NO.

_________________

ROLAND GUTIERREZ, § In the ___ District Court

§
Plaintiff, § Travis County
§
v. §
§ CIVIL ACTION NO.
THE TEXAS DEPARTMENT OF PUBLIC § _____________________________
SAFETY, § Petition for Writ of Mandamus and
§ Declaratory Judgment
Defendant. §
§
§

PLAINTIFFS’ ORIGINAL PETITION FOR WRIT OF MANDAMUS

AND DECLARATORY JUDGMENT

I. INTRODUCTION

1. On May 24, 2022, 19 school children and 2 teachers were murdered by a gunmen armed

with an assault rifle and hundreds of rounds of expensive ammo. In the wake of the senseless tragedy,

the people of Uvalde and Texas have demanded answers from their government. To date, they have

been met with lies, misstatements, and shifts of blame. The State of Texas failed these families and

those families deserve to know the complete, unalterable truth about what happened that day. This is

a suit to demand just that.

II. PARTIES

2. Roland Gutierrez is a sitting Texas state senator representing the County of Uvalde in the

Texas Legislature. He requested public information from the Department of Public Safety (DPS) on

May 31, 2022. He may be served by and through his counsel in this cause of action.

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 3. The Department of Public Safety (DPS) is an agency of the state to enforce the laws,

protecting the public safety, and provide for the prevention and detection of crime. The department is

composed of the Texas Rangers, the Texas Highway Patrol, the administrative division, and other

divisions that the commission considers necessary. Tex. Gov’t Code § 411.002. DPS is government

body subject to Texas Public Information Act. Tex. Gov’t Code § 552.003 (1)(A). It may be served at

5805 North Lamar Blvd., Austin, Texas 78752-4431.

III. VENUE

4. “A suit filed by a[n] [open records] requestor … must be filed in a district court for the

county in which the main offices of the governmental body are located.” Tex. Gov’t Code § 552.321

(b).

5. This Court has subject matter jurisdiction. Plaintiff seeks a declaration regarding DPS’

refusal to follow the Texas Public Information Act. Tex. Civ. Prac. & Rem. Code § 37.003. Plaintiff

also seeks a writ of mandamus, specifically authorized by law when government bodies fail to follow

the law of open records. Tex. Gov’t Code § 552.321. Sovereign immunity does not deprive the Court

of jurisdiction, because the State has statutorily-authorized suits of this kind.

IV. FACTS

The Murder of 19 Children, 2 Teachers and a concerted effort to misinform

6. In the wake of the shooting, the State of Texas has utterly failed to explain to the

community of Uvalde basic facts about what occurred on May 24th.

7. From the very start, the terrible gun tragedy has been rife with misinformation and

outright lies. First, a rumor was spread that the gunman was an undocumented immigrant from El

Salvador. He was not; he was born in North Dakota. 1

1
https://www.statesman.com/story/news/politics/politifact/2022/05/26/fact-check-uvalde-school-shooter-us-
citizen/9932623002/

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 8. Next, the number of children who were initially murdered was misstated as only 14,

when the number was far higher. Id.

9. The day after the chaos in the school, the Governor held a press conference. At this press

conference, he called the Uvalde police “valiant local officials”. Then, he stated that “officers from

the [Uvalde] consolidated school district engaged the gunmen” at the time when the gunmen was

entering the school. “Border Patrol, police, sheriffs and DPS officers converged” on the classroom in

which the murderer ran. 2

10. Many of these statements were false. There would be more prevarications of the truth in

the coming days.

11. On May 27, Steve McCraw, executive director of DPS, announced in a press conference

in Uvalde that a teacher had left a door “propped open” to the school leading to the breach by the

heavily armed gunmen. 3 This was false. The teacher saw the killer wreck his vehicle and exit the car

heading toward Robb Elementary School with an assault rifle strapped to his chest. The teacher

immediately ran back to the school and shut the door behind her. 4

12. At this same press conference, Col. McCraw announced that the law enforcement

personnel waited in the hallway while the gunmen remained in the classroom for nearly an hour

before entering the classroom. It was later revealed that while highly-trained and well-provisioned

law enforcement personnel waited for an opportunity to attack the assailant, children trapped in the

classroom with the murderer had called 9-1-1 begging to be saved.

