Marcos, 523 S.W.2d 641, 646 (Tex. 1975);

Garcia v. City of Kingsville, 641 S.W.2d 339, 341 (Tex.App.---Corpus Christi 1982, no writ).

The Court of Appeals in Dallas stated, "Although the trial court, in its amended findings of fact

and conclusions of law, concluded that GTUA had substantially complied with the Act with

respect to any meetings relevant to the bond issues in question (including the meeting which

authorized this suit), we need not decide whether the trial court was correct because substantial

compliance is not sufficient." City of Bells v. Greater Texoma Util. Auth., 744 S.W.2d. at 640.

"Literal compliance is required under the Act." Id.; see Smith County v. Thorton, 726 S.W.2d 2, Page 23 of 31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

2--3 (Tex.1986). The Dallas Court of Appeals preceded to instruct the District court to vacate its judgment and dismiss the case-procedurally speaking the plaintiff in the case was the party who violated the open meeting act and the plaintiff's action were invalidated. City of Bells v. Greater Texoma Util. Auth., 744 S.W.2d. at 640.

Texas Education Code § 11.1511 which describes specific powers and duties of a

. __ sc_hool board, reads, "(a) In addition to powers and duties under Section 11.~51 or other law, the board of trustees of an independent school district has the powers and duties provided by Subsection (b)." (http://www.statutes.legis.state.tx.us 2009). Texas Education Code § 11.1511 (b )(5) reads, "the board shall. .. adopt a policy to establish a district- and campus-level planning and decision-making process as required under Section 11.251."

(http://www.statutes.legis.state.tx.us 2009).

C-FBISD Board of Trustee Internal Governance

Rule BDD reads, "The Board shall retain an attorney or attorneys, as necessary, to serve as the District's legal counsel and representatives in matters requiring legal services. Services to be performed and reasonable compensation to be paid by the Board shall be set forth ina written contract between the Board and the attorney or attorneys." (www.cfbisd.edu 2009).

VIII. RELIEF REQUESTED

There exists a genuine controversy between the parties herein that would be terminated by the granting of declaratory judgment. The Plaintiffs in this case file this action asking this COUli to declare that the C-FBISD has violated the Open Meetings Act (hereafter, "the Act") adopted by the Texas Legislature and to declare that any such action that violates the Act should be declared void and judicially invalid.

Page 24 of 31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

The stated intent of the September 10,2009 "Motion,,3, was to prevent the voters from

being disenfranchised in the November 5, election, it is impossible that an appeal could have

been filed and adjudicated prior to the election.

The motion was approved eleven days prior to the final ruling on the 95th Judicial

District Court on September 21, 2009. It is not reasonable that the board could act to appeal the

ruling without reviewing the judgment and determining, if it would be in the public interest to

file an appeal. For the board to approve an action to appeal without first determining what is in

the best interest of district, the students, and taxpayers, would be a violation of the public trust.

On September 10th, there was simply nothing to appeal.

Appealing the judgment of the district court is hardly reaching a final decision "as

expeditiously as possible." It could be reasonably argued that the motion prohibits the district's

attorney from seeking an appeal.

The district is not legally required to appeal the ruling of the district court, nor is it even

expected that the district would file an appeal. Plaintiffs therefore request that declaratory

judgment be entered as follows:

A. Declaration that September 10, 2009 "Motion" by Frank Shor and

seconded by James Goode which was stated as "In light of the pending election -- four

candidates are spending money, expending efforts, expending resources -- and to prevent

the voters and the community members of this district from being disenfranchised, it

would be my suggestion that the board's attorneys in the lawsuit pending in Judge

3 "In light of the pending election -- four candidates are spending money, expending efforts, expending resources -and to prevent the voters and the community members of this district from being disenfranchised, it would be my suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to obtain a legally final decision as expeditiously as possible."

Page 25 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

Molberg's court be authorized to take the requisite action to obtain a legally final decision

as expeditiously as possible" was not a true Motion but rather a suggestion which was

questioned by Ms. Chaffin as to whether it was a "Motion" but was never formally

restated in the form of a "Motion"

B. Declaration that September 10, 2009 "Motion" by Frank Shor and

seconded by James Goode which was stated as "In light of the pending election -- four

candidates are spending money, expending efforts, expending resources -- and to prevent

the voters and the community members of this district from being disenfranchised, it

would be my suggestion that the board's attorneys in the lawsuit pending in Judge

Molberg's court be authorized to take the requisite action to obtain a legally final decision

as expeditiously as possible" makes no reference to an Appeal.

C. Declaration that September 10, 2009 "Motion" by Frank Shor and

seconded by James Goode which was stated as "In light of the pending election -- four

candidates are spending money, expending efforts, expending resources -- and to prevent

the voters and the community members of this district from being disenfranchised, it

would be my suggestion that the board's attorneys in the lawsuit pending in Judge

Molberg's court be authorized to take the requisite action to obtain a legally final decision

as expeditiously as possible" is too vague to be a valid Motion to file an Appeal.

D. Declaration that the "Motion" by Frank Shor and seconded by James

Goode which was stated as "In light of the pending election -- four candidates are

spending money, expending efforts, expending resources -- and to prevent the voters and

the community members of this district from being disenfranchised, it would be my Page 26 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be

authorized to take the requisite action to obtain a legally final decision as expeditiously as

possible" is framed in such a manner as to state board policy rather than litigation

strategy.

