Cause No.

D-1-GN-20-007085

Matt Mackowiak and Cleo Petricek, § IN THE DISTRICT COURT

§
Plaintiffs §
§
v. § 98th JUDICIAL DISTRICT
§
City of Austin, Texas and Jannette Goodall, §
in her official capacity as City Clerk §
Defendants. § TRAVIS COUNTY, TEXAS

PLAINTIFFS’ AMENDED PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE COURT:

Plaintiffs Matt Mackowiak and Cleo Petricek (“Plaintiffs”) respectfully file this amended

petition complaining of the City of Austin, Texas (“City”), and Spencer Cronk, in his official

capacity as City Manager (“City Manager”), and would show the following:

I. Introduction

1. On June 20, 2019, the Austin City Council, after a sixteen-hour session, revised a

City Ordinance dealing with public solicitation, camping in public areas, and sleeping or lying

down in public areas throughout the City that had been in effect since 1996. Overnight, without a

vote of the City’s residents, the Council voted to legalize sleeping, camping and panhandling on

sidewalks and other public places. The effect was predictable and dramatic, with panhandling

immediately outside city stores and restaurants, sleeping on downtown sidewalks, and tents set up

along Congress Avenue and near neighborhoods and along creek-beds.

2. Plaintiffs sought to give the City’s residents a voice on this problem through the

City’s petition process and proposed changes to the City’s ordinance that would have curbed some

of the problems that arose under the new ordinance. Under that process, once a petition is

submitted containing signatures from 20,000 of the City’s residents, the proposal must be either

First Amended Petition – Page 1

approved by Council or submitted to the voters for decision. Plaintiffs submitted a petition

containing 24,598 signatures to the City Clerk, but the City Clerk rejected a large number of the

signatures and then declared that fewer than 20,000 of the signatures were valid.

3. Plaintiffs then filed suit complaining of the City Clerk’s rejection of a petition

proposing an ordinance “Petition to Save Austin Now By Restoring Safety and Sanity to our City

Streets by amending City Code Section 9-4-11 relating to prohibiting camping in public areas,

Section 9-4-13 relating to public solicitation, and Section 9-4-14 relating to prohibiting sitting or

lying down on public sidewalks or sleeping outdoors in the downtown Austin Community Court

area; and creating offenses,” which was filed with the City Clerk on July 20, 2020 (“Petition to

Save Austin Now”).

4. Subsequently, Plaintiffs were successful in submitting a second Petition “Reinstate

the Public Camping Ban” from Save Austin Now to the city clerk’s office, which validated that

26,103 signed the petition and were verified, more than the 20,000 needed to bring the proposed

ordinance to voters. In May of 2021, voters passed the proposed proposition 58%-42%, and a

camping ban ordinance is again in effect as Section 9-4-11 of the City Code.

5. Now, Plaintiffs bring this mandamus proceeding because the City and City

Manager, in response to the ordinance passing, are refusing to fully enforce the ordinance.

II. Rule 47 Statement and Discovery Rule

6. Plaintiffs bring this suit for monetary relief of $100,000 or less and non-monetary

relief. Discovery in this case should be governed under Level 3 under Rule 190.3 of the Texas

Rules of Civil Procedure.

III. Parties

7. Plaintiff Matt Mackowiak is an individual residing in Austin, Travis County, Texas.

First Amended Petition – Page 2

 8. Plaintiff Cleo Petricek is an individual residing in Austin, Travis County, Texas.

9. Defendant City of Austin, Texas, is an incorporated municipality located in Travis

County, Texas and may be served by serving the mayor, Mayor Steve Adler, at Austin City Hall,

301 W. 2nd Street, 2nd Floor, Austin, Texas 78701, or the City Clerk at 201 W. 2nd Street, Suite

1120, Austin, Texas 78701. See Tex. Civ. Prac. & Rem. Code § 17.024(b). Defendant has been

served and has appeared in this case.

