Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District ( 2015 )

ACCEPTED
07-14-00014-CV
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
3/26/2015 11:02:26 PM
Vivian Long, Clerk
Case No. 07-14-00014-CV
FILED IN
7th COURT OF APPEALS
AMARILLO, TEXAS
In The Court of Appeals
3/26/2015 11:02:26 PM
For The Seventh Court of Appeals District
VIVIAN LONG
Amarillo, Texas CLERK
REBECCA TERRELL
CHANDRASHEKHAR THANEDAR,
Plaintiffs-Appellants,
v.
PAMPA INDEPENDENT SCHOOL DISTRICT,
Defendant-Appellee
On Appeal From the 223rd District Court, Gray County, Texas
Trial Court Cause No. 35621
APPELLANTS’ BRIEF
Rebecca Terrell
Chandrashekhar Thanedar
6503 Dancing Ct.
San Antonio, Texas 78244
(956) 445-3107
rterrell152@gmail.com
Appellants
Oral Argument Requested
IDENTITY OF PARTIES AND COUNSEL
Appellants: Rebecca Terrell and Chandrashekhar Thanedar
Counsel for Appellants: Trial and Appellate Counsel
Rebecca Terrell
Chandrashekhar Thanedar
Representing themselves
(956) 445-3107
Appellee: Pampa Independent School District
Counsel for Appellee: Trial and Appellate Counsel
W. Wade Arnold
State Bar No. 00783561
Andrea Slater Gulley
Underwood, Wilson, Berry, Stein & Johnson, P.C.
P. O. Box 9158
Amarillo, TX 79105-9158
(806) 379-0364 Telephone
(806) 349-9474 Fax
i
TABLE OF CONTENTS
Identity of Parties and Counsel……………………………………………….….....i
Table of Contents………………………………………………………………......ii
Index of Authorities………………………………………………………………..iv
Statement of the Case…………………………………………………………...…ix
Statement Regarding Oral Argument……………………………………………..xii
Issues Presented………………………………………………………………….xiii
Statement of Facts………………………………………………………………….1
Summary of the Argument………………………………………………………..15
Argument……………………………………………………………………….…18
1. Trial court’s failure to hold trial on 7 distinct causes of action violates
TOMA and appellants’ absolute Constitutional rights……………………..18
2. Plaintiffs are entitled to Summary Judgment on 7 distinct causes of
action and Declaratory Relief under §551.142(a)………………………..21
3. Plaintiffs are entitled to exclusion of evidence of SchoolCenter,
BoardBook, or are entitled to continuance…………………………………26
4. Plaintiffs are entitled to judgment in their favor or their motions for new
trial, to modify judgment, and for reconsideration should be granted……..30
5. PISD’s good faith claim is a fraud on the citizens and tax payers and
courts requiring sanctions…………………………………………………..45
6. Denial of plaintiffs’ evidence led to rendition of incorrect judgment……...46
7. Attorney fee award to PISD is invalid and is not reasonable. PISD
Forfeited and waived attorney fees when it refused to testify…………..…47
ii
8. Judge Lopez was disqualified from conducting trial…………………...…..55
9. Voidance and Special Damages…………………………………………....59
Conclusion…………………………………………………………………...........60
Prayer . . . . . . . . . . . . . . . . . . . ……………………………………………………61
Certificate of Compliance…………………………………………………............63
Certificate of Service………………………………………………………...........64
Appendix…………………………………………………………..………Attached
iii
INDEX OF AUTHORITIES
Cases:
Acker v. Texas Water Commission,
790 S.W.2d 299 (Tex. 1990)………………………………………..16-17, 23
Advantage Physical Therapy, Inc. v. Cruse,
165 S.W. 3d 21, 24 (Tex.App.--Houston [14th Dist.], 2005)……………...29
Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812, 818 (Tex. 1997)………………………………………….54
Austin Transportation Study Policy
Advisory Committee v. Sierra Club,
843 S.W.2d 683 (Tex. App.--Austin 1992)………………………………...25
B E & K Construction v. NLRB,
536 U.S.516 (2002)…………………………………………………….20, 51
Besing v. Moffitt,
882 S.W.2d 79, 81-82 (Tex. App.-Amarillo,1994)………………………...15
Bill Johnson’s Restaurants, Inc. v. NLRB,
461 U.S.731 (1983)………………………………………………………...51
Boothe v. Hausler,
766 S.W.2d 788, 789 (Tex. 1989)…………………………………..27-29, 31
Buckholts Indep. Sch. Dist. V. Glaser,
632 S.W.2d 146, 148 (Tex. 1982)………………………………………….55
City of Bells v. Greater Texoma Uti!. Auth.,
744 S.W.2d 636,640 (Tex. App.--Dallas 1987)……………………...…….59
City of Garland v. Dallas Morning News,
22 S.W.3d 351, 356 (Tex. 2000)……………………………………..……49
City of Laredo v. Monsanto,
414 S.W.3d 731 (Tex. 2013)…………………………………………….....54
iv
City of San Antonio v. Fourth Court of Appeals,
820 S.W. 2d 762,765 (Tex. 1991)………………………………………….17
Dow Chem. Co. v. Francis,
46 S.W.3d 237, 242 (Tex. 2001)…………………………………………..16
El Apple v. Olivas,
370 S.W.3d 757 (Tex. 2012)…………………………………………..49, 54
Elam v. State,
841 S.W.2d 937, 939 (Tex. App.--Austin 1992)…………………………..58
Ferris v. Texas Board Chiropractic Examiners,
808 S.W.2d 514, 519 (Tex. App.--Austin 1991)……………………....25, 59
Garza v. Alviar,
395 S.W.2d 821, 823 (Tex.1965)………………………………………….16
Haddix v. American Zurich Ins. Co.,
253 S.W.3d 339,345(Tex. App.--Eastland 2008)………………………….15
Hawkins v. Ehler,
100 S.W.3d 534, 539 (Tex. App.--Fort Worth 2003)…………………..16, 49
Horton v. Horton,
965 S.W.2d 78, 85 (Tex. App.--Fort Worth 1998)…………………………15
IKB Indus. v. Pro-Line Corp.,
938 S.W.2d 440, 442 (Tex. 1997)……………………………………….…15
Jackson v. Van Winkle,
660 S.W.2d 807, 809-10 (Tex. 1983)………………………………………38
Kindred v. Con/Chem, Inc.,
650 S.W.2d 61, 63 (Tex. 1983)…………..……………………………..35-37
Kirkpatrick v. Memorial Hosp.,
862 S.W.2d 762, 775 (Tex.App.--Dallas 1993)……………………………38
v
Lovely v. State,
894 S.W.2d 99,103 (Tex. App.--Beaumont 1995)…………………………58
Marin v. State,
851 S.W.2d 275, 279-280,
Tex. Court of Criminal Appeals, En Banc (1993)………………………….19
McClenan v. State,
661 S.W.2d 108, 109 (Tex. Crim. App. 1983)……………………………..58
McElwee v.McElwee,
911 S.W.2d 182, 185-87 (Tex. App.--Houston [1st Dist.] 1995)…………..55
Point Isabel ISD v. Hinojosa,
797 S.W.2d 176 (Tex.App-Corpus Christ 1990)……………..……………59
Randall's Food Mkts., Inc. v. Johnson,
891 S.W.2d 640, 644 (Tex. 1995)………………………………...………..24
Smith County v. Thornton,
726 S.W.2d 2 (Tex. 1986) …………………………………………………17
Stafford v. State,
948 S.W.2d 921, 924 (Tex. App.--Texarkana 1997)………………...……..58
Tony Gullo Motors v. Chapa,
212 S.W.3d 299, 310-311 (Tex. 2006)………………………….………….48
Valdez v. Valdez,
930 S.W.2d 725, 732-33 (Tex. App.--Houston [1st Dist.] 1996)…………..50
Vickery v. Commission for Lawyer Discipline,
5 S.W.3d 241, 255-56 (Tex. App.--Houston [14th Dist.])………………....15
Wells v. Hutchinson,
499 F.Supp. 174, 198 (E.D. Tex. 1980)……………………………………60
Constitutional Provisions, Statutes, and Rules:
Texas Civil Practice and Remedies Code (CPRC)
vi
38.001……………………………………………………………………………..50
38.004……………………………………………………………..………………50
Texas Educ. Code §21.103………………………………………………..………13
Texas Rules of Appellate Procedure (TRAP) Rules 33.1(d)…………………...…15
Texas Rules of Civil Procedure (TRCP) Rules
18(b)(a)………………………………………………………………………..…..55
166a………………………………...……………………………………………..19
166a(c)…………………………………………….………………………………24
193.5……………………………………………….……………….………….26-28
193.6……………………………………………………………………….26-29, 31
215(5)………………………………………………………………………….27-28
245……………………………………………………………………………….…9
296……………………………………………………………………………...…15
297……………………………………………………………………………...…15
301……………………………………………………………………………..….19
Texas Rules of Evidence
402…………………………………………………………………………..…32-33
602…………………………………………………………………………..…32-33
802……………………………………………………………………………..32-33
vii
Texas Open Meetings Act, Tex. Gov’t Code Ch. 551
551.041………………..……………………………….…….9-10, 14, 18, 21-22, 48
551.043…………………………………………………..9-10, 14, 18, 23, 43, 47-48
551.043(b)(1)……………………………………………….……….………….…17
551.043(b)(3)……………………………………………….……………….….…17
551.045(d)………………………………………………………9, 11, 14, 18, 22, 48
551.051………………………………………………………….9, 14, 18, 20-21, 48
551.056…………………………………………………………………….18, 45-46
551.056(b)….………………………..1-2, 4, 8, 13, 28, 32, 34-35, 39, 42-45, 50, 56
551.056(d)………………………………7, 14, 17, 19, 26, 29, 31, 33, 35, 40-45, 56
551.074…………………………………………………………………..……18, 48
551.074(b)……………………………………………….….9, 11, 14, 18, 22-23, 46
551.101……………………………………………………...9, 11, 14, 18, 22, 46-48
551.101(2)…………………………………………………………………………22
551.141…………………………………………………………………….17, 24-25
551.142………….……………………………………………………………..48-49
551.142(a)………….……………………………………………….9, 14, 18-20, 48
551.142(b)…………………………………………………………….12, 48, 50, 52
Texas Public Information Act Tex. Gov’t Code Ch. 552………………………….3
viii
STATEMENT OF THE CASE
Nature of the case: This lawsuit is brought pursuant to Texas Open
Meetings Act (TOMA), Texas Government Code, Chapter 551 and was filed on
5/29/2009. Rebecca Terrell and Chandrashekhar Thanedar (appellants, plaintiffs,
or Terrell) sued Pampa Independent School District (PISD) to void PISD’s actions
taken in violation of Sections 551.041, 551.043, 551.045, 551.051, 551.056(b) and
(d), 551.074, and 551.101 for 22 Meetings from August 13, 2008 to May 19, 2009
and to seek mandamus, declaratory relief, and permanent injunction under Sec.
551.142(a) among other relief against PISD. (Appendices 5 and 6).1, 2
Trial Court: 223rd District Court, Gray County, Texas, Hon. Abe Lopez,
assigned Judge. Previously presided by Judges Lee Waters and Phil Vanderpool.
Course of Proceedings: A summary judgment granted to PISD by Judge Lee
Waters on 5/14/2010 was reversed by this Court and the case was remanded to trial
court. Appendix19. Judge Waters retired during the pendency of the appeal.
1
Clerk’s record and reporter’s record for this the second appeal are denoted as “CR” and “RR”
respectively, followed by page number(s). Supplemental clerk and reporter records are identified
by the order in which they were filed.
Plaintiffs’ exhibits for final trial on 10/9/2013 are denoted as “PX” followed by the exhibit
number. The final trial transcript found in reporter’s record volume 2 filed on 3/24/14 is referred
to as “Trial Transcript” followed by page numbers.
Please note trial exhibit PX1 (original) was filed on 10/8/14 along with supplemental reporter’s
record. PX13 and PX15 were filed by the reporter on 10/9/14.
2
The clerk’s record on appeal from the First Appeal (007-10-00212-CV) is already on file with
the Court and is denoted by “CR” followed by notation First Appeal. Plaintiffs request that the
clerk’s record on file in First Appeal be considered in this appeal.
ix
The new presiding judge of the 223rd court Judge Phil Vanderpool recused
himself upon motion to recuse filed by appellants on September 26, 2012. Retired
Judge Abe Lopez was assigned to the case on October 15, 2012. A trial was
conducted in this case on October 9, 2013 on the issue of PISD’s violation of
TOMA §551.056(b) only with respect to 11 meetings from January 15, 2009 to
May 19, 2009, but not for 11 meetings from 8/2008 to 12/2008. Judge Lopez
refused to conduct a trial on all other causes of action arising out of PISD’s distinct
violations of TOMA sections 551.041, 551.043, 551.045, 551.051, 551.074, and
551.101 in this case. PISD’s counsel refused to testify or provide evidence of
attorney fees at the trial. The final judgment for PISD was signed by Judge Lopez
on October 25, 2013 and he awarded PISD $30,000 in attorney fees and costs by
reviewing the file. See Appendix20. Judge Lopez made Findings of Fact (FOF)
and Conclusions of Law (COL) upon request by appellants. Appendix21.
Appellants timely filed motion for new trial (Appendix1), motion to modify
judgment (Appendix2), motion for reconsideration(Appendix3), and request for
amended FOF and COL (Appendix4). Trial court took no action on them. On
September 26, 2014, Judge Lopez held a hearing on lost or destroyed trial exhibits
as ordered by the appeals court.
Proceedings in the Court of Appeals: Appellants filed their first appeal on
May 24, 2010 in the Seventh Court of Appeals, Amarillo. Trial court’s judgment
x
was reversed and remanded. Appendix19. A mandamus petition by appellants for
post remand discovery and hearing on motions was denied by this Court in
September 2013.
On January 17, 2014, appellants filed their second appeal in this case.
Appellants filed an amended notice of appeal in this case. Appendix18. On July
18, 2014, the Court abated the appeal and remanded the case to determine whether
certain trial exhibits were lost or destroyed and to determine the fault for the
destruction or loss. Trial court filed Findings of Fact and Conclusions of Law
stating the exhibits were lost or destroyed, by no fault of appellants. See 2nd
supplemental clerk’s record. Duplicates of lost or destroyed exhibits were filed
with the appeals court by visiting court reporter in October 2014.
Proceedings before 9th Administrative Judicial Region: Appellants filed a
motion to disqualify and recuse Judge Abe Lopez from sitting in the hearing
ordered by the court of appeals, which was denied by the 9th regional
administrative Judge Kelly Moore in September 2014.
xi
STATEMENT REGARDING ORAL ARGUMENT
This is the second appeal in this case in the last 6 years. This case has been
strung along for years of intentional inaction and obstruction. Appellants believe
oral argument would be of benefit to the Court at this stage to clarify these facts
and legal arguments.
An oral argument in the first appeal in this case was denied. An oral
argument then, would have made it abundantly clear to the Court that PISD neither
had the intention, evidence, nor argument concerning whether “printing” notices
changed the electronic properties of the PDF documents in question – a matter on
which this court remanded the case.
As our brief makes clear, this case involves several matters of first
impression in the history of TOMA jurisprudence e.g. document properties of
website internet notices concerning §551.056(b) and issues concerning
§551.056(d). Appellants’ pro se status should not be a hindrance.
xii
ISSUES PRESENTED
1. Trial court’s failure to hold trial on seven distinct causes of action violates
TOMA and appellants’ absolute constitutional rights.
2. TOMA requires Exact and Literal compliance with its provisions;
Further, good faith defense under §551.056(d) requires clear and convincing
standard.
3. Trial court erred in refusing to void PISD’s actions and meetings in violation
of TOMA. Terrell is entitled to voidance of her termination action done in
3/26/2009 meeting and entitled to mandamus ordering reinstatement of
Terrell to her previous position as a teacher and to back wages and benefits
4. All PISD actions taken in meetings held in violation of TOMA’s notice
provisions are voidable and plaintiffs are entitled to their voidance. Plaintiffs
are entitled to judgment in their favor on all causes of action.
5. Plaintiffs have proven their good faith under TOMA §551.142.
6. Trial court erred in ruling that front door is bulletin board within the
meaning of §551.051 under TOMA. PISD’s posting of board meeting
notices on the front door violates TOMA.
7. Trial court erred in refusing to void PISD’s actions for failure to comply for 9
months with internet posting requirement of §551.056(b).
8. Trial court erred in refusing to deny PISD’s claim of “Good Faith” exception
under §551.056(d) for 11 Meetings for five months in 2009. PISD’s good
faith claim is a fraud on citizens and courts requiring sanctions.
9. PISD’s meeting notices with incomplete description of Place violate notice
provisions of TOMA and such meetings and actions therein must be voided.
10. §551.045(d) requires a designated or authorized person to sign and post board
meeting notices; alternatively, this violation is a disputed material fact.
11. Trial court erroneously refused to void Terrell’s termination action in 3/26/09
Board meeting in violation of TOMA; whether or not Terrell had individual
notice and her attendance at the meeting are irrelevant.
xiii
12. The trial court erred in denying requested relief when undisputed evidence
shows PISD illegally closed the 3/26/2009 meeting to public and violated
§551.074(b) by deliberating Terrell’s employment contract outside of
meeting.
13. Trial court erred in denying plaintiffs’ second motion for summary judgment,
MSJ, and motions for new trial or grant continuance, to modify judgment, for
reconsideration, and denying request for amended and additional findings of
fact and conclusions of law. Further, trial court erred when it denied
hearing on the newly discovered evidence. Trial court erred when it denied
post-remand discovery and denied plaintiffs’ certain trial exhibits, such denial
causing rendition of incorrect judgment.
14. Terrell is the substantially prevailing party and should be awarded litigation
costs, fees, and special damages.
15. This Court should award Terrell special damages and impose sanctions on
PISD due to PISD’s systematic and conscious violations of TOMA and to
ensure voluntary and willing compliance with TOMA by government bodies.
16. Award of attorney fees of $30,000 to PISD is invalid and unreasonable,
further PISD forfeited and waived attorney fees.
17. Assigned trial judge Lopez was disqualified from conducting trial in this case.
18. Plaintiffs are interested persons under TOMA
19. Evidence concerning SchoolCenter, BoardBook, and Lee Carter must be
excluded, or continuance granted. Further, bare assertions, hearsay and
irrelevant evidence must be barred. Trial court erred in considering such
evidence.
20. PISD’s missing link issue is irrelevant because PISD untimely created
internet notices in May 2009; and copying or transferring the link onto new
website was not a technical problem and was not beyond the control of PISD
for 5 months
21. Plaintiffs are entitled to summary judgment on 7 distinct causes of action,
and declaratory relief under section 551.142(a).
xiv
TO THE HONORABLE SEVENTH COURT OF APPEALS:
This appeal raises important issues for this Court and Texas citizens. This
Court will decide whether Texas Open Meetings Act still is worth the exact and
literal compliance standard citizens and taxpayers of Texas demanded a long time
ago. Citizens will decide whether they should and can rely on TOMA and can take
its promise of sunshine law seriously and will courts even rule on the violations.
Will citizens be heard against government bodies and their lawyers? Texas Open
Meetings Act may yet prove to be a sunshine law.
I. STATEMENT OF FACTS
The following facts are admitted, undisputed, or supported by record.
Undisputed facts concerning untimely “created dates” of PISD’s website
internet notices for 22 Meetings
1. PISD did not contest at trial that the internet notices of 22 Board
meetings beginning August 13, 2008 to January 2009 (22 Meetings) were untimely
created in May 2009 and were posted on PISD’s internet website on May 19, 2009.
This Court acknowledged the untimely creation of TOMA notices in its opinion in
the First Appeal. Appendices 7, 19, 14; PX1.
2. PISD did not present timely created website internet notices for 22
Meetings with document properties that showed that the website internet notices
were created 72 hours before the start of each of the 22 Meetings in question as
required by §551.056(b).
1
3. PISD’s evidence of “missing link” to website notices is irrelevant
because PISD created website internet notices untimely after said meetings had
already taken place. Appendix7, PX1. Appendix19-Opinion Pgs.5-6.
4. Appellants reported violations of §551.056(b) to PISD on May 15, 2009.
PISD admitted plaintiffs’ report caused the problem to be corrected. Appendix11-
Interrogatory 7.
5. PISD represented to this Court that printing said notices “changed” the
created dates of notices. This caused this Court to remand the case. Appendix 19.
PISD did not produce evidence at trial that the untimely “created” dates of the PDF
notices of meetings in question were the dates when “PISD printed the notices for
delivery to plaintiffs.” Appendix19. Linder denied having any knowledge, stating
it was just speculation. Transcript pg.199. PISD did not present evidence at the
trial showing that printing internet notices for delivery to plaintiffs caused created
dates of notices to change. No internet notices were ever printed for delivery to
plaintiffs.
Undisputed facts about BoardBook:
6. BoardBook is not a computer program that can be owned. Yearly
subscription fee or renewal license fee must be paid every year for using its
subscription services. If renewal fees are not paid every year, use of BoardBook is
terminated. Appendix22. PISD did not purchase a BoardBook program in 2007 or
2
at any other time or made any license fee payment to BoardBook. PISD does not
have a purchase order for or contract with, or paid any consideration to BoardBook
for its service from 8/13/2008 to 5/19/2009. PISD did not supplement, amend
responses to written discovery concerning purchase orders and payments to
BoardBook. Appendices8-11. Further PISD refused and failed to provide
documents concerning payments to BoardBook to the Texas Attorney General
under a Texas Public Information Act, Gov’t Code Ch.552 Request by plaintiffs.
CR388 (First Appeal).
7. PISD did not have BoardBook service from 8/13/2008 to 5/19/2009.
PISD did not execute contract or pay license fees or renewal fees to BoardBook for
1/2009 to 5/19/2009. Appendix22. PISD admits documents evidencing payment to
BoardBook do not exist. Appendix11 (PISD’s Response to Request for
Production15). The draft subscription agreement with BoardBook for 2007 is not
signed by BoardBook. Appendix22. Further it is undisputed that PISD does not
claim good faith exception for any period in 2007 or 2008. BoardBook program
does not post notices of meetings on PISD’s website for public viewing.
Appendix10-Interrogatory18.
8. PISD is solely responsible for notices appearing or not appearing on
BoardBook or compliance with TOMA. Appendix22. Notices of meetings are
posted on BoardBook website in PDF (Adobe) format. BoardBook terminates
3
agreement in 30 days if money is not received when due. BoardBook does not
store or archive notices 30 days after termination. Appendix22.
9. Jameson was aware of the link to notices not being on the new website.
Appendix16. Jameson did not think link to BoardBook was necessary and needed
to go on the new website. In a maintenance update the link was dropped by
Jameson on 1/15/2009. Appendix11-Interrogatory5. On 5/19/2009, Jameson added
the link to notices when she found out that the link to notices was required.
Appendix16. PISD’s new website was up and running during 1/15/2009 to
5/19/2009. Appendix 16.
10. PISD’s internet notices did not appear on BoardBook’s website without
a link to them on PISD website. PISD’s notices were not available for public
viewing on Yahoo or Google search.
11. PISD did not timely post notices of meetings on its own website for 22
Meetings.
12. Linder did not post copies of internet notices of meetings on PISD’s
website. BoardBook did not and does not place or post meeting notices on PISD’s
website at any time. PISD admits that its internet notices were not posted on its or
BoardBook’s website for 11 meetings from 1/15/2009 to 5/19/2009 in violation of
§551.056(b). Appendix11-Interrogatories5,7.
4
13. PISD did not know or provide the exact dates when its old website was
discontinued and the new website went live and when the link to BoardBook was
discontinued. BoardBook is an agent of PISD (Appendix22).
14. Linder had no training, education, or expertise in technology or
software. PISD presented no exhibits, documentary evidence, or witnesses from
BoardBook or SchoolCenter at trial.
Undisputed facts about Third Party Contractor SchoolCenter:
15. SchoolCenter worked for PISD and is PISD’s agent. No person from
SchoolCenter testified concerning the claim that SchoolCenter failed to transfer
link, services assigned to and performed by SchoolCenter, and the dates of service.
PISD did not present a contract, proof of payment for service, vouchers, purchase
orders, consideration for contract, or any documentary evidence at trial concerning
SchoolCenter that defines the services it provided for PISD. SchoolCenter is a
webhosting service and not a webmaster for PISD.
16. PISD did not disclose the identity of SchoolCenter and its role in
response to written discovery from plaintiffs and further did not timely
supplement, amend, or correct its response to written discovery. SchoolCenter’s
identity and role was not disclosed until the trial in this case. In the First Appeal in
this case, PISD did not disclose to the 7th Court of Appeals the existence, identity,
and central role of SchoolCenter in this lawsuit.
5
17. SchoolCenter’s failure to transfer link did not force or require PISD to
create untimely internet notices in BoardBook weeks and months after the 22
meetings took place as noted by this Court. Appendix19. SchoolCenter had no
role in PISD’s creation of new untimely internet notices in the month of May 2009
for 22 meetings which were posted on 5/19/2009. See Appendices 7, 14; PX1.
18. PISD and Jameson dropped the hyperlink to internet notices on
BoardBook and did not ask SchoolCenter to establish it. Jameson admitted that the
link was not there on the old website at the time it was being converted to a new
website. Transcript pg.144. She did not think the link was necessary on the new
website. Appendix16. Transcript pg.144. SchoolCenter had direct access to PISD’s
old website and transferred links that were on the old website onto the new
website. Transcript pg.135. Jameson established the link to BoardBook on
5/19/2009. Appendix16. PISD untimely created notices for the 22 meetings in
May 2009. Appendix19; PX1. PISD did not have a purchase order, did not have a
contract with or make any payment to SchoolCenter for its service to build a new
format or transition hyperlinks to a new website. Hyperlinked notices did not exist
on old website, and SchoolCenter was not responsible for transferring the link to
BoardBook. SchoolCenter’s role was irrelevant to PISD’s good faith defense.
19. Jameson has no expertise in website operations. Transcript pages 132.
Lee Carter operated PISD’s website (Transcript page 116, 132) through January
6
2009 when he was PISD’s webmaster using Adobe Go Live software. Appendix 1.
PISD admitted that the internet notice of 1/15/2009 board meeting did not appear
on its or BoardBook’s website for public viewing. The link to website notices was
dropped from PISD’s website before 1/15/2009 board meeting. PISD claims good
faith defense for 11 meetings from 1/2009 to 5/19/2009. Appendix11-
Interrogatories 5, 7.
20. Linder did not communicate, direct, interact with, nor manage
SchoolCenter concerning link to notices. Linder did not know the identity of
SchoolCenter and did not have personal knowledge of its role in this lawsuit.
Transcript page 191.
21. It is undisputed that PISD did not verify that its internet notices actually
appeared for 72 hours before each of the 22 Meetings on its website directly or
through a link. Transcript 176-178. PISD further failed to verify whether or not
the link to internet notices was in fact transferred to its new website for 11
meetings for 5 months from 1/15/2009 to 5/19/2009. Transcript 176-178.
22. To put a link to notices on the website is not difficult. Transcript
pg.150. Failure to verify whether such link was removed and not reestablished is
not difficult and is not a technical problem. Transcript Page150. Further,
verification that the link to internet notices actually was transferred onto PISD’s
7
new website is not beyond the control of PISD for 5 months from 1/15/2009 to
5/19/2009. PISD does not meet requirements of §551.056(d).
23. PISD did not verify even once whether the internet notices of meetings
were actually appearing and visible to public for viewing on its website for 11
meetings in question from 1/15/2009 to May 19, 2009. Transcript pg.178. PISD’s
website was up and running properly during entirety of this time. No
communication occurred between Jameson and Linder concerning TOMA notices
of board meetings appearing on its website from January 2009 until after Thanedar
informed Linder on 5/15/2009 that internet notices did not appear on PISD’s
website. Appendix11-Interrogatory7; Appendix16.
24. PISD admits that internet website notices required under TOMA
§551.056(b) did not “appear” in the prescribed time of 72 hours on PISD’s website
for 11 meetings from 1/15/2009 to 5/19/2009. Appendices 8, 11 (Interrogatory7).
25. The internet notice that PISD posted on its website for 3/26/2009 board
meeting in which Terrell’s termination action took place was untimely created on
May 8, 2009 and untimely posted to PISD’s website on 5/19/2009. Appendix 14.
At trial, PISD did not present an internet website notice that was timely created 72
hours before the 3/26/2009 board meeting.
8
26. PISD presented no evidence at trial 1) when a “link” to internet notices
actually existed on its website and the date on which it was dropped, and that 2)
SchoolCenter was responsible for transferring said link to a new website.
27. PISD managed and maintained its website on and before 1/15/2009.
PISD managed its website 72 hours before the 1/15/2009 board meeting. The
internet notice for 1/15/2009 meeting did not appear on PISD’s website because
PISD and Jameson dropped the link in a maintenance update. Appendix11-
Interrogatory5,7. There was no link on the old PISD website for SchoolCenter to
transfer to the new website. SchoolCenter was not involved in dropping the link.
PISD’s new website went live in February 2009.
Facts regarding plaintiffs’ causes of action:
28. Terrell sued PISD on 5/29/2009 on eight distinct causes of action
arising out of PISD’s violations of TOMA and seeks to void her termination and
for reinstatement and back wages among other relief. Appendices5,6. PISD’s first
amended answer had no certificate of service and was not served on plaintiffs.
CR282-284.
29. Trial Judge Lopez did not try plaintiffs’ distinct claims under sections
551.041, 551.043, 551.051, 551.045(d), 551.74(b), 551.101, 551.142(a) (“7
Causes”). Further, Judge Lopez did not rule on said claims, nor ruled on
declaratory, mandamus, or injunctive relief, and did not make Findings of Fact and
9
Conclusions of Law on 7 Causes. Appendix21. Physical posting of notices for
3/26/2009 meeting and other 21 meetings was not the subject of trial. PISD did
not comply with any of Gov’t Code Chapter 551’s notice provisions for 22 board
meetings in question. PISD was not the substantially prevailing party under
TOMA.
30. Plaintiffs did not announce ready and requested continuance of the trial
date due to the death of Thanedar’s mother. Transcript pg.6. Trial court failed to
rule on admissibility of PX1, and denied PX13 (Audio Tapes-CDs), PX12, PX14,
PX19, PX21, and PX25. Trial court did not provide a reasonable notice or 45-day
notice (TRCP 245) for the trial in this case on remand from the appeals court.
Plaintiffs’ filings were not voluminous either in trial court or appeals court.
Further they were neither unreasonable nor improper. PISD did not respond to
plaintiffs’ filings and no attorney fees were incurred by PISD on them. Trial court
held no hearings on plaintiffs’ motions or filings.
Undisputed facts in plaintiffs’ claim under §551.051 (Bulletin Board)
31. PISD admits that it posted board meeting notices on the front door of its
administrative building for the time period in question from 8/13/2008 to
5/19/2009 (22 Meetings). Public citizens were required to stand outside the central
office building to read the public meeting notices. PISD does not dispute that there
was an unused glass enclosed bulletin board inside its administrative office
10
building in the lobby area during 22 Meetings and that PISD relocated a glass
enclosed bulletin board outside its administrative office building on 6/5/2009.
Appendix9 (Admissions 5,7,8).
Undisputed facts in plaintiffs’ claim under §551.041 (Place)
32. PISD admits that for both paper and internet notices it did not specify
or include the name of the city. Appendix9 (Admission15). PISD’s notices merely
state “Pampa High School” or “Pampa Junior High School” without the address.
See CR70-71, CR75, CR89-90, CR129-130, CR147-148, CR156, CR167-168,
CR170 (First Appeal). PISD service boundaries defined by Texas Education
Agency cover portions of Gray and Roberts Counties.
Undisputed facts in plaintiffs’ claim under §551.043 (72 Hours)
33. The physical notice for 3/26/2009 meeting was not posted for 72 hours
in a bulletin board inside the central administrative office. CR60-66(Second
Appeal).
The physical notice for 5/19/2009 meeting was not posted for 72 hours in a
bulletin board. CR60-66(Second Appeal). Linder confirmed to plaintiff Thanedar
that there was an error in posting this notice because the meeting date changed to
5/19/2009 and that Linder posted a corrected notice for a board meeting on 5/19/09
on the front door on 5/18/2009 because of the change. CR60-66(Second Appeal).
Undisputed facts in plaintiffs’ claim under §551.101 (closed meeting)
11
34. The presiding officer of the Board did not identify the section or
sections under TOMA that authorized closing of the 3/26/2009 board meeting to
public. See PX14; PX13 (Audio CDs); Appendix9(Admission14).
Undisputed facts in plaintiffs’ claim under §551.074(b) (deliberations)
35. The audio recording of the closed meeting on 3/26/2009 shows
discussion among Superintendent Haenisch and Board members on Terrell’s
termination. Terrell had specifically requested the action be deliberated in open
meeting per §551.074(b). PX13 (Audio CDs)(Tape 2 at Counter 43:45).
Undisputed facts in plaintiffs’ claim under §551.045(d) (designated person)
36. PISD’s Board did not designate or authorize Karen Linder to sign
meeting notices or post board meeting notices on the Board’s behalf. CR609,
CR832; CR821-823 (First Appeal). Appendix10 (Req. for Production 28). Linder
signed and posted board meeting notices without authorization from the Board of
Trustees. Board retained authority with respect to calling, signing, and posting
notices of board meetings. CR821-823; CR832; CR834-836(FirstAppeal).
Undisputed facts about attorney fees
37. PISD counsel refused and failed to testify at trial on PISD’s attorney
fees concerning the amount and its reasonableness. PISD made no valid
application for attorney fees under §551.142(b) at trial. Trial court asked PISD’s
attorney Mr. Arnold whether he wanted to testify and present evidence concerning
12
PISD’s request for attorney fees. PISD’s counsel refused to do so, instead asked
trial Judge Lopez to take notice of the file. Transcript page 238. PISD did not
present evidence concerning existence of PISD’s attorney fees, hours, hourly rate,
tasks performed and by whom, difficulty level, and reasonableness of court’s
award of attorney fees of $30,000.
Undisputed facts about Bad Faith
38. At trial, PISD presented no evidence of plaintiffs’ bad faith in bringing
the lawsuit. PISD’s actions did not have reasonable basis under TOMA. TOMA
requires reasonable attorney fees to be proven at trial, and does not permit judicial
notice of file. PISD did not present factual evidence of voluminous pleadings and
motions in district court or appellate court or time spent by PISD defending against
them or the suit. Appellants were meritorious and prevailed in the first appeal with
Seventh COA awarding costs to appellants. Appendix19. Judge Lopez does not
have power to grant appellate attorney fees.
Undisputed facts about Plaintiffs’ Good Faith
39. Plaintiffs presented evidence of their good faith at trial. PISD admits
that plaintiffs’ report to PISD of non-appearance of website notices was the sole
reason why PISD fixed its non-compliance with §551.056(b) for 11 meetings after
5 month long of non-compliance. Appendix11-Interrogatory7.
13
Plaintiffs’ employment, Standing, Back-Wages
40. Appellants are citizens and taxpayers of Texas for more than 15 years
(4 years in Pampa beginning 2008), and are interested persons under TOMA and
pay sales taxes and other taxes that fund PISD and other school districts in Texas.
PX15, PX21; Appendices5,6. TOMA does not require plaintiffs to reside within
PISD’s boundaries. PISD, a school district created by the State of Texas, is a
government body subject to TOMA. Terrell was a first year beginning teacher at
Pampa High School and taught U.S. History, World History, and World
Geography. Terrell’s probationary contract (PX6) does not automatically expire
by its own terms under the Education Code. The Education Code §21.103 requires
that a probationary contract must be terminated in 45 days before the last day of
instruction or the contract automatically renews. Terrell’s probationary contract
was terminated by PISD in a Board meeting on 3/26/2009. Terrell was not given
and did not have actual notice of termination of contract, nor was Terrell’s contract
placed on the notice/agenda of the 3/26/2009 meeting. The legal notice of
3/26/2009 board meeting required under TOMA was not in a bulletin board or on a
front door for 72 hours prior to said meeting. Terrell’s termination was not placed
on the agenda of the meeting.
14
41. Document properties of a PDF document show various aspects of the
electronic document viz. when it was created (created date), when it was last
modified (modified date). Plaintiff Thanedar testified as an expert witness at trial
in this case. Transcript pgs.75-86.
II. SUMMARY OF THE ARGUMENT
The trial on 10/9/2013 made mockery of Texas Open Meetings Act
(TOMA). Plaintiffs’ seven distinct causes of action under TOMA sections
551.041, 551.043, 551.051, 551.45(d), 551.74(b), 551.101 and 551.142(a) were not
tried or ruled on. Trial judge Abe Lopez blamed this Court for it. Plaintiffs’ are
absolutely entitled under law and Texas and U.S. Constitutions to declaratory
rulings, mandamus, and injunctive relief on the above claims. Judge Lopez was
disqualified to hold trial. PISD produced no legal evidence concerning its claim of
good faith under §551.056(d). Further forgetting to transfer or verifying transfer of
a link is not a technical problem and never beyond the control of PISD, a
government body, especially over 5 months. PISD lied to this Court about
“created dates” of internet notices and the “link.”
PISD is solely responsible for compliance with TOMA. Any outside
vendors are agents of PISD. PISD showed intentional ignorance concerning the
untimely internet notices posted after 5 months, got caught, and made things up.
PISD’s good faith claim is a fraud on Texas citizens and courts. Attorney fee
15
award to PISD is unlawful and unreasonable. Each cause of action by plaintiffs is
dispositive of the whole case requiring reversal of trial court’s judgment and
entitling plaintiffs judgment in her favor. This Court should reverse trial court’s
judgment and render judgment for plaintiffs and grant their prayer.
III. STANDARD OF REVIEW
A case is “tried” when a court holds an evidentiary hearing on a cause of
action upon conflicting evidence. Besing v. Moffitt, 882 S.W.2d 79,81-82 (Tex.
App.-Amarillo,1994, no writ); Haddix, infra at 345. In cases tried without a jury,
findings of fact delineate facts that support the judgment and the legal reasoning
underlying the judgment. In such cases, findings of fact and conclusions of law are
mandatory under TRCP Rule 296 and 297.
On appeal, findings of fact are reviewed for sufficiency of the evidence and
conclusions of law are reviewed de novo. Haddix v. American Zurich Ins. Co., 253
S.W.3d 339,345(Tex. App.—Eastland 2008, no pet.); IKB Indus. v. Pro-Line
Corp.,938 S.W.2d 440,442 (Tex. 1997).
A request for additional findings is similar to an objection. Vickery v.
Commission for Lawyer Discipline, 5 S.W.3d 241, 255-56 (Tex. App.—Houston
[14th Dist.], pet. denied). Thus a request for additional findings of fact has
significance unrelated to the trial court actually filing additional findings of fact. A
challenge to the sufficiency of the evidence in a bench trial can be raised for the
16
first time in appellant’s brief. There is no need to file a post-judgment motion
raising it. TEX. R. APP. 33.1(d).
A no evidence point is sustained if the record discloses the following: (1)
there is complete absence of evidence of a vital fact; (2) the court is barred by rules
of law or evidence from giving weight to the only evidence offered to prove a vital
fact; (3) the evidence offered to prove a vital fact is no more than a scintilla of
evidence; or (4) the evidence conclusively established the opposite of a vital fact.
See Hawkins v. Ehler, 100 S.W.3d 534, 539 (Tex. App.--Fort Worth 2003, no
pet.); Horton v. Horton, 965 S.W.2d 78, 85 (Tex. App.--Fort Worth 1998, no pet.).
An assertion that the evidence is "insufficient" to support a fact finding
means that the evidence supporting the finding is so weak or the evidence to the
contrary is so overwhelming that the answer should be set aside and a new trial
ordered. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965).
When reviewing a factual sufficiency challenge, the appellate court
considers all the evidence and determines whether the evidence supporting a
finding is so weak as to be clearly wrong and unjust or whether the evidence is so
against the great weight and preponderance of the evidence to be clearly wrong and
manifestly unjust. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001).
Appellate court is required to consider all of the evidence in the case in making this
determination. Hawkins, Id.17
Exact and Literal Compliance Required under TOMA:
TOMA’s provisions are mandatory. Acker, Infra; Smith County, Infra.
TOMA violations are not trivial or de minimis. The Texas Supreme Court has
required Exact and Literal Compliance by governmental bodies, especially, with
respect to the notice provisions of TOMA. Acker v. Texas Water Commission, 790
S.W.2d 299 (Tex. 1990) (“The explicit command of the statute is for openness at
every stage of the deliberations. Accordingly, we have demanded exact and
literal compliance with the terms of this statute.[citing] Smith County v.
Thornton, 726 S.W.2d 2, 3 (Tex. 1986)”); City of San Antonio v. Fourth Court of
Appeals, 820 S.W.2d 762 (Tex. 1991). Thus, “substantial compliance” is not valid
law in Texas. A governmental body’s actions taken in violation of TOMA are
voidable. §551.141. TOMA is not a scheme to provide due process to individuals.
It is not a legislative scheme for service of process; it has no due process
implications. Acker, Id.; City of San Antonio, Id.
Burden of Proof: Plain language of TOMA makes it clear that the burden
of proof of “good faith” under §551.056(d) is on the government body and that it
must be “continuous” for each meeting. §551.056(d); §551.043 (b)(1) and (b)(3).
IV. ARGUMENT
Appellants repeat preceding paragraphs as if set forth verbatim herein.
1. Trial court’s failure to hold trial on 7 distinct causes of action violates
TOMA and appellants’ absolute Constitutional rights
18
By a slight of hand, the trial court rigged this case and denied trial on
plaintiffs’ distinct causes of action under TOMA Sections 551.041, 551.043,
551.045, 551.051, 551.074, 551.101, and 551.142(a)(7 Causes).3 Appendices 5,6,
Transcript pages 11-12. Judge Lopez had an independent duty to try and rule on
said causes of action under TOMA and the Texas and U.S. Constitutions, but failed
to do so. Plaintiffs’ absolute constitutional rights of due process in this matter
cannot be denied or waived, and plaintiffs did not waive their constitutional rights.
Marin v. State, 851 S.W.2d 275, 279-280, Tex. Court of Criminal Appeals, En
Banc (1993).
3
PISD’s Board held a total of 22 meetings from 8/13/08 to 5/19/09. Violations of TOMA
provisions at Issue in this case:
 §551.051: PISD violated §551.051 by failing to post notices of 22 Meetings in a
specifically designated place - Bulletin Board in its Central Administrative Office.
 §551.056: PISD violated §551.056 by failing to concurrently post internet notices of 22
Meetings on its website for prescribed time and manner.
 §551.043: PISD violated §551.043 by failing to post notices of 22 Meetings at a physical
location for prescribed time (72 hours) and manner.
 §551.041: PISD violated §551.041 by failing to specify “place” in its notices of 22
Meetings.
 §551.101 and §551.074(b): PISD violated §551.101 by failing to legally close the
3/26/09 Board meeting and violated §551.074(b) by deliberating on Terrell’s termination
in closed meeting.
 §551.045(d): PISD violated §551.045(d) because PISD’s notices of 22 Meetings were
signed on behalf of the Board and posted by a person (Linder) not so designated nor
authorized by Board of Trustees.
 §551.142(a): Declaratory, injunctive, and mandamus relief on all plaintiffs’ claims.
19
Further, plaintiffs filed timely objections and motions and brought trial
court’s failure to try 7 Causes to its attention. Appendices1,2,3,4. Judge Lopez’s
general observations and comments are not rulings. Further, the trial court failed
to make findings of fact and conclusions of law regarding 7 Causes and did not
rule on plaintiffs’ request for amended or additional findings of Fact and
conclusions of law in this regard. Appendix4.
The trial court stated that the appeals court remanded the case to hold trial
only in the matter of §551.056(d). Transcript Pgs.11-12. This is plainly false and
an abdication of Judge Lopez’s independent duty to rule. The appeals court did not
rule on or limit the causes of action on which trial could be held. Appendix19.
Trial court was required to hold trial on all of them and specifically rule on them.
Texas Rules of Civil Procedure require that the trial court’s judgment shall
conform to pleadings. TRCP 301. TOMA §551.142(a) entitles plaintiffs to
declaratory ruling and relief on every one of plaintiffs’ 7 untried causes of action.
Plaintiffs objected and asked the Judge Lopez to grant new trial on 7 causes of
action. Appendices 1,2,3,4. Trial court was required under TRCP 166a to either
grant plaintiffs’ second summary judgment motion on said 7 Causes or try them
and rule on each one of them.