E. Declaration that when a C-FBISD Board of Trustees decides to file an

___ . .. _. ~eal in a case fOT wJ1ich it has defended and lost, then the board must perform a ..2.ublic . _

vote in the form of a final action in order to comply with the Act.

F. Lynn Chaffin abstained from the vote on October 12, 2009 to withdraw

the Appeal based on a Motion made by Ms. Karin Webb because she cited a conflict of

interest because she was involved in the Fleming suit as presiding officer of the

canvassing board. Plaintiff seeks declaration that because Lynn Chaffin voted on the

"September 10, 2009 "Motion", it shows that at that time the board was not considering

an appeal otherwise Lynn Chaffin would have abstained from such a vote to avoid any

potential conflict.

G. Declaration that C-FBISD violated the Open Meetings Act when Frank

Shor made a statement at the school board meeting during a public session on October

22, 2009 where he stated that he intended his September 10, 2009 "Motion" to include

the possibility of Appeal is ambiguous and meaningless because no Appeal was

mentioned on September 10,2009 in Frank Shor's original "Motion".

H Declaration that the C-FBISD Board of Trustees cannot justify an action

of filing an appeal based on the September 10, 2009 "Motion" because it was not worded

in such a way as to alert the public that the subject might possibly include an appeal.

Page 27 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

1. Declaration that the following agenda item is not adequate notice of an

Appeal, if this Court finds that the September 10, 2009 "Motion" authorized an appeal:

On September 10th 2009 when the Board of Trustees met to consider Agenda Item VIII A, which reads, "Consider All Matters Related to Cause Number 09-07085, Richard

Fleming v. Carrollton-Farmers Branch Independent School District and Lynn Chaffin,

______________________ fresiding Officer, 95th Judicial District COl:o-t, Dallas County (Texas Government_C04~ _

551.071" Consultation With Attorney) - Action";

J. Declaration that the C-FBISD cannot change the meanmg of the

September 10, 2009 "Motion" after such "Motion" was made by retroactively saying the "Motion" included the possibility of appeal when the "Motion" was stated as follows: "In light of the pending election -- four candidates are spending money, expending efforts,

expending resources -- and to prevent the voters and the community members of this

district from being disenfranchised, it would be my suggestion that the board's attorneys

in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action

to obtain a legally final decision as expeditiously as possible".

K. Declaration that the Defendant violated the Open Meetings Act when

deciding to Appeal the Fleming Case based on the September 10, 2009 "Motion" which

is worded as follows: "In light of the pending election -- four candidates are spending

money, expending efforts, expending resources -- and to prevent the voters and the

community members of this district from being disenfranchised, it would be my

suggestion that the board's attorneys in the lawsuit pending in Judge Molberg's court be authorized to take the requisite action to obtain a legally final decision as expeditiously as Page 28 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

possible" .

L. Declaration that all actions taken by the Defendants to pursue an appeal in

the Court of Appeals are void.

;'

M. Declaration that all actions taken by the Defendants to pursue an appeal in

the Court of Appeals are subject to judicial invalidation.

N. Declaration that a written contract must exhibit a bargain for exchange for

consideration and signed by all parties to which such contract is to be enforceable

against.

O. Declaration that a Schedule of Fees is not a signed contract

P. Declaration that the C-FBISD Board of Trustees never signed a formal

contract with the Law Office of Robert E. Luna authorizing the prosecution of the

Fleming case.

Q. Declaration that the board never performed a "Final Action in open

session to approve a contract for the Law Office of Robert E. Luna to prosecute the

Fleming Case from the cases inception.

R. Declaration that the Defendant's did not perform a "Final Action" to

authorize The Law Office of Robert E. Luna to pursue an appeal in the Fleming case.

S. Declaration that the Defendant's violated the Texas Open Meetings Act

when it failed to publicly vote to authorize Robert E. Luna to pursue the appeal.

T. Declaration that all actions taken by the Defendants to allow Robert E.

Luna to proceed with the appeal in the Fleming case where there is no retention contract

from the case's inception results in the Defendant violating the Open Meetings Act by Page 29 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

instructing its counsel, Robert E. Luna, to act when no final action to authorize the

attorney's action had been taken.

U Declaration that all actions taken by the Defendants to allow Robert E.

Luna to proceed with the appeal in the Fleming case without a publicly held final vote are

void.

V. Declaration that all actions taken by the Defendants to allow Robert E.

Luna to proceed with the appeal in the Fleming case without a publicly held final vote

which are void are subject to judicial invalidation.

IX. ATTORNEY'S FEES

Pursuant to Section 37.009 of the Texas Civil Practice and Remedies Code, request is

made for all costs 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.

Additionally, Texas Government Code § 551.142(b) provides, "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." Tex. Gov't Code Ann. § 551.142 (Vernon

2004).

X. PRAYER

WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that on final trial hereof

Page 30 of31

PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT

declaratory judgment be granted as requested herein and Plaintiffs be awarded costs and

reasonable and necessary attorney's fees, and for such other and further relief that may be

awarded at law or in equity.

Respectfully submitted,

-_ ... _------_. __ ._--_._._---------._-_._--_._--_._--------_.--_._-------_.-

By: b)\~hNJG~cr~ ~

D. Kristine Skocpol-Saleh Texas Bar No. 24066713 1509 Shepherd Lane Carrollton, Texas 75007 Tel. (469) 285-4926

Fax. (877) 354-2117 Attorney for Plaintiffs

SHIRLEY DEMUS TARPLEY and RACHEL RHODES LEWIS

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PLAINTIFF'S ORIGINAL PETITION FOR DECLARATORY JUDGMENT