10. Defendant Spencer Cronk, who is being sued in his official capacity as the City

Manager of the City of Austin, is an individual believed to reside in Travis County, Texas and may

be served by serving him at his place of employment, Austin City Hall, 301 W. 2nd Street, 3rd

Floor, Austin, Texas 78701. 1

IV. Jurisdiction and Venue

11. The Court has jurisdiction over this lawsuit pursuant to Section 24.001 of the Texas

Government Code to issue writs of mandamus. The Court further has jurisdiction pursuant to

Section 24.007 of the Texas Government Code with respect to civil matters in which the amount

in controversy exceeds $500.

12. Venue is proper in Travis County because a substantial part of the events or

omissions giving rise to this claim occurred here. TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1).

Venue is further proper in Travis County because Defendants’ principal office is in Travis County.

TEX. CIV. PRAC. & REM. CODE § 15.002(3).

V. Conditions Precedent

13. All conditions precedent to recovery have been met or have occurred.

1
The City Clerk is no longer a party to this proceeding.

First Amended Petition – Page 3

 VI. Facts

14. Plaintiffs are signatories to the Petition to Save Austin Now and to the second

Petition from Save Austin Now.

15. Plaintiff Mackowiak submitted the Petition to Save Austin Now to the City Clerk

on July 20, 2020. The Petition to Save Austin Now addressed the City’s regulation of camping

and solicitation in public areas and to sitting or lying down on public sidewalks or sleeping

outdoors in certain downtown areas of the city.

16. On August 5, 2020, the City Clerk issued a Certificate of Insufficiency of Initiative

Petition (“Certificate of Insufficiency”), along with a Report on Analysis of Camping Petition

(“Report”).

17. Consequently, the City Clerk did not certify the Petition to Save Austin Now as

sufficient. And the City Council did not either pass the proposed ordinance as written within ten

days or order an election on the ordinance (the election to be held on the next statutorily-allowable

election date), as required by the City Charter, Article IV, Section 4.

18. On January 19, 2021, Plaintiff Mackowiak submitted another Petition to Save

Austin Now. This time, on February 3, 2021, the City Clerk certified the second Petition as

sufficient. The proposed ordinance was included in the May 2021 election, and it passed.

19. Section 9-4-11 of the City Code has been amended to reinstate camping ban.

20. Section 9-4-11 of the City Code charges the City Manager with administration and

enforcement of Section 9-4-11 and other provisions of Chapter 9-4.

21. Although Section 9-4-11 has been reinstated to prohibit camping and although the

City Manager has been charged with administration and enforcement of the ban, the City and City

First Amended Petition – Page 4

Manager have refused to enforce the camping ban. That refusal leaves voters and residents of the

City in the same position as they were before the ban was reinstated.

22. The panhandling, sleeping, and tents continue.

VII. Causes of Action

23. Plaintiffs seek a writ of mandamus requiring the City and City Manager to enforce

Section 9-4-11 of the Austin City Code.

VIII. Jury Demand

24. Mackowiak and Petricek demand a jury and previously tendered the required jury

fee.

IX. Prayer

25. Mackowiak and Petricek request that Defendant City Manager be cited to appear

and that upon final hearing of this matter, that the Court enter judgement for Mackowiak and

Petricek for the following:

(a) a writ of mandamus requiring the City and City Manager to enforce Section 9-4-11

of the Austin City Code;

(b) an award of costs; and

(c) such other and further relief to which it may be entitled.

Respectfully submitted,

/s/ B. Russell Horton

B. Russell Horton
State Bar No. 10014450
GEORGE, BROTHERS, KINCAID & HORTON, L.L.P.
114 West 7th Street, Ste. 1100
Austin, Texas 78701
(512) 495-1400 telephone
(512) 499-0094 facsimile

First Amended Petition – Page 5

 rhorton@gbkh.com

ATTORNEY FOR PLAINTIFFS

MATT MACKOWIAK AND
CLEO PETRICEK

CERTIFICATE OF SERVICE

This is to certify that on this 25th day of August, 2021, a true and correct copy of the
foregoing has been served upon counsel for all parties via the CM/ECF electronic noticing system,
via electronic mail to the following:

Ariane V. Arth
Assistant City Attorney
City of Austin-Law Department
Post Office Box 1546
Austin, Texas 78767-1546
Ariane.Arth@austintexas.gov
Attorney for Defendant