The Court’s failure and refusal to try the 7 Causes violates plaintiffs’
constitutional rights under Texas Constitution Article 1 Sections 3, 13, 19, and 27,
20
and the 14th Amendment to the U. S. Constitution and is clear misconduct on Judge
Lopez’s part.
In the words of Justice Sandra Day O’Connor “this right to petition is one of
the most precious of the liberties safeguarded by the Bill of Rights.” BE&K
Construction, Infra. Appellants’ are absolutely entitled to trial on every single one
of their 7 untried remaining causes of action under TOMA and have all of their
complaints redressed and ruled on. Plaintiffs request that this Court uphold this
right and vacate final judgment and grant new trial on all causes of action.
2. Plaintiffs are entitled to Summary Judgment on 7 distinct causes of action
and Declaratory Relief under §551.142(a)
Plaintiffs are entitled to declaratory, injunctive, mandamus relief under
TOMA whether or not any other relief is granted and whether or not PISD's actions
in violation of TOMA are voided.
A. Plaintiffs are entitled to declaration that PISD violated TOMA §551.051.
PISD admits that it posted TOMA notices on the front door for 22 Meetings
when there was an unused bulletin board inside the building. Statement of Fact
(SOF) 31. §551.051 mandates the location for notices. Here it is clear common
sense that “front door” is not “bulletin board” inside the building under §551.051.
This violation is particularly offensive and vile as it forces the “undesirable”
citizens to stand outside the entrance of the building in rain, snow, cold, hot
weather and in poor lighting conditions and humiliate themselves standing in the
21
way of the incoming and outgoing traffic. This is abuse of citizens. These notices
on the front door cannot be read from inside and certainly are neither safe, nor
convenient, thus do not meet the requirements of “convenient,” “accessible”
“inside the building” and “bulletin board” and under §551.051 under Exact and
Literal compliance standard. Forcing citizens to stand outside the building to read
notices is an unwelcome mat to poor citizens and minorities all around the “Carver
Center” to prevent them from entering the building. Only PISD would have the
gall in this day and age to engage in this insensitive divisive tactic against its own
taxpaying citizens. Why should or would taxpayers stand outside the building that
they paid for to read TOMA notices? What is next - notices on windows, plants,
and restroom doors? This Court should prevent this abomination of §551.051 and
declare that notices on front doors violate §551.051.
B. Plaintiffs are entitled to declaration that PISD violated §551.041 when
PISD failed to give notice of "place."
PISD admits the facts in SOF32. PISD failed to notify the reader of the
“place” under §551.041 for 22 meetings under the exact and literal compliance
standard. PISD forced citizens to guess about “place” with details missing from
notice e.g. street address, location, and other details. Thus plaintiffs are entitled to
the declaration that PISD violated §551.041.
C. Plaintiffs are entitled to declaration by the court that PISD violated
§551.045(d).
22
PISD admits that Board never authorized nor designated Karen Linder under
TOMA to sign notices of meetings on behalf of the Board. SOF36. The language
of §551.045(d) is clear that it applies to all notices not just emergency notices and
it requires an authorized or designated person to post notices of meetings.
§551.045(d). Thus plaintiffs are entitled to declaration that PISD violated
§551.045(d).
D. Plaintiffs are entitled to declaration that PISD violated TOMA §551.101 by
improperly closing its March 26, 2009 meeting and further violated 551.074(b)
It is not disputed that defendant's president, Mr. Charles Smith did not
identify the section or sections of TOMA that authorized closing the 3/26/09 board
meeting to the public under TOMA before closing the meeting. SOF34. PISD thus
did not comply with the §551.101(2). Therefore, plaintiffs are entitled to
declaration that PISD unlawfully closed meeting on March 26, 2009 in violation of
§551.101. Plaintiffs are entitled to all legal and equitable relief and that 3/26/09
closed meeting and actions taken in it be declared unlawful and contents of the
closed meeting be made public and allowed to be freely copied and distributed.
PISD deliberated on Terrell's contract termination in the closed meeting on 3/26/09
when Terrell had specifically requested the action be deliberated in open meeting
per §551.074(b). SOF35. Plaintiffs are entitled to the declaration that PISD
violated §551.074(b).
23
E. Plaintiffs are entitled to declaration by the court that PISD violated
§551.043 concerning the 3/26/09 and 5/19/09 Board Meetings
Plaintiffs’ rely on SOF33. It is undisputed that the notice of 3/26/09 Board
meeting was not seen posted in the bulletin board in PISD’s Central Office nor on
its front door at 5 P.M. and after 6 P.M. on 3/23/09 i.e. notice was posted less than
the prescribed 72 hours in violation of §551.043.4 PISD’s (Linder) vague claims
and surmise do not specifically dispute plaintiffs’ sworn assertions e.g. a revised
notice for 3/26/2009 meeting was taped to the front door of central office building
on 3/24/09, less than 72 hours before the start of the meeting.
Similarly, the notice for 5/19/09 meeting was posted for less than 72 hours
because the meeting date changed from 5/8/09 to 5/19/2009 causing the revised
notice to be reposted. Because PISD posted (paper) notices of 3/26/09 and 5/19/09
Board meetings for less than the prescribed 72 hours, PISD violated §551.043.
TOMA violations Are Distinct: The statutory language of TOMA is clear
that the above notice provisions are distinct, and failure to comply with any one of
the notice provisions renders the action(s) in violation of TOMA and thus voidable.
§551.141.
4
Whether or not Plaintiffs knew or attended the meeting (SOF40) is irrelevant. TOMA is not
scheme for process of service and has no due process implications. Acker, Id.
24
No developed record: Because there was no trial on 7 Causes, no trial
record exists, thus Plaintiffs rely on the facts and arguments in their Second No-
evidence and Traditional Summary Judgment motion herein. Appendix12.
A party moving for summary judgment must show that no genuine issue of
material fact exists and that the party is entitled to judgment as a matter of law.
Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); TRCP
166a(c). Here. The facts are undisputed in the untried 7 Causes. Thus based on
the exact and literal compliance standard, plaintiffs are entitled to summary
judgment in their favor.
F. The sky is not falling if illegal actions are voided
PISD has repeatedly tried scare tactics by using the bogeyman of voidance.
All actions in violation of TOMA must be voided given PISD’s defiance,
conscious indifference, obstruction of discovery, and systematic longstanding
violations of TOMA’s notice requirements. PISD can ratify the voided actions in a
legally held board meeting under TOMA. So far PISD has refused to ratify its
actions as was properly done in ATSPAC v. Sierra Club, 843 S.W.2d 683 (Tex.
App.--Austin 1992), preferring instead to scare the courts.
G. Terrell is entitled to back wages and voidance of her illegal termination:
Terrell was not terminated in a legally convened meeting under TOMA, thus
the termination action is voidable. §551.141. Given PISD’s outrageous misconduct
25
and systematic violations of TOMA, and Terrell’s termination action should be
voided. Voidance of Terrell’s termination in 3/26/2009 meeting means Terrell
lawfully continues to be an employee and is owed back wages. Courts have upheld
voidance of action involving employment termination, reinstatement upon
voidance, and granting back wages and benefits. See Ferris v. Texas Board
Chiropractic Examiners, 808 S.W.2d 514, 519 (Tex.App—Austin 1991) (ordering
back wages and benefits of $26,000 until the time Ms. Ferris was terminated in a
legally convened meeting under TOMA). Like Ferris, Terrell continues to be
lawfully employed by defendant. Back wages and benefits are thus due Terrell,
currently at about $262,000 for 5 years until Terrell is terminated lawfully in a
subsequent legally held meeting under TOMA. Ferris, Id. Further Terrell’s illegal
termination cannot be ratified retroactively because Education Code requires a 45
day notice to Terrell before the last day of instruction (10 days for 2012-2013 and
after), failing which Terrell’s contract is automatically renewed and becomes, as
here, a continuing contract after 3 years. See Education Code§21.103.
3. Plaintiffs are entitled to exclusion of evidence on SchoolCenter,
BoardBook, or are entitled to continuance
Exclusion of Evidence: TRCP 193.5 mandates that a party must amend or
supplement the party’s response to written discovery when the part learns that its
response was incomplete or incorrect when made, or is no longer complete and
correct. TRCP 193.5(a). The party must amend, correct or supplement written
26
discovery concerning identification of persons with knowledge of relevant facts
and any other information sought by the written discovery reasonably promptly.
Less than 30 days before trial is not reasonably promptly. TRCP 193.5(b). A
party who fails to make, amend, or supplement a discovery response in a timely
manner may not introduce in evidence the material or information that was not
timely disclosed, TRCP 193.6.
Evidence concerning SchoolCenter must be excluded: PISD concealed
the identity and the central role of the third party vendor, SchoolCenter, in PISD’s
§551.056(d) defense until the trial and disclosed the information during the trial on
10/9/2013. In its discovery responses PISD represented that only Jameson and
Linder had knowledge of the “link” problem and Jameson caused the link to be
severed in a maintenance update. Appendix11. In a flip flop, PISD identifies a
new culprit, SchoolCenter, and blames it for not transferring the link. PISD failed
to identify, provide information on SchoolCenter in the written discovery, and
further failed to amend, supplement, or correct written discovery concerning
SchoolCenter. Appendices 8,9,10,11. SOF16. Plaintiffs’ are entitled to exclude
any information concerning SchoolCenter from evidence under TRCP 193.6
because PISD failed to comply with TRCP 193.5. Boothe v. Hausler, 766 S.W.2d
788, 789 (Tex. 1989). Any information given by Jameson or other witnesses
27
concerning SchoolCenter must be excluded. Trial court erred in denying plaintiffs’
motions to exclude in this regard. Transcript pgs 214-220.
PISD lied to this Court throughout the First Appeal process in its briefs by
concealing the identity of SchoolCenter and its alleged central role in this case
causing obstruction of justice. Now after 6 years, there are more lies. All
information concerning SchoolCenter must be excluded from evidence as a
sanction on PISD for failure to comply with TRCP 193.5. Boothe v. Hausler, Id.The sanction for failure to comply with this rule is exclusion of the evidence
affected by the violation. TRCP 215(5); TRCP 193.6; PISD failed to establish
before the trial court that good cause existed for allowing SchoolCenter related
evidence. Boothe v. Hausler, at 789.
At trial, PISD claimed to have purchased BoardBook program, paid license
fees and renewal fees to BoardBook for its service to post website notices since
2007. But during discovery process PISD refused and failed to provide full and
complete discovery and produce documents concerning payment of license fees
and renewal fees to BoardBook. PISD refused and failed to supplement answers to
written discovery in this regard. SOF6. All evidence concerning existence of
BoardBook service should have been excluded and struck from evidence at trial.
See TRCP 215(5).; TRCP 193.6; Boothe v. Hausler at 789. The Court erred when
it refused and failed to do so in response to motions from plaintiffs. CR111.
28
PISD concealed the above information from plaintiffs and the Attorney
General of Texas, obstructing justice. SOF6. Plaintiffs were severely compromised
in their ability to show that non-compliance with §551.056(b) was actually due to
the fact PISD did not have BoardBook service during 8/13/2008 to 5/2009 or that
PISD actually obtained it in May 2009 when and untimely created and posted prior
meeting notices to conceal violation of §551.056(b). Texas law is clear - without
proof of payment of consideration, PISD did not have a contract with BoardBook
or SchoolCenter. Advantage Physical Therapy, Inc. v. Cruse, 165 S.W. 3d 21, 24
(Tex.App.--Houston [14th Dist.], 2005 no pet.) (without consideration, there is no
contract).
For violation of TRCP 193.5, information concerning existence of
BoardBook service in this case must be excluded from evidence. TRCP 193.6; See
Boothe v. Hausler at 789.
Similarly, because PISD concealed the identity of SchoolCenter until the
trial and SchoolCenter’s alleged failure in transporting “link” to PISD website
notices, plaintiffs were severely harmed and compromised in examining evidence
and questioning witnesses, and would have subpoenaed SchoolCenter at trial for
testimony had PISD timely supplemented and amended written discovery.
In both instances, the issues were dispositive and not cumulative because
they related to the controlling and central issue of PISD’s good faith under
29
§551.056(d) and why the link to website notices was missing for at least 5 months
in 2009. Boothe v. Hausler, at 789. The trial court should have excluded evidence
concerning SchoolCenter and BoardBook, alternatively should have granted
continuance of the trial as requested by plaintiffs to conduct further discovery.
TRCP 193.6(c). Transcript pgs,214-220.
4. Plaintiffs are entitled to judgment in their favor or their motions for new
trial, to modify judgment, and for reconsideration should be granted
A. PISD lied to this Court that printing changes “created dates” of
internet notices in the first appeal
PISD lied to this Court in the first appeal that “created date” means the date
the “particular notice was printed for delivery to appellants.” Appendix19. Based
on this misrepresentation, this Court remanded this case. It has been six long years
of lies from PISD. In the trial of this case, PISD admitted that the above
contention was not true, but “oops” it was only a speculation.
“I was just trying to give some reasons why that might have happened.”
Linder testimony, Transcript pg, 201.
Such misconduct mocks this Court, TOMA, and the discovery process.
Nothing PISD says after this can be credible in the slightest. PISD must be
sanctioned for this lie and judgment entered for plaintiffs.
B. PISD lied to this Court again about SchoolCenter and concealed
SchoolCenter’s identity and central role in the first appeal
30
PISD lied to this Court again when it concealed the identity and the role of
SchoolCenter, a vendor, from this Court in its brief in the First Appeal. In the brief
before this Court, PISD blamed Jameson. See PISD’s brief in the First Appeal (07-
10-00212-CV). Appendix11-Interrogatory5. But now PISD blames SchoolCenter
for losing the “link.” Even a soap opera cannot be this phony and ridiculous. Both
Jameson and SchoolCenter are agents of PISD. It has been six long years of lies
from PISD. PISD must be sanctioned for this concealment and lie from this Court
and judgment entered for plaintiffs.
C. SchoolCenter, BoardBook evidence must be excluded, PISD’s good faith
defense thus fails
Plaintiffs rely on and repeat Argument 3 as if fully set forth herein. As
explained above, evidence and information concerning SchoolCenter and
BoardBook must be excluded and barred from evidence because PISD failed to
timely amend, supplement, or correct written discovery concerning them. TRCP
193.6; Boothe, Id. At trial, PISD flip-flopped and blamed SchoolCenter for the
missing link to notices. However both SchoolCenter and BoardBook being
vendors employed by PISD are PISD’s agents. The only evidence presented for
PISD’s good faith claim related to SchoolCenter’s role. Because all evidence or
information concerning SchoolCenter must be excluded, PISD’s good faith claim
must be rejected. Similarly, any portion of good faith claim that relies on
BoardBook and Lee Carter must also fail because such information or evidence
31
must be excluded and is barred. TRCP 193.6, Boothe, Id. PISD’s good faith
defense under §551.056(d) fails.
D. Hearsay and Irrelevant evidence of Linder and Jameson must be barred
PISD has the burden to prove good faith under §551.056(d). Texas Rules of
Evidence (TRE) bars evidence that is irrelevant and is not personal knowledge of
the witness. TRE 402, 602, 802. Linder and Jameson’s testimony on good faith
defense under §551.056(d) was complete hearsay. PISD presented no documentary
evidence concerning SchoolCenter, BoardBook, called no expert witnesses in
support of its claim of good faith either on document properties e.g. “created dates”
of internet notices or the missing link issue. No one from SchoolCenter or
BoardBook testified in support of PISD’s good faith.
Linder made it clear that she has no personal knowledge regarding the claim
of missing link. Transcript pg.191. Further, her entire testimony about good faith
defense was nothing more than her general opinions and beliefs concerning her
work in BoardBook software which is irrelevant under TOMA because
§551.056(b) or any other section of TOMA does not require work in BoardBook.
TOMA requires concurrent internet notices to be posted on government body’s
website. §551.056(b). Linder admitted that she never clicked on the link on
PISD’s website to verify that internet notices appeared for public viewing
(Transcript pgs. 176-178) and does not know anything about created dates or
32
Adobe PDF, she does not even know the name of SchoolCenter. Thus Linder’s
entire testimony concerning her bare assertions about her “work” in BoardBook
must be struck and excluded from evidence as irrelevant, hearsay, and hearsay
within hearsay. TRE 402, 602, 802. Jameson’s testimony about what
SchoolCenter did or did not do concerning the link is classic hearsay. TRE 402,
602, 802. Transcript pgs.126-157; Appendix15. Her testimony was a sham and a
cover-up to shield her when she removed the link because she thought it was not
needed. Appendix16. She could not even recall the name of the person she
supposedly worked with on the new website project that supposed to have
transferred PISD’s “thousands” of links. Transcript pg.133. Jameson admitted she
has no knowledge or expertise in website operations. Transcript pg.129. Under
TRE, her testimony is full of bare assertions on what SchoolCenter did or did not
do, or failed to do is classic hearsay, lacks personal knowledge, thus must be struck
and excluded from evidence. Her testimony concerning what Lee Carter, the
webmaster, did or did not do must also be struck as hearsay and excluded. TRE
402, 602, 802.
At best, Linder and Jameson’s testimonies about BoardBook and
SchoolCenter’s role are bare assertions, too weak, no more than speculation,
surmise, hearsay and less than a scintilla of evidence, therefore are not legal
evidence concerning good faith. Kindred, infra at 63. Linder and Jameson’s bare
33
assertions often contradicting overwhelming evidence to the contrary5 are not legal
evidence. Kindred, infra at 63 and further they do not meet clear and convincing
standard this government entity, PISD, must meet to establish its good faith under
§551.056(d).
Evidence by Linder, Jameson, and Haenisch on good faith was bare
assertions, hearsay, incompetent, speculative, and immaterial as to whether PISD
exercised good faith concerning its non-compliance with §551.056(b). Thus the
evidence they presented was no more than scintilla, surmise, and speculation which
is not legal evidence.
When the evidence offered to prove a vital fact is so weak as to do no
more than create a mere surmise or suspicion of its existence, the
evidence is no more than a scintilla and, in legal effect, is no evidence
at all.
Kindred v. Con/Chem, Inc. 650 S.W.2d 61,63 (Tex. 1983).
Karen Linder’s testimony was a sham because she admitted that her sworn
answers to plaintiffs’ interrogatories were nothing but speculation and she did not
have knowledge about technical matters in question. PISD’s Linder falsely
represented to the appeals court that printing PDF notices changed the created
dates of website notices. Appendix19. PISD now states at trial that it was just
speculation on their part. SOF5. Karen Linder’s assertion that she “worked in
5
Jameson admits that she thought the link was not needed on the new website. Appendix16.
She removed the link in a maintenance update. Appendix11-Interrogatories 5,7.
34
BoardBook” on her computer was no more than bare opinion as PISD presented no
evidence that it actually had BoardBook service during the period in question i.e.
1/2009 to 5/18/2009 or at any time from 8/13/2008 to 5/19/2009.
Thus Linder’s and Jameson’s testimonies on good faith issue are no legal
evidence and must be disregarded as no material fact question was raised or
answered by their testimonies and because the Court was barred by rules of law or
evidence from giving weight to the only evidence they offered (hearsay, bare
opinion, and speculation) to prove a vital fact of good faith under TOMA.
Kindred, Id. PISD’s good faith claim must fail.
E. Plaintiffs were entitled to hearing on newly discovered evidence
Trial court erred in denying a hearing on newly discovered evidence and
motion for new trial. Plaintiffs demonstrate the existence of factors6 in Jackson and
Kirkpatrick for grant of new trial in this regard. Jackson v. Van Winkle, 660
S.W.2d 807, 809-10 (Tex. 1983); Kirkpatrick v. Memorial Hosp., 862 S.W.2d 762,
775 (Tex.App.-Dallas 1993, writ denied). The weight and importance of the newly
discovered evidence here and its bearing with respect to evidence received at trial
6
The factors are: (i) the evidence came to light since the time of trial or so late in the trial that it
was impossible to present the evidence before the trial closed; (ii) it was not because of a lack of
due diligence that the information did not come sooner; (iii) the new evidence is not merely
cumulative to that already given and does not tend only to impeach the adversary's testimony;
and (iv) the evidence is so material that it would probably produce a different result if the court
granted a new trial. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983).
35
is conclusive and is so material that it will probably produce a different result in
this case:
1. PISD did not have good faith because it removed the link from its
website itself before the creation of new website by SchoolCenter and
SchoolCenter had no role to play in the removal or reestablishing the link. SOF18.
2. PISD’s Jameson’s testimony at trial was misleading and false. The newly
discovered evidence would show that PISD was aware of the removal of link and
willfully violated §551.056(b).
The appendices 2 through 5 to motion for new trial (Appendix 1) are PISD’s
website archive pages and view source information of PISD’s website as of the
dates noted i.e. 1/26/2009 and 2/5/2009. View source pages identify the software
that generated PISD’s website pages viz. “Adobe GoLive” software for the OLD
website and “SchoolCenter” version 8.0 used for the NEW website.
The newly discovered evidence shows that
a. PISD concealed the fact that the link to internet notices did not exist on the
OLD website which was managed by PISD itself. The appendices 2 and 3 of
Motion for new trial (Appendix 1) show that PISD managed its website itself
through January 26, 2009. PISD has admitted that the TOMA internet notice did
not appear on its website for its January 15, 2009 meeting because the link was
removed. The missing link problem started with the January 15, 2009 meeting
36
notice when PISD managed the website. There was no link to be transferred to the
new website which went live after 1/26/2009.
b. PISD’s OLD website was managed by its webmaster Lee Carter at least
through January 26, 2009. Motion for new trial’s appendix 2 (bottom left corner)
and appendix 3 (page 2 of the appendix) clearly identify Lee Carter as PISD’s
webmaster and show that Lee Carter as an employee had PISD’s business email
address. PISD used Adobe GoLive software at least up to January 26, 2009 and
maintained its own website well after the time it admitted that January 15, 2009
meeting notice did not appear on its website because link was removed when PISD
managed its website itself. The newly discovered evidence shows that
SchoolCenter was not at “fault” as falsely alleged by PISD because as admitted by
PISD the link did not exist on its website on or before 1/15/2009 causing non-
appearance of the internet notice for 1/15/2009 board meeting. PISD removed the
link in 1/2009 because it thought it was not “necessary.” Appendix 16.
c. Thus it is obvious PISD’s Suzie Jameson fabricated a story and gave false
testimony (Appendix 1) blaming SchoolCenter when PISD itself removed the link
in January 2009 or before, on its own watch, before the new website was allegedly
created by SchoolCenter in February 2009 (Motion for New trial -appendices 4-5).
The problem of admitted non-compliance on January 15, 2009 existed before
SchoolCenter allegedly created the new website which was in February 2009.
37
d. PISD concealed Lee Carter’s (PISD’s Technology Director) role in
maintaining and generating PISD’s website during the time period it claims good
faith under §551.056(d). Lee Carter’s name was not disclosed during the
discovery process in violation of discovery rules as a person who had knowledge
or any role in this concerning this lawsuit. Appendices 8-11. Lee Carter’s name
appears as webmaster on PISD’s website on January 26, 2009 well after PISD
admitted that January 15, 2009 meeting notice did not appear on its website due to
alleged link problem. Motion for new trial-appendices 2-3.
PISD failed to timely disclose and supplement, amend, or correct its
responses to written discovery, concerning the identity and role of SchoolCenter
and Lee Carter until the trial, the above evidence could not be obtained before trial
and is not cumulative. SchoolCenter and Lee Carter’s roles are material in PISD’s
good faith defense in §551.056(d). .
Plaintiff Thanedar testified as expert in technology matters pertinent to this
lawsuit. The above evidence however is obvious to an average person. Plaintiffs
affirm that “Adobe GoLive” was a software product of Adobe Systems Inc. and is
an HTML editor used to maintain and manage websites by its customers. The
word “Generator” in appendix 3 of motion for new trial means what it says i.e.
PISD generated its website using Adobe GoLive.
38
Refusal to receive newly discovered evidence and refusal to grant new trial
would be manifest abuse of discretion and permanent loss of plaintiffs’ substantive
rights. A new trial is thus required under law on the good faith claim by PISD and
an evidentiary hearing was required by trial court to receive evidence in the above
matters which will affirm that PISD’s good faith claim was made in bad faith and
is a fraud. This Court should grant new trial in this case.
F. Missing link to notices is irrelevant because internet notices for 22
Meetings were untimely created in May 2009 for posting on website weeks
and months after meetings took place
The “missing link” to internet notices is a smokescreen and is not relevant.
The undisputed fact is that PISD untimely created internet notices in May 2009,
weeks and months after the 22 Meetings took place and then posted them untimely
on its website all at once on 5/19/2009. Created date of an Adobe PDF document
means what it says i.e. the date when the PDF document was created. Transcript
pgs.75-86. This is not disputed by PISD. PISD did not produce timely created
internet notices for 22 Meetings at trial, there is no evidence that they were timely
created. Whether or not the link was missing, PISD never timely created internet
notices for each of the 22 Meetings 72 hours before each meeting started. Because
PISD did not create timely internet notices and untimely posted them, PISD’s good
faith claim fails.
39
Because PISD did not care to check for each meeting notice whether its
notices actually appeared on its website or not, it does not show good faith under
§551.056(d) and its good faith claim must be rejected.
G. PISD did not care or attempt to check if the internet notices actually
appeared on its website for public viewing for each of the 22 Meetings in 72
hours before each meeting
TOMA requires that the internet notices must be concurrently posted on the
Government body’s website 72 hours before the start of a meeting. §551.056(b).
The evidence is undisputed that PISD did not attempt to or care to check that
internet notices were actually appearing on its website and were available for
public viewing for any of the 22 Meetings in question. Transcript pgs. 176-178.
An average person would exercise such care to comply with law. A government
body should be held to even higher standard. PISD fails even the lower average
person standard. Thus PISD did not make a good faith attempt under 551.056(d)7
to verify its compliance with §551.056(b). If PISD had done so, it would have
immediately known and found out that notices were not appearing on its website
and PISD would have presumably fixed its non-compliance with TOMA.
7
TOMA §551.056(d) provides that:
“The validity of a posted notice of a meeting or an agenda by a governmental body or economic
development corporation subject to this section that made a good faith attempt to comply with
the requirements of this section that is due to a technical problem beyond the control of the
governmental body or economic development corporation.”
40
The language of TOMA is plain and clear that compliance with TOMA must
be done in the prescribed 72 hours before a meetings starts and must be
continuous. §551.043. This requires that a government body must check for each
meeting that the internet notice actually appears on its website for public viewing.
PISD’s intentional ignorance defeated the purpose of TOMA’s prescribed 72 hour-
requirement. §551.043; §551.056(b).
PISD’s intentional ignorance and conscious indifference is not good faith
because it did not even once attempt or care to verify that notices actually appeared
on its website from 1/2009 to 5/19/2009 in compliance with §551.056(b). It must
be noted that for meeting notices from 1/2009 to 5/19/2009 for which PISD claims
good faith, there is no evidence that its website was not up and was not working
normally. Haenisch testified the new website had no disruptions. Transcript
pg.117. Thousands of other links were working perfectly. Transcript pg.135.
PISD showed intentional ignorance and cover-up to hide its violations of
§551.056(b).
If this Court does not reverse trial court’s judgment, every government body
intentionally or not, will “ignore” to exercise sufficient care to comply with TOMA
for months or years and still claim good faith and will be granted exception under
§551.056(d), making a laughing stock out of Texas Open Meetings Act.
41
H. “Oops we forgot,” mistake, negligence, or incompetence is not a technical
problem
There is no evidence or insufficient evidence that forgetting to transfer a link
to new website is a “technical”8 problem. §551.056(d). Here, PISD claims that
SchoolCenter made a mistake and did not transfer the link to notices to new
website. Transcript pg.149-150. Jameson testified that the problem was that of a
“missing link.” Transcript pg.149. Even if true, forgetting or making a mistake is
not a technical problem. There is no evidence that there was anything wrong with
the link itself. PISD presented no evidence that mistake is a technical problem. To
the contrary, Jameson herself testified that adding a link on the new website is not
difficult. Transcript pg.150. Jameson further testified the problem with the link
was just a “plain and simple oversight.” Jameson refused to even call the oversight
a “technical” problem even when prodded by plaintiffs. Transcript pg.150. Thus
oversight, negligence or “Oops we forgot” is not a technical problem under
TOMA.
I. “Oops we forgot” to transfer a link is not “beyond the control” of PISD
8
Collins English Dictionary – Complete and Unabridged, HarperCollins Publishers, 2003 defines
“technical” as 1) of, relating to, or specializing in industrial, practical, or mechanical arts and applied
sciences.
42
Even if forgetting to copy or transfer link is a technical problem, there is no
evidence or insufficient evidence that transferring a link to new website was
“beyond the control” of PISD for 5 long months from 1/2009 to 5/19/2009.
§551.056(d). Jameson testified that failure to transfer the link in question was a
“plain and simple oversight” and that it was not difficult. Transcript pgs.149-150.
Earthquake, snow, rain, hacking and virus attacks are beyond the control of a
government body while these events last. Forgetting to verify mandatory
compliance with TOMA for 5 months is most certainly not “beyond the control” of
a school district. To suggest otherwise is an insult and fraud on citizens and
taxpayers of Texas. There is conclusive overwhelming evidence that the link
problem in question would have been fixed had PISD checked its new website just
once in 5 months as to whether legally required internet notices were actually
appearing on its new website, but PISD did not do so. SOF21 and 23. All PISD
needed to do was to get off the chair and check that the link was transferred and
further check that the legal meeting notices were actually appearing on its website
for public viewing. PISD has admitted that it never showed interest and due care
to comply with §551.056(b). SOF21, 23, Transcript pg.146. PISD’s missing link
was neither a technical problem nor beyond its control. PISD’s good faith defense
fails.
43
Here, PISD decided it was not going to comply with TOMA 551.056(b), but
got caught. There is overwhelming evidence that PISD showed conscious
indifference at best, or bad faith and fraudulent misconduct concerning its legal
duty to comply with TOMA Sec. 551.056(b).
Jameson’s sham testimony
Jameson gave false testimony concerning SchoolCenter at trial to avoid
blame on herself. PISD had admitted that Jameson performed duties with respect
to “establishing BoardBook link” on PISD’s new website and not SchoolCenter.
Appendix 16. Jameson’s May 19, 2009 E mail to Linder (Appendix 16) clearly
states (Emphasis provided):
I apologize for not having that link on the site. I have added it
on the School Board page. There were lots of things that were
on the old site that I did not realize needed to go on the new
one.
It is abundantly clear from the above email that PISD and Jameson knew
about the “link” but did not think it was “needed” on the new website. In written
discovery PISD blamed Jameson for “severing” the link in a “maintenance
update.” Appendix11-Interrogatories 5, 7. Jameson’s new testimony at trial is
diametrically contradictory with PISD’s written discover. Both are not credible.
As a result, Jameson dropped the “link” to BoardBook on PISD’s new website in
January 2009. This can only be described as a mistake, error or negligence, or lack
of due care and diligence, or properly as willful disregard for compliance with
44
TOMA for 5 months. There was no “severance” of the link, no “maintenance
update” that “severed” the link, or “inadvertent” mistake here as Jameson clearly
knew about the link and PISD and Jameson decided it was not needed on the new
website and therefore Jameson did not establish it on the new website.
Appendix16. As a matter of law, negligence or lack of due care and diligence by a
person is not a “technical” problem as the word technical is commonly understood,
and certainly not “beyond the control” of PISD. All PISD had to do was to check
its own website to verify that Board meeting notices were “appearing” on its
website, as a reasonable person would have done. PISD failed to exercise this
reasonable care for 5 months and at least 11 Meetings. PISD fails reasonable care
standard, which is never beyond PISD’s control.
5. PISD’s good faith claim is a fraud on the citizens and tax payers and courts
requiring sanctions
PISD has obstructed discovery from the beginning concerning BoardBook
and SchoolCenter. PISD lied to the Texas Attorney General and to this Court and
simply refused to provide documents concerning BoardBook and SchoolCenter to
plaintiffs calling them “beyond the scope of TRCP.” SOF They knew they could
get away with it. SOF6.
The alleged problem of “link” was only fixed when plaintiff Thanedar
reported nonappearance of notices on 5/15/2009 to PISD in good faith. Appendix
11-Interrogatory 7. Without plaintiffs’ report in good faith, PISD could have
45
continued for several more months, or years, or even indefinitely without
complying with Sec. 551.056.
Post-remand discovery
Trial court erred in denying post-remand discovery on good faith. Post-
remand discovery was consistent with the opinion and mandate of this Court. This
is especially important for TOMA because post-remand discovery would have
discovered that PISD’s contention that printing changes “created dates” of PDF
documents was a fraud on this Court and citizens. Denying post-remand discovery
only shielded PISD and its obstruction of justice.
6. Denial of plaintiffs’ evidence led to rendition of incorrect judgment:
The Court failed to rule on admissibility of plaintiffs’ exhibit PX1 in the one day
trial excluding it from evidence. PX1 contains 22 board meeting website notices at
issue in this lawsuit and their electronic document properties on Compact Disc.
Plaintiffs rely on facts and argument in Argument 8 below regarding PX1. There
was no objection by defendant. This exhibit was admitted and authenticated by
Judge Waters before and was reviewed by this Court in the first appeal and the
untimely “created dates” were central in determining PISD’s good faith. The CD in
question is in the record and the record thereon has been reviewed on appeal by the
appeals court. The Court clearly abused its discretion when it refused to rule on
admissibility of PX1 and thereby ignored the electronic properties of internet
46
notices leading to incorrect judgment. As PX1 and its electronic properties are
central to violation of TOMA Sec. 551.056 and all other causes of action in
plaintiffs’ live pleadings. Denial of PX1 caused rendition of incorrect judgment as
the untimely created dates of internet notices would have shown that PISD created
the internet notices weeks after the 22 meetings took place and untimely posted
them on 5/19/2009. This would show that PISD’s missing link good faith defense
was a fraud because the internet notices were not even created concurrently and
timely. Trial court erred in not ruling on PX1. It should have been admitted.
Further, trial court erred in denying admission of PX13 which is audio tapes
of 3/26/2009 meeting that shows violation of 551.101, and 551.074(b) which are
causes of action in this lawsuit and directly relevant, resulting in court’s failing to
rule on the above claims. PX13 should have been admitted.
Trial court erred in denying admission of PX12(notices of meetings) which
concerned violation of 551.043, PX14 (excerpt of transcript 3/26/2009 meeting),
concerned violation of 551.101, PX19(back pay benefits) and PX25(salary
schedules) concerned claim of back pay and special damages, and PX21(sales tax
receipts) concerned the issue of standing), all central and relevant to TOMA issues.
Denial of this evidence resulted in rendition of incorrect judgment on these issues.
The above exhibits should have been admitted into evidence.
47
Trial court’s judgment should be reversed and judgment entered for
plaintiffs. Minimally, plaintiffs’ motions for new trial, to modify judgment, for
reconsideration, and the request for amended and additional FOF and COL should
be granted on all causes of action.
7. Attorney fee award to PISD is invalid and is not reasonable. PISD
forfeited and waived attorney fees when it refused to testify
The trial court committed clear error in granting $30,000 in attorney fees to
PISD by taking “judicial notice of the file” under TOMA. Appendices20, 21.
Texas law has not allowed recovery of attorney fees unless allowed by
statute or contract. “Absent a contract or statute, trial courts do not have inherent
authority to require a losing party to pay the prevailing party’s fees.” Tony Gullo
Motors v. Chapa, 212 S.W.3d 299, 310-311 (Tex. 2006). Nothing in TOMA or its
pertinent case authority authorizes or empowers any court to take judicial notice of
attorney fees and to award them without receiving evidence with respect to the
attorney fees and their reasonableness. TOMA §551.142.
Plaintiffs challenge both the imposition and award of the attorney fees to
PISD on the grounds that 1) PISD is not the substantially prevailing party, 2) the
award of attorney fees is neither legally valid, nor proper, unjust, nor justified in
this case, and 3) the attorney fee award is not reasonable, manifestly too large and
further, PISD forfeited and waived any attorney fees by refusing to testify.
48
PISD is not the substantially prevailing party: PISD is not the
substantially prevailing party under TOMA§551.142(b) and cannot be awarded
attorney fees. This is because trial court shockingly refused and failed to try 7
Causes out of eight independent and distinct causes of action or main issues under
TOMA sections 551.041, 551.043, 551.045(d), 551.051, 551.074, 551.101, and
551.142(a) and further failed to rule and make finding of fact or conclusions of law
with respect to each of the above 7 above causes of action. Appendices 20,21.9
Thus PISD did not prevail on 7 out 8 separate and distinct causes of action or main
issues and is not a substantially prevailing party. Hawkins v. Ehler, Infra at 544.
Award of attorney fees to PISD is invalid and unreasonable
Under TOMA only reasonable attorney fees can be granted if certain
conditions are met. §551.142(2). The reasonableness of attorneys' fees is question
of fact that must be proven at the trial. City of Garland v. Dallas Morning News, 22
S.W.3d 351, 367 (Tex. 2000). Thus PISD was required to testify concerning its
attorney fees.
PISD forfeited and waived attorney fees by refusing to testify and prove them
PISD refused and failed to testify on its attorney fees and refused and failed
to prove them at trial even after Judge Lopez prompted PISD’s counsel to do so.
9
Plaintiffs objected to this misconduct and brought this to trial court’s attention during trial and
in motions. Appendices1,2,3,4. With 7 out of 8 causes of action never taken to trial and never
decided, Judge Lopez’s judgment is not final judgment in spite of the words used in it. Because
this was a deliberate conduct on Judge Lopez’s part, no implied findings can be made or
presumed here. Appellants ask this Court to rule on all causes of action in this appeal.
49
Transcript Page 238. Thus there is no valid application for attorney fees here.
Further, it must be concluded that PISD forfeited and waived any claim to attorney
fees by refusing and failing to prove and testify on its attorney fees. Thus there is
no evidence or insufficient evidence in the record for the Court to award attorney
fees to PISD of any amount. Court’s award of $30,000 has no basis in law under
TOMA or evidence because there is no evidence or insufficient evidence of tasks
completed, hours worked, level of difficulty, identity of attorneys, reasonable
hourly rates of attorneys on the case and other necessary information on which
attorney fees must be based on. See El Apple v. Olivas, Infra.
No “Judicial Notice of file” for attorney fees under TOMA: The plain
and clear language of §551.142(b) does not permit trial judge to impose attorney
fees by taking “judicial notice.” It is clearly ascertainable that the award of
attorney fees in this case does not arise under Texas Civil Practice and Remedies
Code (CPRC) §38.001, thus this Court does not have power to take judicial notice
of attorney fees under CPRC§38.004. See Valdez v. Valdez, 930 S.W.2d 725, 732-
33 (Tex. App.--Houston [1st Dist.] 1996, no writ) (holding §38.004 only applies to
claims under §38.001).
Plaintiffs have proven their good faith in this case:
Attorney fees award here is legally improper because plaintiffs have
undisputedly proven their good faith at the trial as their report of the violation of
50
Sec. 551.056(b) was the only reason said violation was finally corrected by PISD
after 5 months of admitted10 non-compliance with TOMA from 1/2009 to
5/19/2009. Appendix11 (Interrogatory7). Further plaintiffs prevailed on first
appeal in this case, this Court reversing trial court’s judgment and remanding the
case which proves conclusively that this lawsuit was in fact brought in good faith.
See §551.142(b). PISD did not claim nor produced any evidence or insufficient
evidence of bad faith on appellants’ part at trial.
“Voluminous filings” is not bad faith and Plaintiffs cannot be penalized
by imposing attorney fees for them
As explained in this brief, There is no factual evidence or legal basis
whatsoever for Judge Lopez’s erroneous FOF20 and COL4. Appellants do not
show bad faith because of “voluminous” filings. Even assuming filings are
voluminous, appellants cannot be penalized for them as there is no evidence that
any filing was improper or unreasonable. Further, this argument is bogus and
irrational because there is no evidence whatsoever that PISD ever incurred attorney
fees due to filing responses, and Judge Lopez never held hearings and never ruled
on them. There is no cost or harm here to PISD.
Appellants have constitutional right to sue in court and file motions which is
an aspect of the First Amendment right to petition the Government for redress of
10
The document properties of PISD’s website notices prove that internet notices for 11 notices
from 8/2008 to 12/2008 were also created in May 2009 and posted for public viewing on
5/19/2009 after plaintiffs brought the non-compliance with 551.056(b) to PISD’s attention.
51
grievances. Justice Sandra Day O’Connor has noted “this right to petition is one
of the most precious of the liberties safeguarded by the Bill of Rights.” Justice
O’Connor further observed that the First Amendment petition clause says nothing
about success in petitioning. Thus there is absolutely nothing wrong in filing
motions and requesting relief that Judge Lopez rule on such motions. Thus
appellants cannot be penalized for filing motions, voluminous or not, in this
lawsuit to redress grievances. See BE&K Construction v. NLRB, 536 U.S.516
(2002); Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S.731 (1983). Thus,
“filings”, even if “voluminous,” are not “bad faith” under TOMA and plaintiffs
cannot be punished with attorney fees for them.
Further Judge Lopez sitting by assignment has no personal knowledge of all
of the proceedings in this case, being the third judge in this case after Judge Waters
and Judge Vanderpool.
PISD does not meet prerequisites for attorney fees: PISD never claimed
the element of bad faith on plaintiffs’ part which is a prerequisite for attorney fees
under TOMA §551.142(b), and further, notably, never presented any evidence at
the trial on the issue. PISD did not plead for attorney fees in its original answer-its
amended answer must be struck because it lacks a certificate of service and was
not served on plaintiffs. See CR285 which is not a certificate of service for the
amended answer but a duplicate of CR281(response to previous motion). Because
52
PISD failed to claim bad faith and failed to present evidence on it, failed to plead
for attorney fees, it waived attorney fees and the issue of bad faith, thus cannot
recover attorney fees under §551.142(b) in this case. Nothing under law or TOMA
jurisprudence gives trial court the authority or power to advocate for PISD which
failed to meet prerequisites to attorney fees. The award to PISD must be vacated
and denied.
Attorney fees for appellate filings must be vacated and denied: Judge
Lopez apparently granted attorney fees because plaintiffs made voluminous
appellate filings-though he failed to segregate the amount. Appendices20,21. The
trial court has no power whatsoever to impose attorney fees for any proceedings or
filings in the appellate courts, with or without evidence being received. In fact,
plaintiffs prevailed in the first appeal and this Court ordered that defendant pay
costs to Terrell for the appeal. Thus no attorney fees are due to PISD in the first
appeal. PISD made no argument nor presented any evidence concerning this issue
at trial and did not testify about its time and attorney fees incurred in this regard.
Thus there is no basis in law or fact for an award of attorney fees for plaintiffs’
filings in appeals court.
Has TOMA’s “Sunshine” gone away?
Further plaintiffs do not have the ability to pay any attorney fees, thus award
is not reasonable under TOMA’s lofty purpose of “sunshine law.” TOMA was
53
heralded as the “Sunshine Law” to protect Texas citizens after the shockingly
corrupt scandals of Sharpstown. The deliberate arbitrary award indicates that
Judge Lopez wielded TOMA as a sword to silence appellants and any future
citizens that dare to question a government body. This will have a chilling effect
on citizens and taxpayers who report violations of TOMA and seek redress.
Statutory attorney fees are not a “Bonanza”
Chief Justice Nathan Hecht has made it clear that an award of statutory
attorney fees, as here, is not a “Bonanza,” but its amount and reasonableness is a
question of fact and must be proven by a party at trial on factors such as reasonable
rate, contract, billing records, fees paid by client, tasks performed, and hours
worked. See El Apple v. Olivas, 370 S.W.3d 757 (Tex. 2012) citing the eight-
factor test in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818
(Tex. 1997); City of Laredo v. Monsanto, 414 S.W.3d 731 (Tex. 2013). Here, the
arbitrary and capricious award of statutory attorney fees of $30,000 to PISD by
Judge Lopez without absolutely any substantiation as to the reasonableness is so
grossly in defiance of the overwhelming weight of law and the Texas Supreme
Court opinions that its only purpose was to intimidate pro se plaintiffs, obstruct,
and prevent these pro se citizens from appealing this case and airing PISD’s dirty
laundry.
54
Violation of constitutional right of due process: An attorney fees award
based on no evidence or insufficient evidence of existence and reasonableness of
attorney fees viz. identity of attorneys, hours worked, tasks performed, quality and
difficulty of work, hourly rate and other factors laid out by the Supreme Court in
El Apple violates plaintiffs’ constitutional rights of due process and equal
protection under Texas Constitution and 14th Amendment to the Unites States
Constitution. The award is arbitrary, capricious, manifestly too large and
unreasonable imposition of attorney fees that has no support in law.
