FILED FOR RECORD

Cause No.: CC2-17-0279-CV

Ector County - County Court at Law 2
Ector County, Texas
6/7/2017 12:28:13 PM
CC2-17-0279-CV Clarissa Webster
CAUSE NO. ______________ District Clerk
By: Marlet Caraveo, Deputy
AIM MEDIA TEXAS, LLC d/b/a IN THE DISTRICT COURT OF
THE ODESSA AMERICAN,

Plaintiff,

v.

DAVID TURNER, IN HIS OFFICIAL ECTOR COUNTY, TEXAS
CAPACITY AS MAYOR OF THE CITY OF
ODESSA, and MALCOLM HAMILTON,
DEWEY BRYANT, BARBARA GRAFF,
MICHAEL GARDNER, AND FILIBERTO
GONZALES, IN THEIR OFFICIAL
CAPACITIES AS MEMBERS OF THE CITY
OF ODESSA CITY COUNCIL,

Defendants. __________ JUDICIAL DISTRICT

PLAINTIFFS ORIGINAL PETITION FOR WRIT OF MANDAMUS, DECLARATORY

JUDGMENT, AND INJUNCTIVE RELIEF

TO THE HONORABLE PRESIDING JUDGE OF THIS COURT:

Plaintiffs respectfully file this petition for writ of mandamus, declaratory judgment, and

injunctive relief to enforce the requirements of the Texas Open Meetings Act.

PARTIES

1. AIM Media Texas, LLC, doing business as The Odessa American (The

American), publishes The Odessa American, a newspaper that is published and sold in Ector

County.

2. Defendant David Turner is the Mayor of The City of Odessa, and may be served at

his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.

Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 1 of 8
 3. Defendant Malcolm Hamilton is a member of the City of Odessa City Council, and

may be served at his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.

4. Defendant Dewey Bryant is a member of the City of Odessa City Council, and may

be served at his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.

5. Defendant Barbara Graff is a member of the City of Odessa City Council, and may

be served at her office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.

6. Defendant Michael Gardner is a member of the City of Odessa City Council, and

may be served at his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.

7. Defendant Filiberto Gonzales is a member of the City of Odessa City Council, and

may be served at his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.

8. This suit is brought against the Defendants in their official capacities as members

of the City of Odessa City Council (collectively, City Council). The City Council is a

governmental body, as the term is defined by the Texas Open Meetings Act.

VENUE AND JURISDICTION

9. Venue is proper in Ector County pursuant to TEX. CIV. PRAC. & REM. 15.015.

10. This Court has jurisdiction over this action pursuant to the Texas Declaratory

Judgment Act and the Texas Open Meetings Act.

FACTUAL BACKGROUND

11. The American files this lawsuit to remedy and to prevent City Councils actual,

threatened, and continuing violations of the Texas Open Meetings Act (the Act), as determined

by the Ector County Attorney, Dusty Gallivan, after an investigation by the Texas Rangers.

12. The Act was enacted to ensure public access to the decision making of government

bodies. It generally mandates that governmental meetings be open to the public unless narrow

Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 2 of 8
exceptions apply. The Act requires that members of the news media, like The American, receive

advance written notice of the date, hour, place, and subject of each meeting by governmental

bodies, like the City Council. Generally, at least 72 hours of public notice must be provided.

13. The City Council conducted a regularly scheduled public meeting on Tuesday, May

9, 2017. During this meeting, City Council violated the Open Meetings Act by meeting in closed

session to discuss and decide to remove a member of the Odessa Development Corporation

(ODC), Jimmy Breaux, without providing the notice required by the Act.

14. Defendants Graff and Gonzales placed an item on the agenda for that meeting that

called for City Council to consider the removal of current ODC board members prior to the

expiration of their terms. Directly before the meeting, the City Attorney advised City Council that

they would need to specially name any ODC members they planned to discuss removing.

Consequently, when Defendant Graff moved, during the meeting, that City Council turn to the

ODC agenda item, she named each of the five ODC members individually.

15. The Open Meetings Act required (1) the City Council to begin its meeting with an

open session, (2) the presiding officer to publicly announce that a closed meeting would be held,

and (3) an announcement identifying the section or sections of the Act that would authorize a

closed session. None of these three requirements was obeyed at the May meeting.

16. Following the closed session, the City Council voted to remove Mr. Breaux from

his position at the ODC before the expiration of his term.

17. Neither The American nor the public was provided fair and proper notice of the

subject of the closed-session meeting nor of City Councils purpose in meeting in closed session.

Furthermore, City Council failed to announce any applicable exception to the Texas Open

Meetings Act allowing the closed session.

Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 3 of 8
 18. Upon information and belief, City Council has held other improper closed sessions

in the past and intends to do so in the future.

19. On May 12, 2017, a complaint was filed with the Honorable Dusty Gallivan,

County Attorney of Ector County, alleging the City Council violated the Texas Open Meetings

Act by holding the closed session. The complaint was subsequently referred to the Texas Rangers

for further investigation.

20. Mr. Gallivan sent a letter to Mayor Turner on May 25, 2017 relating to the closed

session. Specifically, the letter detailed certain findings from the Texas Rangers reports including

specific findings that the closed session was subject to the Open Meetings Act and that City

Council violated the Open Meetings Act by (1) failing to announce an exception allowing the

closed session; and (2) failing to properly give notice to the public of the intent and purpose of the

closed session.