/s/ B. Russell Horton

B. Russell Horton

First Amended Petition – Page 6

 CAUSE NO. D-1-GN-20-007085

Matt Mackowiak and Cleo Petricek, § IN THE DISTRICT COURT

§
Plaintiffs, §
§
v. § 98TH JUDICIAL DISTRICT
§
City of Austin, Texas and Jannette §
Goodall, in her official capacity as City §
Clerk §
§ TRAVIS COUNTY, TEXAS
Defendants. §

ORIGINAL PETITION IN INTERVENTION

TO THE HONORABLE COURT:

Plaintiffs in Intervention, Robert Mayfield, Laura North, Stuart, Dupuy, and Bob Woody,

file this Original Petition in Intervention against the City of Austin, and and Spencer Cronk, in his

official capacity as City Manager (“City Manager”) (collectively “Defendants”), and for cause of

action would respectfully show the Court as follows:

I.
DISCOVERY

Intervenors bring this suit for monetary relief of $100,000 or less and non-monetary relief.

Discovery in this case should be governed under Level 3 under Rule 190.3 of the Texas Rules of

Civil Procedure.

II.
PARTIES

1. Plaintiffs Matt Mackowiak and Cleo Petricek are individuals residing in Austin,

Travis County, Texas.

2. Intervenors Robert Mayfield, Laura North, Stuart, Dupuy, and Bob Woody, are all

residents of the City of Austin, Travis County, Texas.

ORIGINAL PETITION IN INTERVENTION 1

 3. Defendant City of Austin, Texas, has appeared and answered in this suit and may

be served through its counsel of record.

4. Defendant Spencer Cronk, who is being sued in his official capacity as the City

Manager of the City of Austin, is an individual believed to reside in Travis County, Texas, and

may be served by serving him at his place of employment, Austin City Hall, 301 W. 2nd Street,

3rd Floor, Austin, Texas 78701.1

III.
JURISDICTION AND VENUE

5. The Court has jurisdiction over this lawsuit pursuant to Section 24.001 of the Texas

Government Code to issue writs of mandamus. The Court further has jurisdiction pursuant to

Section 24.007 of the Texas Government Code with respect to civil matters in which the amount

in controversy exceeds $500.

6. Venue is proper in Travis County because a substantial part of the events or

omissions giving rise to this claim occurred here. TEX. CIV. PRAC. & REM. CODE § 15.002(a)(1).

Venue is further property in Travis County because Defendants’ principal office is in Travis

County. TEX. CIV. PRAC. & REM. CODE § 15.002(3).

IV.
CONDITIONS PRECEDENT

7. All conditions precedent to recovery have been met or have occurred.

1
The City Clerk is no longer a party to this proceeding.

ORIGINAL PETITION IN INTERVENTION 2

 IV.
FACTS

8. Intervenors are signatories to the Petition to Reinstate the Public Camping Ban.

Intervenors also own and operate businesses, employee Austin residents, and serve Austin

residents as their customers and clients.

9. The proposed ordinance was included in the May 2021 election, and voters passed

the proposed proposition 58%-42%. Consequently, a camping ban ordinance is again in effect as

Section 9-4-11 of the City Code.

10. Now, Intervenors intervene in this mandamus proceeding because the City and City

Manager, in response to the ordinance passing, are refusing to fully enforce the ordinance.

11. Section 9-4-1 of the City Code charges the City Manager with administration and

enforcement of Section 9-4-11 and other provisions of Chapter 9-4.

12. Although Section 9-4-11 has been reinstated to prohibit camping and although the

City Manager has been charged with administration and enforcement of the ban, the City and City

Manager has refused to enforce the camping ban. That refusal leaves voters and residents of the

City in the same position as they were before the ban was reinstated.

13. Defendants’ inexplicable refusal to enforce the Section 9-4-11 has resulted in

severe business disruption. Intervenors have incurred substantial expenses to protect their property,

their customers, and their clients. Attached hereto as Exhibits, A, B, C, and D, to this Petition in

Intervention are Intervenors’ declarations detailing some of the harms suffered by them as a result

of Defendants failures.

V.
CAUSES OF ACTION

14. Intervenors seek a writ of mandamus requiring the City and City Manager to

enforce Section 9-4-11 of the Austin City Code.