The judgment and the award of attorney fees of $30,000 and costs should be
vacated and denied.
8. Judge Lopez was disqualified from conducting trial
Disqualification11 can be raised at any time and for the first time on appeal,
as here, and even in a motion for rehearing. See Buckholts Indep. Sch. Dist. V.
Glaser, 632 S.W.2d 146, 148 (Tex. 1982).
Judge Lopez was disqualified from sitting in this case and was disqualified
from conducting the final trial on 10/9/2013. The standard of review for the Court
in this matter is de novo. See McElwee v.McElwee, 911 S.W.2d 182, 185-87 (Tex.
App.--Houston [1st Dist.]1995, writ denied).
11
The original source for disqualification in Texas is the constitution. Article V, Section 11
enumerates the circumstances in which a judge is disqualified from sitting in a case. TEX.
CONST. art. V, § 11. The grounds have essentially been restated in TRCP 18(b)(a).
55
Judge Lopez conducted a meaningless trial on 10/9/2013 and rigged it in
favor of defendant:
Judge Lopez repeatedly failed to rule on trial exhibit PX1 during the trial
inspite of numerous requests by plaintiffs in the one day trial. Transcript pages34,
37, 44, 74, and 204. Defendant never made an objection to PX1. Judge Lopez’s
misconduct in failing to rule on PX1 has caused serious and permanent harm to
plaintiffs in this case. This was an exhibit which was reviewed by the 7th court of
appeals in the first appeal and formed the basis of the opinion and the reason for
remand in the first appeal by the court of appeals.12 Appendix19. Thus PX1 was a
critical exhibit at the trial and should have been admitted by trial court. Judge
Lopez’s failure to rule on admissibility of PX1 was deliberate and a gross disregard
of his judicial duty resulting in a deliberate damage done to plaintiffs’ case and
obstruction of appeal.
The outcome was that the trial was a charade and was infected with chaos
and confusion, and plaintiffs were prevented from properly and effectively
presenting their case at trial concerning the deliberate violations of electronic
website internet notices of PISD’s meeting notices and concerning untimeliness of
website notices of 22 Meetings under TOMA §551.056(b) and PISD’s lack of good
faith under TOMA Sec. 551.056(d).
12
This Court has confirmed that PISD indeed was untimely in creating and posting internet
notices in violation of TOMA §551.056(b) for 22 meetings in 2008-2009. These 22 electronic
notices and their electronic properties are contained in PX1. Appendix19.
56
PX1 was the cornerstone and basis of not only proving the untimeliness of
the website notices but proving that PISD’s claim of good faith defense was
fraudulent because the internet notices of 22 notices were created in May 2009 and
posted to website for public viewing on 5/19/2005 after plaintiffs informed PISD
of its non-compliance with §551.056(b). Judge Lopez’s refusal to even rule on
admissibility of trial exhibit PX1 was purposeful, calculated, and inexcusable
abdication of duty that derailed the entire case of plaintiffs. Further his refusal to
rule on PX1 damaged appellants’ case as they were prevented and unable to
present their case properly without the critical exhibit PX1 which was central to the
trial in showing that PISD did not have a good faith defense and that such defense
was fraudulent i.e. the create dates of the internet notices on PX1 showed that the
notices were created untimely in violation of TOMA weeks after the meetings in
question took place.
Failure to conduct trial or rule on 7 Causes: Plaintiffs rely on Argument
1 which is set forth verbatim herein. Judge Lopez deliberately improperly failed to
try plaintiffs’ 7 Causes of action under TOMA and abdicated his independent duty
to try and rule on 7 Causes. Such misconduct brings disrepute to justice system
and violated plaintiffs’ absolute due process constitutional rights. Neither the
district court nor the appeals court has the power to order that plaintiffs’ causes of
action cannot be tried.
57
What kind of judge returns evidence filed in the court?
Trial court conducted an evidentiary hearing ordered by this Court on lost or
destroyed exhibits on 9/26/2014 to determine fault in the matter. Plaintiffs
submitted documentary evidence to Judge Lopez in the hearing.13 However, Judge
Lopez ordered court reporter to return the evidence to plaintiffs after receiving it in
open court. The visiting court reporter mailed the evidence to plaintiffs.
Appendix17.
What kind of judge returns evidence presented in an evidentiary hearing
ordered by this Court? But Judge Lopez did. Such misconduct shows that Judge
Lopez lacks judicial temperament, carried animus and bias against plaintiffs, and
advocated for defendant, and was unfit to preside at the trial in this case. His
conduct and its severity were not known until after trial on 10/9/2013.
Bias that denies due process In McClenan v. State, 661 S.W.2d 108, 109
(Tex. Crim. App. 1983) the Court of Criminal Appeals held that in criminal cases
bias might be grounds for legal disqualification if that bias was “shown to be of
such a nature and to such an extent as to deny a defendant due process of law.”
Due process is recognized in civil as well as the criminal context. Following
McClenan ruling in 1983, various Texas appeals courts have recognized McClenan
13
Curiously, Judge Lopez took possession of all trial exhibits (Transcript page 56) and exhibits
PX1, PX32, PX19, PX20, and PX25 were lost or destroyed and had to be replaced through
another remand and hearing in this case.
58
and applied the “bias that denies due process” as bias that materially implicates
“personal interest,” therefore meeting constitutional grounds for disqualification
under Texas Constitution. See Elam v. State, 841 S.W.2d 937, 939 (Tex. App.--
Austin 1992, no pet.) (recognizing McClenan); Lovely v. State, 894 S.W.2d 99,103
(Tex. App. --Beaumont 1995, pet. ref’d) (same); Stafford v. State, 948 S.W.2d 921,
924 (Tex. App.--Texarkana 1997, pet. ref’d) (same).
Thus when a judge’s bias is of such nature and extent that it denies a party
due process of law, as here, the judge must be disqualified under Texas
constitutional grounds.
Here, Judge Lopez’s bias and conduct was unprecedented and shocking as
he deliberately set out to harm pro se plaintiffs and conduct a sham trial. Such
conduct lowers citizens’ regard and confidence in the integrity of judges and the
justice system. The due process violations outlined in this motion require Judge
Lopez’s disqualification from the trial on 10/9/2013.
Judge Lopez was not neutral, but was advocate for PISD and casting himself
in adversarial role against plaintiffs causing damage to plaintiffs’ case –depriving
them of causes of action and in ensuring their loss at trial. Judge Lopez was
disqualified from conducting trial in this case.
9. Voidance and Special damages:
59
PISD’s actions in 22 Meetings held in violation of TOMA should be voided.
Courts have repeatedly voided actions in violation of TOMA. Ferris v. Texas
Board of Chiropractic Examiners, Supra; City of Bells v. Greater Texoma Uti!.
Auth., 744 S.W.2d 636,640 (Tex. App.-Dallas 1987, no writ); Point Isabel ISD v.
Hinojosa, 797 S.W.2d 176 (Tex.App-Corpus Christ 1990, writ denied).
PISD’s willful defiance, misconduct, and a systematic pattern and practice of
TOMA violations require that special damages and sanctions be imposed on PISD.
Courts have imposed special damages, as requested here, for conscious
indifference and failure to comply with the Open Meetings Act, as in this case on
defendant’s part. See Wells v. Hutchinson, 499 F.Supp. 174, 198 (E.D. Tex. 1980).
Special damages in the amount to be determined by the Court should be granted to
plaintiffs. Plaintiffs will produce details of hours and money spent at Court’s
direction in this regard.
V. CONCLUSION
A famous U.S. President once asked his opponents “do you think we are
stupid?” Citizens ask the same question to PISD. Defendant expects these pro se
citizens will be long gone and forgotten. Defendant is mistaken. Appellants think
Texas citizens and tax payers will be interested in this case and will insist that their
government bodies function in exact and literal compliance with TOMA and that
their complaints will be heard.
60
This court should not let citizens stand outside a school building in
humiliation just to read meeting notices in rain, snow, heat, and in poor lighting.
This Court should enforce exact and literal compliance standard or declare it dead.
The sky will not fall if PISD ratifies its actions in violation of Open
Meetings Act inspite of what PISD claims. This Court should reverse trial court’s
judgment and enter judgment for plaintiffs on all causes of action.
VI. PRAYER
For the foregoing reasons, appellants Rebecca Terrell and Chandrashekhar
Thanedar respectfully request that the Court
REVERSE the trial court’s judgment in total, vacate the award of attorney
fees and costs to PISD and further deny attorney fees and costs to PISD; and
RENDER judgment for appellants; and GRANT declaratory and injunctive
relief on all claims of violation of TOMA whether or not any other relief is
granted; DECLARE the 22 Meetings and the actions taken in these meetings void;
and DECLARE the March 26, 2009 board meeting and the action taken in this
meeting non renewing and terminating Terrell’s employment contract void; and
ISSUE mandamus to reinstate Terrell as a teacher with full back pay and duties,
pay, benefits, and privileges appurtenant thereto and prohibit PISD from
preventing Terrell from resuming her duties as teacher at Pampa Independent
School District; and GRANT appellants’ second no-evidence and traditional
61
motion for summary judgment on all causes of action; and DECLARE the closed
meeting of March 26, 2009 and any actions taken in it void, and grant the relief of
making the certified agenda and/or tape recording of this closed meeting fully
available to public inspection and copying and make its contents public; and
ISSUE a permanent injunction against appellee PISD to prevent future violations
of TOMA; and IMPOSE appropriate sanctions on defendant PISD; and DECLARE
that appellants have substantially prevailed in the lawsuit; and AWARD appellants
costs of litigation, attorney fees, damages, special damages including opportunity
cost of appellants’ time and effort, in an amount to be determined by the Court;
and that Judge Lopez was disqualified from sitting in the case and from conducting
final trial on 10/9/2013.
Minimally, this Court should REVERSE the trial court’s judgment in total,
and REMAND for a new trial on all causes of action to a different judge, ORDER
discovery on remand on all causes of action with specific instructions to make
SchoolCenter, BoardBook, and any other vendors or persons involved in this
matter, PISD current or former employees, and related personnel to this lawsuit
available for deposition at PISD’s expense, and further discovery as deemed
necessary by plaintiffs at PISD’s expense, and vacate and deny the award of
attorney fees and costs in the amount of $30,000 to PISD granted by the district
court, and further DECLARE that appellants and indeed all Texas citizens are
62
interested persons in PISD and all public school districts under TOMA. In doing
so, appellants would further ask that the Court AWARD appellants the costs of this
appeal and costs incurred in the district court.
Appellants request the Court GRANT declaratory and injunctive relief in all
causes of action whether or not any other relief is granted. Appellants further pray
for all other and further relief to which they may justly be entitled to receive.
Respectfully submitted,
/s/ Rebecca Terrell
Rebecca Terrell
/s/ Chandrashekhar Thanedar
Chandrashekhar Thanedar
Appellants
Certificate of Compliance
I certify that the foregoing brief complies with Tex. R. App. P. 9.4 and the
word count of the brief is 14,699 words exclusive of the exempted portions in Tex.
R. App. P. 9.4 as counted by the MS Word program used to prepare the brief.
/s/ Rebecca Terrell
Rebecca Terrell
63
Certificate of Service
Pursuant to Tex. R. App. P. 9.5, I certify that a true and correct copy of the
foregoing Appellants’ Brief has been e-served via the Court’s EFSP upon the lead
counsel on March 26, 2015 as follows:
W. Wade Arnold
State Bar No. 00783561
Underwood Law Firm
P. O. Box 9158
Amarillo, TX 79105-9158
(806) 379-0364 Telephone
(806) 349-9474 Fax
Counsel for Appellee PISD
/s/ Rebecca Terrell
Rebecca Terrell
Chandrashekhar Thanedar
64
APPENDIX
1. Motion for New Trial
2. Motion for Modify Judgment
3. Motion for Reconsideration
4. Request for Additional or Amended FOF and COL
5. Plaintiffs’ Original Petition
6. Plaintiffs’ Second and First Supplemental Petitions
7. Created Dates of PISD’s Untimely Posted Internet Notices (PX2)
8. Defendant’s Answers to Plaintiffs’ Interrogatories (PX8)
9. Defendant’s Responses to Plaintiffs’ Requests for Admissions (PX9)
10. Defendant’s Answers to Plaintiffs’ Second Set of Interrogatories, Requests
for Admissions and Request for Production (PX10)
11. Defendant’s Supplemental Answers to Plaintiffs’ First Interrogatories,
Requests for Production, and Requests for Admission (PX11)
12. Plaintiffs’ Second No-Evidence and Traditional Motion for Summary
Judgment
13. Notices for 3/26/09 meeting - physical and internet notices (PX3, PX5)
14. Notice for 3/26/09 meeting-document properties of the internet notice (PX4)
15. Suzie Jameson testimony - excerpts
16. Suzie Jameson e-mail (PX32)
17. Letter returning evidence on Judge Lopez’s Order
18. Amended Notice of Appeal
19. 7th Court of Appeals Opinion in the First Appeal
20. Judge Lopez - 223rd Court Final Judgment
21. Judge Lopez - Findings of Fact and Conclusions of Law
22. BoardBook Draft Agreement (PX31)
23. Texas Open Meetings Act, Gov’t Code Ch. 551 - selected provisions
Appendix 1
Motion for New Trial
,. ___
332
CAUSE NO. 35621
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MOTION FOR NEW TRIAL
TO THE HONORABLE JUDGE ABE LOPEZ:
Plaintiffs hereby file their Motion for New Trial pursuant to Rules 320-324, and Rule
329b of Texas Rules of Civil Procedure, and would respectfully show the Court as follows:
1. Plaintiffs rely on the following Appendices which are adopted and incorporated by
reference as if set forth verbatim herein.
Appendix 1 Suzie Jameson testimony. Attached
Appendix 2 OLD website archive page on January 26,2009. Attached
Appendix 3 View source of OLD website archive page on January 26, 2009 Attached
Appendix 4 NEW website archive page on February 5, 2009. Attached
Appendix 5 View source of NEW website archive page on February 5, 2009.Attached
Appendix 6 Plaintiffs' Affidavit. Attached.
Plaintiffs' trial exhibits are denoted as PX followed by the exhibit number.
2. On October 9, 2013, the Court held trial only on plaintiffs' cause of action in Texas
Open Meetings Act (TOMA), Texas Gov't Code §551.056 (b) and (d) and declined to hold trial
on other six causes of action in TOMA Sections 551.041, 551.043, 551.045, 551.051, 551.074,
551.101. See original petition and two supplemental petitions filed in this case. The Court
signed judgment on 10/25/2013 and awarded costs and attorney fees of $30,000 by taking
332
• 333
judicial notice of the file. PISD refused to testify at the trial on its attorney fees, but asked the
Court to take judicial notice of attorney fees.
3. For the first time at trial, in violation of discovery rules, PISD disclosed that a "third
party vendor" was involved in transferring the link to its website notices on BoardBook. In
addition, for the first time at trial, in violation of discovery rules, PISD disclosed the identity of
the third party vendor - "SchoolCenter" which created a "new website" for PISD allegedly in
January 2009 and allegedly failed to transfer said link to the new website causing non-
appearance of website notices from January 15, 2009 meeting to May 19, 2009 meeting. See
Appendix 1; PX 8-11.
Appendices 2 through 5 are PISD's website archive pages and view source information
of PISD's website as of the dates noted i.e. 1126/2009 and 2/5/2009, in the archive and view
source pages. View source pages state software that generated PISD's website pages viz.
"Adobe GoLive" software for the OLD website and "SchoolCenter" version 8.0 used for the
NEW website. The newly discovered evidence clearly shows that PISD purposefully gave false
and misleading testimony at trial and in its answers to interrogatories and responses to other
discovery requests. PX 8-11; Appendix 1.
PISD concealed and falsified the dispositive facts that:
a. Said link in question did not exist on the OLD website which was managed by PISD
itself through January 26, 2009. PISD has admitted that the TOMA internet notice did not
appear on its website for its January 15, 2009 meeting because the link was removed. See PX 8-
11; Appendix 2, 3.
b. PISD's OLD website was managed by its webmaster Lee Carter at least through
January 26, 2009. Appendix 2 (bottom left comer) and Appendix 3 (page 2 of the appendix)
Motion for New Trial Cause No. 35621 Page2 of24
333
334
clearly identify Lee Carter as PISD's webmaster and show that Lee Carter as an employee or
contractor had PISD's business email address. PISD used Adobe GoLive software at least up to
January 26, 2009 and maintained its own website well after the time it admitted that January 15,
2009 meeting notice did not appear on its website because link was removed when PISD
managed its website itself. The newly discovered evidence shows that SchoolCenter was not at
"fault" as falsely alleged by PISD because as admitted by PISD the link did not exist on its
website on or before 1115/2009 causing non-appearance of the internet notice for 1/15/2009
board meeting.
c. Thus it is obvious PISD's Suzie Jameson fabricated a story and gave false testimony
(Appendix 1) blaming SchoolCenter when PISD itself removed the link in January 2009 or
before, on its own watch, before the new website was allegedly generated by SchoolCenter in
February 2009 (Appendices 4-5).
d. PISD concealed Lee Carter's (PISD's Technology Director) role in maintaining and
generating PISD's website during the time period it claims good faith under 551.056(d). Lee
Carter's name was not disclosed during the discovery process in violation of discovery rules as a
person who had knowledge or any role in this concerning this lawsuit. PX 8-11. Lee Carter's
name appears as webmaster on PISD's website on January 26, 2009 well after PISD admitted
that January 15, 2009 meeting notice did not appear on its website due to alleged link problem.
Appendices 2-3.
The above newly discovered evidence is not cumulative and it could not be obtained
before as the existence and identity of the "third party vendor" was concealed before, not
disclosed until during the trial on 10/9/2013. Lee Carter's identity as a webmaster and
Technology Director was also not disclosed until during the trial itself which is material on the
Motion for New Trial Cause No. 35621 Page 3 of24
334
335
issue of good faith under Sec. 551.056(d). The newly discovered evidence clearly shows PISD
managed its website when the 1/15/2009 meeting notice did not appear on its website as
admitted by PISD. Obviously, SchoolCenter could not transfer to the new website what did not
exist on the OLD website that PISD maintained itself with Lee Carter as its webmaster. The
newly discovered evidence is material and dispositive, and is fatal to PISD's good faith claim.
Because PISD failed to supplement its interrogatory answers and failed to provide correct and
complete answers to interrogatories and other discovery (PX 8·11 ), plaintiffs were not able to
obtain the above evidence before trial.
Plaintiff Thanedar testified as expert in technology matters pertinent to this lawsuit. The
above evidence however is obvious to an average person. Plaintiffs affirm that "Adobe GoLive"
was a software product of Adobe Systems Inc. and· is an HTML editor used to maintain and
manage websites by its customers. The word "Generator" in Appendix 3 means what it says i.e.
PISD generated its website using Adobe GoLive. Appendix 3. The newly discovered evidence
shows "SchoolCenter" was not responsible for NOT transferring or transporting said link to
internet notices as alleged by PISD at trial because PISD's website did not have the link in
January as admitted by PISD. Plaintiffs demonstrate the existence of factors 1 in Jackson and
Kirkpatrick for grant of new trial. Jackson v. Van Winkle, 660 S.W.2d 807, 809-10 (Tex. 1983);
Kirkpatrick v. Memorial Hosp., 862 S.W.2d 762, 775 (Tex.App.-Dallas 1993, writ denied). The
weight and importance of the newly discovered evidence and its bearing with respect to evidence
1
The factors are: (i) the evidence came to light since the time of trial or so late in the trial that it was
impossible to present the evidence before the trial closed; (ii) it was not because of a lack of due diligence
that the information did not come sooner; (iii) the new evidence is not merely cumulative to that already
given and does not tend only to impeach the adversary's testimony; and (iv) the evidence is so material
that it would probably produce a different result if the court granted a new trial. Jackson v. Van Winkle,
660 S.W.2d 807, 809-10 (Tex. 1983).
Motion for New Trial Cause No. 35621 Page4 of24
335
336
received at trial is conclusive and is so material that it will probably produce a different result in
this case i.e. PISD did not have good faith because it removed the link from its website itself
before the creation of new website by SchoolCenter- PISD's Jameson's testimony at trial and its
responses to discovery which were admitted into evidence being false, fabricated, and
misleading. Refusal to receive newly discovered evidence and refusal to grant new trial would
be manifest abuse of discretion and permanent loss of plaintiffs' substantive rights. A new trial
is thus required under law on the good faith claim by PISD and an evidentiary hearing should be
conducted by this Court to receive evidence in the above matters which will affirm that PISD's
good faith claim was made in bad faith and is a fraud. Plaintiffs request an evidentiary hearing
for the Court to receive evidence in this case on the newly discovered evidence above. The
Court should grant new trial.
4. The Court clearly erred in granting $30,000 in attorney fees to PISD by taking
''judicial notice of the file" as asked by PISD. Texas law has not allowed recovery of attorney
fees unless allowed by statute or contract. "Absent a contract or statute, trial courts do not have
inherent authority to require a losing party to pay the prevailing party's fees." Tony Gullo
Motors v. Chapa, 212 S.W.3d 299,310-311 (Tex. 2006). Nothing in TOMA or its pertinent case
authority authorizes or empowers the Court to take judicial notice of attorney fees and to award
them without receiving evidence. See TOMA Sec. 551.142. 2 Plaintiffs challenge the imposition
2
TOMA Section 551.142 provides as follows:
(a) 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.
(b) 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.
Motion for New Trial Cause No. 35621 Page 5 of24
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• 337
of attorney fees as legally improper and further challenge the reasonableness of attorney fees
awarded to PISD. The reasonableness of attorneys' fees is question of fact that must be proven at
the trial. City of Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000). Thus PISD
was required to testify concerning its attorney fees. PISD refused and failed to testify on its
attorney fees and refused and failed to prove them. Thus PISD forfeited and waived any claim to
attorney fees. Because PISD refused and failed to prove and testify on its attorney fees, there is
no evidence or insufficient evidence in the record for the Court to award attorney fees to PISD.
Court's award of $30,000 has no basis in law or evidence because there is no evidence or
insufficient evidence of tasks completed, hours worked, level of difficulty, identity of attorneys,
reasonable hourly rates of attorneys on the case and other necessary information on which
attorney fees must be based on and can be determined. Further in this regard, plaintiffs rely on
and adopt and incorporate paragraph 2 of their Motion to Modify Judgment (which is filed
contemporaneously) by reference as if set forth verbatim herein.
It is clearly ascertainable that the award of attorney fees in this case does not arise under
Texas Civil Practice and Remedies Code (CPRC) section 38.001, thus this Court does not have
power to take judicial notice of attorney fees under Tex. Civ. Prac. & Rem. Code § 38.004. See
Valdez v. Valdez, 930 S.W.2d 725, 732-33 (Tex. App.--Houston [1st Dist.] 1996, no writ)
(holding section 38.004 only applies to claims under section 38.001). Attorney fees award here
is legally improper because plaintiffs have undisputedly proven their good faith at the trial as
their report of the violation of Sec. 551.056(b) was the only reason said violation was finally
corrected by PISD after 5 months of non-compliance with TOMA from 112009 to 5/19/2009. PX
8-11. Further this court sitting by assignment has no personal knowledge of all of the
proceedings in this case, being the third judge in this case after Judge Waters and Judge
Motion for New Trial Cause No. 35621 Page 6 of24
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Vanderpool. Further plaintiffs do not have the ability to pay attorney fees, thus award is not
reasonable. PISD did not plead in its original or the amended answer the required prerequisites
to attorney fees as required by TOMA Sec. 551.142. PISD's first amended answer is defective
as it does not contain a proper certificate of service under TRCP and PISD failed to answer
plaintiffs' second supplemental petition.
This Court has no authority or power under TOMA and no inherent authority or power to
impose attorney fees for any proceedings or filing in the appellate courts, with or without
evidence being received. Defendant has provided no statutory support or case authority for it.
Further there is no evidence or insufficient evidence of filings by plaintiffs in the appellate court
on which to base attorney fees award on by this Court. Defendant made no argument concerning
its attorney fees for appellate filings by plaintiffs. There is no evidence or insufficient evidence
that PISD made any responses to plaintiffs' appellate- filings and that they were accepted by
appeals court. In fact, defendant's responses have been rejected by appeals court. In addition,
plaintiffs prevailed on appeal in this case and the case was remanded back to trial court. Court's
finding that plaintiffs made voluminous filings is legally immaterial, arbitrary, and capricious
because plaintiffs prevailed on appeal and defendant's responses were found defective by
appeals court. Thus there is no basis in law or fact for an award of attorney fees for plaintiffs'
filings in appeals court. Further appeals court failed to segregate appeals court's portion of the
attorney fees from trial court portion of the award and attorney fees before remand and after
remand. Since, plaintiffs prevailed on appeal and were awarded costs by appeals court, no
attorney fees and costs for proceedings before remand can be or should be awarded to PISD.
The attempt by PISD for attorney fees is a bald attempt to intimidate plaintiffs in not
filing an appeal of this Court's judgment. Such an attempt is an outrageous affront to the purpose
Motion for New Trial Cause No. 35621 Page 7 of24
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339
of open government under TOMA and will have chilling effect on citizens and taxpayers who
report violations of TOMA and seek redress. PISD has refused to testify and prove its attorney
fees before this Court (or appeals court), this Court failed to receive evidence concerning
attorney fees, thus PISD waived and forfeited attorney fees.
It is clearly ascertainable that PISD did not respond to plaintiffs' motions or letters
whether or not they were "voluminous," thus there is no evidence that PISD ever incurred
attorney fees or insufficient evidence that PISD ever incurred attorney fees and to what extent
with respect to PISD's complaints about plaintiffs filings. Further, plaintiffs cannot be penalized
or sanctioned for filing lawsuits or for their filings whether or not they were voluminous as they
a have constitutional right to seek redress of their grievances. The plain fact is there is no
evidence or insufficient evidence ofPISD spending any time on plaintiffs' "filings" in this Court
or in appeals court.
An attorney fees award based on no evidence ofexistence and reasonableness of attorney
fees viz. identity of attorneys, hours worked, tasks performed, quality and difficulty of work,
hourly rate and other factors; or insufficient evidence of existence viz. identity of attorneys,
hours worked, tasks performed, quality and difficulty of work, hourly rate and other factors
violates plaintiffs' constitutional rights of due process and equal protection under Texas
Constitution and 14th Amendment to the Unites States Constitution as such arbitrary and
capricious and manifestly too large and unreasonable imposition of attorney fees has no support
in law or case authority. Therefore imposition of attorney fees without legal support under
TOMA and without receiving evidence is not only a clear abuse of discretion but is abusive to
Texas citizens and taxpayers such as plaintiffs. This Court should vacate its judgment and order
new trial. PISD did not offer argument at trial or in its pleadings about whether plaintiffs
Motion for New Trial Cause No. 35621 Page 8 of24
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brought this suit in good faith or being a prevailing party, or whether its actions had a reasonable
basis in law on all causes of action brought by plaintiffs. See Sec. 551.142. PISD failed to plead
prerequisites to attorney fees in its amended answer. Sec. 551.142. PISD's first amended
answer is defective as it does not have proper certificate of service under TRCP. Plaintiffs adopt
and incorporate by reference their response to defendant's first amended answer and plaintiffs'
special exceptions and affirmative defense to defendant's request for attorney fees and costs
(which are on file) as if set forth verbatim herein.
As explained before, there is clear undisputed evidence of good faith on the part of
plaintiffs in this case, thus imposition of costs is improper and unreasonable. See TOMA Sec.
551.142. PX 8-11. The judgment and award of attorney fees of $30,000 and costs should be
vacated and denied and new trial ordered. PISD offered no evidence of lack of good faith on the
part of plaintiffs and did not even offer an argument on it. Thus there is no evidence or
insufficient evidence of lack of good faith or bad faith in the record on the part of plaintiffs.
5. The Court erred when it denied trial on plaintiffs' remaining six (6) distinct causes of
action under TOMA Sections 551.041, 551.043, 551.045, 551.051, 551.074, 551.101. 3 See
plaintiffs' original petition and the two supplements on file.
3
PISD's Board of Trustees (Board) held 11 meetings each in 2008 and 2009 from 8/13/08 to 5/19/09.
Violations of TOMA provisions at Issue in this case:
• §551.051: PISD violated §551.051 by failing to post notices of 3/26/09 board meeting and 22
Meetings in a specifically designated place - Bulletin Board in its Central Administrative Office
(Central Office) as required by TOMA.
• §551.056: PISD violated §551.056 by failing to concurrently post internet notices of 3/26/09
board meeting and 22 Meetings on its website for prescribed time and manner.
• §551.043: PISD violated §551.043 by failing to post notices of 3/26/09 board meeting and 22
Meetings at a physical location for prescribed time (72 hours) and manner.
• §551.041: PISD violated §551.041 by failing to specify "place" (Pampa, Texas) in its notices
(internet and paper notices) of 3/26/09 board meeting and 22 Meetings.
Motion for New Trial Cause No. 35621 Page9 of24
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The Court stated that the appeals court remanded the case to hold trial only in the cause
of action in Sec. 551.056(b) and (d). This is plainly incorrect. The appeals court did not state
the causes of action on which trial should be held. See the Opinion and Mandate of the appeals
court on file in this case. The appeals court did not rule on said 6 causes of action in its opinion
and this Court was required to hold trial on them and specifically rule on them. The Texas Rules
of Civil Procedure require that the Court rule on all causes of action and the judgment conform
to pleadings. The record of trial is clear - plaintiffs did not agree to forego their right to trial on
said 6 causes of action. The Court has failed to make findings of fact and conclusions of law
regarding said 6 causes of action. TOMA Sec. 551.142(a) entitles plaintiffs to ruling and relief
on their said 6 causes of action. Plaintiffs refer to and rely on the facts, arguments, and
authorities presented and relief requested in regards to said 6 causes of action in plaintiffs'
second no-evidence and traditional motion for summary judgment (filed in this case on
10/3112012) as if set forth verbatim herein. If the Court is of the opinion that material fact
question remains as to any of the said 6 causes of action, the Court was required to try them,
alternatively, if the Court believes no material fact question remains, the Court is required to rule
on said six causes of action. The Texas Supreme Court has demanded Exact and Literal
Compliance with TOMA. See Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990).
("The explicit command of the statute is for openness at every stage of the deliberations.
Accordingly, we have demanded exact and literal compliance with the terms of this statute."
[citing] Smith County v. Thornton, 726 S.W.2d 2, 3 (Tex. 1986); City of San Antonio v. Fourth
• §551.101 and §551.074(b): PISD violated §551.101 by failing to legally close the 3/26/09 Board
meeting and violated §551.074(b) by deliberating on Terrell's termination in closed meeting.
• §551.045(d): PISD violated §551.045(d) because PISD's notices (website and physical location)
of 3/26/09 board meeting and 22 Meetings were signed on behalf of the Board and posted by a
person (Karen Linder) not so designated nor authorized by PISD's Board of Trustees (Board).
Motion for New Trial Cause No. 35621 Page 10 of24
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Court ofAppeals, 820 S.W.2d 762 (Tex. 1991)). Thus, "substantial compliance" under TOMA,
whether done in good faith or not, is no longer sufficient nor valid law in Texas. This Court
should apply the Exact and Literal Standard to all causes of action in this TOMA lawsuit.
The Court's failure to rule or try the remaining six causes of action violates plaintiffs'
constitutional rights under Texas Constitution Article 1 Sections 3, 13, 19, and 27, and the 14th
Amendment to the U. S. Constitution. Plaintiffs request that judgment be vacated and new trial
be granted on all causes of action.
6. The Court erred in denying plaintiffs' motions to exclude evidence concerning any
person or third party vendor's role or involvement about which full discovery was not provided
or role and involvement not disclosed during the discovery process to plaintiffs in this case
including SchoolCenter and BoardBook. The Court erred in denying plaintiffs' motion to strike
and exclude Jameson's testimony regarding SchoolCenter as PISD had concealed and failed to
disclose its identity and role during discovery process. PISD further failed to supplement
discovery concerning the identity and role of SchoolCenter concerning its good faith defense
under Sec. 551.056(d).
For the first time at trial, PISD asserted that a third party vendor, SchoolCenter, made the
mistake of not transporting the link to BoardBook to a new website. PISD engaged in trial by
ambush in this regard by concealing 1) that a third party vendor was involved in creating a new
website, 2) that this vendor School Center was responsible for the error of dropping the link to
internet notices on BoardBook. PISD during discovery process represented that only Jameson
and Linder had knowledge of the link problem and did not disclose that any other person or
vendor was involved in either creating the new website or transporting the link to the new
website. See PX 8-11; Appendix 1.
Motion for New Trial Cause No. 35621 Page 11 of24
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•
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At trial, PISD admitted that it had a contract with SchoolCenter, but did not disclose its
existence and the role of SchoolCenter during discovery process and failed to supplement
discovery. PX 8-11. PISD divulged the identity and its claim that SchoolCenter played a central
role in its non-compliance with Sec. 551.056(b) for 5 months from 1115/2009 meeting to
5/19/2009 meeting by not transporting the link to PISD's website notices on BoardBook. PISD
disclosed the identity of SchoolCenter and its role for the first time in Jameson's testimony at
trial on 10/9/2013. Because PISD concealed the identity of SchoolCenter and its alleged crucial
role in PISD's non-compliance with TOMA during discovery process, the Court should have
excluded and struck Jameson's testimony relating to any and all evidence relating to
SchoolCenter as a sanction on PISD. Boothe v. Hausler, 166 S.W.2d 788, 789 (Tex. 1989).
Parties have an affirmative duty to supplement answers to discovery requests if an answer is no
longer true and complete. TRCP 193.1, 193.5 PISD intentionally misled plaintiffs by
concealing SchoolCenter's identity and role until during the trial committing trial by ambush on
plaintiffs. The sanction for failure to comply with this rule is exclusion of the evidence affected
by the violation. Tex. R. Civ. P. 215(5).; TRCP 193.6; See Boothe v. Hausler at 789. PISD
failed to establish before the trial court that good cause existed for allowing SchoolCenter related
evidence. Boothe v. Hausler, at 789.
At trial, PISD claimed to have paid license fees and renewal fees to BoardBook for its
service to post website notices since 2007. But during discovery process PISD refused and failed
to provide full and complete discovery and produce documents concerning payment of license
fees and renewal fees to BoardBook. PX 8-11. PISD refused and failed to supplement answers to
interrogatories, to requests for admission, and produce documents concerning license fees and
renewal fees. Thus as explained above, all evidence concerning existence of BoardBook service
Motion for New Trial Cause No. 35621 Page 12 of24
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should have been excluded and struck from evidence at trial. See Tex. R. Civ. P. 215(5).; TRCP
193.6; See Boothe v. Hausler at 789. The Court erred when it refused and failed to do so in
response to motions from plaintiffs. See notice of pending motions which is on file.
Because PISD failed to comply with discovery rules and concealed and obstructed
justice, plaintiffs were severely compromised in their ability to show that non-compliance with
551.056(b) for 5 months was actually due to the fact PISD did not have BoardBook service
during that time period and that PISD obtained it in May 2009 and retroactively posted meeting
notices to its websites to conceal its non-compliance with TOMA. Similarly, because PISD
concealed the identity of SchoolCenter until the trial and SchoolCenter's alleged failure in
transporting "link" to PISD website notices, plaintiffs were severely compromised in this regard.
In both instances, the testimony and the issues were dispositive and not cumulative because they
related to the controlling and central issue ofPISD's good faith under Sec. 551.056(d) and why
the link to website notices was missing for 5 months in 2009. Boothe v. Hausler, at 789. The
Court should have excluded evidence concerning SchoolCenter and BoardBook, alternatively
should have granted continuance of the trial as requested by plaintiffs to conduct further
discovery. TRCP 193.6(c).
7. Plaintiff moves for new trial in this case on all causes of action as there is
overwhelming evidence against the Court's judgment or no evidence to support it, alternatively,
insufficient evidence to support the Court's judgment in this case. Further, the record discloses
the following: (1) there is complete absence of evidence of a vital fact; (2) the court is barred by
rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3)
the evidence offered to prove a vital fact is no more than a scintilla of evidence; or (4) the
evidence conclusively established the opposite of a vital fact. See Hawkins v. Ehler, 100 S.W.3d
Motion for New Trial Cause No. 35621 Page 13 of24
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345
534, 539 (Tex. App.--Fort Worth 2003, no pet.); Horton v. Horton, 965 S.W.2d 78, 85 (Tex.
App.--Fort Worth 1998, no pet.).
PISD has admitted that website internet notices of its 11 board meetings did not appear
on its website from 112009 to 5/19/2009. It is clear from the plain language of TOMA Sec.
551.056(d) that PISD has the burden of proof to prove good faith under Sec. 551.056(d) as to
why its non-compliance with Sec. 551.056(b) was in good faith for 5 long months from 112009
to 5/19/2009.
Karen Linder and Barry Haenisch in their testimonies engaged in surmise, speculation
and had no personal knowledge concerning a ''third party vendor" who they did not want to or
could not identify. Their testimony thus was bare opinion, hearsay, incompetent, speculative,
and immaterial as to whether PISD exercised good faith concerning its non-compliance with Sec.
551.056(b). Thus the evidence they presented was no more than scintilla, surmise, and
speculation which is not legal evidence. "When the evidence offered to prove a vital fact is so
weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no
more than a scintilla and, in legal effect, is no evidence at all," Kindred v. Con/Chem, Inc. 650
S.W.2d 61,63 (Tex. 1983). Karen Linder's testimony was a sham because she admitted that her
sworn answers to plaintiffs' interrogatories were nothing but speculation and she did not have
knowledge about technical matters in question. 4 PX 8-11. Karen Linder's assertion that she
"worked in BoardBook" on her computer was no more than bare opinion as PISD presented no
evidence that it actually had BoardBook service during the period in question i.e. 112009 to
5/18/2009 or at any time from 8/13/2008 to 5/19/2009. Thus their testimonies must be
4
PISD falsely represented to the appeals court that printing PDF notices, opening, closing PDF notices by
themselves changed the create and modify dates of website notices. Based on this fraudulent
misrepresentation, appeals court remanded the case to determine the facts. PISD now states at trial that it
was just speculation on their part. This is plain obstruction of justice.
Motion for New Trial Cause No. 35621 Page 14 of24
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•
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disregarded as no material fact question was raised or answered by their testimonies and because
the Court was barred by rules of law or evidence from giving weight to the only evidence they
offered (hearsay, bare opinion, and speculation) to prove a vital fact of good faith under TOMA.
As previously explained above, Suzie Jameson's testimony concerning SchoolCenter
must be excluded and struck from evidence as a sanction foy violation of discovery rules. Even
otherwise, Jameson's testimony concerning SchoolCenter was no more than bare opinion and
hearsay, surmise, speculation, thus does not constitute legal evidence and must be disregarded
under rules of evidence. Kindred at 63. PISD presented no competent evidence (e.g. contract,
payment of license fee, renewal fee, executed contract, check register, service correspondence,
etc.) that it actually had SchoolCenter as vendor providing any kind of service. PISD and
Jameson concealed the identity of SchoolCenter and its role in transporting the link in question
to a "new website" allegedly managed by SchoolCenter. There is no evidence or insufficient
evidence that any third party vendor including SchoolCenter was a vendor for PISD and such
vendor including School Center provided any kind of service to PISD including creation of new
website or transporting the link in question. PISD chose to obstruct justice instead of complying
with the discovery rules, it should not be rewarded for it.
Further as explained in paragraph 3 above, the newly discovered evidence clearly shows
that PISD generated its own website through 1126/2009 and PISD has already admitted that its
January 15, 2009 board meeting's website notice did not appear on its website due to alleged link
being removed. Thus it is clear from PISD's own admission and newly discovered evidence that
the link problem already existed on PISD's old website which it generated itself by using Adobe
GoLive program by its own employee Lee Carter - webmaster and technology director.
Appendices 2-5. The problem of admitted non-compliance on January 15, 2009 existed before
Motion for New Trial Cause No. 35621 Page 15 of24
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SchoolCenter allegedly created the new website which was in February 2009. Jameson's
testimony blaming SchoolCenter for not transferring the link was false and fraudulent as the link
did not exist on PISD's website in January 2009 when PISD and Lee Carter its webmaster
managed its own website - hence there was no link to transfer. PISD falsified evidence at trial.
Thus an evidentiary hearing is warranted in this matter to receive evidence in this case. A new
trial should be granted on all causes of action. There is no evidence, alternatively insufficient
evidence that SchoolCenter caused loss of link as alleged by PISD or that SchoolCenter was
responsible for not transferring the link in February 2009. This is because the newly discovered
evidence shows that the link did not exist on PISD's website in January 2009 when PISD
managed the website. It is clear that the link was removed by PISD itself as it was not
"necessary" as alleged by Jameson. PX 32; Appendix 1. At best, SchoolCenter's role is no more
than speculation, surmise which is not legal evidence in this case. See Kindred at 63. As
explained above, evidence at trial concerning SchoolCenter must be excluded. Further, evidence
at trial concerning existence of BoardBook service during 1/2009 to 5/19/2009 must also be
excluded. This Court should set aside its judgment including award of attorney fees and costs,
order new trial and further permit discovery concerning PISD's newly disclosed existence of a
third party vendor, SchoolCenter, who allegedly made the error of not transporting the "link" to
the legally required internet notices. Plaintiffs are entitled to discovery concerning SchoolCenter
because its existence and its role was never disclosed before the trial.
8. Furthermore, there is no evidence or insufficient evidence that PISD's non-compliance
with TOMA Sec. 551.056(b) was in good faith. On the contrary, there is overwhelming
Motion for New Trial Cause No. 35621 Page 16 of24
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348
evidence that its non-compliance was not in good faith. PISD has the burden of proof, but PISD
failed to meet its burden under TOMA Sec. 551.056(d). 5
a. There is no evidence or insufficient evidence that PISD made a good faith attempt to
post internet notices to comply with Sec. 551.056(b) for 11 meetings from 1115/2009 to
5/19/2009. PISD and its staff never checked its website for each of the 11 meetings to see
whether their each alleged attempt, if any, resulted in website notices actually appearing on its
website. PISD (Haenisch, Linder and Jameson testimonies) admitted that it did not verify
compliance during said time period. See for example, Appendix 1. There is overwhelming
evidence in the record that PISD did not exercise due diligence and care for any of the meetings
that took place from January 15, 2009 to 5/19/2009 because no one at PISD ever verified
whether or not TOMA notices actually appeared on PISD's website. If PISD had done so, it
would have immediately known and found out that notices were not appearing on its website and
PISD would have presumably fixed its non-compliance with TOMA. PISD never checked its
own website for compliance during January 2009 to 5/19/2009 for TOMA compliance with Sec.
551.056(b) until plaintiffs informed them of the no-appearance. This is admitted by PISD. PX
8-11. An average person with normal or average standard of care and due diligence would have
checked or verified PISD's website to ensure that the required legal notices actually appeared on
the new website when it was created in February 2009. In fact an average person with exercising
standard care would have verified appearance of legal notices on its website for every board
meeting since January 15, 2009 through 5/19/2009 (the period for which PISD admitted TOMA
5
TOMA §551.056(d) provides that:
"The validity of a posted notice of a meeting or an agenda by a governmental body or economic
development corporation subject to this section that made a good faith attempt to comply with
the requirements of this section that is due to a technical problem beyond the control of the
governmental body or economic development corporation."
Motion for New Trial Cause No. 35621 Page 17 of24
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349
notices did not appear on its website and for which it claims good faith). The trial testimonies of
Haenisch, Linder, and Jameson are clear that not one of them or any one else at PISD checked
even once that TOMA legal notices actually appeared on PISD's website especially after
creating new website. Thus PISD did not exercise due diligence or care for 5 months in question
and therefore its good faith defense fails and must be rejected. If this Court does not reverse its
judgment, every government body intentionally or not, will "fail" to exercise sufficient care to
comply with TOMA for months or years and still claim good faith and will be granted exception
under Sec. 551.056(d), making a laughing stock out of Texas Open Meetings Act.
b. There is no evidence or insufficient evidence that PISD's website contained the
alleged link to website notices BEFORE SchoolCenter allegedly created a new website in
February 2009. Appendix 4-5. There is no evidence or insufficient evidence that negligence or
incompetence on PISD's part concerning not transferring or transporting a link is a "technical
problem." See Sec. 551.056(d). "Oops we forgot" is not a technical problem under TOMA.
c. There is no evidence or insufficient evidence that transferring a link to an alleged new
website was "beyond the control" of PISD for 5 long months from 112009 to 5/19/2009. See
Sec. 551.056(d). Jameson testified that failure to transfer the link in question was an "oversight"
and negligence. Appendix I. There is overwhelming evidence that the link problem in question
would have been fixed had PISD checked its "new" website just once in 5 months as to whether
legally required internet notices were actually appearing on its website. There is overwhelming
evidence that PISD showed conscious indifference at best or bad faith and fraudulent misconduct
concerning its legal duty to comply with TOMA Sec. 551.056(b).