13. Initially, McCraw stated that Uvalde police chief Pedro “Pete” Arredondo was the on-site

incident commander and that it was his decision to wait for nearly an hour to engage the gunmen.

2
https://www.texastribune.org/2022/05/25/greg-abbott-uvalde-school-shooting-press-conference/
3
https://abcnews.go.com/US/wrong-decision-texas-dps-details-missteps-school-shooting/story?id=85025224
4
https://abcnews.go.com/US/uvalde-teacher-officials-mistakenly-left-door-open-traumatized/story?id=85149742

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 14. Police and law enforcement personnel waited in the hallway waiting for a key ring with a

master key to “unlock” the door in order to gain access to the classroom and engage the 18-year-old

gunmen. However, surveillance video shows that the police never even tried to open either of the

doors to the adjoining classrooms in the 77 minutes between the time a gunman entered the rooms

and massacred 21 people. The latest evidence suggests it may have been open the whole time,

possibly due to a malfunction. 5

15. In any case, the law enforcement personnel had access to a “halligan”, which is device

used to open locked or broken doors.

16. We now know that two minutes after Ramos entered the building, three Uvalde police

officers chased him inside. Footage shows that Ramos fired rounds inside classrooms 111 and 112,

briefly exited into the hallway and then re-entered through the door. Id.

17. The murderer then shot at the officers through the closed door, grazing two of them with

shrapnel. The officers retreated to wait for backup and heavy tactical equipment rather than force

their way into the classrooms. Id.

18. Police Chief Arredondo called for tactical gear, a sniper and keys to get inside. He said he

held officers back from the door to the classrooms for 40 minutes to avoid gunfire. Id.

19. While Arredondo waited for a tactical team to arrive, children and teachers inside the

classrooms called 911 at least seven times with desperate pleas for help. One of the two teachers

who died, Eva Mireles, called her husband by cellphone after she was wounded and lay dying.

20. The massacre occurred two days before the start of summer break, on the same day as a

just-completed awards ceremony for the 3rd and 4th-graders at Robb Elementary.

5
https://www.expressnews.com/news/local/article/Uvalde-classroom-doors-17251116.php

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 21. Several of the children might have been saved, if law enforcement personnel had engaged

the gunmen sooner.

The Cover-Up

22. In the aftermath of the shooting, hundreds of reporters and media personnel from across

the world descended upon Uvalde, Texas.

23. Given the provably false misstatements and misinformation surrounding the law

enforcement response to the school shooting, Media outlets have begun to demand public

information from the Uvalde police and DPS.

24. For example, ProPublica and The Texas Tribune have submitted about 70 public

information requests that could help answer larger questions as state and local leaders continue to

offer conflicting accounts about why law enforcement did not confront the gunman sooner during

the May 24 massacre. Those requests include 911 audio recordings, body and police car camera

footage, and communications among local, state and federal agencies. The newsrooms also

requested use-of-force documents, death records, and ballistic reports. 6

25. These government agencies have used the “on going law enforcement exception” to the

Texas open records law to disallow access to information that might shed light on the complete

failure of the response to the school shooting.

26. Among the arguments provided by government entities for withholding such documents

is one from DPS stating that releasing records like footage from body cameras would provide

criminals with “invaluable information” about its investigative techniques, information sharing and

criminal analysis. However, the information that has been requested is routinely given to requestors

in prior investigations. In fact, the attorney general has previously held that release of routine

6
https://www.texastribune.org/2022/06/15/texas-public-records-uvalde-shooting/

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investigative procedures, techniques that are commonly known, and routine personnel information

would not interfere with law enforcement and crime prevention. See Open Records Decision Nos.

216 at 4 (1978), 133 at 3 (1976).

27. In some cases, however, the government bodies have argued that releasing such

information could interfere with ongoing law enforcement investigations by the federal government

and the Texas Rangers. Other letters denying public documents cite an on-going investigation by the

38th Judicial District Attorney, Christina Mitchell Busbee.