ORIGINAL PETITION IN INTERVENTION 3

 VI.
PRAYER

15. Intervenors request that Defendant City Manager be cited to appear and that upon

final hearing of this matter, that the Court enter judgement for Intervenors for the following:

(a) a writ of mandamus requiring the City and City Manager to enforce Section 9-4-11

of the Austin City Code;

(b) an award of costs; and

(c) such other and further relief to which it may be entitled.

Respectfully submitted,

LOVINS TROSCLAIR, PLLC

1301 S. Capital of Texas Highway
Building A, Suite 136
Austin, TX 78746
Telephone: (512) 535-1649
Facsimile: (512) 519-1238
E-Mail: Michael@LovinsLaw.com

By: /s/ Michael E. Lovins

Michael E. Lovins
State Bar No. 24032555
Attorney for Intervenors

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of the foregoing has been served upon counsel

of record for all parties on August 25, 2021, via the Texas electronic filing system.

/s/ Michael E. Lovins

Michael E. Lovins

ORIGINAL PETITION IN INTERVENTION 4

 Declaration of Stuart Dupuy

1. My name is Stuart Dupuy. I am over 18 years old, of sound mind, and competent
to make this declaration.

2. My wife and I have been business owners in Austin for over 25 years. We started
with a company focused on providing nannies and babysitters in 1994. Then in 2013, we opened
two dance studios teaching mainly at young kids, one in Austin and one in Round Rock.

3. We bought a building to house our companies eight years ago in South Austin near
the intersection of South Lamar and Westgate. Our building backs up to the Barton Creek
Greenbelt and is near the overpass of SH290/71. We purchased the neighboring building five years
ago. Our staffing company employs hundreds of people, and on any given day we have 20 different
dance teachers and staff at our Austin studio.

4. Before 2019, there was one young homeless man who would hang around our
studio. We used to hire him to help out the building, which he really enjoyed. We did not have any
break-ins, we did not have any problems with people harassing our clients, and we did not have to
call 911 a single time.

5. In 2019, that all changed. There are now two large encampments, one in the Barton
Creek Greenbelt 150 yards from my office, and another 300 yards away under the overpass.

6. On our security cameras, we started seeing more people come up to our building at
night. Someone broke through the roof, stole the cash register, and smashed the glass door on their
way out. Someone stole a catalytic converter from one of our vans. We’ve been broken into three
times in the past 18 months. At least once a week, we now see people park in our parking lot, and
we watch a constant stream of people come up to their car from the Greenbelt or from under the
overpass.

7. People were bathing in our exterior faucet, between our buildings. We kept putting
locks on the faucets, which they would break off. Eventually we just removed the handle
completely. One time a lady was bathing, while kids were there, and I asked her to leave and she
started screaming at me telling me that I was going to go to Hell.

8. A young lady moved into our playscape. When I asked her to leave she started
screaming at me, telling me that I was a pedophile and a rapist. I called the cops, and by the time
they arrived she had calmed down. I drove her to Central Market and bought her lunch and asked
that she not come back. I have not seen her since.

9. Once, a guy came into our dance studio while it was full of kids and parents picking
up their kids. Luckily the police got there quickly, but our employees are afraid of going to their
cars at night.

EXHIBIT A
 10. In May 2020, I was interviewing a candidate for our staffing company when a man
defecated right in our planter, 10 feet from where we were sitting. I’ve seen numerous needles on
our property and bottles of urine. There is garbage everywhere, blowing through our parking lot.

11. My wife and I are well-meaning citizens just trying to run businesses. But having
two encampments, one on either side of our property, with people walking between the two is
simply untenable. We deeply hope that the ordinances now in effect because of Prop. B will help
protect our interest in our property, our businesses, and our sense of community.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on August 25, 2021

____________________________
Stuart Dupuy
August 25, 2021

EXHIBIT A
 Declaration of Bob Woody

1. My name is Bob Woody, I am a business owner in downtown Austin. Collectively—

through my personal businesses and partnerships—I employee over 450 Austinites.

2. I grew up in Austin, and in 1982 I made the decision to invest my savings into the old
Pecan St. Café. A business which had remained open for 50 years. However, the recent
spike in the homeless population negatively impacted my business and led to its closing.