The problem of link was only fixed when plaintiff Thanedar reported nonappearance of
notices on 5/15/2009 to PISD in good faith. PX 8-11. Without plaintiffs' report in good faith,
Motion for New Trial Cause No. 35621 Page 18 of24
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PISD could have continued for several more months or even indefinitely without complying with
Sec. 551.056.
This government body presumes that the Court would take no action on its blatant
misconduct and concealment of evidence and Texas citizens will never find out about its bad
faith. PISD is mistaken. This Court should not condone such conduct.
9. The Court erred in denying plaintiffs' motions for continuance of trial. Plaintiffs
adopt and incorporate by reference their application for continuance of final trial only but not of
pending motions (filed on or about 10/4/2013) and plaintiffs' expedited motion to reset trial date
of October 9, 2013 (filed on or about 9/20/12013) as if set forth verbatim herein. Thus
continuance was proper and this Court should grant this motion for new trial.
Further continuance of the trial was proper due to the death of plaintiff Thanedar' s
mother (Terrell's mother in law) and Thanedar's travel to India during the month of September
2013 leaving on 9/6/2013 and returning on 9/25/2013 less than two weeks before the trial. Due
to death in the family, plaintiffs were thus not prepared physically or emotionally for the trial on
10/9/2013. Further, as explained before, crucial dispositive evidence concerning existence,
identity, and role of third party vendor SchoolCenter was introduced during trial in violation of
discovery rules. Thus continuance was proper in this case. TRCP 193.6(c).
10. The Court erred when it stated during trial that it will rule on admissibility of PX1
(22 board meeting website notices at issue in this lawsuit and their electronic document
properties on Compact Disc) at a later time but failed to do so during the length of 1 day trial on
10/9/2013. Plaintiffs reminded and urged the Court to make a ruling however the Court failed to
do so thereby impliedly denying Admission of PX1. Plaintiff however made offer of proof,
further stating that the CD in question was relevant in determining compliance with TOMA Sec.
Motion for New Trial Cause No. 35621 Page 19 of24
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351
551.056 for the 22 meetings in question and the electronic properties on the CD were
authenticated by Judge Waters. PISD did not make a specific valid objection. The CD in
question is in the record and the record thereon has been reviewed on appeal by the appeals
court. The Court clearly abused its discretion when it refused to rule on admissibility ofPX1 As
PX1 is central to violation of TOMA Sec. 551.056 and all other causes of action in plaintiffs'
live pleadings. PX2 which is the summary of PX 1 was admitted in the record. There are other
errors in admission of plaintiffs' trial exhibits e.g. PX32 which was actually admitted but does
not appear as admitted exhibit in record, thus the error should be corrected. The Court further
erred in not admitting plaintiffs Exhibit number 23 (concerning violation of Sec. 551.051 ),
Exhibit number 25 (salary schedules - back pay and benefits}, Exhibit 26 (disclosures to
plaintiffs), Exhibit 27 (violation of Sec. 551.041 - requirement of Place) as these relate to
plaintiffs' causes of action the Court refused to try or hear. Given the weight and importance of
these matters represented by the not-admitted exhibits above, led to incorrect judgment in this
case. Further refusing to admit PX1 and ignoring electronic properties of notices contained
therein which is at the center of violation of Sec.551.056 led to rendition of incorrect judgment.
Thus, the Court should grant new trial on all causes of action.
11. The Court erred in denying post-remand discovery including motions to compel
discovery. Plaintiffs have repeatedly made arguments before the Court that post-remand
discovery is consistent with the opinion and mandate of the appeals Court. 6 Plaintiffs refer and
6
This case was remanded by the 7th Court of Appeals for the sole reason to determine whether there is
evidence for PISD's "good faith" claim under Texas Open Meetings Act (TOMA) with respect to the
untimeliness of its website notices posted on BoardBook and whether the "create dates" of its website
notices changed due to "printing." See 7th Court of Appeals Opinion (pages 5-6) and Mandate on file;
and Texas Gov't Code §551.056 (b) and (d). On remand, defendant has repeatedly refused to supplement
its answers to interrogatories or other discovery requests. See PX 22 (letter requesting supplementation
from PISD).
Motion for New Trial Cause No. 35621 Page20of24
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rely on arguments made in the following motions which are adopted and incorporated by
reference as if set forth verbatim herein: Second no-evidence and traditional motion for summary
Judgment, Motion to Reset Trial, Application for Continuance, Plaintiffs' Motion for Ruling on
Post-Remand Discovery, to Exclude, for Inferences, to Compel discovery from defendant, and
For Sanctions Filed on 6/5/12, Motion to Vacate Court Order and for Oral Depositions and
Additional Discovery Filed on 11/16/2012. As explained before, without post-remand discovery,
plaintiffs' ability to present their claims at trial was severely compromised causing permanent
loss of their substantial rights. In addition, Texas citizens and taxpayers are entitled to know
whether PISD's good faith defense under TOMA 551.056(d) was a fraud on them and on the
appeals court and this Court. Post-remand discovery would have determined that question
properly and would have advanced the cause of open government. This Court should not close
its eyes to the important purpose of Open Government under TOMA.
12. The Court erred in ruling for defendant PISD on the grounds that
a) Non-compliance with TOMA Sec. 551.056(b) was excused because legally required
website notices "appeared on Google" or were "available on Google," for public and
b) Terrell attended the 3/26/20009 board meeting, spoke at the board meeting and was
aware of the proposed termination of her contract.
Both grounds Court cited in ruling for PISD are completely irrelevant as a matter of law
and must be disregarded and have no legal support whatsoever either statutorily in TOMA or in
case law. TOMA mandates that the internet website notices for a government body's board
meetings must appear concurrently on the government body's website. See TOMA 551.056(b).
There is no legal support for the proposition that the website notices can appear "on Google" and
meet the requirements of Sec. 551.056(b) or (d). PISD's website notices appearing "on Google,"
Motion for New Trial Cause No. 35621 Page 21 of24
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even if true, is legally irrelevant in meeting the good faith exception under Sec. 551.056(d).
Testimony by Jameson in this regard is hearsay and speculation and must be disregarded.
Similarly, the case law is clearly established - Texas Open Meetings Act is not a scheme
to provide due process to individuals. The Open Meetings Act is not a legislative scheme for
service of process; it has no due process implications. Rather, its purpose is to provide "openness
at every stage of [a governmental body's] deliberations." Acker v. Texas Water Comm'n, 790
S.W.2d 299, 300 (Tex.l990). City of San Antonio v. Fourth Court ofAppeals, 820 S.W.2d 762(Tex.l991). Thus it is legally irrelevant whether or not plaintiffs Terrell and Thanedar knew
about the 3/26/2009 board meeting and whether they attended the meeting or not. The Court
should not make new law in this regard.
Concerning findings of fact made by the Court, there is either no evidence or insufficient
evidence to support them or they are not legally relevant or material. For example, there is no
evidence or insufficient evidence that PISD ever paid license fee or renewal fee for service to
BoardBook or SchoolCenter as PISD refused and failed to produce such information in response
to discovery requests by plaintiffs. To the contrary, BoardBook draft contract (PX31) clearly
states that unless license fee is paid or purchase order provided, the contract would not be
effective. See PX31. PISD provided no such evidence at trial. As explained before, PISD's
bare opinion at trial in this regard is not legal evidence. See Kindred, /d. At trial, PISD's
testimony concerning SchoolCenter was purposefully misleading, evasive, and obstructive hence
must be deemed not credible.
Concerning conclusions of law made by the Court there is simply no evidence in support
or insufficient evidence in support of them. For example, there is no evidence or insufficient
evidence that internet notices independently appeared on either BoardBook website or on
Motion for New Trial Cause No. 35621 Page22 of24
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Google. In addition, such evidence even if established would be legally irrelevant as there is no
statutory support nor case authority in support for such proposition. The Court's finding of fact
and conclusion of law that an unnamed third party vendor was at "fault" is legally invalid as the
Court does not even identify the name of the vendor, certainly because there is no evidence or
insufficient evidence as shown above that said link even existed on PISD's OLD website before
the alleged unnamed third party vendor generated the new website. Plaintiffs refer to paragraph
3 above and repeat it herein. There is no evidence or insufficient evidence for Court's finding
and conclusion that new website was created in January 2009. There is conclusive evidence
because of PISD's admission in this case that said link did not exist on PISD's old website in
January 2009 when 1115/2009 board meeting notice did not appear on PISD's website in
violation of Sec. 551.056(b). There is no evidence or insufficient evidence that a third party
vendor was at fault for not transferring said link to the new website and there is conclusive or
sufficient or overwhelming evidence that PISD removed the link itself because it believed it was
not "necessary." See PX 32.
For the above reasons, the trial on 10/9/2013 was tarnished by new allegations of facts
introduced for the first time in 4 112 years in violation of discovery rules, gross hearsay in
violation of evidence rules presented and admitted as evidence over plaintiffs' objections,
defendant's unseemly defamatory tactics against plaintiffs by introducing irrelevant matters into
evidence in violation of rules of evidence to create bias in the record and before this judge, all of
which resulted in trial by ambush and in miscarriage of justice. The trial was neither fair nor
impartial. Thus the judgment should be set aside and new trial ordered on all causes of action in
the interest of justice and good cause.
Motion for New Trial Cause No. 35621 Page 23 of24
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Prayer
FOR THE FOREGOING REASONS, and in the interest of justice, fairness, and good
cause, plaintiffs respectfully request that the Court vacate the judgment and vacate the award of
attorney fees and costs entered in this case, set this motion for hearing, conduct an evidentiary
hearing on newly discovered evidence, grant this motion, and grant new trial on all causes of
action. Plaintiffs further request that Court grant all other and further relief, at law or in equity,
to which they may justly be entitled to receive.
Respectfully submitted,
Chandrashekhar Thanedar, Plaintiffs
6503 Dancing Ct. San Antonio, Texas 78244
(956) 445-3107; (512) 271-6840 Fax
rterrell152@gmail.com
CERTIFICATE OF SERVICE
The undersigned certify that a true and correct copy of the foregoing document was
served upon the following by USPS Priority Mail on November 21, 2013 toW. Wade Arnold,
Andrea Gulley, Underwood Law Firm, P. 0. Box 9158, Amarillo, Texas 79105-9158. Phone:
806.376.5613, Fax 806.379-0316, Attorneys for PISD.
Rebecca Terrell
Chandrashekhar Thanedar
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2
REPORTER'S RECORD AP P E ARANCE S
VOLUME 1 OF 1 VOLUME
2 TRIAL COURT CAUSE NO. 35,621 2
3 3 MS. REBECCA TERRELL and
REBECCA TERRELL and IN THE 223rd DISTRICT HR. CHANDRASHEKHAR THANEDAR
4 CHANDRASHEKHAR THANEDAR, 4 6503 DANCING COURT
SAN ANTONIO, TEXAS 78244
5 Plaintiffs, 5
vs. COURT, IN AND FOR PRO SE PLAINTIFFS.
6 6
PAMPA INDEPENDENT SCHOOL -AND-
7I DISTRICT, 7 HR. WADE ARNOLD and
Defendants. GRAY COUNTY, TEXAS MS. ANDREA GULLEY
8 8 UNDERWOOD LAW FIRM
P.O. BOX 9158
91 ******************************************************** 9 AMARILLO, TEXAS 79105-9158
(806) 379-0364
10 EXCERPT TESTIMONY OF SUZIE JAMESON 10
ATTORNEYS FOR DEFENDANT.
11 ******************************************************** 11
12 12
13 On the 9th day of October, 2013, the following 13
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14 proceedings came on to be heard in the above-entitled 14
15 and numbered cause before the HONORABLE Abe Lopez, Judge 15
16 presiding by assignment, held in Pampa, Texas, Gray 16
17 County, Texas: 17
18 Proceedings reported by computerized stenotype 18
I
19 machine; reporter's record produced by computer-assisted 19
20 transcription. 20
21 21
22 22
23 23
24
KAREN MORRIS, TEXAS CSR #334
Official Court Reporter - 223rd District Court
Gray County Courthouse
24 Appendix t
25 Room 302 25
Amarillo, Texas 79066
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CHRONOLOGICAL INDEX EXHIBIT INPEX
2 2
October 9, 2013 PAGE EXHIBIT NO. IDENTIFICATION OFFERED ADMITTED
3 3
4
Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Called for hearing ................................ 5
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4 NONE OFFERED OR ADMITTED IN THIS VOLUME.
5 5
61 WITNESSES: 6
7 I SUZIE JAI1ESON 7
8 Direct Examination by Hr. Thanedar ...... 5 8
9 I End of requested excerpt .......................... 33 9
Court Reporter's Certificate ...................... 34
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EXCERPT PROCEEDINGS: A. I was the director of technology.
2 October 9. 2013 2 Q, Would that also include director of instruction
3 (All sides present, in open court:) 3 and technology?
4 THE COURT: Who's your next witness, Hr. 4 A. Yes, sir.
51 Thanadar? 5 Q. Was this a demotion for you?
6 HR. THANEDAR: Yes. We would like to call 6 A, No, sir.
7 I Hs. Jameson, please. 7 Q, How long were you director of technology at
8 HR. ARNOLD: Suzie Jameson. 8 I Pampa ISO?
9 THE COURT: Just over here, Ms. Jameson. 9 A. Five years and two months.
10 I You may be seated. 10 Q. So it would be from about 2008 to 2013?
11 THE WITNESS: Thank you. Yes, sir. 11 A. Yes, sir. From April of 2008 unt 11 Hay 31st of
12 SUZIE JAMESON. 121 2013.
13 I having been first duly sworn, testified as follows: 13 Q. And as director of technology, did you ever
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14 DIRECT EXAMINATION 14 I post website notices on Pampa ISD's website?
I
15 BY HR. IHANEDAR: 15 A. Yes, sir.
16 Q, Hs. Jameson, good afternoon. 16 Q, How long was it? Meaning, for how long a
17 What is your current position with Pampa 17 I period of time did you do that?
18 I Independent School District? 18 A. The entire time I was director of technology
19 A. My current position, I am the director of 19 I the website was my responsibility.
20 I instructional technology. 20 Q, Did you -- well, my question was: Did you
21 Q. How long have you been in that position? 21 I personally post website notices to the website?
22 A. Since June 1st. 22 A. I posted a lot of things to the website.
23 Q, June the 1st of this year? 23 Q. Not -- I'm sorry. I was talking about notices
24 A. Yes, sir. 24 I of board meetings to Pampa ISD's website?
25 Q, And before that, what was your position? 25 A. Yes, sir, I did.
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Q. Okay. So how long was it, from 2008 through systems, and a master's degree in educational
2 I what period of time? 2 I technology.
3 A. During the whole time I was responsible for the 3 Q. Does that include website management?
4 website, and then there were a couple of times in the 4 A. No. I've never had a class on website
5 past year that the Boardbook website would be down, and 5 I management.
6 I would post the meeting notices directly to the news 6 Q. All ready. Now, were you ever involved in
7 and event portion of the Pampa ISD's website. 7 in Boardbook -- Boardbook service in any way?
8 Q. So when was that, is my question. 8 A. No, sir.
9 A. I'm not I'm not sure exactly the dates, but 9 Q. And you are familiar when I say Boardbook what
10 I -- I know that we had an occasion -- I believe it was 10 that product is?
11 in April of this current year that that Boardbook 11 A. Yes, sir. I have been on that site and looked
12 website was going to be down for ~aintenance, and so I I
12 at board notices and minutes from board meetings, but
13 posted that notice. 13 have never actually logged on. It is a public site.
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14 Q. In 2008, did you prepare the notices? By 14 Q. You mean, you have not logged -- you have not
I
15 notices I really mean the board meeting notices, not the 15 I logged into Boardbook -- logged in information as a PISD
16 other notices. 16 user. Correct? Is that what you're saying?
17 A. No, sir, I did not. 17 A. That's correct. I do not have a 1og in. I
18 Q. Did you, in 2009, prepare any board meeting 18 I have only been on the public portion on that site.
19 I notices? 19 Q. Like -- like -- like people would click on
20 A. No, sir, I did not. 20 meeting notices
21 Q. Did Ms. Linder ever come to you and say post 21 A. Yes.
22 I this website notice on the website? 22 Q. -- and see --
23 A. No, sir. 23 A. Yes.
24 Q. What kind of technology education do you have? 24 Q. -- meeting notices on Boardbook website.
25 A. I have a degree in management information 25 Correct?
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A. Yes, sir. website that says -- I don't know -- board meetings or
2 a. Did you have any Boardbook training at all? 2 board information. I'm not sure what it says, but when
3 A. No, sir. 3 a person clicks on it, it takes them to the Boardbook
4 a. Did you -- do you know how the Pampa ISD's 4 website which is a public site, and allows them to look
5 I
website notices were posted on to-- on to either Pampa 5 at prior meetings and upcoming meetings, and the
6 !SO's website or Boardbook's website for a public 6 notifications for those.
7 viewing? Do you have understanding of that process? 7 a. Was the -- was that click that you do on, was
8 A. I have understanding based on what I have been 8 it meeting information by any change?
9 told. do not have personal knowledge of that. 9 A. I'm sorry?
10 a. And you have not really -- and you testified 10 a. Meeting information?
11 that you haven't really been involved in that process. 11 A. Upcoming meetings. Notice of the meetings,
12 Correct? 12 yes.
13 A. I'm sorry. What? 13 a. And were you responsible for maintaining that
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14 a. And you have testified that you haven't 14 link?
15 personally been involved in that process? 15 A. Yes.
16 A. That's correct. 16 a. And what did you do as a person who maintains
17 a. Do you know -- you have any information 17 that link?
18 concerning a link between Pampa ISD's website and the 18 A. Currently?
19 Boardbook website? 19 a. Oh, no. I'm talking about in the time period
20 A. Yes, sir. 20 of 2008, 2009, if you recall.
21 a. Did you say you worked for Boar'dbook before? 21 A. In 2008, when I took over as technology
22 A. No , s i r . 22 director?
23 a. Okay. Can you describe to me what that 1 ink 23 a. In June? About that time.
24 looked like? Was it a program? What was it exactly? 241 A. April --
25 A. That link is a hyperlink on the Pampa !SO's 25 a. April?
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A. -- is when I took over. We began the process name.
2 of finding a company that could maintain our website, 21 Q. It was -- it was a sales person you said?
3 because my predecessor was very skilled in creating and~ 3 A. I believe so, yes.
4 maintaining websites, and spent a lot of time doing 4 Q. And who was the technology person at
5 that. 1 do not have the skills that he had. 5 SchoolCenter?
6 Q. And what was the name of that company? 6 A. I don't know.
7 A. We -- we went through a formal bid process, and 7 Q. But you -- but you were the liaison with
8 we finally settled on a company called SchoolCenter. 8 SchoolCenter?
9 Q. SchoolCenter? Is that a company located in 9 A. Pardon me?
10 in which city? 10 Q. You were the 1 i ai son with the School Center?
11 A. I am not sure which city the -- the company is 11 A. Yes, I was.
12 located in. They -- they submitted a formal bid, along 12 Q. You don't recall the name of the techno- --
13 with many other companies. 13 technology person that created a new website for you?
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14 Q. What -- what was the time period that they were 14 A. They have a team of programmers, and I don't
15 hired? 15 recall the names of those.
16 A. (No verbal response.) 16 Q, Do you recall the name of any person that you
17 Q. What was the time period they were hired in? 17 talked to, like -- like a technologist or technologist
18 A. I believe, if I recall correctly, they were 18 basis? Any person?
19 hired around July 1st of 2008. And we went through a 19 A. No, I don't.
20 series of meetings and planning with a -- what we called 20 Q. Now, that team consisted of how many people?
21 a go-by date of January of 2009 for the new website. 21 A. I don't know. I've never had a face-to-face
22 Q. Do you recall the name of the -- name or names 22 meeting with them.
23 of people that you dealt with at SchoolCenter? 23 Q, Oh. You tal ked to them over the phone?
24 A. The sales person that I dealt with at that 24 A. Yes, sir.
25 time, her name was Angela and I don't recall her last 25 Q. How many --was it like a conference call with
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them? respect to the variety of different websites that are
2 A. I don't remember exactly. I -- most of my 2 I accessed through the Pampa ISD's website?
3 I conversations were with Angela. 3 A. Thousands.
4 Q. But she's not a technology person. Correct? 4 Q. Did you give them a list?
5 A. She's not a programmer. 5 A. Did I give them a list?
6 Q. Now, for SchoolCenter correct me if I'm 6 Q. Yes.
I
7 wrong, was interested with the responsibility of 7 A. No. They had access to the previous website.
8 changing the website of Pampa ISO. Correct? 8 Q. So they downloaded -- apparently, they -- they
9 A. Yes. I
9 worked with the access to your system, collected the
10 Q. Did you submit to them specifications of data, 10 information and created a new website. Right?
11 how to change the system from old to new, that type of 11 A. Yes.
12 technical details as the technology director? Did you 12 Q. Okay. Did you -- you said they created a new
13 pass on that information to them? 13 I website in January of 2009?
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14 A. They specialize in websites for school 14 A. Yes.
15 districts all over the country, so we provided them with 15 Q. What time -- do you recall any date in
16 the content from our previous website, the articles that 16 I particular?
17 we had already posted, the -- all of the data, and they 17 A. I don't recall the date.
18 went through that information and created the new site. 18 Q. And this was a brand new website. Right?
19 Q. They never came to Pampa ISO to have meetings 19 A. Yes, sir.
20 I with you? 20 Q. Was -- was the website -- was cleared -- was
21 A. No, they did not. 21 I
there an automated process of validating data
22 Q. So you submitted them information over -- over 22 conversion?
231 a-mails? 23 A. I'm sorry. What?
24 A. Yes, sir. 24 Q. Was there a process of convert- -- of
25 Q. Okay. How many links does Pampa ISO have with 25 I validating data conversion from the old website to the
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new website? Do you know? A. I coordinated the work among the campuses and
2 A. Yes. There was -- there was some data 2 the departments making -- they were supposed to make
3 validation process. The different campuses looked at 3 sure that their data was there correctly.
4 their -- their sites, and made sure that their documents 4 Q. Did you work with Karen Linder the -- on
5 and the principal's message and that type of thing was 5 anything that she was doing?
6 posted correctly. 6 A. No, I did not.
7 Q. And you are aware of a data validation process 7 Q. Were you aware that there was a link to the
8 where the conversion checks with the old data and 8 board meeting notices?
9 creates an error report if there's any, for example, 9 A. No, I was not
10 errors? 10 THE COURT: I'm sorry. I didn't hear -- I
11 A. That is true in a data base conversion type 11 didn't get the question.
12 situation; however, we're not talking about that kind of 12 MR. THANEDAR: I'm sorry.
13 conversion. We're talking about more of a literal text 13 Q, (BY MR. THANEDAR) Were you aware that there was
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14 conversion. Taking the text from one website, and most 14 a link on.the old website that -- that provided board
15 of the time using something as -- similar to a copy and 15 meeting notices for public viewing?
16 paste, where you copy it and then paste it into the body 16 A. No, I was not.
17 of another web page, so there would not be any type of 17 Q. You were not aware that the old website had a
18 data validation where reports could be generated in that 18 link to board meeting notices?
19 matter. 19 A. No.
20 Q. Just copied text from the old website to the 20 Q. Did Karen Linder tell you there was a link?
21 new website is what you're saying? 21 Did she ever say that there was a link on the old
22 A. Basically, yes. 22 website that took a public person -- a public citizen to
23 Q. Now, did you personally do any -- any work 23 Boardbook website for viewing of the meeting notices?
24 yourself to check the new website whether it was working 24 A. When it was brought to her attention that the
25 well or not working well, as the technology director? 25 link was was no longer on the -- or was not on the new
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website, then she contacted me. with it?
21 Q, And that was the first time you were aware that 2 A. I don't recall what type of conversation Karen
3 there was in existence a link of any kind on the old 3 and I had, but when it was brought to my attention we
4 website. Correct? 4 rectified the situation.
5 A. Of that type, yes, sir. 5 Q, You contacted the School Center. Correct?
6 Q, You have really no personal knowledge of that 6 A. Yes.
7 link, do you, the link of -- link that connects a -- a 7 Q, And did you send them an e-mail of some sort?
8 public citizen to a board meeting notice for Pampa ISO? 8 A. I don't recall if I sent them an e-mai 1.
9 A. I do now. 9 Probably just to give them the link -- that would be
10 Q, But not at that time? 10 easier than a telephone conversation, to provide the
11 A. Not at that time. 11 direct link, but I don't recall exactly how I -- how I
12 Q, I understand. I'm only talking about the time 12 let them know.
13 period. 13 Q, So the people who actually fixed the problem
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14 A. No, s 1r. 14 were the SchoolCenter. Correct?
15 Q, Now, when did Karen Linder contact you that 15 A. Yes, sir.
16 there was a problem with web notices not showing up? 16 Q, It was not you?
17 A. I am not positive of the date. I know that 17 A. Right.
18 I believe you brought it to Karen's attention that the 18 Q, You did not have any personal knowledge about
19 notices were not posted on the website, and she 19 how to fix the school link, do you?
20 called -- she contacted me to let me know that there was 20 I'm sorry. You did not have personal
21 an issue there. 21 knowledge of how to fix the link onto the new website,
22 Q, What did she say? 22 do you -- did you?
23 A. I don't recall. 23 A. I know how to fix the link. I do now.
24 Q, Did you have a telephone conversation with her 24 Q. Right. Yeah. I understand. I'm not talking
25 concerning the technology problem, or how did you deal 25 about now, I'm just saying at that time you did not
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know -- Q, -- for the Court, please?
2 A. Right. 2 A. (Reading) Also, I apologize for not having the
3 Q, -- how to fix that problem. Correct? 3 link on the site. I've added it to the school board's
4 A. Right. 4 page. There were lots of things on -- that were on the
5 Q. Do you know who you talked to at SchoolCenter, 5 old site that I didn't realize needed to go on the new
6lin fixing that link? 6 one.
7 A. No, do not. I don't recall if I e-mailed or 7 Q. Now, earlier you testified that you did not
8 I called. And don't -- if I sent an e-mail, I sent it 8 know anything about the link, did you?
I
9 to Angela; but I don't recall exactly what that 9
10
A.
Q,
Pardon me?
Earlier you testified, Ms. Jameson, that it was
10 communication was.
11 Q, I have an e-mail here from you marked PX-32 11 not you that fixed the link; isn't that correct?
12 that I would like to show you, Ms. Jameson. 12 A. That's what I said.
13 MR. ARNOLD: May I see it? 13 Q, Now, that doesn't -- you didn't -- you don't
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14 MR. THANEDAR: Yes. I'm sorry. 14 say that here, do you, in this e-mail?
15 MR. ARNOLD: Okay. 15 A. Well , when -- when I say I have fixed i t --
16 Q, (BY MR. THANEDAR) Are you familiar with this 16 Q, It wasn't you that fixed it, did you (sic)?
17 e-mail that you sent Karen Linder? 17 A. I don't -- no. No, it was not, but I made sure
18 A. Now that you hand it to me, yes. 181 i t got fixed. So took responsibility for making sure
19 Q. Now -- and this is an e-mail that you sent as 19 that it was done.
20 I an e -mai 1 response to Ms. Linder; isn't that correct? 20 Q. But the words here you used were, I fixed --
21 A. It appears so. It looks like she -- she 21 I'm sorry. The words you used were, I have added it on
22 I e-mailed me and I responded. 22 the school board page. You did not say, I got somebody
23 Q. Okay. Now, can you read, Ms. Jameson, the 23 else to do it. You said I have added it on the school
24 I small paragraph that starts with the star -- 24 board page. You didn't really add it yourself, did you?
25 A. Uh-huh. 25 A. No, sir.
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Q, Now, would you tell me when you said here in Q. Do you know how they fixed it, in technology
2 this e-mail, there were lots of things that were on the 2 I terms?
3 old site that I did not realize needed to go on the new 3 A. Yes, sir. When you put a link on a website,
4 one. You are really referring to the link to the board 4 you put text in whatever you want the link to say. You
5 meeting notices, aren't you -- 5 know, board postings, or board agenda, or whatever it
6 A. I'm -- 6 says, and then you create a hyperlink, using hypertext
7 Q. -- as one item? 7 transfer protocol to point that particular bit of text
8 A. As one item, yes. 8 to the other website that actually contains the document
9 Q. Can you tell me what are the lots of things 9 or the information.
10 that you're referring to that were on the old site that 10 So we did not create the document or the
11 you did not realize needed to go on the next one -- on 11 information there on our page, we created a convenient
12 the new one? 12 way to jump to that information that was already created
13 A. Can I tell you what they are? 13 somewhere on the Internet.
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14 Q. Yeah. Can you give me some examples that did 14 Q. But what you're describing is something you
15 I not get transferred to the new website? 151 didn't do yourself, did you?
16 A. I don't recall exactly what they are. 16 A. That's correct. I did not.
17 Q, But there were lots -- lots of such links, 17 Q, You really have no personal knowledge or
18 based on your e-mail. Correct? 18 I experience in doing that, do you?
19 A. That's what the e-mail says, yes, sir. 19 A. I have experience doing that
20 Q, What was the explanation that SchoolCenter 20 Q. But not --
21 gives you why the link was not transferred? 21 A. -- I did not do it for this site.
22 A. I don't recall. 22 Q. -- not the matter that we're talking about
23 Q. And you don't recall the team or the name of 23 here?
24 the person that you talked to there? 24 A. That's correct.
25 A. No, sir. 25 Q, In your e-mail you say, Ms. Jameson, that I did
KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932
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23 24
not realize needed to go on the new one. Why did you Q, Well, didn't you -- didn't you just state that
2 think that there was no need for this particular link to 2 there were thousands of links on your website?
3 go onto the new one? 3 A. Yes. There are thousands of links on our
4 A. I didn't specifically think there wasn't a need 4 website.
5 for the link. I did not realize it was one of the 5 Q, And how would you know something was needed or
6 things that had gotten left off. 6 was not needed if, in deed, it was not needed?
7 Q. Well , I was just asking you, i f you recall. 7 A. I -- I don't suppose I would know for certain
8 Why did you think it was not needed on the new website, 8 if one of those links was needed or not needed. My
9 by your own e-mail here? Had -- was -- if you -- if you 9 wording here to me says that I did not realize it was
10 have a reason for it? 10 left off and was needed or necessary for the new site.
11 MR. ARNOLD: Objection, Your Honor. She 11 Q. And that understanding of yours was based on
12 just testified that's not what she meant by that. She 12 what information, that links would not be needed?
13 meant that these things were left off, not that they 13 If they existed before, what would be the
367
14 were not needed. That was her testimony. 14 basis for these links not being needed --
15 Q. (BY MR. THANEDAR) Well , I'm not sure • • well, 15 A. I didn't --
16 you can -- you can testify exactly what you mean by, I 16 Q. -- on the new one?
17 did not realize needed to go on the new one. And how 17 A. I didn't mean that those links were not needed,
18 did you come to that understanding? 18 I meant they were left off and I did not realize that
19 A. I'm sorry. I don't understand your question. 19 they were left off and they are necessary.
20 Q, My question is: On what basis did you think 20 Q. Well, Ms. Jameson, that's not what you said
21 that the link to the school district's meeting notices 21 here, if I could just read to you.
22 was not needed? 22 MR. ARNOLD: Your Honor, I'm going to
23 A. I didn't think that the link to the meeting 23 object as argumentative, and asked and answered. The
24 notices was not needed. I did not realize that 1t was 24 witness has answered this three or four times now.
25 not there and was needed on the new site. 25 MR. THANEDAR: Well --
KAREN MORRIS, CSR • 806-282-9932 KAREN MORRIS, CSR - 806-282-9932
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25 26
THE COURT: Sustained. signed the contract.
2 Q, (BY MR. THANEDAR) Do you recall, Ms. Jameson, 2 Q. Ms. Linder is the superintendent's secretary.
I
3 that you tried -- whether you wrote any other e-mails to 3 I Correct?
4 Karen Linder about this problem? 4 A. That's correct.
5 A. I don't recall. 5 Q, And she's in charge of posting notices for the
6 Q, Did you talk to her? 61 board meetings. Is that correct?
7 A. I don't recall. 7 A. Yes, sir.
Q. Did she ever tell you that this particular link
Did Mr. Haenisch talk to you about this
I
8 Q. 8
9 I problem? 9 needs to be transferred over to the new website in the
10 A. I don't recall that either. 10 form of an e-mail; a telephone conversation?
11 Q. You didn't call him and inform him in any way 11 A. Only the one that's on this piece of paper, the
12 that there was a problem regarded fit -- through 12 Hay 15th.
13 SchoolCenter? 13 Q, So she sent you an e-mail after, I, meaning Hr.
368
14 A. No, sir. Not that I recall. 14 Thanadar, talked to Hs. Linder about the problem.
15 Q. Do you know how long a period -- a period of 15 Correct?
16 time that the website notices did not appear? 16 A. That's correct.
17 A. I don't know how long. know that it was 17 Q, You had no communication with her that you
18 I rectified by Hay 19th, 2009, based on this e-mail. 18 I
recall from January, 2009 to let's say the middle of
19 Q, Did Hs. Linder -- did you tell Hs. Linder how 19 Hay 19th, 2009. Correct?
20 I you got it fixed? 20 A. Regarding this issue, no.
21 In other words, did you tell her -- did Ms. 21 Q. Correct. I'm merely talking about just this
22 I Linder know about the third party vender, SchoolCenter? 221 issue.
23 A. I don't know if Hs. Linder knew about the third 23 Who else at Pampa lSD knew about
I
24 party vender, SchoolCenter, or not. That was a contract 24 I SchoolCenter -- what SchoolCenter was doing?
25 that the district entered into, and the superintendent 25 A. The business office. The business manager,
KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932
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27 28
Danny Seabourn. He was on the contract and the choosing working with them?
2 I of SchoolCenter. Other people in the technology 2 HR. ARNOLD: Objection; relevance, Your
3 department. 31 Honor.
4 a. At that time, though, Carol Fields was the 4 THE COURT: Sustained.
5 director of finance, wasn't she? That was not Danny 5 HR. THANEDAR: Well, the relevance, Your
6 Seabourn, was it? 6 Honor, is the fact that Carol Fields was the director of
7 A. You're right. That was Carol Fields. She had 7 finance, and she would have to pay SchoolCenter, and
8 knowledge of it. 8 that was -- you know, if you know. That was the basis
9 a. What was the tit 1e of Danny Sea bourn. at that 9 for asking the question.
10 time? I'm talking about 2008. Let's say the first 10 THE COURT: You don't have to answer the
11 quarter of 2009. 11 question. I've sustained the objection.
12 A. I'm not sure what his title was at that time. 12 Q. HR. THANEDAR: All right.
13 a. What is Danny Seabourn's title now, today? 13 Q, (BY HR. THANEDAR) Hs. Jameson, has this
369
14 A. He is chief financial officer for Pampa 14 problem occurred again at Pampa ISD?
15 Independent School District. 15 A. What problem waul d that be?
16 a. How long has he been in that position, do you 16 Q. The link being severed.
17 know? 17 A. No, sir.
18 A. I'm not sure exactly. 18 Q. Would you call this problem, a link being
19 a. But he was involved in choosing SchoolCenter 19 severed or not -- what -- what kind of description would
20 as -- in what capacity? 20 you give this problem?
21 HR. ARNOLD: Objection; relevance, Your 21 A. It was a missing link.
22 Honor. 22 Q. A missing link. And this is a problem with the
23 THE COURT: Sustained. 23 vendor not transferring that link. Correct?
24 a. (BY HR. THANEDAR) In what capacity was Carol 24 A. That's correct.
25 I Fields involved in choosing SchoolCenter, or 25 Q. Was it your understanding that this was a --
KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932
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29 30
this was a problem that was -- was it your understanding THE COURT: Sustained.
2 that this was a problem of just negligence? What type 2 Q. (BY HR. THANEDAR) Did you ever write an
3 of problem would you call it, as a technology person? 3 investigative report on this issue?
4 A. It was an oversight. 4 A. Pardon me?
5 Q. It was an oversight, plain and simple 5 Q. Did you write any investigative report on this
6 oversight. Correct? 6 issue?
7 A. Pardon me? 7 A. No, sir, I did not.
8 Q. It was a plain and simple oversight. Correct? 8 Q. Did anybody ask you about it?
9 A. That's correct. 9 A. Other than this communication right here, no,
10 Q. As a technology person you would call that. 10 sir.
11 Now, the fact of putting the old link on 11 Q. No one at Pampa ISO was interested in asking
12 the new one, what kind of technical difficulty is that? 12 you why were the board meeting notices not posted for
13 A. When they put the link -- 13 five months?
370
14 Q. Well, no. I mean, in terms of just copying the 14 A. I would like to point out that the board
15 old link onto the new website, from a scale from one to 15 meeting notices are posted. They are published on the
16 ten, how would you rate it? If you're a technology 16 Boardbook website. And if a person goes to any search
17 expert or a knowledgeable person, how would you rate the 17 engine, such as Yahoo or Google, and looks for those
18 difficulty level? 18 they could have found them. We did not have anyone
19 A. It's not difficult. 19 point out to us that the link was missing, even though
20 Q. It's -- it's just simple negligence, you would 20 it was not brought to our attention until Hay 19th.
21 say? 21 Q. Except myself. Correct?
22 A. It was an oversight. 22 A. Right.
23 Q. Would negligence be a good word for it? 23 Q. Hr. Thanadar.
24 HR. ARNOLD: Asked and answered, Your 24 How do you know before January of 2009, or
251 Honor. Objection. 25 I do you, that Pampa Independent School District's website
KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932
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31 32
notices actually appeared on the website of Boardbook, Q. (BY HR. THANEDAR) Well ·· well, my question
2 or do you know, personally, that they did? 2 really was, how do you know at that time, meaning before
3 A. I had access to the old server, which housed 3 January, 2009, that they were actually there?
4 the old 4 I -- I understand that you said after the
5 Q. Well, I'm only talking about at that time. I'm 5 problem occurred you went back and saw it, but did you
6 not 6 personally ever check by clicking on meeting information
7 HR. ARNOLD: Your Honor, I'm going to ask 7 tab that you were actually -- were able to view the
8 that she be allowed to finish her answer, first. 8 meeting notices before January, 2009 on the Boardbook
9 HR. THANEDAR: Well, I'm just kind of 9 website?
10 Q. (BY HR. THANEDAR) I knew what the issue was 10 A. No, sir. I never clicked that link. I never
11 that you're •• you may be referring to what you know 11 had cause to do so.
12 now. I'm just asking ·• 12 Q. Right. That-- that was my question. I mean,
13 A. No, I'm not referring to what I know now. I'm 13 the reason for explaining was that I was not asking you
371
14 telling you how I knew -- 14 whether you went back and saw the problem, why it was
15 Q. Okay. 15 closed •• at that time, before January, 2009, you had
16 A. -- they were there. 16 never really personally clicked on the meeting
17 Q. Fine. 17 information tab. Correct?
18 THE COURT: Go ahead and answer the 18 A. No. But the fact that the link worked--
19 question. 19 Q. Well
20 A. When -- when it was brought to my attention in 20 A. •• says that it was always active.
21 Hay, I had access to the old data from the old website, 21 Q. -- all I was saying was ·• I was just asking
22 and I went into that old website and found the link on 22 your personal knowledge of -- of that situation.
23 the old website, and was able to give that data, URL, 23 Did SchoolCenter ever explain to you why
24 the uniform resource locator, the link to SchoolCenter, 24 this problem occurred, state any reason for it?
25 so that they could put that link on the new site. 25 A. No, sir.
KAREN MORRIS, CSR • 806-282-9932 KAREN MORRIS, CSR · 806-282-9932
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•
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33 34
Q, Did you ask? THE STATE OF TEXAS.)
2 A. No, sir. 2 I COUNTY OF GRAY
3 HR. THANEDAR: That's all I have. I pass 3 I, KAREN MORRIS, CSR, Official Court Reporter
4 I the witness. 4 in and for the 223rd District Court of Gray County,
5 HR. ARNOLD: No questions, Your Honor. 5 State of Texas, do hereby certify that the above and
6 (End of requested excerpt transcript.) 6 foregoing contains a true and correct transcription of
7 7 all portions of evidence and other proceedings requested
8 8 in writing by counsel for the parties to be included in
9 9 this volume of the Reporter's Record, in the
10 10 above-styled and numbered cause, all of which occurred
11 11 in open court or in chambers and were reported by me.
12 12 I further certify that this Reporter's Record
13 13 of the proceedings truly and correctly reflects the
372
14 14 exhibits, if any, offered by the respective parties.
15 15 I further certify that the total cost for the
16 161 preparation of this Reporter's Record is $-----and
17 17 was paid/will be paid by the PLAINTIFFS.
18 18 WITNESS MY HAND AND SEAL of office, this the
19 I
19 14th day of November, 2013.
20 20
II: Karen J1orrts
21 21 KAREN MORRIS, Texas CSR 334
Expiration Date: 12/31/14
22 22 Official Court Reporter
223rd District Court
23 23 Gray County, Texas
P.O. Box 2160
24 24 Pampa, Texas 79066
25 25
KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932
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curriculum which Pfotnoles .. ~
Bond Construction lnfom1alloll
With the passing our the bond issue. we hope to provide you Wtlh information of our Pfogress m both
reno~atron of PHS iln<l constlucbcn of PJHS !!1Q[b.
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x:
373
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</a><font size="-2"><strong>O 2008 Pampa Independent School District<br />
321 w. ALbert Pampa, TX 79065<br />
400,
Phone: (806) 669-4700 Fax: (806) 665-0506</strong></font>
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{J). Pampa Independent Sd1( x
+- c
IUiihii
Pampa.lSD
Pampa ISO Event
Cillendar
Di$bict Contact District Mission and VIsion
Directory
M'-slon Statement
376
Ca!'f~Pl!S coritact
InfprrnatiOn Pampa Independent School Dlatrlct Ia commlted to educadng each atudent for the changing
T schools needs of the 21•t century.
Y Parent
Connection
T District VIsion Statement
InfotinatiOri Pampa ISO Ia committed to build a solid foundation for each Ieamer through a highly rigorous
T Pamp!l ·ISO s.taff curriculum which promotes:
What's New.
Department • Acadetnlc Excellence
Information • Self Confidence
T Department • Self Respect I Respect for Others
Directory • Individual, creadve thinking and problem tolvlng
• Tolerance
• Integrity
• Cllaracter
• Collaboradve Skills
• Life-long Leeming
• Self.diaclpllne
The staff Ia committed to the succeaa of each of the diverse learners In the Pampa Independent
School District. Steff will plan and deliver highly engaging academic lesaonelacdvltles and
Afp``x tt
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377
• 378
AFFIDAVIT
STATE OF TEXAS §
§
§
BEFORE ME, the undersigned notary, on November 20, 2013 personally appeared
Rebecca Terrell and Chandrashekhar Thanedar, and after being duly sworn by me, stated under
oath the following:
"Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are over twenty-one
(21) years of age, of sound mind, and are capable of making this affidavit. We are plaintiffs in
the cause No. 35621 in the 223rd district court in Gray County, Texas against defendant Pampa
Independent School District. The facts stated in this affidavit are within our personal knowledge
and are true and correct. The facts stated in our Motion for New Trial and Motion to Modify
Judgment in the above cause are within our personal knowledge and are true and correct. We
affirm that the appendices attached to the Motion for New Trial and Motion to Modify Judgment
are true and correct copies of the originals."
``
Rebecca Terrell Chandrashekhar Thanedar
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the 20th day of
November, 2013.