28. However, DA Busbee has specifically stated she is not engaging in an active

investigation. In her words, she is “not investigating anything.” 7

29. If there is no investigation, the records should be released. And, the truth should be made

plain to every Texan.

Unlawful Denial of Roland Gutierrez’s Open Record Request

30. On May 31, 2022, Plaintiff Gutierrez sent an open records request (ORR) to DPS asking

for several categories of information. (Attachment A - ORR).

31. The ORR was sent to Kevin Cooper, the Legislative Liaison for DPS. (Attachment B –

Email to Cooper).

32. By law, DPS had 10 business days to respond to either respond to the ORR or seek an

attorney general decision. Tex. Gov’t Code §552.301 (b).

33. DPS has not requested a decision by the Attorney General that the documents requested

by Senator Gutierrez is excepted from disclosure.

34. No response to the ORR has been provided by DPS to Senator Gutierrez.

35. More than 10 business days have passed since the request was made.

7
https://www.ksat.com/news/local/2022/06/17/uvalde-county-district-attorney-im-not-investigating-anything/

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 36. If a government body fails to seek an attorney general opinion, then the documents are

presumed “to be subject to required public disclosure and must be released.” Tex. Gov’t Code §

552.302.

37. “A requestor or the attorney general may file suit for a writ of mandamus compelling a

governmental body to make information available for public inspection if the governmental body

refuses to request an attorney general's decision … or refuses to supply public information or

information that the attorney general has determined is public information that is not excepted from

disclosure.” Tex. Gov’t Code § 552.321.

38. The Plaintiff is plainly entitled to these records and a writ mandamus should be issued to

mandate that DPS give all documents responsive to the ORR immediately.

V. Claims for Relief

Declaratory Judgment

39. The Plaintiff requests a declaration that DPS has violated Chapter 552 of the Texas

Government by failing to provide public documents that are presumed to be public within a reasonable

time.

Writ of Mandamus

40. Plaintiff requests that this Court issue mandamus compelling the public information

officer of DPS to provide documents responsive to Senator Gutierrez’s information request

immediately.

VI. PRAYER

41. For the foregoing reasons, the Plaintiff respectfully requests that the Court enter judgment

against Defendants:

(a) issue a writ of mandamus demanding that all responsive documents to

Senator Gutierrez’s Open Records Request be provided immediately;

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 (b) declaring that DPS is in violation of the Texas Public Information Act; and,

(d) awarding the Plaintiff such other and further relief to which it may be justly
entitled at law or in equity.

DATED: June 22, 2022 Respectfully submitted,

By: /s/ Martin Golando

THE LAW OFFICE OF MARTIN

GOLANDO, PLLC
State Bar No. 24059153
2326 W. Magnolia
San Antonio, Texas 78201
Office: (210) 471 -1185
Email: martin.golando@gmail.com

ATTORNEY FOR PLAINTIFF

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 ATTACHMENT A

Open Records Request

ATTACHMENT B

E-Mail to DPS
 Martin Golando <martin.golando@gmail.com>

FW: Sen. Gutierrez request for information

Margaret Wallace <Margaret.Wallace@senate.texas.gov> Fri, Jun 10, 2022 at 4:46 PM

To: "Roland Gutierrez ( )"
Cc: Martin Golando

From: Margaret Wallace

Sent: Tuesday, May 31, 2022 8:57 AM

To: Cooper, Kevin <Kevin.Cooper@dps.texas.gov>

Cc: Katie Farias <Katie.Farias@senate.texas.gov>; Martin A Golando

<Martin.Golando@senate.texas.gov>

Subject: Sen. Gutierrez request for information

Importance: High

Kevin -

Please see attached letter to Col. McCraw. Please let me know you have received
this email and letter.

Thank you,

Margaret

Margaret Frain Wallace, Chief of Staff

Office of State Senator Roland Gutierrez

Texas Senate District 19

__________________________________

Phone:  512-463-0119

Office:  GE.5

Col. McCraw ltr.pdf

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