3. The Pecan St. Café was my flagship business, yet it was unable to support itself because
of the neighboring homeless population’s aggressive behavior towards its customers.

4. Since 2019, the city’s lack of enforcement has allowed the problem to cascade, creating a
rippled effect across Austin. Encampments have multiplied and can be found in nearly
every corner of Austin. Additionally, the behavior of homeless individuals has become
increasingly more aggressive—10-fold. Austin’s City Council and Mayor have put its
citizens, visitors, and emergency first responders at risk. Furthermore, the city’s current
condition could make any rational person want to pick-up and leave.

5. One of my businesses—Buckshot—on East 6th St. has been overrun by the homeless
population. Despite calling the police nearly every day for the last 3 years, my business
has been burglarized over 10 times. The safety of my employees and patrons should not
be in jeopardy—every.

6. There are areas in downtown Austin that truly operate outside the rule of law because the
lack of legal repercussion has become the status quo.

7. Drug deals go unnoticed—over overlooked, women are being victimized, and individuals
are allowed to sleep anywhere at any hour of the day. The city is not helping itself or its
most vulnerable population.

8. While the priorities of Austin’s elected leadership concern me greatly, I am hopeful that
the ordinance enacted through Prop B will shield the interests of our community. Austin’s
voters have spoken, there is no excuse for the City Council or Mayor to ignore it any
longer.

Bob Woody

EXHIBIT C
 Declaration of Laura North

1. My name is Laura North. I am over 18 years old, of sound mind, and competent
to make this declaration.

2. I have lived in Austin since I was 10 years old. in 2013, my husband and I bought
our house near the intersection of Manchaca Rd. and Stassney Ln. We loved our neighborhood
and its strong sense of South Austin community. We looked forward to raising our two boys,
now 6 and 3, in the area.

3. In January 2019, I decided to take the enormous gamble of opening my own

salon. I took out a 10-year lease on a building just north on Manchaca Rd. near Ben White Blvd.
I spent $350,000 to completely strip the space down to the studs and build it back out to service
my clients. I can now proudly say that I employ 16 stylists and staff.

4. Everything started to change in my neighborhood where I live and work in the

summer of 2019. Before I signed my lease city council and management assured me that the
bridge under Pack Saddle Pass would be cleaned up and converted into a public use space. The
number of people who appeared to be experiencing homelessness increased almost overnight.
More and more people started to trespass in and around my salon. My windows and front door
were shattered the night before we re-opned after the shut down. My salon has been broken into
three times, and we lost over $5,000 worth of merchandise and equipment. Someone ripped off
the electrical box looking for copper selling at $0.40 per pound, and I had to replace it for
thousands of dollars. To date we have had over $10,000 in damages and stolen property.

5. But the physical damage is just the beginning. At least once a week, someone will
trespass into my salon. Most often, they would break in to use the bathroom, often urinating all
over the walls and floor. However, they have also come into the salon itself asking for money or
to use the phone. Many times, they have turned angry when asked to leave, scaring my stylists
and clients. We have witnessed plublic masturbation, open drug use, defication, and physical
fights. One man tried to force himself on a stylist when she asked him to leave, another man spit
beer in a stylists face, another man pulled his genitals out and waved them at one of my stylists
as she was walking to her car. I have had to have my husband come escort clients to their cars
late at night when they don’t feel safe. I now lock the door even during business hours. In fact, at
the suggestion of the Austin Police Department, I’ve bought a dog—a bull mastiff named Tiny—
to keep in the office whenever we are open.

6. Keeping people outside of my salon does not even come close to solving the
problem, however. Once, while we had a client in the shop, a man stood outside of the window
and started masturbating while looking into our window. We have had multiple people expose
themselves to our clients during their appointments. I have a video of a man bracing himself on
the side of my salon and defecating in the planter right outside our door. I have seen more used
needles, drug spoons, and crack pipes in my parking lot than you can imagine.