~>-o"~.MARIA-PURA
, .t>
PC?LANCO
Notary Pubhc
~· ~ State of Texas
~ My Comm. Exp. 09-28-2017
the State of Texas
Maricz{ul-a. ,[o/anw
· (Printed Name of Notary)
378
Appendix 2
Motion for Modify Judgment
379
\
CAUSE NO. 35621
REBECCA TERRELL and § IN THE 223R0 DISTRICT <";gURT r--..:;,
CHANDRASHEKHARTHANEDAR § -< =
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Plaintiffs, § c::::
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PAMPA INDEPENDENT SCHOOL § fll
I :. ' ~·; ~
,<
DISTRICT, § ~'
-- ~ ;
GRAY COUNTY, TEXAS~
C":)
§ Ul
(/)
-<
Defendant §
MOTION TO MODIFY JUDGMENT
TO THE HONORABLE JUDGE ABE LOPEZ:
Plaintiffs hereby file their motion to modify judgment pursuant to Texas Rules of Civil
Procedure 329b, and ask that Court modify judgment signed on 10/25/2013 accordingly, and in
support, would respectfully show the Court as follows:
1. Plaintiffs refer to their motion for new trial including all its appendices 1 through 6,
timely filed on November 21, 2013 which is adopted and incorporated as if set forth verbatim
herein. Plaintiffs have attached their affidavit hereto concerning this motion as appendix 6.
Judgment is incorrect in stating that plaintiffs announced ready. Plaintiffs requested continuance
of trial only which was denied. The judgment should be corrected in this regard.
2. Court erred and clearly abused its discretion in granting award of attorney fees of
$30,000 to PISD and costs. The judgment should be modified and the award of attorney fees and
costs should be vacated and denied. Plaintiffs challenge the award of the attorney fees on the
grounds that the award is 1) not reasonable, manifestly too large, and 2) neither legally valid, nor
proper, nor justified in this case.
379
380
The Court clearly erred in granting $30,000 in attorney fees to PISD by taking "judicial
notice of the file" as asked by PISD. Texas law regarding attorney fees is clear and well
established. Texas law has not allowed recovery of attorney fees unless allowed by statute or
contract. "Absent a contract or statute, trial courts do not have inherent authority to require a
losing party to pay the prevailing party's fees." Tony Gullo Motors v. Chapa, 212 S.W.3d 299,
310-311 (Tex. 2006). Nothing in TOMA or its pertinent case authority authorizes or empowers
the Court to take judicial notice of attorney fees and to award them without receiving evidence.
See TOMA Sec. 551.142. 1 Plaintiffs challenge the imposition of attorney fees as legally
improper and further challenge the reasonableness of attorney fees awarded to PISD. The
reasonableness of attorneys' fees is question of fact that must be proven at the trial. City of
Garland v. Dallas Morning News, 22 S.W.3d 351, 367 (Tex. 2000). Arthur Andersen & Co. v.
Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997). Thus PISD was required to testify
concerning its attorney fees and reasonableness of the fees. PISD refused and failed to testify on
its attorney fees and refused and failed to prove them. Therefore PISD forfeited and waived any
claim to attorney fees. Because PISD refused and failed to prove and testify on its attorney fees,
there is no evidence or insufficient evidence in the record for the Court to award attorney fees to
PISD. Court's award of $30,000 has no basis in law or evidence because there is no evidence or
insufficient evidence of tasks completed, hours worked, timesheets, billing statements, level of
1
TOMA Section 551.142 provides as follows:
(a) 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.
(b) 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.
Motion to Modify Judgment Cause No. 35621 Page 2 oflO
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381
difficulty, identity of attorneys, reasonable hourly rates of attorneys on the case and other
necessary information on which attorney fees must be based on and can be determined.
The Court granted the award of attorney fees under TOMA Sec. 551.152. Thus it is
clearly ascertainable that the award of attorney fees in this case does not arise under Texas Civil
Practice and Remedies Code (CPRC) Section 38.001, thus this Court does not have power to
take judicial notice of attorney fees under Tex. Civ. Prac. & Rem. Code§ 38.004. See Valdez v.
Valdez, 930 S.W.2d 725, 732-33 (Tex. App.--Houston [1st Dist.] 1996, no writ) (holding section
38.004 only applies to claims under section 38.001). Therefore, attorney fees award here is
legally improper. Further the attorney fees award is improper here because plaintiffs have
undisputedly proven their good faith at the trial as their report of the violation of Sec. 551.056(b)
was the only reason said violation was finally corrected by PISD after 5 months of non-
compliance with TOMA from 112009 to 5/19/2009. PX 8-11. Further this court sitting by
assignment has no personal knowledge of all of the proceedings in this case, being the third
judge in this case after Judge Waters and Judge Vanderpool. Further plaintiffs do not have the
ability to pay attorney fees, thus award is not reasonable. PISD did not plead in its original or
the amended answer the required prerequisites to attorney fees as required by TOMA Sec.
551.142. PISD's first amended answer is defective as it does not contain a proper certificate of
service under TRCP and PISD failed to answer plaintiffs' second supplemental petition.
This Court has no authority or power under TOMA and no inherent authority or power to
impose attorney fees for any proceedings or filing in the appellate courts, with or without
evidence being received. Defendant has provided no statutory support or case authority for it.
Further there is no evidence or insufficient evidence of filings by plaintiffs in the appellate court
on which to base attorney fees award on by this Court. Defendant made no argument at trial
Motion to ModifY Judgment Cause No. 35621 Page 3 oflO
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382
concerning its attorney fees to be based on appellate filings by plaintiffs. There is no evidence or
insufficient evidence that PISD made any responses to plaintiffs' appellate filings and that they
were accepted by appeals court. In fact, defendant's responses have been rejected by appeals
court. In addition, plaintiffs prevailed on appeal in this case and the case was remanded back to
trial court. Court's finding that plaintiffs made voluminous filings is legally immaterial,
arbitrary, and capricious because plaintiffs prevailed on appeal and defendant's responses were
found defective by appeals court. Thus there is no basis in law or fact for an award of attorney
fees to PISD because plaintiffs' made filings in appeals court. Further the court failed to
segregate appeals court's portion of the attorney fees from trial court portion of the award of
attorney fees and attorney fees before remand and after remand. Since, plaintiffs prevailed on
appeal and were awarded costs by appeals court, no attorney fees and costs for proceedings
before remand can be or should be awarded to PISD.
The attempt by PISD for attorney fees is a bald attempt to intimidate plaintiffs in not
filing an appeal of this Court's judgment. Such an attempt is an outrageous affront to the purpose
of open government under TOMA and will have chilling effect on citizens and taxpayers who
report violations of TOMA and seek redress. Further, issues and violations of TOMA before this
Court in this case are novel and there have not been cases involving electronic properties of
board meeting notices involving Sec. 551.056(b) and (d), technical problems, and burden of
proof. This is clearly a case of first impression in these evolving legal areas. Attorney fee award
thus is unjustified here and if not reversed will have chilling effect on citizens and will lead to
confusion and lack of development of the areas mentioned above. Further, government bodies
will emulate the tactics of PISD to intimidate citizens in to submission which will lead to
evisceration of TOMA. PISD refused to testify and prove its attorney fees before this Court (or
Motion to Modify Judgment Cause No. 35621 Page 4 oflO
382
383
appeals court), this Court failed to receive evidence concerning attorney fees, thus PISD waived
and forfeited attorney fees.
Further, it is clearly ascertainable that PISD did not respond to plaintiffs' motions or
letters in this Court whether or not they were "voluminous," thus there is no evidence that PISD
ever incurred attorney fees or insufficient evidence that PISD ever incurred attorney fees and to
what extent with respect to PISD's complaints about plaintiffs filings. Further, plaintiffs cannot
be penalized or sanctioned for filing lawsuits or for their filings whether or not they were
voluminous as they a have constitutional right to seek redress of their grievances. The plain fact
is there is no evidence or insufficient evidence of PISD spending any time on plaintiffs' "filings"
in this Court or in appeals court.
An attorney fees award based on no evidence of existence and reasonableness of attorney
fees viz. identity of attorneys, hours worked, tasks performed, quality and difficulty of work,
hourly rate and other factors; or insufficient evidence of existence viz. identity of attorneys,
hours worked, tasks performed, quality and difficulty of work, hourly rate and other factors
violates plaintiffs' constitutional rights of due process and equal protection under Texas
Constitution and 14th Amendment to the Unites States Constitution as such arbitrary and
capricious and manifestly too large and unreasonable imposition of attorney fees has no support
in law or case authority. Therefore imposition of attorney fees without legal support under
TOMA and without receiving evidence is not only a clear abuse of discretion but is abusive to
Texas citizens and taxpayers such as plaintiffs. PISD did not offer argument at trial or in its
pleadings about whether plaintiffs brought this suit in good faith or being a prevailing party, or
whether its actions had a reasonable basis in law on all causes of action brought by plaintiffs.
See Sec. 551.142. PISD failed to plead prerequisites to attorney fees in its amended answer.
Motion to Modify Judgment Cause No. 35621 Page 5 oflO
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384
Sec. 551.142. PISD's first amended answer is defective as it does not have proper certificate of
service under TRCP. Plaintiffs adopt and incorporate by reference their response to defendant's
first amended answer and plaintiffs' special exceptions and affirmative defense to defendant's
request for attorney fees and costs (which are on file) as if set forth verbatim herein.
As explained before, there is clear undisputed evidence of good faith on the part of
plaintiffs in this case, thus imposition of costs is improper and unreasonable. See TOMA Sec.
551.142. PX 8-11. C. Plaintiffs challenge imposition of costs on them. Plaintiffs have clearly
demonstrated good faith as shown above under TOMA. Thus under TOMA sec. 51.142, costs
should not be imposed on plaintiffs. Further even if costs were imposed, costs before remand
should be segregated from costs after remand and such costs before remand should be excluded
from costs to be awarded to PISD. This is proper because plaintiffs prevailed on appeal before
the th court of appeal and the appeals court granted costs to plaintiffs. Any costs associated with
PISD's misguided summary judgment motion which was erroneously granted by the district
court (Judge Waters) should be excluded from costs. PISD offered no evidence of lack of good
faith on the part of plaintiffs and did not even offer an argument on it. Thus there is no evidence
or insufficient evidence of lack of good faith or bad faith in the record on the part of plaintiffs.
This Court which is sitting by assignment did not hold any proceeding before October
2012 when two other Judges (Judge Vanderpool and Judge Waters) presided over the case. The
Court thus cannot take judicial notice of matters it is not knowledgeable about and which did not
occur before it. Further, plaintiffs challenge the reasonableness of the attorney fees because the
current judge (Judge Lopez) only held one proceeding on 10/9/2013 for one day trial. PISD filed
no response to several motions filed by plaintiffs. Thus PISD cannot recover attorney fees for
time it did not expend for one year in responding to plaintiffs' motions. Under Judge Vanderpool
Motion to Modify Judgment Cause No. 35621 Page 6 oflO
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385
only two brief hearings took place and PISD failed to file any responses to plaintiffs' motions.
Under Judge Waters only 1 brief hearing occurred. It is thus obvious, that in more than 4 years
of this lawsuit, only minimal activity has occurred. Attorney fees in the amount of $30,000 are
thus manifestly too large and unreasonable considering the lack of PISD's responses and only 3
hearings and a 1 day trial.
Further, it is clearly ascertainable from the few responses PISD filed that they were
unserious, lacked references to record, and failed to cite pertinent applicable case authorities.
Some of the responses were found defective by the th Court of appeals e.g. lacked proper
certificates of service and certificates of compliance and PISD was forced tore-file. The quality
of the PISD's filings has been questionable. Thus the $30,000 attorney fees are unreasonable.
This Court cannot grant attorney fees for proceedings conducted in appellate court in which
plaintiffs were granted costs of appeal on remand. Further plaintiffs prevailed on appeal before
the th court of appeals, thus attorney fees and costs before remand of the case must be
segregated and excluded from any calculations of attorney fees that could possibly be awarded to
PISD. Given the lack of evidence, it is not surprising that PISD counsel refused to testify
concerning attorney fees at trial. As such, there is no evidence, alternatively insufficient
evidence for this Court to base its award of attorney fees. Thus the award of attorney fees and
costs is legally improper, manifestly too large, unreasonable, and completely unsupported by
evidence and should be vacated and denied. The judgment of the Court should be modified
accordingly.
3. As explained previously, the Court erred in denying plaintiffs' motions to exclude
evidence concerning SchoolCenter, BoardBook, and Lee Carter. The record clearly shows that
PISD repeatedly refused, misled, obstructed discovery and further refused to supplement its
Motion to ModifY Judgment Cause No. 35621 Page 7 oflO
385
386
answers to interrogatories and other discovery requests concerning BoardBook service. See PX
8-11. PISD even obstructed and misled the Attorney General of Texas when it knew that PISD
allegedly had made payments to BoardBook and SchoolCenter and others for services. These
and other records concerning SchoolCenter and BoardBook and other employees ot vendors such
as Lee Carter should have been produced in the discovery process. PISD refused to do so
apparently fearing no sanctions for its obstruction. PISD even declared that BoardBook service
and PISD's contract with it were irrelevant and outside of the purview of Texas Rules of Civil
Procedure. Plaintiffs adopt and incorporate by reference Plaintiffs' Motion for Sanctions which
was filed on 9/9/2009 and their Motion for Order to Produce Documents without Objection filed
on 6/9/2009, Plaintiffs' Motion for Ruling Post-Remand Discovery, to Exclude, for Inferences,
to Compel discovery from defendant, and For Sanctions Filed on 6/5/12, as if set forth verbatim
herein. The Court's refusal to exclude set up plaintiffs for trial by ambush and surprise which
violates their due process, open courts, and equal protection rights under Texas Constitution and
the 14th Amendment to the United States Constitution.
4. PISD's trial evidence in its support was no more than speculation, hearsay, surmise
and bare opinions offering no substantiation or documents in support, which is no legal evidence
at all. Kindred v. Con/Chem., Inc., 650 S.W. 2d 61, 63 (Tex. 1983). PISD's evidence in its
support must be struck and disregarded.
5. As explained before, PISD did not carry its Burden of Proof in the matter of
showing good faith under TOMA Sec. 551.056(d). PISD admitted that its website notices did
not appear on its website for 11 meetings from 1/15/2009 to 5119/2009 for 5 long months. PISD
fails the average person's due diligence standard here. After "forgetting" to check whether
internet notice for its 1115/2009 meeting actually appeared on its website, PISD continued to
Motion to ModifY Judgment Cause No. 35621 Page 8 of 10
386
387
"forget" to check its website for 5 months to see whether it was complying with TOMA. "Opps
we forgot" and "Oops we don't care to check" fail average person's good faith standard and
certainly fail under TOMA Sec. 551.056(d) good faith standard. Negligence, forgetting is not a
technical problem as PISD suggests and is certainly not beyond the control of PISD for 5
months.
The judgment of the Court should be modified as requested below.
Prayer
FOR THE FOREGOING REASONS, plaintiffs respectfully request that the Court set this
motion for hearing, and upon hearing, grant plaintiffs' motion to modify judgment, modify
judgment in accordance with this motion, and
Vacate the award of attorney fees in the amount of $30,000 to defendant PISD, vacate the
award of costs to PISD, deny defendant's request for attorney fees and costs, and delay the award
of attorney fees and costs until appellate process is completed.
Further plaintiffs request judgment be modified so that the judgment for defendant is set
aside and judgment for plaintiffs is entered on all causes of action, void all actions taken in
violation of TOMA, order reinstatement of Terrell as a teacher with defendant and award
damages of back wages and benefits to her, declare plaintiffs the prevailing party in this suit, and
grant all other relief requested by plaintiffs in their original petition and two supplemental
petitions. Plaintiffs further request that Court grant all other and further relief, at law or in
equity, to which they may justly be entitled to receive.
Respectfully submitted,
Rebecca Terrell
Motion to Modify Judgment Cause No. 35621 Page 9 of 10
387
388
I Chandrashekhar Thanedar
Plaintiffs
6503 Dancing Ct.
San Antonio, Texas 78244
(956) 445-3107
(512) 271-6840 Fax
rterrell152@gmail.com
CERTIFICATE OF SERVICE
The undersigned certify that a true and correct copy of the foregoing document was
served upon the following by USPS Priority Mail on November 22, 2013 to
W. Wade Arnold, Andrea Gulley
Underwood Law Firm
P. 0. Box 9158
Amarillo, Texas 79105-9158
Phone: 806.376.5613
Fax 806.379-0316
wade.arnold@uwlaw.com
Attorneys for PISD
Rebecca Terrell
Chandrashekhar Thanedar
Motion to ModifY Judgment Cause No. 35621 Page 10 oflO
388
..
f 389
AFFIDAVIT
STATE OF TEXAS §
§
§
BEFORE ME, the undersigned notary, on November 20, 2013 personally appeared
Rebecca Terrell and Chandrashekhar Thanedar, and after being duly sworn by me, stated under
oath the following:
"Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are over twenty-one
(21) years of age, of sound mind, and are capable of making this affidavit. We are plaintiffs in
the cause No. 35621 in the 223rd district court in Gray County, Texas against defendant Pampa
Independent School District. The facts stated in this affidavit are within our personal knowledge
and are true and correct. The facts stated in our Motion for New Trial and Motion to Modify
Judgment in the above cause are within our personal knowledge and are true and correct. We
affirm that the appendices attached to the Motion for New Trial and Motion to Modify Judgment
are true and correct copies of the originals."
``
Rebecca Terrell
e-tSt'``-EJ ~
Chandrashekhar Thanedar
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the 201h day of
November, 2013.
(Printed Name of Notary)
389
Appendix 3
Motion for Reconsideration
From: R Terrell Fax: (512) 271-6840 To: Sandra Burkett Fax: +1 (806) 669-8053 Page 2 of 8 02105/2014 10:08
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CAUSE NO. 35621 ,_-. :~
:....)_,.. _,
_!;.-
:"'··' 1
REBECCA TERRELL and § IN THE 223RD DISTRICT CODRTL'o •· :]
CHANDRASHEKHARTHANEDAR §
i ;1
§ ,--,'. J
Plaintiffs, §
§
V. § IN AND FOR
§
PAMPA INDEPENDENT SCHOOL §
DISTRICT, §
§ GRAY COUNTY, TEXAS
Defendant §
MOTION FOR RECONSIDERATION
TO THE HONORABLE JUDGE ABE LOPEZ:
We request the court to reconsider its denials of our motion for new trial and our motion
to modify judgment. The Motion for New Trial (filed 11121113) and the Motion to Modify
Judgment (filed 11/22/13) are hereby adopted and incorporated by reference as if set forth
verbatim herein. We further request that the court reconsider its refusal to hold hearing on the
newly discovered evidence as presented in the motion for new trial. We request that the court
grant new trial on all causes of action and issues including imposition of attorney fees and costs.
The court's plenary power has not expired and is still in force 30 days after said motions were
denied by operation of law. See Tex. R. Civ. Pro. 329b. We further request that the court
provide and explain its reasons as to why it denied said motions so its decisions can be fully
understood by parties so as to allow a meaningful appeal of this court's decisions and actions
before the 7th court of appeals.
1. Violation of Plaintiffs' Federal and Texas Constitutional Rights: The record
shows that this court, without any basis in fact or law, wrongly declared at trial that the appeals
court only wanted trial on Sec. 551.056 of Texas Open Meetings Act (TOMA). This court then
403
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404
denied and failed to hold trial on plaintiffs' other causes of action i.e. TOMA sections 551.041,
551.051, 551.043, 551.045, 551.074, and 551.101. It is abundantly clear that the 7th court of
appeals made no such ruling in its opinion on the first appeal in this case. This was pointed out
to this court and plaintiffs have objected to the court's arbitrary declaration and refusal to hold
trial on the above causes. This improper denial and failure violates plaintiffs' civil rights,
fundamental rights, and federal Constitutional due process and equal rights under the 14th
Amendment to the U.S. Constitution and violation of our rights under Texas Constitution Article
1 Sections 3, 13, 19, and 27. This court closed it doors to plaintiffs by refusing to hold trial on
plaintiffs' complaints under TOMA sections 551.041, 551.051, 551.043, 551.045, 551.074, and
551.101 in violation of our constitutional rights. No objection to such plain blatant error and
constitutional violation need be made, nor required. Such refusal and denial lowers the regard of
Texas and United States Citizens towards the judges and the justice system. We as citizens and
tax payers are greatly troubled that after 5 long years of being gamed, drawn out, punished, and
impoverished, we got deprived of our constitutional and fundamental rights. What is the point in
filing complaints if courts will ignore the citizens? We request the court to grant new trial on all
matters and hear the newly discovered evidence presented in the motion for new trial.
The record of the trial shows that this court refused and failed to rule on plaintiffs' certain
trial exhibits during trial (e.g. plaintiffs' trial exhibit 1 concerning internet notices of meetings
and their electronic properties) stating that court will rule on them later at some other time.
Plaintiffs repeatedly objected and offered proof. This court attempted to rule, deny, and return
the trial exhibits to plaintiffs outside of trial, after the trial was over and after the court had
rendered judgment. We are greatly troubled by these actions of the court which were highly
damaging and prejudicial to plaintiffs. Such actions lower citizens' regard for the judiciary.
Motion for Reconsideration Cause No. 35621 Page 2 of7
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Court's refusal to rule on plaintiffs' certain trial exhibits during trial of this case infected the trial
with chaos and confusion, greatly harming plaintiffs' case because plaintiffs were prevented
from properly and effectively presenting their case. Court's actions above were arbitrary without
any basis in law, biased for the defendant and violated our constitutional due process and equal
protection rights under Texas Constitution (Art.l, Sees. 3, 13, 19,27) and the U.S. Constitution.
The court wrongly permitted testimony over our repeated objections on a "third party
vendor" which defendant claimed as allegedly causing legal violation of TOMA Sec. 551.056.
As we have contended, such new evidence must be excluded because defendant PISD
deliberately refused to provide discovery and deliberately refused and failed to supplement
discovery with respect to the purported "third party vendor." As explained previously, we are
entitled to discovery and supplementation according to the Texas Rules of Civil Procedure. See
TRCP Rule 193.5, 193.6. This court should have excluded the testimony and should have
granted new trial to obtain discovery concerning the "third party vendor." Court's failure to do
so was highly prejudicial and damaging to plaintiffs as we were prevented from effectively
examining the witnesses and were prevented from presenting our side effectively. The court's
failure to exclude evidence or allow discovery on the new evidence made the trial a trial by
surprise and ambush violating our rights of equal rights and due process under Texas
Constitution (Art. 1, Sees. 3,13,19,27) and 14th Amend. to U.S. Constitution. This is the reason
why the case was remanded in the first place by the 7th Court.
As explained in our motion to modifY judgment and motion for new trial above, it is clear
that the Texas Open Meetings Act does not authorize this court to take ''judicial notice" of
defendant's attorney fees without receiving evidence as to the amount or reasonableness and
further that court's award of fees is improper under TOMA. TOMA Sec. 551.142. There is
Motion for Reconsideration Cause No. 35621 Page 3 of7
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absolutely no evidence in the record as to the reasonableness of the $30,000 the court granted
PISD in attorney fees or the hours worked, tasks performed, and rates per hour, and by whom.
Court's award of attorney fees of $30,000 under TOMA1 is arbitrary, capricious, punitive, and
legally improper. Court's award violates plaintiffs' due process rights and equal rights under the
Texas Constitution Article 1 Sections 3, 13, 19, and 27 and the 14th Amendment to the U.S.
Constitution as we are entitled to the due process and equal rights of contesting the
reasonableness of attorney fees awarded to defendant by examining and questioning defendant's
attorney and any records proving the existence and reasonableness of the $30,000 award. We
object to the attorney fee award because it has no basis in law, because it arbitrary, and because it
is punitive in nature. Attorney fees are not mandatory, but if awarded under TOMA, TOMA
only permits "reasonable" attorney fees and the reasonableness must be proven at trial. See
TOMA Sec. 551.142. The language of TOMA is plain and clear that it does not authorize this
court to award punitive attorney fees and does not permit a judge to be an advocate for defendant
and for defendant's attorney fees. Here, this court granted attorney fees under TOMA, and not
under the Texas Civil Practices and Remedies Code (TCPRC), thus TCPRC Sec. 38 does not
apply here. Further, defendant waived and forfeited its claim to attorney fees when it expressly
declined to testifY concerning its request for attorney fees. Defendant's subsequent
correspondence with us makes it clear that its only interest was to stop the appeal currently
before the 7th COA. This court should grant this motion and reverse its judgment with respect to
the award of attorney fees to PISD, and grant new trial on the issue of attorney fees. The record
1
PISD's alleges its claim for attorney fees under TOMA Sec. 551.142. The award of attorneys' fees in
this case does not arise under Texas Civil Practice and Remedies Code (CPRC) section 38.001, thus this
Court does not have power to take judicial notice of attorney fees under Tex. Civ. Prac. & Rem. Code §
38.004. See Valdez v. Valdez, 930 S.W.2d 725, 732-33 (Tex. App.--Houston [1st Dist.] 1996, no writ)
(holding section 38.004 only applies to claims under section 38.001).
Motion for Reconsideration Cause No. 35621 Page 4 of7
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is clear PISD attorneys maintained a very low amount of activity and work in this case and the
award of $30,000 is grossly unreasonable. PISD must be required under law, and TOMA
requires that PISD prove its attorney fees at trial. Defendant refused to do so. Further judicial
efficiency requires that award of attorney fees be delayed until appellate process is concluded.
The court failed to provide detailed reasons as to why it found that we acted in bad faith
when defendant presented no evidence or testimony at trial to show whether we brought the suit
in bad faith. Court's detailed reasoning in this regard would assist the court of appeals and
parties in arguing the reasons in a meaningful way before the 7th court of appeals. Defendant
presented no evidence of bad faith or lack of good faith on our part in bringing this suit. The
only evidence presented at the trial in this regard by us clearly showed that defendant's 5 month
long legal violations of TOMA Sec. 551.056(b) got corrected only because of our report to
defendant in that regard on May 15, 2009. How is this lack of good faith? This court held only
one day hearing (final trial) in this case and lacks any personal knowledge of prior proceedings.
Under TOMA, evidence and testimony at trial on "bad faith" or lack of good faith on our part in
bringing suit and reasonableness and existence of the amount of attorney fees was absolutely
necessary so plaintiffs would have the chance to examine, question, and challenge such
testimony and evidence. This court cannot just assume or advocate for defendant concerning
award of attorney fees or a lack of good faith. TOMA Sec. 551.142. Court's finding ofbad faith
in bringing this suit and award of attorney fees is not only arbitrary, capricious and without basis
in law or evidence, but it is biased for defendant and punishes and victimizes plaintiffs by further
depriving us of due process and equal rights under the 14th Amendment to the U.S. Constitution
and Texas Constitution Article 1 Sections 3, 13, 19, and 27. There is no support in law or
evidence for court's finding of"bad faith" in bringing this suit and for the attorney fee award to
Motion for Reconsideration Cause No. 35621 Page 5 of7
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PISD and court actions deprive us of our good name and livelihood violating our fundamental
and constitutional rights as stated above. Court should grant new trial on the issue of award of
attorney fees to defendant and on the issue of its bad faith finding.
How Texas citizens and taxpayers like us are treated by this court will be of interest to
Texas citizens and will be watched for years to come. This court's decisions will have chilling
effect on Texas citizens' participation in their government if not modified by this court and if
new trial is not granted. TOMA should be more than lofty words. We hope and urge the court to
uphold the lofty purpose of open and transparent government under Texas Open Meetings Act,
and grant this motion and motions for new trial and to modifY judgment, grant hearing on the
newly discovered evidence presented in motion for new trial, grant new trial on the attorney fees
requiring PISD to prove its attorney fees, and on all causes of action as requested.
Prayer
FOR THE FOREGOING REASONS, plaintiffs respectfully request that the Court grant
this motion for reconsideration, grant our motion for new trial, grant our motion to modifY
judgment, grant new trial on the issue of imposition of attorney fees, stay imposition and
execution of attorney fees and costs until the appellate process is concluded, grant new trial on
all causes of action, and modifY judgment as requested.
Plaintiffs further request that court grant all other relief requested by plaintiffs in their
motion for new trial and motion to modifY judgment, and vacate the award of costs and attorney
fees in the amount of $30,000 to defendant PISD, deny PISD's request for attorney fees and
costs, and make additional or amended findings of fact and conclusions of law as requested.
Plaintiffs further request that Court grant all other and further relief, at law or in equity, to which
they may justly be entitled to receive.
Motion for Reconsideration Cause No. 35621 Page 6 of7
408
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Date: February 5, 2014 Respectfully submitted,
``
Rebecca Terrell
Chandrashekhar Thanedar
Plaintiffs
6503 Dancing Ct.
San Antonio, Texas 78244
(956) 445-3107, (512) 271-6840 Fax
rterre11152@gmail.com
CERTIFICATE OF SERVICE
The undersigned certify that a true and correct copy of the foregoing document was
served upon the following by email and fax on February 5, 2014 to
Hon. Judge Abe Lopez W. Wade Arnold, Andrea Gulley, counsel for PISD
2100 Briarwood Drive Underwood Law Firm, P. 0. Box 9158
Amarillo, Texas79124 Amarillo, Texas 79105-9158
lopeza@suddenlink.net Phone: 806.376.5613; Fax 806.379-0316
and via Fax (806) 669-8062 wade.arnold@uwlaw.com
We further certify that on February 5, 2014, electronic courtesy copies of Motion for
New Trial, Motion to Modify Judgment, Letter to Judge Lopez dated 11/22/2013, and Request
for Additional or Amended Findings of Fact and Conclusions of Law were emailed to Judge
Lopez at lopeza@suddenlink.net and to defendant's counsel Mr. Arnold at
wade.arnold@uwlaw.com.
Rebecca Terrell
Chandrashekhar Thanedar
Motion for Reconsideration Cause No. 35621 Page 7 of7
409
Appendix 4
Request for Additional or Amended
FOF and COL
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391
CAUSE NO. 35621
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REQUEST FOR ADDITIONAL OR AMENDED FINDINGS OF FACT AND
CONCLUSIONS OF LAW
TO THE HONORABLE JUDGE ABE LOPEZ:
Pursuant to Rule 298 ofTexas Rules of Civil Procedure, Plaintiffs in the above styled and
numbered cause file this Request for Additional or Amended Findings of Fact and Conclusions
of Law, and in support respectfully show the following:
The original findings of fact and conclusions oflaw made by the Court were filed in this
case on November 20, 2013. This request for additional or amended findings of fact and
conclusions of law is timely filed per TRCP Rule 298. Pursuant to TRCP Rule 298, plaintiffs
now request the following additional or amended findings of fact and conclusions oflaw be filed.
Plaintiffs affirm that to the extent any Finding of Fact reflects a legal conclusion, it shall
be to that extent deemed a Conclusion of Law, and vice versa.
ADDITIONAL OR AMENDED FINDINGS OF FACT
1. On October 9, 2013, at the trial in this case Court directed defendant Pampa
Independent School District's (defendant or PISD) attorneys to testifY in the matter of
defendant's claim for attorney fees as to the amount and reasonableness of attorney fees.
391
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392
Defendant's attorney Mr. Arnold declined and failed to do so and asked the Court to take judicial
notice of the file and award attorney fees to ·defendant.
2. There is no evidence or insufficient evidence of defendant's claim for attorney fees for
$30,000 or for any amount, its appropriateness, or its reasonableness.
3. Plaintiffs' reported defendant's non-compliance with Texas Open Meetings Act
(TOMA) Sec. 551.056(b) to defendant on May 15, 2009 and their report was the only reason said
non-compliance was corrected after 5 months of non-compliance with TOMA by defendant.
Plaintiffs' good faith was not disputed by defendant at trial. Defendant did not offer evidence of
lack of good faith. There is no evidence that plaintiffs' brought this action in bad faith. To the
contrary, plaintiffs prevailed on appeal in this lawsuit and the appeals court ordered defendant to
pay costs in this case to plaintiffs. Plaintiffs' case clearly has merit. As a result of this lawsuit,
defendant made several changes and reformed its practices to ensure compliance with TOMA.
The record in this case shows that defendant mostly did not file responses to plaintiffs' motions
or filings. There is no evidence or insufficient evidence that plaintiffs made voluminous filings
or that they were not necessary to prosecute the case. Thus, there is no evidence of time spent by
PISD on responding to plaintiffs motions either before trial court or appellate court. The Court
finds that appeals court rejected PISD's filings and such filings often lacked compliance with
appellate rules e.g. citation to record or legal authorities. There have been three judges who have
presided over this case and this Court held no proceedings before the trial on October 9, 2013.
4. Court declined to rule on admissibility of plaintiffs' trial exhibits PX 1 (CD of
electronic notices and document properties of 22 meetings at issue in this trial), 19, 20, 23, and
25 during the trial. Court rules that said trial exhibits PX 1, 19, 20, 23, and 25 are now admitted.
Request for Additional or Amended Cause No. 35621 Page 2 of9
Findings of Fact and Conclusions of Law
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393
5. PISD admitted at trial that internet notice for its 1115/2009 board meeting did not
appear on its website. However, there is no evidence or insufficient evidence that defendant
employed SchoolCenter to create a new website and or to transfer link to its internet notices to a
new website before said meeting on 1115/2009.
6. Defendant's claim that it employed SchoolCenter to create a new website, to transfer
link to notices was made for the first time at trial. Defendant did not disclose this information
during discovery process to plaintiffs, nor did it timely correct or supplement its discovery
responses in this regard before trial under Texas Rules of Civil Procedure.
7. Defendant maintained and managed its own website and posted website internet
notices under TOMA Sec. 551.056(b) through at least January 15, 2009. There is no evidence or
insufficient evidence that a link to BoardBook existed on defendant's website on or before
January 15, 2009 or that internet notices under Sec. 551.056(b) appeared on defendant's website
before defendant employed a third party vendor- SchoolCenter. Because PISD admitted that the
internet notice for 1115/2009 did not appear on its website, Court finds that the link to internet
notices did not exist on PISD's website before PISD allegedly employed SchoolCenter to create
a new website.
8. There is no evidence or insufficient evidence that defendant had BoardBook service to
post internet notices under TOMA sec. 551.056(b) or payments to BoardBook for its service.
There is no evidence or insufficient evidence that defendant executed a contract with BoardBook
or that such contract was ever renewed, especially before or during the time period for which
defendant claims good faith exception under Sec. 551.056(d).
9. Defendant claimed at trial that it contracted a third party vendor SchoolCenter to
create a new website and transfer link to internet notices. There is no evidence or insufficient
Request for Additional or Amended Cause No. 35621 Page 3 of9
Findings of Fact and Conclusions of Law
393
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394
evidence that defendant contracted a third party vendor School Center to create a new website for
defendant or transfer or maintain a link to internet notices to the new website before the time
period for which defendant claims good faith exception under Sec. 551.056(d).
10. Defendant admitted that it did not comply with Sec.551.056(b) for 11 board meetings
held from January 15, 2009 through May 19, 2009.
11. Defendant maintained and managed its website through January 15, 2009 board
meeting, however it did not comply with Sec.551.056(b) for the January 15, 2009 board meeting.
Further, there is no evidence or insufficient evidence that defendant's new website was created
72 hours before defendant's January 15, 2009 board meeting. Further there is no evidence that
SchoolCenter was employed to create new website before the January 15, 2009 board meeting.
12. Plaintiffs (plaintiff Thanedar) reported to defendant on May 15, 2009 that
defendant's internet board meeting notices did not appear on its website. Defendant fixed its
non-compliance with TOMA due to plaintiffs' said report of non-compliance.
13. There is no evidence or insufficient evidence that defendant verified or checked that
its internet board meeting notices actually appeared on its website during the period from
January 2009 through May 15, 2009.
14. There is no evidence or insufficient evidence that defendant verified that it actually
complied with TOMA Sec. 551.056(b) during the 5 month period for which it claims good faith
exception under Sec. 551.056(d) until plaintiffs reported non-compliance on 5/15/2009.
15. Lee Carter was PISD's webmaster and managed and maintained defendant's website
in the month January 2009 and was responsible for maintaining the link to PISD's internet
notices on its website during January 2009 or concerning the internet notice of the 1115/2009
board meeting.
Request for Additional or Amended Cause No. 35621 Page 4 of9
Findings of Fact and Conclusions of Law
394
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16. Defendant concealed and failed to disclose the identity and the central role of
SchoolCenter to Texas Attorney General and plaintiffs in response to plaintiffs' Open Records
Request or Public Infonnation Request per Gov't Code Ch. 552. Defendant further concealed
and failed to disclose documents to plaintiffs concerning license fee payments to BoardBook and
SchoolCenter for the purpose of their Open records Request or during discovery process.
17. Court finds that there is no material question of fact remaining concerning plaintiffs'
causes of action in TOMA Sections 551.041, 551.043, 551.045(d), 551.051, 551.101, and
551.074(b ). Court declined to try plaintiffs' said causes of action at the trial of this case and no
evidence or insufficient evidence was pennitted or presented concerning said causes of action.
18. There is no evidence or insufficient evidence that defendant's internet notices
independently appeared on Google or BoardBook. Court finds such infonnation or evidence
legally irrelevant, speculative and that it does not comply with TOMA.
19. There is no evidence or insufficient evidence that PISD "released" or checked
internet notices in BoardBook during Jan. 2009 through May 19, 2009 regarding any or all its
board meetings. Such infonnation even if true is legally irrelevant, speculative and immaterial.
20. There is no evidence or insufficient evidence that defendant ever checked or verified
that the link to internet notices was transferred over to its new website during January 2009 to
May 15, 2009 or that defendant required the third party vendor SchoolCenter to timely transfer
said link to internet notices to its new website.
21. Plaintiff Terrell's employment contract was tenninated by defendant in the Board
meeting held on 3/26/2009. Voidance of defendant's action terminating Terrell's employment
requires reinstatement of Terrell and payment of back wages and benefits until she is legally
terminated under the Ed. Code in compliance with TOMA in a legally convened Board meeting.
Request for Additional or Amended Cause No. 35621 Page 5 of9
Findings of Fact and Conclusions of Law
395
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396
ADDITIONAL OR AMENDED CONCLUSIONS OF LAW
1. Defendant did not meet the prerequisites for attorney fees and costs award under
Texas Open Meetings Act.
2. Defendant's claim for attorney fees does not arise from Sec. 38.001 of the Civil
Practice and Remedies Code (CPRC). Further, Ch. 38 of the CPRC does not apply to this case.
3. The Court does not have the power or discretion to take judicial notice of the file in
this case under TOMAto award attorney fees without receiving evidence concerning attorney
fees and its reasonableness. The Court does not have the power or discretion to award attorney
fees incurred or claimed by PISD for appeals in this case.
4. Plaintiffs affirmatively established good faith under TOMA and brought the action in
good faith. Defendant did not dispute plaintiffs' good faith assertion nor introduced any
evidence to the contrary. There is no evidence of lack of good faith on 1he part of plaintiffs in
bringing this action.
5. PISD's claim for attorney fees is denied due to lack of evidence and because PISD
forfeited its claim due to its refusal to testifY and because it is legally improper.
6. Defendant had the burden ofproofunder Texas Open Meetings Act Sec. 551.056(d) to
prove good faith as to its admitted non-compliance with Sec. 551.056(b) for defendant's 11
board meetings held during the time period January 2009 to May 19, 2009.
7. There is no evidence or insufficient evidence that defendant's non-compliance with
TOMA Sec. 551.056(b) was done in good faith. Defendant failed to meet its burden of proof of
good faith under Sec. 551.056(d).
8. Defendant obstructed discovery in this lawsuit by concealing and failing to disclose
the identity and role of School Center and further concealed and failed to disclose other discovery
Request for Additional or Amended Cause No. 35621 Page 6 of9
Findings of Fact and Conclusions of Law
396
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397
and license fee payments to BoardBook and SchoolCenter. Defendant's obstruction of justice is
sanctionable. All evidence concerning SchoolCenter and BoardBook must be and is excluded
from trial ofthe case and is disregarded. Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989).
9. Court rules for plaintiffs on all counts and grants all relief requested. Court orders that
plaintiff Terrell is reinstated to her previous position as a teacher at PISD and awards back pay
and benefits. Terrell's termination in the 3/26/2009 board meeting is voided.
10. Court concludes that plaintiffs' claims must be decided based on the Exact and
Literal compliance standard applied to TOMA cases by the Texas Supreme Court. The Court
rules in favor of plaintiffs on all of their causes of action in this case whether or not tried before
the court on October 9, 2013.
11. Defendant's claim that its internet notices independently appeared on BoardBook's
website or on "Google," whether true or not, does not comply with TOMA Sec. 551.056(b).
12. Defendant's claim that it worked in BoardBook or checked its work in BoardBook is
irrelevant and does not comply with TOMA Sec. 551.056(b) and does not meet the burden of
good faith because PISD failed to check its own website for compliance with Sec. 551.056(b)
during the entire time period of 5 months in 2009 for which it claims good faith.
13. Plaintiffs are interested persons under TOMA. Plaintiffs have a particularized injury
caused by defendant by its action taken under TOMA terminating Terrell's contract. Plaintiffs
have requested relief of reinstatement of Terrell to her teaching position at defendant and stated
that Terrell will resume her teaching position upon reinstatement. Thus plaintiffs have standing
to maintain this lawsuit and have had standing for the duration of the lawsuit. This court has
jurisdiction through out the duration ofthis lawsuit. TOMA does not require a plaintiff to be a
taxpayer ofthe government entity sued under TOMA. Further TOMA neither requires a litigant
Request for Additional or Amended Cause No. 35621 Page 7 of9
Findings of Fact and Conclusions of Law
397
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to live within the boundaries of the government body nor does it require for a litigant to prove
interest over and above that of general public. Plaintiffs have shown that they are interested in
defendant government body and its functioning. Plaintiffs lived in Pampa within the boundaries
of defendant when the alleged violations of TOMA occurred and injury of termination to
plaintiff Terrell occurred in the school year 2008-2009 by PISD's action taken under TOMA.
14. TOMA is not a scheme for providing individual notice, nor does it have any due
process implication. Thus whether or not plaintiffs attended the 3/26/2009 board meeting or had
actual notice of it or of Terrell's termination in said meeting is irrelevant under TOMA.
15. Plaintiffs presented sufficient evidence to prove that continuance of the trial was
justified and should be granted. Plaintiffs' motions to reset trial date, compel discovery, to
exclude evidence, and for post-remand discovery are justified and should be granted.
16. Defendant's failure to competently oversee transfer of link is not a technical problem
under TOMA and was not beyond the control of defendant for 5 months from January 2009 to
May 19, 2009. A good faith attempt to post internet notice under TOMA 551.056 must involve
verification as to whether such notice actually appears on government body's website. PISD did
not do so even once in 5 months. PISD fails the reasonable person standard of due diligence.
PISD did not attempt to post TOMA internet notices in good faith. Had defendant checked its
website for internet notices even once during said 5 months as was its practice in 2008, it would
have promptly discovered non-compliance with TOMA Sec. 551.056(b ). The Court finds that
lack of due care and oversight or negligence or incompetence, as here, is not a technical problem
and that it is not beyond PISD's control. The Court finds that PISD exhibited conscious
indifference to the required compliance with TOMA Sec.551.056(b) and with respect to other
violations of TOMA asserted by plaintiffs. The Court concludes that given the extended long
Request for Additional or Amended Cause No. 35621 Page 8 of9
Findings of Fact and Conclusions of Law
398
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399
time period involved in non-compliance with TOMA i.e. 5 months, any problem in this matter
was not technical in nature, nor was it beyond the control of PISD. Court finds that the non-
compliance with TOMA for 11 board meetings from 112009 thru 5/19/2009 was in bad faith.
Plaintiffs request that Court file the above additional and amended findings of fact and
conclusions of law in this case and declare that to the extent any Finding of Fact reflects a legal
conclusion, it shall be to that extent deemed a Conclusion of Law, and vice versa.
Respectfully submitted,
Rebecca Terrell
Chandrashekhar Thanedar, Plaintiffs
6503 Dancing Ct., San Antonio, TX 78244
(956) 445-3107; (512) 271-6840 Fax
rterrell15 2@gmail.com
CERTIFICATE OF SERVICE
The undersigned certifY that a true and correct copy of the foregoing document was
served by USPS first class mail on December 2, 2013 on W. Wade Arnold, Andrea Gulley,
Underwood Law Firm, P. 0. Box 9158, Amarillo, Texas 79105-9158, Phone: 806.376.5613,
Attorneys for PISD.
Rebecca Terrell
Chandrashekhar Thanedar
Request for Additional or Amended Cause No. 35621 Page 9 of9
Findings of Fact and Conclusions of Law
399
Appendix 5
Plaintiffs’ Original Petition
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APPLICATION FOR ISSUANCE Of A TEMPORARY RESTRAINING ORPER
WITHOUT NOTICE AND TEMPORARY INJVNCTIONS WITH SUPPQBTING
DQCUMENJATION AND AFFJDAVIT
TO THE HONORABLE JUDGE OF TilE COURT:
NOW COME Rebecca Terrell and Chandrashekhar Thanedar, hereinafter called
Plaintiffs, complaining of and about Pampa Independent School District, hereinafter called
Defendant, and for cause of action shows unto the court the following:
DISCOVERY CONTRQL PLAN
1. Discovery in this case is intended to be conducted under Level 2 of Rule 190 of the
Texas Rules of Civil Procedure.