21. On May 25, 2017, The American requested a copy of the Texas Rangers

investigation reports pursuant to the Texas Public Information Act. In response, Mr. Gallivan

informed The American that the Texas Rangers reports would not be disclosed because their

disclosure would indeed interfere with the prosecution of the charged offense. There is no threat

of criminal prosecution, however, and The American therefore intends to seek a copy of these

reports pursuant to the Public Information act, through discovery in this case, or other means.

22. The American has and continues to suffer harm as a direct result of City Councils

violations of the Open Meetings Act, and The American and all other interested persons will

continue to suffer harm in the future absent final judgment from this Court awarding The American

the relief sought herein.

Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 4 of 8
 REQUEST FOR WRIT OF MANDAMUS AND DECLARATORY JUDGMENT

23. Each of the foregoing paragraphs is incorporated herein for all purposes.

24. City Council violated the Texas Open Meetings Act by failing to give proper notice

of Odessa City Council closed sessions, holding closed sessions without announcing an applicable

exception, failing to release public information detailing the substance of improperly held closed

sessions, and through other improper conduct further described herein and to be developed through

discovery in the case.

25. Any information relating to improper closed City Council sessions is public

information to which The American and the public have a vested interest and are entitled to obtain,

and that City Council must disclose. Accordingly, The American requests this Court grant

declaratory relief that:

a) The closed session was subject to the Open Meeting Act and City Council violated
the Texas Open Meetings Act by holding the closed session and other closed
sessions;

b) City Council violated the Texas Open Meetings Act by failing to give proper notice
of the intent and purpose of the closed session and other closed sessions;

c) City Council violated the Texas Open Meetings Act by failing to announce an
exception allowing the closed session and other closed sessions; and

d) Any other declaratory relief to which The American may justly be entitled.

26. The American further requests this Court issue a writ of mandamus and order City

Council to disclose to The American any details and information relating to any improper closed

City Council sessions, including the May 9 closed session.

Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 5 of 8
 REQUEST FOR INJUNCTIVE RELIEF

27. Each of the foregoing paragraphs is incorporated herein for all purposes.

28. The American has suffered and will continue to suffer irreparable injury from City

Councils improper conduct for which The American is entitled to relief, but has no adequate

remedy at law.

29. The circumstances of this case, as investigated by the Texas Rangers, suggests that

City Council is improperly using closed meetings to discuss business that should be conducted in

public under the Open Meetings Act.

30. Therefore, The American requests this Court grant temporary and permanent

injunction granting equitable relief as follows:

a) Prohibiting Defendants from failing to give proper notice to the public relating to
the intent and purpose of closed City Council sessions;

b) Prohibiting Defendants from failing to announce an appropriate exception allowing

for closed City Council sessions;

c) Prohibiting Defendants from holding improper closed City Council sessions;

d) Prohibiting Defendants from failing or refusing to disclose any details and

information relating to any improperly closed City Council sessions;

e) Ordering City Council to maintain detailed written minutes or audio recordings of

all future executive sessions, subject to judicial review, if good cause exists that
suggests the Open Meetings Act is being violated;

f) such other similar and further conduct that causes harm to The American and for
which The American has no adequate remedy.

Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 6 of 8
 ATTORNEYS FEES AND COSTS

31. Each of the foregoing paragraphs is incorporated herein for all purposes.

32. The American seeks recovery of all costs incurred herein and its reasonable

attorneys fees, pursuant to the express authority granted in the Texas Public Information Act, TEX.

GOV. CODE 552.323, the Texas Open Meetings Act, TEX. GOV. CODE 551.142, and the

Declaratory Judgments Act, TEX. CIV. PRAC. & REM. CODE 37.009.

DISCOVERY CONTROL PLAN

33. Pursuant to TEX. R. CIV. P. 190, The American intends to conduct discovery under

Level 2, as set forth in Rule 190.3.

REQUEST FOR DISCLOSURE

34. Pursuant to TEX. R. CIV. P. 194, City Council is hereby requested to disclose to The

American, within fifty (50) days of service of this request, the information and/or materials

described in TEX. R. CIV. P. 194.2.

RULE 193.7 NOTICE

35. Pursuant to TEX. R. CIV. P. 193.7, The American hereby gives actual notice to City

Council that any and all documents and materials produced in response to written discovery may

be used as evidence against the party producing the document(s) at any pretrial proceeding and/or

at the trial of this matter, without the necessity of authenticating the document and/or materials

produced in discovery.

Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 7 of 8
 CONCLUSION AND PRAYER

36. The American respectfully requests the Defendants be cited to appear and answer,

and that this Court enter the following relief:

a) A temporary injunction to preserve the status quo prior to the conduct by defendant
in violation of the Open Meetings Act;

b) On final trial, that the temporary injunction be made permanent;

c) The court issue appropriate mandamus or declaratory relief;

d) An order awarding The American its reasonable attorneys fees, taxable costs of
court, and all other costs of litigation; and

e) All other relief The American is entitled to receive.

Respectfully submitted,

/s/ John Bussian

John Bussian
State Bar No. 00785625
jbussian@aol.com
The Bussian Law Firm
Wells Fargo Capitol Center, 17th FL
Raleigh, NC 27601
Telephone: (919) 829-4900
Facsimile: (919) 829-2165
Jeff Nobles
State Bar No. 15053050
jnobles@deanslyons.com
Benjamin C. Feiler
State Bar No. 24093427
bfeiler@deanslyons.com
DEANS & LYONS, LLP
1001 Fannin St., Suite 1925
Houston, Texas 77002-6768
Telephone: (832) 380-2728
Facsimile: (832) 380-2747

ATTORNEYS FOR PLAINTIFF AIM MEDIA

TEXAS, LLC d/b/a THE ODESSA AMERICAN

Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 8 of 8