7. My clients and stylists no longer feel safe in our parking lot. I’ve told them many
times to call APD immediately whenever they don’t feel safe. Think about that. We shouldn’t

EXHIBIT D
need a police escort to walk the few dozen feet from our office door to our cars in the parking
lot. I’ve had to spend my own money to install more alarms and security lights. It seems like
things are only getting worse and more often than not the police aren’t able to show up for hours
after we make the call.

8. But the negative effects to my business are nothing compared to what my two
boys have had to experience. I have to drive them through our neighborhood to and from daycare
every day. On our trips, we once saw a man try to hang himself from a powerline. We saw a man
try to push the head of another man into oncoming traffic. We’ve seen a naked man rolling
around on the ground with a box on his head while others looked on and laughed. My husband
found a homeless woman naked in our stocktank pool in our own backyard. At first, it was
terrible to try to explain those things to my young boys. What’s worse, they are now almost
becoming desensitized to such tragic and heartbreaking scenes.

9. It eventually got to the point where my husband and I decided to move our family
out of the neighborhood that we used to love so much. We now live further south in the Shady
Hollow neighborhood. It’s significantly different over here, but unfortunately we are seeing signs
of the camps moving this way.

10. I used to feel so much sympathy, donating food and clothes whenever I could, and
I still do. But it is impossible to experience what my family and I have without starting to feel
angry and jaded. How is it fair that my property taxes doubled in the first year of me owning my
salon while I have to shovel out human feces and drug paraphernalia from my parking lot?

11. Something has to change. I stood in line for two hours to vote “yes” on Prop. B. I
am so hopeful that the Court will allow the common-sense regulations take effect and allow my
family and my business return to the safety and security of the community that we love so much.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on August 22nd 2021

____________________________
Laura North
Owner
Headspace Salon and Coop
4418 Pack Saddle Pass
Austin, TX 78745
August 22, 2021
 DECLARA丁 10N OF ROBERT IVIAYFl ELD

1. My name is Robert Mayfield, and I am over 18 years of age, of sound mind, and
competent to make this declaration.
2. I have some DQ's in Austin, and two of them are 8728 North Lamar, and 5900 Manor
Rd.
3. We have had many problems with the homeless population particularly around those
two stores.
4. We at first hired a security company, but the homeless had no respect for them, stating,
for example "you're not real cops". So, we have had to hire off duty policemen who the
homeless sure DO respect. The first day we had off duty police as security, a
bothersome homeless person came, spied the policemen and turned around and quickly
walked out. This has been costlier than a security company but much more effective
with all the hardened and street-wise homeless that want to lurk around. Another time,
one was lurking outside the front door with a mask when a policeman came in and he
ran offto a waiting car. The police probably prevented a robbery.
5. The problem is bad with homeless coming in to use the rest room and nothing more,
hanging around the parking lot bothering customers, asking for money, and making DQ
not a desirable place to visit. We have to run them off or real customers would not
come in to the store. We have had customers harassed while in line at the drive up
window.
5. Perhaps worst of all, it is costing us in the neighborhood of 572,000 per year, PER
STORE, paid to off duty police, to keep these stores clean and inviting so that customers
will visit us. Having off duty police has helped us a lot and sales are good, but at a cost
that we should not have to bear. Try swallowing 5140,000 per year and see what it
does.
7 . I firmly believe that if we had no off duty police working for us that we would have

difficulty staying in business. These unwarranted expenses cut into manage/s bonuses
and our profitability. lt's not fair! We employ a lot of people
8. We were thrilled to see the homeless camping ban reinstated by the election of a large
majority, and hoped our problems would go away. But since May 1, NOTHING HAS
CHANGED. We thought the city was supposed to clean up and move away these people
and that our business could grow as a result.
9. The police also tell us that they no longer have the resources to properly police this
problem, which is why we, as business people, pray that the ballot initiative to REFUND
THE POLICE will pass just like the Homeless camping ban did, and it can be properly
enforced by a police department at full staff. We need it. I bet a majority supports it.
10. I never thought I would see my Austin sink so low. We look more like San Francisco
every day. I am embarrassed when friends come to town. The City Council is not
enforcing the ban.....WHY? Why does it take the threat of a lawsuit to make them
move?

The foregoing is true and correct I declare under penalty of perjury. August 24,2O2L

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EXHIBIT B