PABTIES AND SERVICE
2. Plaintiffs, Rebecca Terrell and Chandrashekhar Thanedar, are individuals whose
address is 1000 N. Wells St. Pampa, Texas 79065. See the attached Plaintiffs' Affidavit in
Support of Plaintiffs' Application for a Temporary Restraining Order.
3. Defendant Pampa Independent School District is a governmental entity created by the
State of Texas located in Pampa, Gray County, Texas and was established for the purpose of
1
'
• •
providing public schooling and education for the eligible members of the geographical
jurisdiction, and may be served with process by serving its Superintendent of said School
District, Barry Haenisch, at 321 W. Albert, Pampa, Texas 79065. Service of said Defendant as
described above can be effected by personal delivery.
STA@ING
4. Plaintiffs, as members of public, taxpayers, citizens, or individuals resident within
Pampa Independent School District are interested persons and have standing to bring forth this
action as allowed under Tex. Govt. Code §551.142. Standing under the Texas Open Meetings
Act (the Act) is to be interpreted broadly. See Buries v. Yarbrough, 157 S.W.3d at 880 (Tex.
App.·Houston [14 Dist.] 2005 org. proceeding [man. denied]); Hays County Water Planning
P'ship v. Hays County, 41 S.W. 3d at 177~78 (quoting Save Our Springs Alliance, Inc., 934 S.W.
2d at 163). A person need not prove an interest different from the general public, "because the
interest protected by the Open Meetings Act is the interest of the general public." See Hays
County Water Planning P'ship, 41 S.W.3d at 177~78 (quoting Save Our Springs Alliance, Inc.,
934 S.W. 2d at 163).
JURISDICTION AND VENUE
S, The subject matter in controversy is within the jurisdictional limits of this court.
6. Plaintiff Rebecca Terrell and Chandrashekhar Thanedar are residents of Pampa, Gray
Cowtty, Texas.
7. This court has jurisdiction over the parties. Defendant Pampa Independent School
District is a political subdivision of the State of Texas located within the geographical confines
of Gray County, Texas. The Cowt has the power to grant relief requested and no administrative
Terrell v. Pampa ISO Page2 of16
2
•
exhaustion is required on the part of plaintiffs under the Texas Open Meetings Act Tex. Govt.
Code Chapter 551. See Tex. Govt. Code §551.141 and §551.142.
8. Venue for this suit is proper in Gray County, Texas.
FACTS
9. Defendant Pampa Independent School District tapes notices of board meetings to the
front door of the administration building at "321 ·W. Albert." The notices do not mention the
name of the city in which the meetings are held. The front door as a place to post notices is
neither secure, nor convenient, nor appropriate, nor in compliance with the Act The place of the
notice of meeting i.e. taping the notices to the front door is in violation of the Open Meetings
Act. The Open Meetings Act expressly states where the notice of a meeting shall be posted and
the place varies depending on the governing body posting the notice. The place of posting for a
School District is mandated to be a "Bulletin Board."
The Tex. Gov't Code §551.051: S~hool District: Plaee of Posting Notice specifically
states:
"A school district shall post notice of each meeting ·on a bulletin board at a place
convenient to the public in the central administrative office of the district." Tex.
Gov't Code §551.051
As Defendant tapes the notices to the front door of its administration building and does
not post notices on a bulletin board as mandated by the Act. defendant is in violation of the Act.
10. Further, Defendant is in violation of the time requirement of the Open Meetings Act
Tex. Oov't Code §551.043(a). It is not accessible at night and there is no lighting whatsoever for
public to read the notices at night time. The place is not convenient and not appropriate as
defendant posts other notices on the ftont door of the administration building e.g. Pest Control
Notices, Enrollment in Kindergarten Classes, etc., obscuring a statutory notice of the board
Terrell v. Pampa ISO Page 3 of16
3
meeting under the Act.
• •
The notices have fallen off from the front glass door at the defendant's
administration building at 321 W. Albert in Pampa and are not accessible and not available for
public reading for the prescribed continuous 72 hour period. Notice must be posted for a
minimum length oftime before each meeting. Section 55 1.043(a) states:
The notice of a meeting of a governmental body must be posted in a place readily
accessible to the general public at all times for at least 72 hours before the
scheduled time of the meeting, except as provided by Sections 551.044-551.046.
AB explained above, defendant is in violation of Tex. Gov't Code Section 551.043(a).
11. (a) Defendant did not post notices of meetings on its internet website for any of its
meetings for the prescribed time period before the meetings specifically including the following
meetings of the Board of Trustees of Pampa Independent School District:
2008-2009 Sehool Year- Pampa Independent Sehool District
May 19, 2009 Board Meeting
May 7, 2009 Board Meeting
April 23, 2009 Board Meeting
April 21, 2009 Board Meeting
April 16, 2009 Board Meeting
April2, 2009 Board Meeting
March 26, 2009 Board Meeting
March 12, 2009 Board Meeting
Feb. 19,2009 Board Meeting
Feb. 5, 2009 Board Meeting
Jan. 15,2009 Board Meeting
Dec. 18, 2008 Board Meeting
Dec. 4, 2008 Board Meeting
Nov. 20, 2008 Board Meeting
Nov. 6, 2008 Board Meeting
Oct. 23, 2008 Board Meeting
Oct. 9, 2008 Board Meeting
Oct. 2, 2008 Board Meeting
Sept. 18, 2008 Board Meeting
Sept. 4, 2008 Board Meeting
Aug. 21, 2008 Board Meeting
Aug. 13,2008 Board Meeting
See EUibit 1.
Terrell v. Pampa ISO Page 4 of 16
4
• •
(b) Defendant engaged in conscious attempt to obstruct justice in flagrant disregard of
law by posting notices of the above meetings on its website on May 19,2009, weeks and months
after the meetings in gyestion took place, and only after several requests for records were made
under the Public Information Act Tex. Gov't Code Ch. 552 by Plaintiffs. This contrivance and
manipulation shows conscious guilt and willful conduct to disregard law. See Exhibits 1 ~thru 6.
(c) The above website notices were posted on May 19, 2009 on the Defendant's internet
website in the ''Board.Book" nestled deep in the website so as to be less obvious and less
conspicuous to public. On May 19, 2009, Defendant's Board was reorganized after a new board
member was elected and sworn in on that date.
(d) Defendant bas in fact admitted that it did not post any internet website notices of
meetings for the school year 2008..2009 with respect to the meetings referred above as of May
15, 2009. The internet website notices posted for the said meetings on May 19, 2009 do not have
the name of the designated person under the Act posting it and/or such person's signature or
certificates of compliance with the Act, and dates and times of postings. See Exhibits 1 - 6.
Such postings of notices are in violation of the Act, Tex. Gov't Code §551.043(b) and §551.056.
12. Defendant taped a notice of meeting on its building's front door on Friday, May 15,
2009 for a board meeting on May 18, 2009 and removed that taped notice on Monday, May 18,
2009 and re~posted and re-taped a new notice to the front door on Monday, May 18, 2009 for a
board meeting on May 19, 2009. Plaintiff ThaDeda:r confirmed this with Defendant's personnel
and obtained a copy of the notice of this meeting on May 18, 2009. The May 19, 2009 board
meeting was illegally convened in violation of the notice provisions of the Open Meetings Act,
Tex. Gov't Code subchapter C, Tex. Gov't Code §551.041, §551.043, and §551.056.
Terrell v. Pampa lSD PageS of16
5
• •
13. On May 26, 2009, two months after the Board Meeting held on March 26, 2009,
Defendant Pampa Independent School District's superintendent Mr. Barry Haenisch by certified
letter submitted to plaintiff Terrell another "version" of the "original notice." This '•second"
version of the "original notice" mailed to Temll is signed by Ms. Karen Linder and falsely dated
March 20,2009. See Exhibit 3. It is undisputed that defendant's central office building (and the
entire school district) was closed from March 14, 2009 through March 22, 2009 for "Spring
Break." This notice dated March 20, 2009 is false, was never posted, nor distributed to public
and was recreated only to obstruct justice and misrepresent compliance with the Act. Such
obstruction ofjustice should not be countenanced by this Court.
14. In fact, the original posting of notice for the March 26, 2009 was taped to
Defendant's front office door on March 24, 2009 (after the March 23, 2009 taped notice fell or
was removed from the door per defendant's personnel.) This notice dated March 23, 2009 for
the March 26, 2009 board meeting was in fact distributed to public and Plaintiffs on March 26,
2009 during the said board meeting. Plaintiffs verified with defendant's personnel that no notice
was posted or remain posted on the front door on March 23, 2009 and obtained a copy of the
notice of the March 26, 2009 meeting on March 24,2009. There was no internet website posting
done by the Defendant for the March 26, 2009 for the prescribed time period under the Act. The
March 26, 2009 meeting was illegally convened and this meeting and all actions taken in it are in
violation of the Open Meetings Act Subchapter C, Tex. Gov't Code §551.041; §551.043, and
§551.056.
15. Defendant does not maintain or could not locate the signed originals of the notices
and/or minutes of the board meetings from November 2008 through April 2009 as inspected
pursuant to a Public Information Request by Plaintiff Thanedar. Defendant admitted that the
Terrell v. Pampa lSD Page 6 of 16
• •
original signed minutes for the March 12, 2009 meeting did not exist. Upon inspection, several
other documents/minutes also appeared to be copies and not originals. .
16. Defendant's notices of board meetings taped to the front door of the administrative
building are signed by Ms. Karen Linder who is a secretary to Mr. Barry Haenisch,
Superintendent of Defendant Pampa Independent School District. These postings are in
violation of the Act as follows:
1. The postings of the notices specifically including' notice for the March 26,
2009 meeting do not contain certificates of compliance by a "designated or
authorized" person that the .Postings are in compliance with the mandatory
requirements of the Open Meetings Act.
2. The Open Meetings Act has several notice provisions which must be
complied with and it is self-evident that a designated or an authorized person
must provide a certificate that the notice posted is in fact in compliance with
the Open Meetings Act. This court should take judicial notice of how
governmental bodies and school districts properly post notices on their
internet website where designated personnel post and certify compliance with
the Open Meetings Act.
3. Defendant's taped front door notices are signed by Ms. Karen Linder who is
not designated nor authorized by the Defendant's policies legally approved by
its Board of Trustees to post public notices of meetings under the Act. It is
undisputed that as a secretary to the Superintendent of Defendant, Ms. Karen
Linder has neither the authority under law, district by-laws or approved
policies, nor any apparent or implied authority to post statutory notices on
Terrell v. Pampa lSD Page 7 of 16
7
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behalf of a government body namely, Defendant. Indeed, Ms. Karen Linder
does not even claim to have any authority to post legal notices, nor certify
compliance under the Act, nor sign the notices on behalf of the Board of
Trustees. In fact, Ms. Linder makes no certifications whatsoever in the
notices she signed including the notice posted for the March 26, 2009 board
meeting.
4, No notices of board meetings are signed by the President of the Board of Trustees or
the Superintendent of Defendant Pampa Independent School District. This is in violation of the
Act as the "school district" must post a notice of a meeting in compliance with the Act Tex.
Gov't Code subchapter C, Tex. Gov't Code §551.041, §551.043, and §55 1.056.
17. Defendant is in violation of the additional posting requirements of the Open
Meetings Act Tex. Oov't Code §551.056 which requires that governmental bodies such as
defendant must post notices of meetings on their internet websites concUl'l'eD.tly for the
prescribed minimum 72 hours before meetings. This requirement is in addition to other postings
required by the Act. The Open Meetings Act defines "notice" as follows: "A governmental
body shall give written notice of the date, hour, place, and subject of each meeting held by the
governmental bOdy." Defendant is in violation of Tex. Gov't Code §551.041. Further.
Defendant is in violation of the time; requirement of the Open Meetings Act Tex. Oov't Code
§551.043(b).
18. Posting notice is mandatory and actions taken at a meeting for which notice was
posted incorrectly will be voidable. Sierra Club v. Austin Transp. Study Policy Advisory
Comm 'n, 746 S. W.2d at 301 (Tex. App. -Austin 1988, writ denied). ..
Terrell v. Pampa lSD Page 8 of 16
8
•
-
PLAINTIFFS' CLAIMS TO DECLARE MEETINGS AND ACTIONS VOID
UNDER TEXAS OPEN MEETINGS ACT (TEX. GOV'T CODE, Ch. 551)
•
19. Plaintiffs incorporate within this claim all of the allegations set forth in paragraphs 1·
18,Supra.
20. Defendant is a government body which is subject to the provisions of the Texas
Open Meetings Act. Since the Board of Trustees for the Defendant Pampa Independent School
district is a body corpomte, members cannot perfonn any valid act except as a body at meetings
properly convened and conducted. See Toyah lSD v. Pecos-Barstow lSD. 466 S.W. 2d 377 (Tex.
Civ. App.-San Antonio 1971), no writ; see also Buchele v. Woods, 528 S.W.2d 95 (Tex. Civ.
App.-Tyler, 1975, no writ).
21. Pursuant to Tex. Gov't Code §551.141 an action taken by a government body in
violation of the Texas Open Meetings Act is voidable. Governmental actions taken in violation
of the notice requirements of the Act are voidable. Swate v. Medina Cmty. Hospital, 966 S.W.2d
693, 699 (Tex. App.-San Antonio 1998, pet denied); Tex. Gov't Code §551.141. Governmental
actions in violation of the Open Meetings Act have been judicially declared to ~ void. See e.g.
Point /sabelLS.D. v. Hinojosa. 191 S.W.2d 176, 179 (Tex. App. -Corpus Christi 1990, writ
denied). By Defendant's violation of the notice provisions of the Open Meetings Act as
explained above, the respective illegally convened Board Meetings (see paragraph 11 above and
Exhibit I) and all actions taken therein are both illegal and therefore void. Plaintiffs request that
all meetings, and thus actions in question, as noted above in paragraph 11 including the meeting
held on 3126/09 be declared void.
22. In this case, the Pampa Independent School District woefully failed to comply with
the statutory notice provisions of the Open Meetings Act as shown above and shown conscious
guilt in its transparent attempts to misrepresent compliance and grossly obstruct justice.
Terrell v. Pampa lSD Page9of16
9
• •
Defendant has repeatedly demonstrated flagrant disregard for the public's right to know what
their government is doing and for public's right to expect honest, voluntary, and full compliance
with law. Citizens do not have to file lawsuits to expect and enforce honest compliance with the
law from their government.
23. It is plaintiffs' position that the board meeting of March 26, 2009 was not properly
convened and was in violation of the notice provisions of the Open Meetings Act as explained
above , and therefore, illegal. Plaintiffs request that the said meeting and all actions taken in the
meeting specifically the action terminating Rebecca Terrell's probationary contract be declared
void by this Court. This court should not countenance the improper conduct and flagrant
disregard for law shown by the defendant (e.g. having three different fals versions of the notice
of the board meeting held on March 26, 2009) and this court should consider such improper
conduct in declaring the above referenced actions and meeting void and in further granting
it\junctive and mandamus relief to plaintiffs, specifically including reinstatement of Rebecca
Terrell's employment contract and duties, responsibilities, and privileges appurtenant therein and
granting special damages.
24. It is plaintiffs' position that the board meetings outlined in paragraph ll above were
not properly convened and were in violation of the Open Meetings Act's notice provisions.
Plaintiffs request that the said meetings and all actions taken in the said meetings be declared
void by this CoW't. This court should not countenance the improper conduct and flagrant
disregard for law shown by the defendant and this court should consider such improper conduct
in declaring the above referenced actions and meetings void and in further granting injunctive
and mandamus relief to plaintiffs.
TetTell v. Pampa ISO Page 10 of 16
10
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25. By this action, as provided by the Open Meetings Act, plaintiffs also seeks to recover
from Defendant all of their reasonable costs and attorney's fees incurred in bringing this action.
PLAINTIFFS' CLAIM FOR MANDAMUS
26. Plaintiffs incorporate within this claim all of the alleptions set forth in paragraphs 1-
2S,supra.
27. Defendant's violation of the Open Meetings Act caused plaintiffs' substantial injury
for which plaintiffs sue for equitable relief of writ of mandamus in the fonn of voiding all
meetings outlined in paragraph 11 above including the meeting of March 26, 2009 and actions
taken therein and reinstatement of Rebecca Terrell's employment contract as a classroom teacher
and all rights, duties, privileges appurtenant thereto and injunctive relief to prevent further such
occurrences and violations of the Act.
APPLICATION FOR ISSUANCE OF A TEMPORARY RESTRAINING ORDER
WITHOUT NOTICE AND INJUNCTIVE RELIEF
28. Plaintiffs incorporate within this claim all of the allegations set forth in paragraphs 1-
27, supra.
29. Plaintiffs are seeking temporary injunctive relief from the actions of Defendant.
30. Plaintiffs request the Court to temporarily restrain Defendant Pampa Independent
School District without notice and, after notice is given to Defendant and after hearing is held, to
temporarily erijoin Defendant Pampa Independent School District from tampering. deleting,
modifying, correcting or changing in any way the Notices. Agendas, Minutes, and/or record of
Board Meetings in paper or electronic form or as posted on the defendant's website as
..BoardBook.. or under any other name or form with respect to the meetings in question and
subject matter of this lawsuit.
Terrell v. Pampa lSD Page II of16
11
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31. Plaintiffs request the Court to temporarily restrain Defendant Pampa Independent
School District without notice and, after notice is given to Defendant and after hearing is held, to
temporarily enjoin Defendant Pampa Independent School District from proceeding with the
tennination of Rebecca Terrell's employment contract and from terminating her duties, rights,
and privileges as a classroom teacher.
32. The granting of the tempoi'aty injunctive relief requested by Plaintiffs will allow
Plaintiffs to preserve the issues at hand until a final determination by the Court regarding the
alleged violations of the Texas Open Meetinas Act can be made.
33. Additionally, the granting of the temporary injunctive relief requested by Plaintiffs
will only require Defendant Pampa Independent School District to comply with and abide by the
Open Meetings Act and the employment contract with Rebecca Terrell until a final
detennination is made by the Court. The Defendant governmental entity Pampa Independent
School District incy.rs no additional cost and bears no additional dutv but to comply with law or
the existing contractual obligations. Plaintiffs have made sufficient showing of violations and a
pattern of obstruction of justice and willful non compliance with the Open Meetings Act on the
part of Defendant. Therefore, Plaintiffs pmy that the Court, in its discretion, should not require
cash bond in this matter on the part of plaintiffs, or alternatively, if the court requires a bond,
require the bond of a nominal amount.
34. Furthennore, the granting of temporary injunctive relief will prevent Defendant from
taking action that will cause further immediate and irreparable harm to Plaintiffs and all other
citizens and taxpayers of the Pampa Independent School District. Defendant's modifying,
altering or changing in any way the paper or electronic record and documents, whether posted on
the Defendant's website or not, will make it impossible for the Plaintiffs to present their case to
TerreJJ v. Pampa lSD Page 12 of 16
l2
• •
this Court. Given the Defeudant's conduct so far, a temporary restraining order without notice is
proper.
35. Plaintiffs have exercised and will exercise due diligence in prosecuting their claims.
The injury to Plaintiffs and all other citizens and taxpayers of the Pampa Independent School
District, if defendant is not temporarily enjoined from the conduct described above. would
outweigh any injury that the temporary restraining order and the temporary injwtctions might
cause Defendant.
36. The issuance of temporary restraining order and temporary injunctions would not be
against the public's interests but are sought only to preserve the best interests of the public and
sought in the interest of justice.
37. Plaintiffs seek to recover costs and reasonable attorney fees in this proceeding.
DANAGES FQR PLAINTIFFS
38. As a direct and proximate result of the occurrences made the basis of this lawsuit,
Plaintiffs, Terrell and Thanedat were caused to suffer as interested persons and concerned
citizens and taxpayer of the defendant Pampa Independent School District, and have incurred a
loss of respect of the integrity of the administrators and elected representatives of the Pampa
Independent School District.
39. The Texas Supreme Court has demanded literal compliance with the Open Meetings
Act in general and specifically with respect to its notice provisions.
40. The Attorney General of the State of Texas, Greg Abbott, has stated unequivocally
that "The Texas Open Meetings Act commits public officials at all levels of government to the
principle of government in the sunshine. It is our legal guarantee that the public's ·business is
TerreJJ v. Pampa lSD Page 13 ofl6
• •
conducted openly and without secrecy." See the Attorney General's Letter to Fellow Texans at
www.oag.stqte.tx.uslnewspubsJvublications.shtm.l (Open Meetings 2008 Handbook).
41. Special damages are appropriate in this case, given the obstruction of justice and
gross and willful non compliance with the Open Meetings Act e.g. taping notices to the front
door, lack of a bulletin board, lack of a properly designated person posting the notices of
meetings on behalf of the Board of Trustees of Defendant, new re-creation of false versions of
original documents, and untimely and after-the--fact postings of notices of meetings by Defendant
including on its internet website, weeks and months after the meetings were held.
PRAYER
42. FOR THESE REASONS, Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar
respectfully pray that Defendant Pampa Independent School District be cited to appear herein
and answer, and that upon a final hearing of the cause, judgment be entered for the plaintiffs
against Defendant for damages within the jurisdictional limits of the court, costs of the court,
fees and expenses, attorney fees, and such other and further relief to which the plaintiffs may be
entitled at law or equity.
43. Plaintiffs pray that the Court issue a temporary restraining order without notice given
to Defendant Pampa Independent School Dis1rict that temporarily restrains the Defendant and its
board members, officers, agents, ser-Vants, and employees from directly or indirectly proceeding
to delete, modify, correct, alter records or documents relevant to this case, specifically including
internet website postings of notices and minutes of Board Meetings of Defendant, and directly
and indirectly proceeding to terminate plaintiff Rebecca Terrell's employment contract with
defendant and duties, rights, privileges appurtenant therein to allow plaintiffs the opportunity to
challenge the actions of defendants.
Terrell v. Pampa lSD Page 14 of 16
14
• •
44. Plaintiffs pray that the court require defendant to abide by all laws, rules, regulations,
and policies that are required of the defendant and its board members, officers, agents, servants,
and employees.
45. Plaintiffs request that the court set a date and time for a hearing on plaintiffs' claim
to declare the meetings outlined in No. 11 above of this petition and actions taken therein void,
Plaintiffs' claim for a mandamus, Plaintiffs' claim for damages and special damages, Plaintiffs'
application for temporary and permanent injunctions and issue notice of this hearing to
defendant.
46. After holding a hearing, the court should declare the meetings outlined in No. 11
above (specifically including the meeting held on March 26, 2009) void and declare the actions
taken in the said meetings (including the termination of Rebecca Terrell's employment contract
on March 26, 2009) void and issue a writ of mandamus ordering the reinstatement of Rebecca
Terrell's employment contract which would have renewed automatically by operation of law
(Texas Education Code Sec. 21.103 (a) and (b)). Further, the Court should issue permanent
injunctions against Defendant to prevent future violations of law, specifically the Open Meetings
Act.
47. Considering the systematic willful violations of the Open Meeting Law and the scant
and perfunctory deliberation on Terrell's employment contract in the open meeting on March 26,
2009 (Terrell had requested that all deliberations be conducted in the open meeting under the
authority of Tex. Gov't Code §551.074(b)), it is clear that defendant further deliberated on
matters relating to Terrell's employment in the closed meeting in violation of the Act. Plaintiffs
pray that the Court order Defendant to produce and disclose to plaintiffs the certified agenda of
the closed meeting or the executive session of the board meeting held on March 26, 2009;
TerreJ1 v. Pampa lSD Page 15 of 16
15
• •
alternatively, Plaintiffs pray that the Cow1 conduct an in camera inspection of the Certified
Agenda to verify whether Defendant complies with relevant provisions relating to Certified
Agenda and whether a violation occurred of the said provisions. See Tex. Oov't Code §55 1.1 04.
The court has power to order Defendant to disclose the certified agenda of the closed meeting or
the executive session of any Board Meeting pursuant to Tex. Oov't Code §551.1 04
48. As allowed under Tex. Oov't Code Ch. 551 Subchapter G, plaintiffs pray that the
court assess costs of litigation, any fees and expenses, and any reasonable attomey fees incurred
by plaintiffs and grant such relief to Plaintiffs.
49. Further, considering the flagrant and willful violations of the Open Meetings Act,
Plaintiffs respectfully request special damages including costs, fees and expenses, and reasonable
attorney fees under the Open Meetings Act.
Dated: May 29, 2009 Respectfully submitted,
Rebecca Terrell --·
Chandrashekhar Thanedar
IOOON. Wells St.
Pampa, TX 79065
(956) 445-3107
Plaintiffs, Self-represented
Terrell v. Pampa lSD Page 16 ofl6
16
STATE OF TEXAS §
•
§
§
GRAY COUNTY §
AP'FJDAVII IN SUPPORT OF PLAINTIFFS' APPLICATION
FOR A TEMPORARY BESTRAINING QRDER
BEFORE ME, the Wldersigned authority, on May 28, 2009 personally appeared
Rebecca Terrell and Chandrashekhar Thanedar, and after being duly swom by me, stated
under oath the following:
"Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are over the
age of majority. We are mentally, physically and otherwise competent to make this sworn
declaration. We are not legally disqualified from making this affidavit" ·
"We have personal knowledge of the facts alleged herein and in the Plaintiffs'
Original Petition and Application for Issuance of a Temporary Restraining Order Without
Notice and Temporary Injunctions with Supporting Documentation and Affidavit
("Petition") and it is true and correct except where otherwise stated. We aftinn that the
attached exhibits to the Petition are true and correct copies of the record. We are
concerned residents, taxpayers, and citizens of Pampa in the Pampa Independent School
District."
~,a~<(_
Rebecca Terrell · Chandrashekhar Thanedar
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this
the
'] th
o( s- day of mCl~ '2009.
A~le~ Name
1\l.rJof Notary)
(Print
e./son
17
•
~'.•·
Notice of Regular Meeting
The Board of Trustees
Pampa Independent School Dlatrlct
' • '· ~14 .. u , .x:: .... c t. '· .. e;,., .;..oN ;t. s ... ,,.., ... u ..... .::::.. w.w:::~"'w. z.o••.•os .. -·'·""c._,.._...-........ -·· .s:: q::h _, 1.. -~ .• v.s;;: .;;n, -11 •. ;au .A .:.... , ..J .tt. _...• __ ._,
A Regular Medina of tbe Boanl of Ttustces of Pampa lDdepeDdent Sc:ihoo1 District will be beld Much 26,
2009. beginning at 6:00PM in the Carver Center Administration Oftice, 321 W. Albert.
'lbeiHlbjecm to bedi.acusled orCOIIIicleredorupon wbichanyfonnalaction may be taba areas Hated below.
Items do not have to be taken in the Ol"der sllown on this meetin& notice.
Uulesa nmoved from tbe CODialt eaeacta. items ideatified within tbe CODSOnt apada wiD be aCted Oil at one
time.
1. Call to Order I Det:JaratioD of a quorum
u. Public Commeat.t (7:00p.m.)
m. CONSENT AGBNDA
A. CoDsideratioD aad action to approvo JDODthly finBDCial reports
B. Contideration·aad adiort to approve boatd minutes for Jaauary IS, February 19,
2009 and March 12, 2009.
C. CoasideratioD and actioD to approve professional developmeat ahlaDceB for some
staff.
D. CoasideratioD and. possible actioD 1D 8ppiOVe tho PaD Sports Bids.
B. Consideradoa. aad action to approve siplh``e~ on baDk 8COOUilt8.
IV. ACI10N I DISCUSSION l'l'BMS
A. Consideration and pouible actioll to approve a famd railer for dae PHS Prom
Committee
B. Cast Votes for Region 16 Board of Directol8
C. Consideration ad pouible action to approve a reaolDtion fmm Palapa lSD School
Hca1tb Advisory Council for MCeiS for clemaltary school ••ctoots.
D. CoDsideration and pollibk iction to approve a Board Rcsohation in support of a
Safe and Dlug Free Schools and Communities Act Pu.nd Grant for PISD.
B. Ccmsidaation and possible action to approve revised employmeDt CODtnlctS
F. ConaideratloD 8Dd pouible action to approve a resolution to~ the ~tory
coatract. ----·-------··- . .
Q_ DiiCUII OuD Flee Zone Ad.
H. Constructi01l Updato: Pampa Junior Hiah School
EXHIBIT 2
18
L
1.
•
CoDatroc&ion Update: Pampa HiJb School
Identify futuro agenda items
•
V. REPORTS
A. Bufldiaaa. Orouadl, aud Facllitiel Report
B. Career and 1aCbDo1osY ad coJie&e aedit opportuniU. for PJSD atudeDts.
c. Pa:&ooael Maaqement a.port
D. Food Services Report
B. Wind Energy Report
VI. PERSONNEL
A. ~t ofprofellioaal employee
B. Approval. !IIDC'NI1 of 11'Jtm. C0DU1Ct employees
C. Appmval aDd reoewal of probatioDal')' contract employees
D. Apploval of 1arminltiC81 of pobatioaary COiltrlld employees.
E. Approval of I10Jlool'elleWal of term con1raet employees.
7Jw Board _, . . . , . ....,., 10 ...... willa Ia -.,.., .. -
....,.,,rfifi/M1 ,_
,_ ptiiiMl ,. tlt/8 ...... In ,.,. , ,.,., , ,
~or,......,.-~,... Jh&Nitrl_,a ciDIIIM.....,., 1D CtJtU.Jt W1r11 it..,.,CJn t1111
. . , _ , . ..... tM
* .,..,Act. doef....,..
I IMP' lllfll . . . , . , , *llotltfl ,..,.,.0~ CIIIEIUBJ bltiGII f,.,.,
llw,.,.., D/lftM
tM t:JIIIIIW , , . , ............... 41R • . , . , . . """*"lb. ltdtl, 0 llw /lrltinlwfll t:DWif«:t G
B. ll#tftt*..,doJetl....,. CM....,.
. . . _,., bt~ Wlrll
Is
cltiMtl ........ Alljbflll...-. .....
T.., 0,.. rc.
01'----Will-................. _,_If/
~ c.tc, 0.,. SSI. ,_..,,. Dlllltl
WIUI'fl/llld1ldMI(t) • 1/w Ad..,.,.,., dw
CAB.VBR CINT8Jt IS 'WIIIBLOIA1R ACXBSJBLB. HBAitiNO IMPAIIBD PBRSONS MUST UQtJBST AN
IN'l1IRPRB'nll48 HOURS IN ADVANCB OP TIE MBBTING. PI.&\SKCAI.L&!I--4100 FOR ASSISTANCB.
AGBNDA Polted By 5:00p.m. on 3/d 3/9
KCMJ./rJ / ~ c:i..Ln
19
• •
.. .
" '.... -
...
-
'··
The Board of Truete•
Pampa ............ School Dl8trlct
Items do DOt bave to be tabD iD. diD ardlr--
Tbe subjecla to be diacaaed or oantlf:1aRd Gl'liJIOD which -.ybmllldioll 1111.J be 1:lbD 81'0 ulilllld below.
011 dda IJ""tiDa DOtico.
UuJeu ft'JIIIOWd &:om the coa.1t •rda,ltiiDB iMetlfied wil:bi1l tho CDIUIIIIIt ..,ada will be ectlld on at oae
time.
c~; L Call to Onb' I Dec:llratioD. r4 a quanun
n. Public CoanillllfJid8 (7:00p.m.)
m. CONSBNT AOBNDA
A Coaaidrnd- ..SICtiaD. to appawe INWitbly ftnencial npot11
B. CoatideaiiCkm 8 ecdall1D app;ovo bami mia•tM far Ja111181Y 15. Pe1xury 19,
20091Dd Mardll2, 2009.
c. . Couaidatioa aad ICiio1l to appow prolralioJMJ ~---for IOIIle
ltJdf. '
D.
B. Owidatioa IDd ICiicm to approve..,.......
CoDiidentloD llld prwlible action to 1JP0W1 the Pan SpaltB Bida.
CXl bat ......
IV. ACI"'ON I DJSCUSSION li'BUS .
A. CoDsideratioa ad poaaiblo ldioD to app:ove a fuiJd taila"for 1118 PHS PJ.aD
Committee
B. Cat V<*l fa:Jeakm 16 Bolnl ofDiftdan
. c. Caaai.dcatiaD IDd. polfllble ICtioa 1D lgi'OVD • niiiOiudoD fmm. Plarpa lSD School
Bealda Adviaoly CDmcD. bRCellltbr........., 1Cboollttl4mta.
D. Coaai&ntioa ead poaaiblo action to ippl'CM a Bead a.olndoo iD I8JIPOd of a
Safe aad Draa lfte Scboollllld Cm»mlldtiel./t.l#. Plmd GriDt :b PJSD.
B. Caalidlratioll- polllb1e lctioD to IJ'IIIl'OW ...w ~ CODtmcll
c·
P. CoDai.ckatioD and pMiible acdoli to lpiii'O'N a NIOI1JdGD to llldmd 1m~ clepalitory
COil1riiCt. ---·
G. DiiCUII OanPlw :ZC..Ad. .....- - - -..
H. . CoastructkBl ~ PmlpaJUDiarllah Scbool
EXHIBIT3
,..
L
J.
•
Conslmadolll]pda1D: Pampa Biah Scbool
ldeatify f'atD&e . . . . illlml
•
·-··· v. REPORTS
A Builctiap, Gmunda,l8d PtcDitiel RriP.xt
B. Career ad 1riChoolo&Y 1114 collcp credit oppottuDidel for PJSD atudenta.
c. PrnoaDal ~Report
D. Poocl s.vicea Report
B. WiDd Bnlqy Report
VI. PBR80NNEL
A. Bmploymalt of por.toDalfiDP)oyee
B. App:ovalad llllftal of term. cmtiiCt emplOyees
c. App:ovalad..,.. of pmbaaioaGy CCIIIract emp10)WI
D. App:ova1 oftNmiMtion ofpmbaaioaay CODtract employees.
--
..... .
B. Approval of JIDIIooraaowal of tfiDl CODtract employees.
-· ..
.
,,
.,.............. ...,,.
,. . .
""-qf·...... .,...,....,,.,.........
..... .................................. ......,.
l'tsat_,.....,.,..................... 'a' armc
t
.,
2k .,.,..., . . . ..., ....,., ... . . . . . . . . . . . , - ; , ... ,..., . . . . . . . . . . . .,., .. ,..... ,..,
..,......,. ...... .......,.• ......
a•••
.__,., •• cr
&
*• .,.,.,
BtlftHw_,...,......, •-•It """' •
lltMIItl .. ,., ....................., .........
r.. 0,. It t.,Mt. n..a..... Ccldl. ca..-m. M Put aD_,
..,,_..,..,..~._...,_,,.AI/I r111h1..,.,,.,
..,_,.,. AlljiMl-. ......................... .......
CAI.VBI. CIN'DiiR 18 WJIPrtBAlll .ACCIAIIl& BBAidMO JMPAIRID JBII!IQNI IGJIT IJQJBST AN
IN'I'IUU'IIIl48 ROUltiiN MJVAHCSOP'l'IIII&B'l1NO.IU.AIB CAU._....,R*~ANm
C· AGBNDAPalfed By 5:GO p.m. OD 'S/{)Q/ 9
tlo.Ja.Am r/vcckn
c
21
P}It MPA • •
Pampa Independent School Dlstr1ct
Rebecca Terrel
1000 N.. Wells
Pampa, Tf!XIIS 79065
Dear Ms. Terrel:
I hlwe blcolne 8WIINthltPIII two of the Mlrdl H, 2008, Pwnpa lSD SCMola-nl Apnda
wu inadVeltlntty omiUid from tile material provided to JDUin your Texas Open RtMxJnts ReqiMst. I am
proyfdlna. complete . . . . . of that ....... to you to complete ....... NCOrds.
~ lndependll't Sd100I Ollb1ct • 321 w. Albert Street • ,.,..... Tees 79065
806-66H7CD • - 806165-0506 • bany..-~
• Page 1 of2
Pampa ISO
Pampa ISO Event
Calendar Pampa lSD Board Of Trustees
DIStrict COntact
Directory
Clk:k lw'l to view the SChool Board Goals.
campus Contact
Infor'matlon
Y Schools Lance DeFever, Memt.r
• Parent·
COnnection
• ptace 2, Term: 812001 • 512011, E-Mail
• Weather • Bom and railed In Pampa
Information
• Gradl.labl of Pampll High ·School
Y District
• Gfllduate of Amalllo CGIIeCll. AIJodlte DeoNe In Mortuary Science
C......,
. Information
Y Pampa ISO Staff • CeNr. 'Jicl.oPNIIdent ofMojeve PWDIIum Co. Inc. lor 17 yew~;
...._.,ofFalrvift' Nil~ tom 1888 to p!'8tef1t; F~
What's New DhdOr for Cannlchul Whlll, Funeral Dlractcn
Department • Fllllily: Wife, BrocD; Three eone, Reed, Spencer, Ethen: step..son, VWI
Information
VIce
• Department
Dtrectory Denali Deloach, VIce Pnleldent
.· • pt_,.1, TMn:·!SI2Q06·1i12011, E~
·• C3radulte of Wilt Monroe H1gh School, 1982
• ~of Noelheut LoUIIIana lJnlveralty, 1880 (BBA)
• Grllcluldil ofTexe~ Chrllliln Ut'Wifllly, 1884 (AON)
• Gnlc:kalla of Welt Taxa AIM Unlv8rtlty, 2001 (MSN)
. • USAnnyV...,
• ca...-: Famly Mtddna Center, Nine Practltiorw
• F811111y: Wfl, Andnle (PHS dell d '88); Chlknn, Jolhua, Emily end
Abby .
• ConmJnlly: ....,.,... ·Trinity Fellowahlp Churd't, Pampa Rotary Club
I
• Allee e, Term: 511988. 512010, ~
• Born 1n senAntiCinlo, Texaa
• ~ ofThloclont Roolwelt High School
• Glllduale of Clanndon Junior Colege, A8IOCiate of Alta Degree
• us Alr Force Vlltnlm Veteran
• c-: Employee of Narthem Natlnl 081 tom 1979110 Prelent
• Femlly: V\81, Charlene; Chlklrtn, Denillle, Michael, Oulla
Mark McVay, Member
• Place 7, Term: 5121XJ7· 512010. E~­
• Uved In Pampa IInce 1987
• G..._ of ROI\TJIWII High SChool, 1980:
EXHIBIT 4 • Gracllate of w.t Texu Stllte Univerllty, 1884 • BBA Accounting
• Cllrwer: CPA, Chief Fli1811CIIII C)fllcer for Oilwel ~. Inc.
• Family: Wl'e, Ginger. Chlkftn; Natalie, PHS C._ of 2004, Stephanie,
PHS Cllet of 2007, Trevor
http://www.pampaisd.net/eduoation/~/de1imlt.php?~ESSI... S/1512009
23
~pa &.cte.,endent school oimeSchoot Board Page2of2
• Commui'Hty/Civlc: Member· St. Vincent De Paul Cethollc Church. CASA
of the Hgh Plalna. Pampa Rot.y Club, Kntghtt of COlumbus, Boy
Scouta, end UNied Way.
Lee Porter, Member
• Place !5, Term: !511987 • 512000, i • l
• Graduate of Odessa High School- 1984
• Graduate of Odeua Junior College- 1886 (with hOnora):
• Graduate of Uriverslty ofTexae at Awtin, 1969 (8A In Ma1h and BS in
Chemiatfy)
• Career: lndependem ou & Gat Producer
• Family: Wfe, Janice; Children, Chris, PHS ClaM of 1988, Gavin, PHS
Class of 1994, Jal Jal PHS Clau of 1997
Charlee Smith, Preelclent
• Place 4, Tenn: 512003- 512008, e``~
• Born In Lubbock but ralaed In Pampa
• Gradt.latl of PMIPB High School
• Career: Buatneu owner, Envllonmentll. Hedh and .Safety Consultant
andT.....,.,
• Family: \Nife, Karen; Children, Chris, Matt, Hannah
Dana Terry, Secretary
• Place 3, Term: 512006·1!12011, J;:-M_.I
• Attended Welt Texu Univeraity
• ,Career: OWner of Corr1plcM Travel16 years
• Family: Huabend, W.R. "Bebo" Terry; Children, Elizabeth, Emly
• Communlly: Lifelong member of Flnlt Christian Churt:h
http:l/www.pampaisd.nctleducatiOD!componentslscdirectory/defaultphp?sectiondetailid-lAPHPSESSI..• S/15/2009
24
•
,. - "
Pampa Independent School Distric.bool Board Page 1 of2
I',
! This is Google's cache of http://www.pampai$CI.natladucati~tslscdirec:tory/defauJt.php?
1 sectiondetailid=2&PHPSESSID=706c58S5e7ea40287031c6a16a751989. It Is a snapshot of the page as it appeared on May 16,
1 2009 06:59:06 GMT. The current .,.. could have changed in the meantime. learn rnore
i These search terms are highlighted: pampe 1M school bollrd The8e terms only appear In links pointing to this Text-ooly version '
1 page: website
--
. ·--.. -·-·--·---.........,_ ... _................ ..
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Pampa lSD
Pampa lSD Board Of Trustees
Pampa lSD Event
Calendar ·
District Contact
Directory
Click here to view the School Board Goals.
Campus Contact
Information
'Y Schools Lance Defever. Member
., Pal'ent
Connection
• Place 2, Term: 612001-512011, E-Mail
'f Weather
Information • Born and raised In Pampa
.,. District • Graduate of Pampa High School
Information • Graduate of AmarHIO CoUege, Associate Degree In Mortuary Science
., Pampa ISO • Career: Vice-President of Mojave Petroleum Co. Inc. for 17 years:
Staff Manager of FairVIew Cemetery Association from 1999 to present; Funeral
What's New Director for Carmichael-Whatley Funeral Directors
Department • Family: Wife, Brooke; Three sons, Reed, Spencer, Ethen; Step--son, Will
Information Yiee
't' Department Derrell Deloach, Vice President
Directory
• Place 1, Term: 512005- 512011, E-MeU
• ~radUate of West Monroe High School, 1982
• Graduate of Northeast Louisiana University. 1990 (BBA)
• Graduate ofTexas Christian University, 1994 (ADN)
• Graduate of West Texas A&M University, 2001 (MSN)
• us Army Veteran
• career: Family Medk:ine Center, Nurse Practitioner
• Family: Wife. Andrea (PHS class of '88): Children, Joshua, Emily and
Abby
• Community: Member- Trinity FellowshiP Church, Pampa Rotary Club
Joe Martinez, Member
• Plebe 6, Term: 511998-512010. E-Mail
• Bom in San Antonio, Texas
• Graduate of Theodore Roosevelt High School
• Graduate of Clarendon Junior College, Associate of Arts Degree
• US Air Force VIetnam Veteran
• Career: Employee of Northam Natural Gas frOm 1979 to Present
EXHIBIT 5 • Family: Wife, Charlene; Children, Danielle, Michael, Quila
Mark McVay, Member
http:/174.125 .4 7.132/search?q=cache:TpwrmJwX4QwJ:www.pampaisd.net/educationlcomponents/scdi... 5121/2009
25
~pal6dependentSchool
•
• Place 7. Term: Sfl007- !512010, E-Mail
• Lived In Pampa einoe 1987
• Graduate of Roswell High School, 1980;
Page 2 of2
• Graduate of Weat Texas State Unlveralty, 1984 - BBA Accounting
• Career: CPA, Chief Finandal Oftloer for Oilwell Operators. Inc.
• Family: Wife, Ginger; Children; Natalie, PHS Clas$ of 2004, Stephanie,
PHS Claes of 2007, Trevor
• Community/Civic: Member • St. Vincent De Paul Catholic Church, CASA
of lhe High Plains, Pwnpa Rotary Club, Knights of Columbus, Boy
Scouts, end United way.
Lee Porter, Member
• Place 5, Term: 511997-512009, E-Mail
• Graduate of Odessa High School - 1964
• Graduate of Odessa JuniOr College- 1968 (with honors);
• Graduate of Untverslty of Texas at Auatln, 1969 (BA in Math and BS In
Chemistry)
• career: Independent Oil & Gas Producer
• Family: V'.Ne, Janice; Chldren, Chris, PHS Clan of 1988, Gavin, PHS
Clan of 1994, Jal Jal PHS Clau of 1997
Charles Smith, PMident
• Place 4, Term: 512003- 612009, E.~f!Aail
• Born In Lubbock but raised In Pampa
• Graduate of hmpa High School
• Career: Bu81neaa owner, Environmental, Health and Safety Conaultant
and iralner
.• Family: Wife, Karen; Children, Chria, Matt, Hannah
Dana Terry, Secretary
• Place 3, Term: 612005- 512011, E~Mall
• Attended West Taxes University
• career: OWner of Complete T111ve115 years
• Family: Husband, W.R. "Bebo" Terry: Children, Elizabeth, Emily
· • Community: Ufalong member of First Christian Church
8 ~ri.ot Page
http://74.125.47.132/search?q=cache:TpwrmJwX4QwJ:www.pampaisd.nctleducationlcomponents/scdi... Sfll/2009
26
.. . ' "'
Pampa Independent School District .hool Board Page I of2
321 W.Alh~en f Pampa.TX7906.~ I Phaaet~ I Fu:IJOH65'·0506
Pampa ISO
Pampa ISO Event
Calendar Pampa ISO Board Of Trustees
District Contact
Directory
Meeting information
Campus Contact
Information
'Y Schools School Board Goals
• Parent
Connection
Lance DeFever. Member
• Weather
Information
• District • Place 2, Tenn: 612001 ~ 512011, E-Mail
Information • Bom and raised in Pampa
• Pampa ISO Staff • Graduate of Pampa High School
What's New • Graduate of Amarillo College, Associate Degree in Mortuary Science
Department • canter: Vlce-Pr&Sident of Mojave PetroleUm Co. Inc. for 17 years;
Information Manager of Fairview Cemetery Association from 1999 to present; Funeral
• Department Director for Carmichael-Whatley Funeral Directors
Directory • FamHy: \Mfe, Brooke; Three aons. Reed, Spencer. Ethen; Step-son, Will
Vice
DerreJI Deloach, VIce President
• Place 1, Term: 512005 - 512011, E-Mail
• Graduate of West Monroe High School, 1982
• Graduate of Northeat LouiU.na University, 1990 (BBA)
• Graduate of Texas Christian University, 1994 (ADN)
• Graduate of West Texas A&M University. 2001 (MSN)
• US Army Veteran
• career: Famly Medicine Center, Nurse Praetitioner
• Family: \Mfe, f\ndrea (PHS dass of '88); ChRdren, Joshua, Emily and
. Abby
• Communltv: Member- Trinity Fetlow8hlo Churd\, Pamoa Rotarv Club
Joe Martinez, Member
• Place 6. Tenn: 5/1998.512010, E-Mail
• Born In San Antonio, Texas
• Graduate of Theodora Roosevelt High School
• Graduate of Clarendon Junior College, Aseodate of Arts Degree
• US Air Force Vietnam Veteran
• Career: Employee of NOI1hem Natural Gas from 1979 to Present
• Family: Wife, Charlel)e; Children, Danletle, Michael, duila
Mark McVay, Member
• Place 7, Term: 512007-512010, E-Mail
EXHIBIT 6 • IJYed In Pampa since 1987
• Graduate of Roawell High School, 1980;
• Graduate of Weet Texas State Unlvetlity, 1984 - BBA Aocounling
• Career. CPA, Chief Financial Offlcer.for OfJwefl Operators, Inc.
http://www.pampaisd.net/educationlcomponentslscdirectory/defaultphp?sectiondetailid=2 5/19/2009
r' 2.7
P1n1palndependentSchool
•
PHS Cla88 of2t:IJ7, Trevor
Page 2 of2
• Family: Wfe, Ginger, Children; Natalie, PHS Class of 2004, Stephanie,
• Community/CiVic: Member- St. Vincent De Paul Catholic Church, CASA
of the High Plains, Pampa Rotary Club, Knights of Columbus, Boy
Scouts, and United Way.
Lee Porter, Member
• Place 5, Term: 511997 • 512009, E-MEIII
• Graduate of Odeaaa High School - 1964
• Graduate of Odessa Junior COllege- 1966 (with honors):
• Graduate of University of Texas at Austin, 1989 (BA in Math and BS in
Chemistry)
• Career: Independent OH & Ga& Producer
• FamUy: \/VIfe, Janice; Chldren, Chris, PHS Class of 1988, Gavin, PHS
Cles8 of 1984, Jai Jal PHS ctess Of 1997
David Teichmann, Member
• Place 4, Tann: 512009 • 512012
Dana Terry, Secretary
• Place 3, Tenn: 512006 • 512011, E-MaH
• AUended West Texas University
• Career: Owner of Complete Travel15 years
• Family: Husband, W.R. "Bebo" Terry; Children, Elizabeth, Ermty
• Community: Lifelong member of Firat Christian Church
http://www.pampaisd.netlcducation/componentslscdirectory/dcfault.pbp?sectiondetailid=2 5/1912009
28
SINGLE CD ROM THAT IS LABELED "PAMPA ISD NOTICES- EXHIBIT
#1" AND IS AN ATTACHMENT OF THE DOCUMENT:
PLAINTIFF'S ORIGINAL PETITION AND APPLICATION FOR
ISSUANCE OF A TEMPORARY RESTRAINING ORDER WITHOUT
NOTICE AND TEMPORARY INJUNCTION WITH SUPPORTING
DOCUMENTATION AND AFFIDAVIT
FILE DATE: MAY29,2009
ORIGINAL OF CD ROM IS ON FILE WITH THE DISTRICT CLERK.
29
Appendix 6
Plaintiffs’ Second and First
Supplemental Petitions
189
CAUSE NO. 35621
REBECCA TERRELL and § IN THE 223RD DISTRICT COURT
CHANDRASHEKHARTHANEDAR § ·.'_')
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PLAINTIFFS' SECOND SUPPLEMENTAL PETITION
TO THE HONORABLE JUDGE OF THE COURT:
Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar hereby file their second
supplemental petition pursuant to Rule 80 of the Texas Rules of Civil Procedure (TRCP) and
would respectfully show the Court as follows:
1. Plaintiffs' original petition in this case was filed on May 29, 2009 which is adopted
and incorporated by reference as if set forth verbatim herein.
2. Plaintiffs have a right to supplement their pleadings per TRCP 80. See Texas Assoc. of
Business v. Texas Air Control Board, 852 S.W.2d 440,446 (Tex.1993). Plaintiffs have filed their
first supplemental petition on June 11, 2012. This case is on remand from th Court of Appeals.
3. Plaintiffs rely on the following exhibits which are adopted and incorporated as if set
forth verbatim herein.
Exhibit 1: Second Supplemental Affidavit of Rebecca Terrell and Chandrashekhar
Thanedar (Attached).
Exhibit 2: Plaintiff Terrell's employment contract for 2008-2009 with defendant Pampa
Independent School District (PISD or Pampa lSD) (Attached).
189
190
Exhibit 3: Annual Financial Report of Pampa ISD for 2008-2009 is adopted and
incorporated as if set forth verbatim herein - Pages 18, 20, 80 of the report
providing sources of defendant's funding and expenditures are Attached.
Exhibit 4: Texas Fact Book 2008 (the Fact Book) by State of Texas Legislative Budget
Bo~rd is adopted and incorporated by reference as if set forth verbatim
herein- Pages 33, 42, 46, 49, 53 from the Fact Book concerning the
Sources of Revenue and Spending on public education in Texas for
2008-2009 are Attached.
Exhibit 5: Defendant's salary schedules and information for years 2008-2009,
2009-2010, 2010-2011, 2012-2013; and health insurance premium
information for Year 2011-2012 (Attached).
4. Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar (spouse) are currently Texas
residents, citizens, and taxpayers and have been so continuously for more than 12 years. Plaintiff
Terrell was a first year beginning teacher teaching three subjects at the Pampa High School,
Pampa, Texas in 2008-2009 teaching U. S. History, World History, and World Geography. See
Exhibits 1, 2.
5. PISD receives a substantial amount of state taxpayer funding, more than $13.2 million
in 2008-2009, from the State of Texas. See Exhibit 3 - PISD's Annual Financial Report for
2008-2009 (page 18) posted on Texas Education Agency's public internet website which is
adopted and incorporated by reference herein. Further PISD receives substantial funding - $3 .48
million from the federal government each year. Exhibit 3- PISD's Annual Financial Report for
2008-2009 (pages 18, 80). The State of Texas (e.g. taxpayers such as plaintiffs) provides more
than 50% ofPISD's General Fund operating expenditures. See Exhibit 3 (page20).
The State of Texas collects sales and other taxes from Texas citizens and spends a
majority of it on public school districts such as Pampa ISD and more than a thousand other
school districts in the State of Texas. Thus the sales taxes and other taxes paid by plaintiffs help
support defendant Pampa ISD. See Exhibit 4 - The Texas Fact Book 2008 is published and
made publicly available on its website by the Texas Legislative Board which is a permanent joint
Plaintiffs' Second Supplemental Petition Cause No. 35621 Page 2 of7
190
191
committee of the Texas legislature performing its statutory responsibilities. The citizens and
taxpayers of Texas, such as plaintiffs, through laws regulate all aspects of operations of public
school districts. See Texas Education Code e.g. Chapters 11, 21, and 44. Thus as current Texas
and Federal taxpayers and residents of Texas plaintiffs have interest in Pampa lSD and therefore
have continuous standing from the beginning of this lawsuit to present.
6. As taxpayers and residents of the State of Texas for more than 12 years, we are
concerned about the operations of Pampa Independent School District (PISD), its funding and
use of State of Texas taxpayers' money, and about PISD's violations of the Texas Open
Meetings Act, (TOMA), Gov't Code Ch. 551. We are interested in and concerned about the
openness, integrity, full disclosures, and full and honest compliance with Texas Constitution and
with TOMA and other laws by all Texas Government entities and their administrators and
employees, and in particular by PISD, its Board of Trustees, its superintendent, and its
employees and administrators. Plaintiff Terrell is interested in and intends to resume teaching at
PISD upon reinstatement, upon order of the court. Plaintiff Thanedar as spouse is interested in
Terrell's reinstatement and resumption of teaching career at PISD. Exhibit 1.
7. Plaintiff Terrell's salary as a teacher for the school year 2008-2009 was $34,500 and
PISD further provided plaintiff Terrell benefits including health insurance, life insurance,
holidays, sick and vacation time, and employer contributions to retirement benefits. Exhibit 2.
PISD's benefits amount to about 33% of Plaintiff Terrell's salary. Based on PISD's salary
schedules plaintiff Terrell's salary would have been at least $37,900 for 2009-2010, $40,100 for
2010-2011, $41,300 for 2011-2012, and $41,400 for 2012-2013. Exhibit 5.
8. As a direct and proximate result of defendant's action terminating plaintiff Terrell's
teaching contract done in violation of TOMA, Plaintiff Terrell has suffered loss of full time
Plaintiffs' Second Supplemental Petition Cause No. 35621 Page 3 of7
191
192
regular teaching position and employment, and has further suffered damages due to lost back
wages and benefits for the years 2009-2010, 2010-2011, 2011-2012, 2012-2013 and continuing,
currently estimated at more than $209,000 and continuing.
9. Plaintiffs have spent more than 1,650 hours on prosecuting this case against PISD
since the middle of May 2009 up to the filing date of this supplemental petition (Exhibit 1)
which is relevant in calculating part of special damages in this case - hours spent multiplied by
hourly rate. It is plaintiffs' position that special damages are warranted here due to defendant
PISD's misconduct, obstruction, and the nature and extent of persistent violations for 2008-2009.
10. It is plaintiffs' position that PISD did not have BoardBook service for the purpose of
public viewing of PISD's website internet notices required under TOMA §551.056(b) for the
period in question from August 13, 2008 to May 19, 2009. Further it is plaintiffs' position that
PISD did not have BoardBook service for the purpose of public viewing of PISD's website
internet notices required under TOMA §551.056(b) for the period from January 15, 2009 to May
19, 2009 -a period for which PISD claims good faith exception under TOMA §551.056(d).
Defendant PISD has steadfastly refused to produce evidence that the alleged contract with
BoardBook was in fact executed and that the alleged contract and service with BoardBook was
actually in effect for the period of January 15, 2009 to May 19, 2009 or for any other relevant
time period. Defendant PISD has defiantly refused and failed to supplement and or amend
discovery in this regard as required under Tex. R. Civ. Pro. 193.5.
Defendant did not pay the first year license fee for BoardBook service for 2007-2008 or
for any subsequent years e.g. 2008-2009, as a result did not have BoardBook service for the
purpose of public viewing ofPISD's website internet notices of Board meetings from 8113/2008
to 5/19/2009. Defendant has refused and failed to produce any evidence of payment (e.g.
Plaintiffs' Second Supplemental Petition Cause No. 35621 Page 4 of7
192
193
cancelled checks, approved check requests, vouchers, check registers, or general ledger extract,
evidencing payment, statement of account with BoardBook, correspondence with BoardBook
regarding payment of license fees and renewal of contract, etc.) for BoardBook service either for
the purported 2007 BoardBook service agreement or for subsequent years - 2008-2009 and
2009-2010. PISD's good faith defense under TOMA is a fraud on this Court, the ih Court of
Appeals that heard this case, Texas Supreme Court, State of Texas, and its citizens and Texas
and Federal taxpayers.
BoardBook service is a software marketed by Texas Association of School Boards, Inc.
(a trade organization) to its members such as PISD in assisting PISD to display its website
internet notices of Board meetings for public viewing on BoardBook's website in Adobe
Systems Inc.'s (Adobe) Portable Document Format or "PDF." Adobe's PDF format shows
document properties of PISD's website notices such as when the board meeting notices were
created i.e. brought into existence in PDF format for public viewing or modified i.e. changed,
thereafter. Document properties of defendant's website notices on BoardBook for 8113/2008 to
5/19/2009 show to have been untimely created in May 2009 after PISD was informed of the
failure to comply with TOMA §551.056(b) by plaintiffs. Said notices did not "appear" on PISD
website (or BoardBook's website) timely for prescribed time (instead "appearing" days, weeks
or months after the meetings in question were held) after 5/19/2009. PISD failed to provide
evidence of timely creation, posting, and appearance of its website internet notices for public
viewing for the period in question- 8/13/2008 to 5/19/2009.
PISD's good faith defense of"severance of link to BoardBook" for the period 1/15/2009
to 5/19/2009 is a subterfuge made in bad faith and is a fraud on the public and the court. PISD
and its counsel obstructed and delayed proceedings by filing a frivolous motion to dismiss
Plaintiffs' Second Supplemental Petition Cause No. 35621 Page 5 of7
193
194
without any support in fact or law. Similarly, PISD's motion to quash depositions is also wholly
meritless designed mainly to delay and obstruct proceedings. PISD deliberately misled the th
court of appeals concerning its good faith defense and then opposed discovery concerning its
good faith defense. PISD and its counsel's deliberate obstructive conduct especially against pro
se citizen taxpayers warrants strong sanctions against PISD and its counsel as punishment and to
deter such misconduct in the future in TOMA lawsuits. Sanctions on PISD and its counsel are
warranted here to preserve the sanctity of TOMA and its purpose - openness, voluntary
compliance to laws, and integrity in government.
Supplemental Prayer
FOR THESE REASONS, plaintiffs respectfully request that plaintiffs' prayer in their
original petition and first supplement should be granted in its entirety and further plaintiffs
request as supplemental prayer that PISD's action terminating Terrell's employment contract be
voided, PISD be ordered to reinstate Terrell, and with reinstatement of Terrell as teacher, PISD
be ordered to pay plaintiff Rebecca Terrell damages in the form of back wages and benefits for
the school years 2009-2010, 2010-2011, 2011-2012, 2012-2013 and continuing up to and until
the time PISD fully reinstates Terrell as classroom teacher (currently, back pay and benefits
calculated at about $209,000 and continuing), and that this Court should grant special damages
calculated by the number of hours spent by plaintiffs on this case multiplied by a reasonable rate
per hour to be fixed by the Court, and that plaintiffs be declared as the substantially prevailing
party and be granted costs, expenses, and attorney fees, damages, back pay and benefits for
Terrell with reinstatement as teacher, special damages, and fees, and that the Court enter
declaratory judgment that PISD's actions in question violated TOMA and void all such actions in
violation ofTOMA and enter a permanent injunction against PISD to prevent future violations of
Plaintiffs' Second Supplemental Petition Cause No. 35621 Page 6 of7
194
•
195
TOMA. Plaintiffs further request that the Court impose sanctions on PISD and its counsel due to
their obstruction of justice, refusal and failure to supplement or amend discovery in this case.
Plaintiffs further request that Court grant all other and further relief, at law or in equity, to which
they may justly be entitled to receive.
Respectfully submitted,
Rebecca Terrell
Chandrashekhar Thanedar
Plaintiffs
6503 Dancing Ct.
San Antonio, Texas 78244
(956) 445-3107
(512) 271-6840 Fax
rterrell152@gmail.com
CERTIFICATE OF SERVICE
The undersigned certify that a true and correct copy of the foregoing document has been
served upon the following by United States certified mail on October 16, 2012 as follows: W.
Wade Arnold, Andrea Slater Gulley, Underwood Law Firm, 500 S. Taylor Street, Suite 1200, LB
233, Amarillo, Texas 79101-2446.
Rebecca Terrell
Chandrashekhar Thanedar
Plaintiffs' Second Supplemental Petition Cause No. 35621 Page 7 of7
195
196
STATE OF TEXAS §
§
§
SECOND SUPPLEMENTAL AFFIDAVIT OF REBECCA TERRELL AND
CHANDRASHEKHARTHANEDAR
BEFORE ME, the undersigned authority, on October 16, 2012 personally appeared Rebecca
Terrell and Chandrashekhar Thanedar, and after being duly sworn by me, stated under oath the
following:
"Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are plaintiffs in
Cause No. 35621 against defendant Pampa Independent School District (PISD or Pampa ISO) in
the 223rd District Court in Gray county Texas. We are over the age of majority. We are
mentally, physically and otherwise competent to make this sworn declaration. We are not legally
disqualified from making this affidavit."
"We have personal knowledge of the facts stated in Plaintiffs' Second Supplemental
Petition and the facts are true and correct. We affirm that the exhibits attached to Plaintiffs'
Second Supplemental Petition are true and correct copies of the record, originals, or reports
published by government bodies as stated. We have personal knowledge of the facts stated in
this affidavit, and they are true and correct."
"We are currently residents, citizens, and taxpayers of Texas and have been so
continuously for more than 12 years. I (Terrell) was a first year beginning teacher teaching three
subjects at the Pampa High School, Pampa, Texas in 2008-2009 teaching U. S. History, World
History, and World Geography. As citizens, taxpayers, and residents of the State of Texas for
more than 12 years, we are concerned about the operations of Pampa lSD, its funding and use of
State of Texas taxpayers' money and about Pampa ISD's violations ofthe Texas Open Meetings
Act (TOMA). We are interested in and concerned about the openness, integrity, full disclosures,
and full, voluntary, and honest compliance with Texas Constitution and with TOMA and other
laws by all Texas Government entities and their administrators and employees, and in particular
by PISD, its Board of Trustees, its superintendent, and its employees and administrators."
"I (Terrell) affirm that I am interested in and have requested reinstatement, back pay and
benefits as part of the remedies in this suit and intend to resume teaching at PISD upon
reinstatement, upon order of the court. I (Thanedar) affirm that as spouse I am interested in
Terrell's reinstatement and resumption of her full time teaching career at PISD."
"My (Terrell) salary for the school year 2008-2009 was $34,500 and PISD further
provided me (Terrell) benefits including holiday pay, sick pay, vacation pay, health insurance,
life insurance, and employer contributions to retirement benefits. We have spent more than 1,650
hours on prosecuting the above case against Pampa Independent School District since the middle
of May 2009 until present."
EXHIBIT 1
196
..
197
``
Rebecca Terrell Chandrashekhar Thanedar
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the Ita Ttl
day of October, 2012.
~u``
Notary Public in and for
the State of Texas
(Printed Name ofNotary)
2nd Supplemental Affidavit of Rebecca Terrell Cause No. 35621 2 of2
and Chandrashekhar Thanedar 223rd District Court
197
198
Pampa Independent School District
PROBATIONARY CONTRACT
FOR ·
CERTIFIED CLASSROOM TEACHER
State of Texas Date given Employee rJ.t]"q, · Q~)
County of Gray Date returned by Employee E..lfJD 0
The Pampa Independent School District (the "District") hereby employs Rebecca Terrell (the
"Employee") as a Teacher, and the Employee accepts employment on the following terms and
conditions:
1. Term. The District agrees to employ the Employee on a lQ. month basis for the 2008-2009
school year, according to the hours and dates set by the District as they exist or may hereafter
be amended.
2. Credentials. This Contract is conditioned upon the Employee's satisfactorily providing,
before the first duty day, the certification, service records, documentation of highly-qualified
status, and other records and information required by law, the Texas Education Agency
("TEA"), the State Board for Educator Certification, or the District.
2.1 Certification: The Employee agrees to maintain the required certificatjon throughout the
term of this Contract. If the Employee fails to fulfill the requirements necessary to
extend a temporary or emergency certificate or permit, or if the Employee's certification
expires, is canceled, or is revoked, this Contract is void.
2.2 Qualifications: If the Employee is a classroom teacher, the Employee agrees to become
and remain "highly qualified," as that term is defmed under the No Child Left Behind
Act, 20 U.S.C. § 7801, and by the TEA, to the extent required by law.
3. Representations. The Employee makes the following representations:
3.1 Criminal History Review. At the beginning of this Contract, and at any time during
this Contract, the Employee specifically agrees to submit to a review of his or her
national criminal history record information (NCHRI) if required by the District, TEA,
SBEC, or other proper authority.
3.2 Beginning of Contract: The Employee represents that he/she has disclosed to the
District, in writing, any conviction, no contest or guilty plea, or other adjudication of the
Employee for any felony or any other offense listed at 19 Tex. Admin. Code§ 249.1 6(b).
The Employee understands that a criminal history record acceptable to the District, at its
sole discretion, is a condition of this Contract.
Pampa Independent School District • 321 W. Albert Street • Pampa, Texas 79065
806-669-4700 • fax: 806-665-0506. • www.pampaisd.net
198
EXHIBIT 2
199
Pampa Independent School District
3.3 During Contract: The Employee also agrees that, during the term of this Contract, the
Employee will notify the Superintendent, in writing, of any arrest, indictment, conviction,
no contest or guilty plea, or other adjudication of the Employee for any felony or any
other offense listed at 19 Tex. Admin. Code § 249.16(b). Employee agrees to provide
such notification within three calendar days, or as set forth in District policy.
3.4 False statements and misrepresentations: The Employee represents that any required
records or information provided in his or her employment application are true and
correct. Any false statements, misrepresentations, omissions ofrequested information, or
fraud by the Employee concerning any required records or in the employment application
may be grounds for termination or nomenewa~ as applicable.
4. Duties. The Employee agrees to perform his or her duties as follows:
4.1 General standard: The Employee shall perform the duties of the position assigned, as
prescribed by state law and the District, with reasonable care, skill, and diligence.
4.2 Assignment/Reassignment: The District shall have the right to assign or reassign the
Employee to positions, duties, or additional duties and to make changes in
responsibilities, work, or transfers, at any time during the contract term.
4.3 Supplemental duty: This Contract does not cover assignments of or payments for
supplemental duties. This Contract does not create a property tight to continued
employment in any supplemental duty.
4.4 Rules: The Employee shall comply with all Board, District and administrative directives,
state and federal laws and rules, District policy, and regulations as they exist or may
hereafter be amended. Employee shall also abide by the Code of Ethics and Standard
Practices fur Texas Educators.
5. Compensation. The District agrees to pay the Employee compensation as follows:
5.1 Salary: The District will pay the Employee in twelve installments for an annual salary
according to the District's compensation plan. The Employee's salary includes
consideration for all assigned duties, responsibilities, and tasks.
5.2 Annualized Salary. If the Employee will work on a less-than-12-month basis, the
Employee's salary will be paid on an annualized basis. The District will make
deductions from each paycheck for income tax withholding and benefits.
5.3 Incentive and Performance Pay: If the Employee qualifies, the employee may receive
incentive pay or pay for performance under the District's compensation plan, federal law,
or state law, including Education Code Chapter 21, subchapters Nand 0. An incentive
payment is not an entitlement as part of the Employee's salary.
Pampa Independent School District • 321 W. Albert Street • Pampa, Texas 79065
806-669-4700 • fax: 806-665-0506 • vvww.pampaisd.net
199
200
Pampa Independent School District
5.4 Overpayments: The Employee agrees that the District may deduct any wage
overpayments under this contract from one or more of the Employee's paychecks.
5.5 Benefits: The District shall provide benefits to the Employee as provided by state law
and Board policy. The District reserves the right to amend its policies at any time during
the term of this Contract to reduce or increase these benefits, at the Board's sole
discretion.
6. Other provisions.
6.1 Equipment and reports: The Employee shaH satisfactorily submit or account for all
grades, reports, school equipment, or other required items upon request from the District.
6.2 Special funding: Employment in federally or categorically funded positions is expressly
conditioned on the availability of full funding for the position. If full funding becomes
unavailable, the Employee is subject to termination or nonrenewa~ as applicable.
...-·---
6.3 Addenda: This Contract does~n~ (circle one) include one or more Addenda, as
follows:
(1) Addendum A: _ - - - - - - - - - - - - - - - - - - - - - -
(2) Addendum B:
7. Suspension. In accordance with the Texas Education Code, the District may suspend the
Employee without pay during the term of this Contract for good cause as determined by the
Board.
8. Termination of Contract: This Contract will terminate upon a determination by the Board
of good cause, financial exigency, or a program change, in accordance with applicable law
and Board policy; upon the Employee's resignation at the end of a school year without
penalty, pursuant to the Texas Education Code; or upon the Board's determination that
tennination of the employee at the end of the contract period will serve the best interests of
the District.
9. General provisions.
9.1 Amendment: This Contract may not be amended except by written agreement of the
parties.
Pampa Independent School District • 321 W. Albert Street • Pampa, Texas 79065
806-669-4700 • fax: 806-665-0506 • www.pampaisd.net
200
201
Pampa Independent School District
9.2 Severability: If any provision in this Contract is, for any reason, held to be invalid,
illegal, or unenforceable, such invalidity, illegality, or unenforceability shall not affect
any other provision of the Contract.
9.3 Entire agreement: All existing agreements, both verbal and written, between the parties
regarding the employment of the Employee are superseded by this Contract. This
Contract does not constitute a "unified contract" with any supplemental duties agreement
between the parties.
9.4 Applicable law: Texas law shall govern construction ofthis Contract.
10. Notice to employee. The Employee agrees to keep a current address on file with the
District's human resources office. The Employee agrees that the District may meet any legal
obligation it has to give the Employee written notice regarding the Employee's employment
by hand-delivering the notice to the Employee or by sending the notice by certified mail,
regular mail, and/or express delivery service to the Employee's address of record.
11. Expiration of offer. This offer of employment contract shall expire unless the Employee
signs and returns this Contract, without changes, to the Superintendent on or before August
10, 2008. lfthe Employee fails to sign and return this contract by thi<; date, without changes,
the Employee shall be deemed to have rejected this offer and to have resigned from
employment with the District, if any, at the end of the existing contract term.
I have read this Contract and agree to abide by its terms and conditions. Failure to comply with or to
enforce the policies of the Pampa Independent School District may result in termination or non-
renewal, as applicable.
Employee: KP,b(.([ a PtY\ I) e Ti) ((€..1i
(Printed N arne)
Y).. !/.</<£~.
,fL ' ~
C<'.at,lti '2 /l ;'\_.( .JJ'
\.i ~
(Signature)
Date signed: fllt/c;,£
Date signed:
I '
Board Approved: 1117/2008
Pampa Independent School District • 321 W. Albert Street • Pampa, Texas 79065
806-669-4700 • fax: 806-665-0506 • www.pampaisd.net
201
202
PAMPA INDEPENDENT SCHOOL DISTRICT
ANNUAL FINANCIAL REPORT
FOR THE YEAR ENDED
JUNE 30, 2009
EXHIBIT 3
202
203
EXHIBIT C-3
PAMPAINDEPENDENTSCHOOLDISTRICT
STATEMENTOF REVENUES, EXPENDITURES, AND CHANGES IN FUND BALANCE
GOVERNMENTAL FUNDS
FOR THE YEAR ENDED JUNE 30, 2009
Data 10 60 Total
Control General Capital Other Governmental
Codes Fund Projects Funds Funds
REVENUES:
5700 Total Local and Intermediate Sources $ 12,380,539 $ 537,197 $ 4,569,830 $ 17,487,566
5800 State Program Revenues 12,566,427 634,624 13,201,051
5900 Federal Program Revenues 161,888 3,322,080 3,483,968
5020 Total Revenues 25,108,854 537,197 8,526,534 34,172,585
EXPENDITURES:
Current:
0011 Instruction 13,316,351 1,634,216 14,950,567
0012 Instructional Resources and Media Services 333,126 16,638 349,764
0013 Curriculum and Instructional Staff Development 467,711 345,061 812,772
0021 Instructional Leadership 208,181 97,444 305,625
0023 School Leadership 1,431,156 22,983 1,454,139
0031 Guidance, Counseling and Evaluation Services 868,754 22,617 891,371
0032 Social Work Services 26,343 31,795 58,138
0033 Health Services 247,298 58,034 305,332
0034 Student (Pupil) Transportation 561,188 561,188
0035 Food Services 1,524,430 1,524,430
0036 Extracurricular Activities 1,156,845 42,274 1,199,119
0041 General Administration 1,098,809 3,967 1,102,776
0051 Facilities Maintenance and Operations 2,431,265 25,223 2,456,488
0052 Security and Monitoring Services 105,573 105,573
0053 Data Processing Services 359,654 81,965 441,619
0061 Community Services 94,730 146,953 241,683
Debt Service:
0071 Debt Service- Principal on Long Term Debt 67,061 433,704 500,765
0072 Debt Service - Interest on Long Term Debt 4,972 2,595,163 2,600,135
0073 Debt Service- Bond Issuance Cost and Fees 800 800
Capital Outlay:
0081 Facilities Acquisition and Construction 1,063,604 17,343,989 549,169 18,956,762
Intergovernmental:
0093 Payments to Fiscal Agent/Member Districts of SSA 666,032 666,032
0099 Other Intergovernmental Charges 304,389 304,389
6030 Total Expenditures 24,147,010 17,343,989 8,298,468 49,789,467
1100 Excess (Deficiency) of Revenues Over (Under) 961,844 (16,806,792) 228,066 ( 15,616,882)
Expenditures
OTHER FINANCING SOURCES (USES):
7912 Sale of Real and Personal Property 25,960 25,960
7913 Capital Leases 164,638 164,638
7915 Transfers In 101,851 101,851
8911 Transfers Out (Use) (2,812) (99,039) (101,851)
7080 Total Other Financing Sources (Uses) 187,786 2,812 190,598
1200 Net Change in Fund Balances 1,149,630 (16,806,792) 230,878 (15,426,284)
0100 Fund Balance - September 1 (Beginning) 8,586,536 41,635,879 2,714,786 52,937,201
3000 Fund Balance - August 31 (Ending) $ 9,736,166 $ 24,829,087 $ 2,945,664 $ 37,510,917
The notes to the financial statements are an integral part of this statement.
18
203
204
EXHIBITC-5
PAMPA INDEPENDENT SCHOOL DISTRICT
STATEMENTOF REVENUES, EXPENDITURES, AND CHANGES TN FUND BALANCE
BUDGETANDACTUAL-GENERALFUND
FOR THE YEAR ENDED JUNE 30, 2009
Data Actual Amounts Variance With
Control (GAAP BASIS) Final Budget
Budgeted Amounts
Positive or
Codes
Original Final (Negative)
REVENUES:
5700 Total Local and Intennediate Sources $ 10,722,600 $ 12,408,857 $ 12,380,539 $ (28,318)
5800 State Program Revenues 13,015,358 12,543,630 12,566,427 22,797
5900 Federal Program Revenues 158,000 158,000 161,888 3,888
5020 Total Revenues 23,895,958 25,110,487 25,108,854 (1,633)
EXPENDITURES:
Current:
0011 Instruction 13,732,490 13,915,302 13,316,351 598,951
0012 Instructional Resources and Media Services 343,163 344,363 333,126 11,237
0013 Curriculum and Instructional Staff Development 474,652 564,451 467,711 96,740
0021 Instructional Leadership 234,333 214,626 208,181 6,445
0023 School Leadership 1,467,158 1,436,018 1,431,156 4,862
0031 Guidance, Counseling and Evaluation Services 998,961 920,365 868,754 51,611
0032 Social Work Services 26,910 30,710 26,343 4,367
0033 Health Services 255,642 255,642 247,298 8,344
0034 Student (Pupil) Transportation 692,055 778,755 561,188 217,567
0036 Extracurricular Activities 1,091,911 1,182,614 1,156,845 25,769
0041 General Administration 1,059,979 1,140,152 1,098,809 41,343
0051 Facilities Maintenance and Operations 2,583,513 2,689,231 2,431,265 257,966
0052 Security and Monitoring Services 53,174 100,471 105,573 (5,102)
0053 Data Processing Services 317,653 366,891 359,654 7,237
0061 Community Services 100,694 100,694 94,730 5,964
Debt Service:
0071 Debt Service- Principal on Long Tenn Debt 68,674 68,674 67,061 1,613
0072 Debt Service - Interest on Long Tenn Debt 4,972 (4,972)
Capital Outlay:
0081 Facilities Acquisition and Construction 242,334 1,333,609 1,063,604 270,005
Intergovernmental:
0099 Other Intergovernmental Charges 313,000 304,400 304,389 II
6030 Total Expenditures 24,056,296 25,746,968 24,147,010 1,599,958
1100 Excess (Deficiency) of Revenues Over (Under) (160,338) (636,481) 961,844 1,598,325
Expenditures
OTHER FINANCING SOURCES (USES):
7912 Sale of Real and Personal Property 25,000 25,960 960
7913 Capital Leases 164,638 164,638 164,638
7915 Transfers In 500 543 (543)
8911 Transfers Out (Use) (4,800) (2,900) (2,812) 88
7080 Total Other Financing Sources (Uses) 160,338 187,281 187,786 505
1200 Net Change in Fund Balances (449,200) 1,149,630 1,598,830
0100 Fund Balance - September 1 (Beginning) 8,586,536 8,586,536 8,586,536
3000 Fund Balance - August 31 (Ending) $ 8,586,536 $ 8,137,336 $ 9,736,166 $ 1,598,830
The notes to the financial statements are an integral part of this statement.
20
204
205
EXHIBIT K-1 Cont'd)
PAMPA INDEPENDENT SCHOOL DISTRICT
SCHEDULE OF EXPENDITURES OF FEDERAL AWARDS
FOR THE YEAR ENDED JUNE 30, 2009
(I) (2) (3) (4)
FEDERAL GRANTOR/ Federal Pass-Through
PASS-THROUGH GRANTOR/ CFDA Entity Identifying Federal
PROGRAM or CLUSTER TITLE Number Number Expenditures
U.S. DEPARTMENT OF EDUCATION
Passed Through State DeQartment of Education
ESEA. Title L Part A- Improving Basic Programs 84.010A 09-610101090904 $ 761.590
IDEA- Part B, Formula 84.027 09-6600010909046600 587,834
SSA- IDEA- Part B, Formula 84.027 09-6600010909046600 634,024
Total CFDA Number 84.027 1,221,858
Career and Technical- Basic Grant 84.048 09-420006090904 40,056
IDEA -Part B. Preschool 84.173 09-6610010909046610 31.323
SSA- IDEA- Part B. Preschool 84.173 09-6610010909046610 32,008
Total CFDA Number 84.173 63,331
ESEA Title IV- Safe and Drug-Free Schools 84.186A 09-691 00 1090904 10,530
ESEA. Title X. Part C -Homeless Children 84.196 09-090904 15,651
Title II, Part D -Enhancing Ed. Through Technology 84.318X 09-630001090904 7,178
Title Ill, Part A - English Language Acquisition 84.365A 09-6 71 00 1090904 34,631
ESEA. Title II. Part A. Teacher/Principal Training 84.367A 09-694501090904 200.205
ESL Summer School Program 84.369A XX-XXXXXXX 2.206
Total Passed Through State Department of Education $ 2,357,236
TOTAL DEPARTMENT OF EDUCATION $ 2,357,236
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
Passed Through State DeQartment of Education
Head Start 93.600 09-090904 $ 106,010
Total Passed Through State Department of Education $ 106,010
TOTAL DEPARTMENT OF HEALTH AND HUMAN SERVICES $ 106,010
U.S. DEPARTMENT OF AGRICULTURE
Passed Through the State DeQartment of Agriculture
School Breakfast Program* 10.553 09-090904 $ 175,115
National School Lunch Program- Cash Assistance* 10.555 09-090904 633.118
National School Lunch Prog.- Non-Cash Assistance* 10.555 09-090904 50.601
Total CFDA Number 10.555 683,719
Total Passed Through the State Department of Agriculture $ 858,834
TOTAL DEPARTMENT OF AGRICULTURE $ 858,834
TOTAL EXPENDITURES OF FEDERAL AWARDS $ 3,322,080
*Clustered Programs as required by Compliance Supplement March, 2009
Note A- $36,471 of indirect costs are not considered federal financial assistance for inclusion in the Schedule of Expenditures of Federal
Awards. These revenues are reported in the Statement of Revenues, Expenditures, and Changes in Fund Balances- Govenmental Funds
in the General Fund column.
Note B- According to the Texas Education Agency's Financial Accountability System Resource Guide, (FASRAG), funds received from
the School Health and Related Services (SHARS) programs represent reimbursements to the District for school health based services
which are not provided to special education students enrolled in the Medicaid Program, and consequently these revenues in the amount of
$125,417 are not to be considered federal financial assistance for inclusion in the Schedule of Expenditures of Federal Awards. These
revenues are reported on the Statement of Revenues, Expenditures, and Changes in Fund Balance- Governmental Funds in the General
80
205
206
206
207
REVENUE
WHERE YOUR STATE TAX DOLLAR COMES FROM
2008-09 BIENNIUM
Other Taxes 2.6%
Insurance Taxes 3.3%
Cigarette, Tobacco and
Alcoholic Beverages Taxes 5.0%
Corporation
Franchise Tax 14.7%
Sales Tax
52.0%
Motor Vehicle Sales
and Rental Taxes 8.4%
Motor Fuels Tax 7. 7%
Oil and Natural Gas
Production Taxes 6.3%
TOTAL= $81,211.2 MILLION
WHERE YOUR STATE TAX DOLLAR GOES
2008-09 BIENNIUM
Regulatory 0.3%
Business and Economic _ _ ___,
2.1%
Development 6.4%
Natural Resources 0.9% --------...r
Public Safety and - - - - - - - /
Criminal Justice 8.8%
The Judiciary
0.5%
TOTAL= $81,211.2 MILLION
NorE: Percentages calculated based on constitutionally and statutorily dedicated
tax revenues and appropriations in the 2008-09 General Appropriations Act, as
modified by other legislation.
SouRcEs: Legislative Budget Board; Comptroller of Public Accounts.
TEXAS FACT BOOK REVENUE 33
207
208
SPENDING
STATE GOVERNMENT EXPENDITURES PER CAPITA
15 MOST POPULOUS STATES
IN MILLIONS
2005
50-STATE STATE EXPENDITURES
RANKING STATE PER CAPITA
4 New York $7,082
9 Massachusetts 5,911
11 California 5,802
14 New Jersey 5,657
19 Ohio 5,279
20 Washington 5,254
23 Michigan 5,090
24 Pennsylvania 5,065
32 North Carolina 4,553
36 Illinois 4,361
37 Virginia 4,335
40 Indiana 4,221
47 Florida 3,963
49 Georgia 3,702
50 TEXAS 3,549
UNITED STATES $4,959
TEXAS AS% OF UNITED STATES 71.6%
SouRcE: U.S. Census Bureau.
ALL FUNDS APPROPRIATION
TOP 15 TEXAS AGENCIES
IN MILLIONS
2008-09
RANKING AGENCY APPROPRIATION
1 Texas Education Agency $50,257.9
2 Health and Human Services Commission 31,507.7
3 Department of Transportation 16,919.0
4 Department of Aging and Disability Services 11,643.6
5 Department of Criminal Justice 5,887.5
6 Department of State Health Services 5,275.7
7 Teacher Retirement System 3,567.2
8 Employees Retirement System 3,100.1
9 Department of Family and Protective Services 2,560.3
10 Texas Workforce Commission 2,151.6
11 Department of Public Safety 1,642.5
12 Department of Assistive and Rehabilitative Services 1,161.6
13 Commission on Environmental Quality 1,069.9
14 Office of the Attorney General 982.9
15 Trusteed Programs within the Office of the Governor 922.6
NorE: Institutions of higher education and fiscal programs for the Comptroller
of Public Accounts are excluded.
SouRcE: Legislative Budget Board.
42 SPENDING TEXAS FACT BOOK
208
209
SPENDING
ALL FUNDS
2008-09 BIENNIAL BUDGET
The Legislature 0.2%
General Provisions 0.2%
Regulatory 0.5% --,11 General Government
Business and Economic-----``--.-....
2.4%
Development 12.2%
Natural Resources
1.9%
Public Safety
and Criminal Justice
6.2%
Agencies of
Education
44.4%
TOTAL= $167,787.2 MILLION
IN MILLIONS
2006-07 2008-09 BIENNIAL %
FUNCTION BIENNIUM 1 BIENNIUM 2 CHANGE CHANGE
General Government $3,622.1 $4,021.6 $399.4 11.0
Health and Human Services 49,116.9 52,966.0 3,849.0 7.8
Agencies of Education 59,206.5 74,536.7 15,330.2 25.9
Public Education 3 40,548.2 53,463.7 12,915.5 31.9
Higher Education 18,658.3 21,073.0 2,414.7 12.9
The Judiciary 541.5 598.4 56.9 10.5
Public Safety and Criminal Justice• 9,940.9 10,435.9 494.9 5.0
Natural Resources• 2,320.7 3,222.2 901.5 38.8
Business and Economic
Development 19,412.5 20,513.8 1,101.3 5.7
Regulatory 562.9 762.3 199.4 35.4
General Provisions 0.0 404.6 404.6 NA
The Legislature 335.3 326.0 (9.3) (2.8)
TOTAL, ALL FUNCTIONS $145,059.4 $167,787.2 $22,727.8 15.7
1 Reflects provisions in House Bill15, Eightieth Legislature, 2007, relating to supplemental
appropriations.
2 Reflects provisions in House Bill15, Eightieth Legislature, 2007, relating to supplemental
appropriations; other enacted legislation affecting appropriations; certain appropriation
adjustments made in Article IX of the 2008-09 General Appropriations Act (GAA); and/or the
Governor's vetoes. In addition to amounts indicated, Article IX, Section 19.62 of the 2008-09
GAA provides for the transfer of appropriations to agencies for a salary increase for certain state
employees.
3 Reflects provisions in House Bill 2, Eightieth Legislature, 2007, relating to appropriations for
school district property tax rate reductions.
4 1n addition to amounts indicated, Article IX, Section 19.61 of the 2008-09 GAA provides for
Salary Schedule C pay raises for commissioned peace officers.
NoTEs: Article totals exclude interagency contracts. Biennial change and percentage change have
been calculated on actual amounts; table and figure amounts may not add due to rounding.
SouRcE: Legislative Budget Board.
46 SPENDING TEXAS FACT BOOK
209
210
SPENDING
FEDERAL FUNDS
2008-09 BIENNIAL BUDGET
General Provisions 0.1%
Regulatory <0.1%----,
Natural
Public Safety and -------J``"........~
Criminal Justice 1.1%
The Judiciary
<0.1%
TOTAL = $50,963.0 MILLION
IN MILLIONS
2006-07 2008-09 BIENNIAL %
FUNCTION BIENNIUM 1 BIENNIUMZ CHANGE CHANGE
General Government $881.5 $699.1 $(182.4) (20.7)
Health and Human Services 29,197.6 31,062.3 1,864.8 6.4
Agencies of Education 8,651.0 8,831.6 180.6 2.1
Public Education 8,318.0 8,494.7 176.7 2.1
Higher Education 333.1 337.0 3.9 1.2
The Judiciary 5.4 2.9 (2.5) (46.6)
Public Safety and Criminal Justice3 1,327.4 578.7 (748.7) (56.4)
Natural Resources3 328.0 850.8 522.8 159.4
Business and Economic
Development 8,798.5 8,858.7 60.2 0.7
Regulatory 5.4 4.5 (0.9) (17.2)
General Provisions 0.0 74.4 74.4 NA
The Legislature 0.0 0.0 0.0 NA
TOTAL, ALL FUNCTIONS $49,194.8 $50,963.0 $1,768.3 3.6
1 Reflects provisions in House Bill15, Eightieth Legislature, 2007, relating to supplemental
appropriations.
2 Reflects provisions in House Bill15, Eightieth Legislature, 2007, relating to supplemental
appropriations; other enacted legislation affecting appropriations; certain appropriation
adjustments made in Article IX of the 2008-09 General Appropriations Act (GAA); and/or the
Governor's vetoes. In addition to amounts indicated, Article IX, Section 19.62 of the 2008-09
GAA provides for the transfer of appropriations to agencies for a salary increase for certain state
employees.
3
ln addition to amounts indicated, Article IX, Section 19.61 of the 2008-09 GAA provides for
Salary Schedule C pay raises for commissioned peace officers.
NorEs: Article totals exclude interagency contracts. Biennial change and percentage change have
been calculated on actual amounts; table and figure amounts may not add due to rounding.
SouRcE: Legislative Budget Board.
TEXAS FACT BOOK SPENDING 49
210
211
PUBLIC EDUCATION
ALL FUNDS FULL-TIME-
2008-09 APPROPRIATIONS EQUIVALENT POSITIONS
IN MILLIONS
General
Revenue-
Dedicated
$96.8
2004 2005 2006 2007 2008 2009
111111111111 Actual c::iil!il Appropriated --Cap
TOTAL= $53,463.7 MILLION
2008-09 FUNDING HIGHLIGHTS
Public Education appropriations for the 2008-09 biennium increased from
the 2006-07 biennium by $12,915.5 million, or 31.9 percent, in All Funds.
Appropriations for the 2008-09 biennium include $12.0 billion in new
funding for additional school district property tax relief and $237.5 million in
new funding for school facilities.
Appropriations for the 2008-09 biennium also provide $68.3 million to the
School for the Blind and Visually Impaired to fund major construction and
renovation projects on its 92-year-old Austin campus.
Appropriations for the 2008-09 biennium provide $3.6 billion to the Teacher
Retirement System (TRS) to support retirement and insurance benefits for
TRS-covered employees. In addition, the Eightieth Legislature authorized a
one-time benefit increase ("13th check") for TRS retirees to be paid in January
2008 from the TRS Retirement Fund.
SELECTED FACTS
Public education funding will support the second largest school-age
population in the country, with an estimated 4.6 million students in the public
school system. Students are served in 1,037 school districts, 7, 729 regular
campuses, and 332 charter school campuses across the state.
In the 2001-02 school year, Hispanics surpassed Anglos as the largest
ethnic group enrolled in Texas public schools. In the 2006-07 school year,
Hispanic students comprised 46 percent of enrollment compared to 36
percent for Anglos. The number of Anglo students enrolled in public schools
began declining in the 1998-99 school year and has declined each year
since. African American students represented 14 percent of all students,
with Asian students and other ethnic groups rounding out the remaining 4
percent.
In the 2008-09 biennium, $14.2 billion in state aid for property tax relief will
enable school districts to lower their property tax rates by one-third from the
rate adopted in the 2005-06 school year.
TEXAS FACT BOOK SUMMARY OF STATE FUNCTIONAL AREAS 53
211
212
PAMPA lSD
PROPOSED TEACHER HIRING SCHEDULE
2008-2009
YREXP 187 DAY
08/31/08 BACHELOR'S DEGREE MASTER'S DEGREE
0 34,500 +750
1 34,800 +750
2 35,400 +750
3 35,600 +750
4 35,800 +750
5 36,000 +750
6 36,500 +750
7 37,100 +750
8 37,700 +750
9 38,400 +750
10 39,100 +750
11 39,900 +750
12 40,630 +750
13 41,350 +750
14 42,070 +750
15 42,840 +750
16 43,560 +750
17 44,280 +750
18 44,950 +750
19 45,690 +750
20 46,360 +750
21 46,980 +750
22 47,410 +750
23 47,990 +750
24 48,530 +750
25 48,890 +750
26 49,040 +750
27 49,170 +750
28 49,320 +750
29 49,480 +750
30 49,630 +750
EXHIBIT 5
212
.
213
Teacher Salary Schedule
Pampa lSD
2009-10 2009-10
Years of Continuing Years Adopted
Experience Teacher Exp New Hire
8-31-09 Schedule 8-31-09 Schedule
0 $37,800 0 $37,800
$37,900 1 $37,900
2 $38,100 2 $38,100
3 $38,300 3 $38,300
4 $38,500 4 $38,500
5 $38,700 5 $38,700
6 $38,900 6 $38,900
7 $39,400 7 $39,400
8 $40,000 8 $40,000
9 $40,600 9 $40,600
10 $41,300 10 $41,300
11 $41,700 11 $41,700
12 $42,500 12 $42,500
13 $43,230 13 $43,230
14 $43,950 14 $43,950
15 $44,670 15 $44,670
16 $45,440 16 $45,440
17 $46,160 17 $46,160
18 $46,880 18 $46,880
19 $47,550 19 $47,550
20 $48,290 20 $48,290
21 $48,710 21 $48,710
22 $49,080 22 $49,080
23 $49,510 23 $49,510
24 $50,090 24 $50,090
25 $50,630 25 $50,630
26 $50,990 26 $50,990
27 $51,140 27 $51,140
28 $51,270 28 $51,270
29 $51,420 29 $51,420
30 $51,580 30+ $51,580
31 $51,730
32 $51,880
33 $52,040
34 $52,160
35 $52,270
36 $52,340
37 $52,500
38 $52,650
39 $52,800
40 $52,960
41 $53,110
42 $53,260
213
214
PAMPA INDEPENDENT SCHOOL DISTRICT
TEACHER COMPENSATION
FISCAL YEAR 2010-2011
Newly hired teaching professionals will earn between $40,000 and $52,420
depending on their creditible years of experience.
Returning teachers will receive an increase of $1,000 above their 2009-2010 salary.
The average teacher pay will be $44,384.
These salaries represent a 2.13% increase on the midpoint of all teaching positions.
This pay increase represents an increase of $400,000 to the 2010-2011 budget.
Approved 6/30/2010
Teachers with the same years of experience will be paid the same salary, whether
they are returning or new to the district.
214
215
PAMPA ISO CERTIFIED TEACHER PAY SCHEDULE
215
"'
.
216
2011-2012 HEALTH INSURANCE PREMIUMS
**The amount Pampa lSD pays remains at $225.
216
165
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CAUSE NO. 35621
REBECCA TERRELL and § IN THE 223R 0 DISTRICT COURT
CHANDRASHEKHARTHANEDAR § '~
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PLAINTIFFS' FIRST SUPPLEMENTAL PETITION
TO THE HONORABLE JUDGE OF THE COURT:
Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar hereby file their first
supplemental petition pursuant to Rule 80 of the Texas Rules of Civil Procedure (TRCP) and
would respectfully show the Court as follows:
1. Plaintiffs' Motion for Leave to File Plaintiffs' First Supplemental Petition is adopted
and incorporated by reference as if set forth verbatim herein.
2. Plaintiffs' original petition in this case was filed on May 29, 2009 which is adopted
and incorporated by reference as if set forth verbatim herein.
3. Plaintiffs have a right to supplement their pleadings per TRCP 80. See Texas Assoc. of
Business v. Texas Air Control Board, 852 S.W.2d 440, 446 (Tex. 1993).
4. Plaintiffs rely on the following exhibits which are adopted and incorporated as if set
forth verbatim herein.
Exhibit 1: Supplemental Affidavit of Rebecca Terrell and Chandrashekhar Thanedar
(Attached).
165
166
Exhibit 2: Defendant's salary schedules and information for years 2008-2009,
2009-2010, 2010-2011 and health insurance premium information for
Year 2011-2012 (Attached).
Exhibit 3: Defendant's purported BoardBook service agreement for 2007 (Attached).
5. Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar (spouse) are currently Texas
residents, citizens, and taxpayers and have been so continuously for more than 12 years. Plaintiff
Terrell was a first year beginning teacher teaching three subjects at the Pampa High School,
Pampa, Texas in 2008-2009 teaching U. S. History, World History, and World Geography.
PISD gets a large amount of state taxpayer funding, more than $12.5 million in 2008-2009, from
the State of Texas. As citizens, taxpayers, and residents of the State of Texas for more than 12
years, we are concerned about the operations of Pampa Independent School District (PISD), its
funding and use of State of Texas taxpayers' money, and about PISD's violations of the Texas
Open Meetings Act, (TOMA), Gov't Code Ch. 551. We are interested in and concerned about
the openness, integrity, full disclosures, and full and honest compliance with Texas Constitution
and with TOMA and other laws by all Texas Government entities and their administrators and
employees, and in particular by PISD, its Board of Trustees, its superintendent, and its
employees and administrators. Plaintiff Terrell is interested in and intends to resume teaching at
PISD upon reinstatement, upon order of the court. Plaintiff Thanedar as spouse is interested in
Terrell's reinstatement and resumption of teaching career at PISD.
6. Plaintiff Terrell's salary as a teacher for the school year 2008-2009 was $34,500 and
PISD further provided plaintiff Terrell benefits including health insurance, life insurance,
holidays, sick and vacation time, and employer contributions to retirement benefits. PISD's
benefits amount to about 33% of Plaintiff Terrell's salary. See Exhibits 1-2.
7. As a direct and proximate result of defendant's action terminating plaintiff Terrell's
teaching contract done in violation of TOMA, plaintiff Terrell has suffered damages due to lost
Plaintiffs' First Supplemental Petition Cause No. 35621 Page 2 of5
166
167
back wages and benefits for the years 2009-2010, 2010-2011, and 2011-2012 and continuing,
currently estimated at more than $155,000 and continuing.
8. Plaintiffs have spent more than 1,500 hours on prosecuting this case against PISD
since the middle of May 2009 up to the filing date of this supplemental petition (Exhibit 1)
which is relevant in calculating part of special damages in this case - hours spent multiplied by
hourly rate. It is plaintiffs' position that special damages are warranted here due to defendant
PISD's conduct and the nature and extent of persistent violations for 2008-2009.
9. It is plaintiffs' position that PISD did not have BoardBook service for the purpose of
public viewing of PISD's website internet notices required under TOMA §551.056(b) for the
period in question from August 13, 2008 to May 19, 2009. Exhibit 3. Further it is plaintiffs'
position that PISD did not have BoardBook service for the purpose of public viewing ofPISD's
website internet notices required under TOMA §551.056(b) for the period from January 15,2009
to May 19, 2009 - a period for which PISD claims good faith exception under TOMA
§551.056(d). Exhibit 3. Upon opinion and order of the Attorney General of Texas, defendant
produced a purported BoardBook service agreement dated October 12, 2007 (without evidence
that it was executed). Exhibit 3. Defendant produced no executed BoardBook agreements and
no evidence whatsoever ofBoardBook service for subsequent years- 2008-2009 and 2009-2010.
DeJendant did not pay the first year license fee for BoardBook service for 2007-2008 or
for any subsequent years e.g. 2008-2009 as a result did not have BoardBook service for the
purpose of public viewing of PISD's website internet notices of Board meetings from 8/13/2008
to 5/19/2009. Defendant has refused and failed to produce any evidence of payment for
BoardBook service either for the purported 2007 BoardBook service agreement or for
subsequent years- 2008-2009 and 2009-2010.
Plaintiffs' First Supplemental Petition Cause No. 35621 Page 3 of5
167
168
BoardBook service is a software marketed by Texas Association of School Boards, Inc.
(a trade organization) to its members such as PISD in assisting PISD to display its website
internet notices of Board meetings for public viewing on BoardBook's website in Adobe
Systems Inc.'s (Adobe) Portable Document Format or "PDF." Adobe's PDF format shows
document properties of PISD's website notices such as when the board meeting notices were
created i.e. brought into existence in PDF format for public viewing or modified i.e. changed,
thereafter. Document properties of defendant's website notices on BoardBook for 8/13/2008 to
5/19/2009 show to have been untimely created in May 2009 after PISD was informed of the
failure to comply with TOMA §551.056(b) by plaintiffs. Said notices did not "appear" on PISD
website (or BoardBook's website) timely for prescribed time (instead "appearing" days, weeks
or months after the meetings in question were held) after 5/19/2009. PISD failed to provide
evidence of timely creation, posting, and appearance of its website internet notices for public
viewing for the period in question- 8/13/2008 to 5/19/2009. PISD's good faith defense of
"severance of link to BoardBook" for the period 1/2009 to 5/19/2009 is a subterfuge and made in
bad faith.
Supplemental Prayer
FOR THESE REASONS, plaintiffs respectfully request that plaintiffs' prayer in their
original petition should be granted in its entirety and further plaintiffs request as supplemental
prayer that PISD's action terminating Terrell's employment contract be voided, PISD be ordered
to reinstate Terrell, and with reinstatement of Terrell as teacher, PISD be ordered to pay plaintiff
Rebecca Terrell damages in the form ofback wages and benefits for the school years 2009-2010,
2010-2011, 2011-2012, and continuing up to and until the time PISD fully reinstates Terrell as
classroom teacher (currently, back pay and benefits calculated at about $155,000 and
Plaintiffs' First Supplemental Petition Cause No. 35621 Page 4 of5
168
169
J
continuing), and that this Court should grant special damages calculated by the number of hours
spent by plaintiffs on this case multiplied by a reasonable rate per hour to be fixed by the Court,
and that plaintiffs be declared as the substantially prevailing party and be granted costs,
expenses, and attorney fees, damages, back pay and benefits for Terrell with reinstatement as
teacher, special damages, and fees, and that the Court enter a permanent injunction against PISD
to prevent future violations of TOMA. Plaintiffs further request that the Court grant all other and
further relief, at law or in equity, to which they may justly be entitled to receive.
Respectfully submitted,
Rebecca Terrell
Cl3``~
Chandrashekhar Thanedar
Plaintiffs
7618 Citadel Peak
Converse, Texas 78109
(956) 445-3107
CERTIFICATE OF SERVICE
The undersigned certify that a true and correct copy of the foregoing document has been
served upon the following by facsimile and USPS certified mail on the 11th day of June, 2012 as
follows: W. Wade Arnold, Andrea Slater Gulley, Underwood Law Firm, 500 S. Taylor Street,
Suite 1200, LB 233, Amarillo, Texas 79101-2446. Fax: (806) 349-9474
Rebecca Terrell
Chandrashekhar Thanedar
Plaintiffs' First Supplemental Petition Cause No. 35621 Page 5 of5
169
170
STATE OF TEXAS §
§
§
SUPPLEMENTAL AFFIDAVIT OF REBECCA TERRELL AND
CHANDRASHEKHARTHANEDAR
BEFORE ME, the undersigned authority, on June 8, 2012 personally appeared Rebecca Terrell
and Chandrashekhar Thanedar, and after being duly sworn by me, stated under oath the
following:
"Our names are Rebecca Terrell and Chandrashekhar Thanedar. We are plaintiffs in
Cause No. 35621 against defendant Pampa Independent School District (PISD or Pampa ISO) in
the 223rd District Court in Gray county Texas. We are over the age of majority. We are
mentally, physically and otherwise competent to make this sworn declaration. We are not legally
disqualified from making this affidavit."
"We have personal knowledge ofthe facts stated in Plaintiffs' First Supplemental Petition
and Plaintiffs' Objections and Response to Defendant's Motion to Dismiss for Lack of Standing
(Objections and Response) and the facts are true and correct. We affirm that the exhibits attached
to Plaintiffs' First Supplemental Petition and Objections and Response are true and correct
copies of the record or originals. We have personal knowledge of the facts stated in this
affidavit, and they are true and correct."
"We are currently residents, citizens, and taxpayers of Texas and have been so
continuously for more than 12 years. I (Terrell) was a first year beginning teacher teaching three
subjects at the Pampa High School, Pampa, Texas in 2008-2009 teaching U. S. History, World
History, and World Geography. As citizens, taxpayers, and residents of the State of Texas for
more than 12 years, we are concerned about the operations of Pampa ISO, its funding and use of
State of Texas taxpayers' money and about Pampa ISD's violations ofthe Texas Open Meetings
Act (TOMA). We are interested in and concerned about the openness, integrity, full disclosures,
and full and honest compliance with Texas Constitution and with TOMA and other laws by all
Texas Government entities and their administrators and employees, and in particular by PISD, its
Board of Trustees, its superintendent, and its employees and administrators."
"I (Terrell) affirm that I am interested in and have requested reinstatement, back pay and
benefits as part of the remedies in this suit and intend to resume teaching at PISD upon
reinstatement, upon order of the court. I (Thanedar) affirm that as spouse I am interested in
Terrell's reinstatement and resumption of teaching career at PISD."
"My (Terrell) salary for the school year 2008-2009 was $34,500 and PISD further
provided me (Terrell) benefits including holiday pay, sick pay, vacation pay, health insurance,
life insurance, and employer contributions to retirement benefits. We have spent more than 1,500
hours on prosecuting the above case against PISD since the middle of May 2009."
Exhibit 1
170
171
[)``
Rebecca Terrell Chandrashekhar Thanedar
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the _ _::_3_ __
day of June, 2012.
the State of Texas
PETE GARCIA HERNANDEZ JR
My Commission Expires
October 14. 2015
(Printed Name ofNotary)
Supplemental Affidavit of Rebecca Terrell Cause No. 35621 2 of2
and Chandrashekhar Thanedar 223 rct District Court
171
172 ...)
PAMPA lSD
PROPOSED TEACHER HIRING SCHEDULE
2008-2009
YREXP 187 DAY
08/31/08 BACHELOR'S DEGREE MASTER'S DEGREE
0 34,500 +750
1 34,800 +750
2 35,400 +750
3 35,600 +750
4 35,800 +750
5 36,000 +750
6 36,500 +750
7 37,100 +750
8 37,700 +750
9 38,400 +750
10 39,100 +750
11 39,900 +750
12 40,630 +750
13 41,350 +750
14 42,070 +750
15 42,840 +750
16 43,560 +750
17 44,280 +750
18 44,950 +750
19 45,690 +750
20 46,360 +750
21 46,980 +750
22 47,410 +750
23 47,990 +750
24 48,530 +750
25 48,890 +750
26 49,040 +750
27 49,170 +750
28 49,320 +750
29 49,480 +750
30 49,630 +750
Exhibit 2
172
173 \..., ~
Teacher Salary Schedule
Pampa ISO
2009-10 2009-10
Years of Continuing Years Adopted
Experience Teacher Exp New Hire
8-31-09 Schedule 8-31-09 Schedule
0 $37,800 0 $37,800
$37,900 1 $37,900
2 $38,100 2 $38,100
3 $38,300 3 $38,300
4 $38,500 4 $38,500
5 $38,700 5 $38,700
6 $38,900 6 $38,900
7 $39,400 7 $39,400
8 $40,000 8 $40,000
9 $40,600 9 $40,600
10 $41,300 10 $41,300
11 $41,700 11 $41,700
12 $42,500 12 $42,500
13 $43,230 13 $43,230
14 $43,950 14 $43,950
15 $44,670 15 $44,670
16 $45,440 16 $45,440
17 $46,160 17 $46,160
18 $46,880 18 $46,880
19 $47,550 19 $47,550
20 $48,290 20 $48,290
21 $48,710 21 $48,710
22 $49,080 22 $49,080
23 $49,510 23 $49,510
24 $50,090 24 $50,090
25 $50,630 25 $50,630
26 $50,990 26 $50,990
27 $51,140 27 $51,140
28 $51,270 28 $51,270
29 $51,420 29 $51,420
30 $51,580 30+ $51,580
31 $51,730
32 $51,880
33 $52,040
34 $52,160
35 $52,270
36 $52,340
37 $52,500
38 $52,650
39 $52,800
40 $52,960
41 $53,110
42 $53,260
173
174
PAMPA INDEPENDENT SCHOOL DISTRICT
TEACHER COMPENSATION
FISCAL YEAR 2010-2011
Newly hired teaching professionals will earn between $40,000 and $52,420
depending on their creditible years of experience.
Returning teachers will receive an increase of $1,000 above their 2009-2010 salary.
The average teacher pay will be $44,384.
These salaries represent a 2.13% increase on the midpoint of all teaching positions.
This pay increase represents an increase of $400,000 to the 2010-2011 budget.
Approved 6/30/2010
Teachers with the same years of experience will be paid the same salary, whether
they are returning or new to the district.
174
175
2011-2012 HEALTH INSURANCE PREMIUMS
('
**The amount Pampa lSD pays remains at $225.
175
L
176
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179
Appendix 7
Created Dates of PISD’s Untimely
Posted Internet Notices (PX2)
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Cause No. 35621 (/)
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223 rct District Court, Gray County (/
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Summary of Document Properties CJ
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ofDefendant's Website Notices c: U1 >
(/)
for 22 Meetings
-l
-< ..z::
1. Web notices for Board meetings on 8/13/08, 8/21/08, 9/4/08, 9/18/08, 1Oi21 S
10/9/08, and 10/23/08 were created on 5/11/09 and posted on PISD's webs·1 ·1e
on 5/19/09; and
2. Web notice for Board meeting on 11/6/08 was created on 515109 and posttd
on PISD's website on 5119109; and
3. Web notices for Board meetings on 11/20/08 and 12/4/08 were cr-::.ated-~n
517109 and posted on PISD's website on 5119109; and
4. Web notices for Board meetings on 12/18/08, 1/15/09, 2/15/09, 2/19/09,
3/12/09, 3/26/09, 4/2/09, 4/16/09, 4/21/09, and 4/23/09 were created on
5/8/09 and posted on PISD's website on 5/19/09; and
5. Web notice for Board meeting on 517109 was created on 5/12/09 and posted
on PISD's website on 5/19/09; and
6. Web notice for Board meeting for 5/19/09 was created on 5/18/09 and postc:d
on PISD's website on 5/19/09." · ·
"The "Modified" dates for the above notices are identical to the "Created" dates."
PX
2
Appendix 8
Defendant’s Answers to Plaintiffs’
Interrogatories (PX8)
.... r
NO. 35,621
REBECCA TERRELL and § IN THE 223ro DISTRICT COURT
CHANDRASHEKHAR THA..NEDAR § tD ~
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Defendant § GRAY COUNTY, TE~ -C
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DEFENDANT'S A..~SWERS TO PLAINTIFFS' INTERROGATORIES
TO: Plaintiffs, Rebecca Terrell and Chandrashekb.ar Thanedar, 1000 North Wells St,
Pampa, Texas 79065.
COMES NOW Defendant, PAJ.VfPA INDEPENDTh1T SCHOOL DISTRICT,
(hereinafter "Defendant'') in the above-styled and numbered cause, and, pursuant to the
Texas Rules of Civil Procedure, makes the following Answers to Plaintiffs'
Interrogatories to Defendant.
Respectfully submitted,
W. Wade A.mold
State Bar No. 00783561
Andrea Slater Gulley
State Bar No. 24045994
UNDERWOOD, WILSON, BERRY,
STEThT & JOHNSON, P.C.
P.O. Box 9158
Am.arillo, Texas 79105-9158
806-376-5613-FAX: 806-349-9471
ATTORNEYS FOR DEFENDAl"\IT
EXHIBIT PX
Defendant's Answers to Plaintiffs' Interrogatories -Page I
A g
#484036
CERTIF1CATE OF SERVICE
I hereby certify that on thct;{.3.j day of February, 2010 a true and correct copy of
the above and foregoing document was delivered via certified mail to and properly
addressed as follows:
Rebecca Terrell
Chandrashekhar Thanedar
1000 N. Wells Street
Pampa, Texas 79065.
Defendant's AusWers to P~ Inrerrogatories- Page 2
#484036
lNTERROGATORIES
INTERROGATORY NO. 1: Identify your Board of Trustees' Meetings and their
dates from August 13, 2008 through May 19, 2009 for which you claim that you
complied with the internet posting requirement of Sec. 551.056 of the Texas Open
Meetings Act (TOMA or the Act), Texas Gov't Code Ch. 551.
ANSWER: Defendant complied with the requirements or exceptions thereof of the
Texas Open Meetings Act ("TOMA") with respect to all of the Board Meetings inquired
about in this Interrogatory.
INTERROGATORY NO. 2: Identify your Board of Trustees' Meetings and their
dates from August 13, 2008 through May 19, 2009 for which you did not timely post the
internet notices of board meetings on your website according to the requirement of
TOMA.
ANSWER: Defendant complied with the requirements or exceptions thereof of the
Texas Open Meetings Act with respect to all of the Board Meetings inquired about in this
Interrogatory.
INTERROGATORY NO. 3: Identify the names and the positions of aU persons
involved in posting the intern.et notices ofboard meetings on your website.
ANSWER: Karen Linder.
.INTERROGATORY NO. 4: Descnoe the steps or the process you followed to
ensure that the internet notices of board meetings you claim you posted on your website
between August 13, 2008 and May 19, 2009 were actually available for public viewing
on your wet>stte.
ANSWER: Defendant objects to this Interrogatory for the reason that it is overly
· broad and therefore beyond the scope of discovery. Subject to this objection Defendant
would state that Karen Linder would periodically check that status of the postings after
first posting the Notices on the BoardBook which ~ould in tum send through an internet
link the Notices to the District Website. Sometime in January of 2009 the District
Technology Services Department updated the website but left off the link between the
Boardbook and District Website. This technical problem was not discovered and
corrected until approximately May 2009. Karen Linder was responSI"ble for creating the
internet board notices through the boardbook program. Once created on the boardbook
template the Notices were delivered to the District Website via a link. This link worked
properly from October 2007 until approximately January 2009 when the District Website
was updated. Unbeknownst to anyone at the District, when the District Website was
updated the link with Boardbook was terminated.
Defendant's Answers to Plaintiffs' l.ote1TOgatorfs-Page 3
#484036
INTERROGATORY NO. 5: State all technical problems that you believe caused
your failure to comply with the legal requirement of posting internet notices of your
board meetings on your website per TOMA.
ANSWER: See Answer to Interrogatory No. 4.
INTERROGATORY NO. 6: State all reasons why you believe the technical
problem(s) identified in Interrogatory No. 5 herein above were beyond your control
ANSWER: See Answer to Interrogatory No. 4.
INTERROGATORY NO. 7: State when and how you became aware of the technical
problem(s) identified in Interrogatory No. S herein above.
ANSWER: Defendant became aware when it was reported to Defendant by Plaintiffs
herein that the notices were not online.
INTERROGATORY NO. 8: Identify the names of the persons who were aware of
the technical problem(s) identified in Interrogatory No. 5 herein above and of your efforts
to resolve them between the time period August 13, 208 [sic] to May 19, 2009.
ANSWER: Karen Linder. The problem was resolved when Ms. Linder reported it to
Technology Services Department head Suzie Jameson who then determined that the
former link between Boardbook and the District website had been severed. She then
reestablished the link.
INTERROGATORY NO. 9: A State the efforts you made to resolve the technical
problem(s) identified in Interrogatory No. 5, herein above incluc:ling the names ofpersons
involved in the efforts.
B. State why you believe your efforts to resolve the technical problems identified in
Interrogatory No. 5, herein above were in good faith.
ANSWER: A See Answer to Interrogatory No. 8 above.
B. Because the efforts were in good faith.
INTERROGATORY N0.10: State when and how the technical problem(s) identified
in Interrogatory No. 5 herein above were resolved.
ANSWER: See Answers to Interrogatories 6 through 9.
INTEBROGATORY NO. 11: State the educational qualifications and work
experience ofpersons involved in posting internet notices on your website
Defendant's ADswers to Plaintiffs' Interrogatories-Page4
#484036
ANSWER: Defendant objects to Interrogatory No. 11 for the reason that it is overly
broad, unduly bmdensome and seeks the production of information which is not relevant
and not calculated to lead to the production of any relevant information and is therefore
beyond the scope of the Texas Rules of Civil Procedure.
INTERROGATORY N0.11: State when and why the notice of the board meeting on
312612009 was revised and when was the revised notice posted or reposted on front door
of your central administrative building including the date and time of such posting or
reposting.
ANSWER: There were no revisions to the Notice other than the date of reposting. The
original notice for the meeting was posted on March 20, 2009. This notice went missing
so it was reposted on March 23, 2009. The only urevision" to the original notice was the
date of reposting. All other content of the Notice remained the same. The reposting
occurred prior to 5 p.m. on March 23, 2009.
INTERROGATORY N0.13: State when, including date and time, and on which page
or area of your website was the intemet notice of the 3/2612009 board meeting posted in
72 hams prior to the 3126/2009 meeting.
ANSWER: The notice for the 3/26/09 Board Meeting was properly posted on both
March 20, 2009 and again on March 23, 2009 prior to 5 p.m. on the front door of the
administrative building. Due to technical problems addressed in Interrogatories Nos. 4-9
the internet notice did not appear on the District Website.
INTERROGATORY NO. 14: State how you verified that the internet posting
identified in Interrogatory No. 12 herein above was available for public viewing on yom
website for 72 hours before the beginning time of the 3/26/2009 meeting.
ANSWER: See answer to Interrogatory No. 13 above. The internet posting for the
3/26/09 meeting did not appear on the District Website due to the technical problems
addressed in answer to Interrogatories Nos. 4-9 above.
Defmdant's AnswerS to PlalntiDS" Interrogatories-Page 5
it484036
...
VERJEICATION
STATE OF TEXAS §
§
COUNTY OF.....,b.,._,_r.-..ov.,___ _ §
BEFORE ME, the undersigned authority, on this day personally appeared Karen
Linder, \<ayoo Li(l4t&- of Pampa Independent School District, known to me
personally by presenting her driver's license, who being duly sworn on her oath deposed
and said that she is duly qualified and authorized in all respects to make this affidavi~
that she bas read the above and foregoing Defendant's Answers to PlaintiftS'
Interrogatories; and that every statement contained therein is within her knowledge and is
true and correct.
Karen Linder
SUBSCRIBED A.1'1D SWORN TO BEFORE ME on the !/:? ~ day of
February, 2010 to certify which \>"Jitness my hand and official seal.
Notary Public in~d for
The State of Texas
l)efudant's AasWers to Plaintiffs' Imerrogaiories-Page 6
'#484036
Appendix 9
Defendant’s Responses to Plaintiffs’
Requests for Admissions (PX9)
.....
NO. 35,621
REBECCA TERRELL and § IN THE 223ro DISTRICT COURT
CHANDRASHEKH.AR THANEDAR §
§
Plaintiffs, §
§ 0
v. § IN AND FOR 0
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PAMPA INDEPENDENT SCHOOL § :::::::> :-< 0
DISTRICT § ::3 --!
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Defendant § ..J::: (J)
DEFENDANT'S RESPONSES TO PLAINTIFFS' REQUESTS FOR ADMISSIONS
TO: Plaintiffs, Rebecca Terrell and Chandrashekhar Thanedar, 1000 North Wells St.,
Pampa, Texas 79065.
COMBS NOW Defendant, P.Al\1PA INDEPENDENT SCHOOL DISTRICT,
(hereinafter ''Defendant") in the above-styled and numbered cause, and, pursuant to the
Texas Rules of Civil Procedure, makes the following Responses to Plaintiffs' Requests
for Admissions to Defendant.
Respectfully submitted,
W. Wade Arnold
State Bar No. 00783561
Andrea Slater Gulley
State Bar No. 24045994
ffi..1DERWOOD, WILSON, BERRY,
STEIN & JOHNSON, P.C.
P.O. Box 9158
Amarillo, Texas 79105-9158
806-376-5613 - FAX: 806-349-9471
By: V) I
PX W. Wade Arnold
'I ATTORNEYS FOR DEFENDANT
Defendant's Responses to Plaintiffs'
Reques1S for Admissions- Page 1
#484041
.•
I
CERTIFICATE OF SERVICE
I hereby certify that on th`` day of February. 2010 a true and correct copy of
the above and foregoing document was delivered via certified mail to and properly
addressed as follows:
Rebecca Terrell
Chandrashekhar Thanedar
1000 N. Wells Street
Pampa, Texas 79065.
W. Wade Arnold
Defendant's Responses to Plaintlff's'
Requests for Admlssloos-Page 2
#484041
INTERROGATORIES
REOUESTFORADMISSIONN0.1: Admit that you have a contract with.
BoardBook since October 2007 for providing services in connection with posting internet
notices of board meetings on your website.
RESPONSE: Admit that Defendant has had a contract with BoardBook since 2007.
Admit that the contract tangentially involves the posting of internet notices of board
meetings. Denied as to anything else.
REQUEST FOR ADMISSION NO. 2: Admit that you had a bulletin board in the
lobby ofthe central administrative building from August 13, 2008 to May 31, 2009..
RESPONSE: Admit.
REOUEST FOR ADMISSION NO. 3: Admit that you removed the bulletin board
identified in Request for Admission No. 2, herein above from the central administrative
building after the filing of this lawsuit
RESPONSE: Admit that an enclosed bulletin board formerly located within the
administrative building was relocated. to a spot immediately outside the front door of the
building. Denied as to anything else.
REQUEST FOR ADMISSION NO. 4: Admit that you placed a bulletin board
outside of your central administrative building to post notices ofboard meetings after the
filing of this lawsuit.
RESPONSE: Admit that the bulletin board relocated outside of the front doors of the
administrative building was used to post notica; ofboz:i.rd m~gs. Denied as to anything
else.
REQUEST FOR ADMISSION NO. 5: Adm.it that you posted notices of board
meetings on the front door of the central administrative building for board meetings from
August 13, 2008 to May 19, 2009. ·
RESPONSE: Admit.
REQUEST FOR ADMISSION NO. 6: Admit that you have never posted notices of
board meetings OJ.l a bulletin board in your central administrative building.
RESPONSE: Defendant objects to this Request to the extent that it implies that board
notices must be placed inside of a particular building in order to meet the requirements of
TOMA. Otherwise, Admit.
REOUESI FOR ADMISSION NO. 7: Admit that you have used the front door of
the central admfuistrati.ve building to post notices of board meetings for the last 8 years.
Defendant's Responses to Plaintiffs'
Reques1I for Admlsslons-Page3
#484041
·-
RESPONSE: Admit.
REQUEST FOR ADMISSION NO. 8: Admit that Karen Linder posted the notices
of board meetings on the front door of the central administrative building for the last
eight years.
RESPONSE: Admit.
REQUEST FOR ADMISSION NO. 9: Admit that Karen Linder was not designated
nor authorized to post notices ofboard meetings by your board of trustees.
RESPONSE: Defendant objects to Request for Admission No. 9 to the extent that it
seems to imply that a school district board of trustees is req1llred to "designate or
authorize" a person to post Board Meeting Notices under the TOMA. Subject to this
objection, deny.
REQUEST FOR ADMISSION N0.10: Admit that y0u posted the revised notice of
your 3/26/2009 board meeting on the front door your central administrative building on
3/24/2009. .
RESPONSE: Deny.
REQUEST FOR ADMISSION N0.11: Admit that you did not post the notice for
the 3/26/2009 board meeting on 3/20/2009.
RESPONSE: Deny.
REO!JEST FOR .ADMISSION NO.. 12: Admit that 3/26/09 board meeting notice
was not on the front door after 5 p.m. on 3/2312009 and that you reposted it on 3/24/09.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 13: Admit that you did not verify that the
internet notices were actually available for public viewing on your website from January
I. 2009 to May IS, 2009.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 14: Admit that your board president did not cite
the section ofthe Act under which you closed the board meeting on 3/26/2009.
RESPONSE: Admit.
REQUEST FOR AD1".IISSION NO. 15: Admit that you never identified ''Pampa,
Texas" as «plaots" in yom board meeting notices before this lawsuit was filed.
Defendant's Responses to PJalndffs'
Requests for Admissions-Page 4
#484041
RESPONSE: Defendant objects to Request for Admission No. 15 to the extent that it
incOITectly implies that TOMA requires that the name of the city in which the meeting is
to take place is required. Admit that the words "Pampa, Texas" were not included in the
Notices.
REOUEST PORADl\fiSSION N0.16: Admit that your employee Ramiro Soto
admitted ·to plaintiff Thanedar on 3/23/09 that there was no meeting notice on the front
door on 3/223/09 [sic] at 5 p.m. and at 6 p.m.
RESPONSE: Deny.
REQUEST FOR ADMISSION N0.17: Admit that you post the meeting notices of
board meetings in Adobe "PDF' form.at on your website.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 18: Admit that the Adobe ''PDF' format of all
notices of board meetings from August 13, 2008 to May 19, 2009 were created and
posted in May 2009 as follows:
1. Web notices for 8/13/08, 8/21/08, 914108, 9/18/08, 10/2/08 10/9/08,
and 10/23/08 were created on May 5/11/09 [sic] and posted on the
website on 5/19/09
2. Web notice 11/6/08 was created on May 515109 [sic] and posted on
the website on 5119/09
3. Web notices; 11/20/08 and 12/4108 were created on May 5/7/09
[sic] and posted on the website on 5/19/09
4. Web notices 12/18/08, 1/15/09, 2/15/09, 2/19/09, 3112/09, 3/26/09,
412109, 4/16/09, 4/21/09, and 4/23/09 were crated on May 5/8/09
[sic] and posted on the website on 5/19/09
5. Web notice 517/09 was created on May 5/12/09 [sic] and posted on
the website on 5/19/09
6. Web notice 5/19/09 was created on May 5/18/09 [sic] and posted
on the website on 5/19/09
RESPONSE: Deny.
REQUEST FOR .ADMISSION NO. 19: . Admit that :from _A~aust 13> 2008 to May 19,
2009 you held the following 22 board meetings on the followmg dates:
Defendant's Responses to Plaintiffs'
Requests for Admissions- Page S
#484041
Board Meetings on 8/13/08, 8/21/08, 9/4/08, 9/18/08, 1012/08 1019108,
10/23/08, 11/6/08, 11/20/08, 12/4/08, 12/18/08, 1/15/09, 2/15/09, 2/19/09,
3/12/09, 3/26/09, 412109, 4116109, 4/21109, 4/23/09, 517109, and 5/19/09.
RESPONSE: Admit
REQUEST FOR ADMISSION NO. 20: Admit that you posted the meeting notice for
5/19/2009 on the front door of the central administrative building on 5/18/2009.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. ll: Admit that you did not view your website to
verify :from August 2008 to May 14, 2009 to check whether the board meeting notices
were in fact on your website and available for public viewing.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 22: Admit that intemet website notices of your
board meetings were not on your website from Jan. 1, 2009-May 15, 2009.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 23: Admit that Karen Linder admitted to
plaintiff Thanedar on May 15, 2009 that the internet notices of board meetings were not
posted on your website for several months.
RESPONSE: Deny.
REQUEST FOR APMISSION NO. 24: Admit that you did not post the internet
notice for 3/26/2009 board meeting on your website prior to May 2009.
RESPONSE: Deny.
REQUEST FOR APMISSION NO. 25: Admit that you did not post internet website
notices of board meetings that took place from August 13, 2008 to December 2008 for
public viewing until May 2009.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 26: Admit that internet website notices were not
on your website for public viewing 72 hours prior to the board meetings for the period
from August 13, 2008 to May 18, 2009.
RESPONSE: Deny.
Defendant's Responses to Plaintiff's'
Requests for Admlsslons-Page 6
#484041
I •
REQUEST FOR ADMISSION NO. 27: Admit that you first became aware of your
failure to post notices of board meetings on your website after pJaintiff Thanedar
submitted Open Records Request to you for notices ofboard meetings in April 2009.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 28: Admit that you posted internet notices for
the first time on May 19, 2009 for board meetings from October 2007 to May 19, 2009
on your website.
RESPONSE: Deny.
REOUEST FOR ADMISSION NO. 29: Admit that there was no technical problem
beyond your control that prevented you ftom posting intemet notices on your website
from August 13, 2008 to May 19, 2009.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 30: Admit you were closed from March 16-
March 20, 2009 for "Sp.ring Break."
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 31: Admit that ~ Linder does not have a
college degree or work experience in computer technology.
RESPONSE: Defendant objects to Requem: for Admission No. 31 for the reason that it is
harassing and seeks the production of information which is not relevant and not
calculated to lead to the prodl:JCtion of any relevant. infonnation and is therefore _beyond
the scope ofthe Texas Rules of Civil Procedure.
REQUEST FOR ADMISSION NO. 32: Admit that your Information Technology
(IT) department creates the Adobe "PDF' formats of the notices of board meetings to be
posted on your website.
RESPONSE: Deny.
REOUEST FOR ADMISSION NO. 33: Admit that the Adobe "'PDF' format of your
notices ofboard meetings are created using the "Activepdf' software.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 34: Admit that the Adobe ""PDF' formats of the
internet notices of your board meetings from Aug. 13, 2008 to May 19. 2009 were
created and posted on your website in the month ofMay 2009.
Def'eadaat's Responses to PJaintilJs'
Requests for .A.dmlslions-Page 7
#484041
..•
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 35: Admit that your website was available for
public viewing on March 27, 2009 even though you were closed dne to inclement
weather caused by snow storm.
RESPONSE: Admit.
Defendant's Responses 1o Phdntiffs'
Reques1S for Admfalons-Page 8
#484041
Appendix 10
Defendant’s Answers to Plaintiffs’
Second Set of Interrogatories,
Requests for Admissions and Request
for Production (PX10)
NO. 35,621
REBECCA TERRELL and § IN TIIB 223ni DISTRICT &;,QURT r-..:i
CHANDRASHEKHAR THANEDAR § -< =
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DEFENlJAl'll'S ANSWERS TO
PLAINTIFFS' SECOND SET OF INTERROGATORIES,
REQUESTS FOR ADMISSIONS AND REQUEST FOR PRODUCTION
TO: Plaintiffs, Rebecca Terrell and Chandrashekbar Thanedar, 1000 North Wells St.,
Pampa, Texas 79065.
COJY.IES NOW Defendan~ PA1\1PA INDEPENDEl\TT SCHOOL DISTRICT,
(hereinafter "Defendant") in the above-styled and numbered cause, and, pursuant to the
Texas Rules of Civil Procedure, makes the follo\Ving Answers to Plaintiffs' Second Set
of Interrogatories, Requests for Admissions and Request for Production to Defendant.
Respectfully submitted.
W. Wade A.mold
State Bar No. 00783561
Andrea Slater Gulley
State Bar No. 24045994
UNTIERWOOD, 'WILSON. BERRY.
STEIN &JOHNSON, P.C.
P .0. Box 9158
A.rnarillo, Texas 79105-9158
806-376-5613 - FAX: 806-349-9471 n _, }
PX By.µ) ~VJ
W. Wade.Arnold
IO
ATTOR..NEYS FOR DEFENDANT
Defendant's Answers to Plaintiffs' Second Set of Interrogatories, . EXHIBIT
Requests for Admissions and Request for Production-Page 1
#491701
c
---------
. . i
. -...
CERTIFI~TE OF SERVICE
I hereby certify that on the£_ day of April, 2010 a true and correct copy of the
above and foregoing document was delivered via certified mail to and properly addressed
as follows:
Rebecca Terrell
Chandrashekhar Thanedar
lOUO"N. Wells Street
Pam.pa, Texas 79065.
W. WadeAmold
Defendant's Answers to PJaintiffs' Second Set of Interrogatories,
ReqneSIS for Admissions and Request for Production -Page2
11491701
::· .
SECONDSETOFINTERROGATORIES, ·
REQUESTS FORADlVIISSIONS AND REQUEST FOR PRODUCTION
INTERROGATORY N0.15: Identify your Board of Trustees• Meetings and their
dates from August 13, 2008 through May 19, 2009 for which the intemet notices did not
appear on your website and for which you claim good faith exception muler Texas Open
Meetings Act (TOMA), Texas Gov't Code, Sec. 551.0S6(d) concerning technical
problem beyond your control in posting internet notices.
ANSWER: All required internet notices for the period August 13, 2008 through
January 15, 2009 properly appeared on the website. Due to website changes on January
15, 2009 the link with Boardbook was severed. From January 15, 2009 through May 19,
2009 Karen Linder continued to create the notices in Boardbook and to send them for
posting to the website. However, because of the severance of the link between the
website and Boardbook brought on by the website changes on January 15, 2009 the
notices were not posted to the website. This technical problem. was not discovered until
May 2009 at which time it was immediately corrected. Defendant would also make
reference to the emails between Karen Linder and Suzie Jameson which are attached to
Defendant's responses to Plaintiffs First Requests for Production.
INTERROGATORYN0.16: Identify the date or dates on which the internet notices
of your board meetings appeared on your website and were actually available for public
viewing for each ofthe board meetings from August 13, 2008 to May 19, 2009.
ANSWER: August 13, 2008 through January 15, 2009.
INTERROGATORYN0.17: Identify the document fonnat of the internet website
notices of your board meetings posted on your website and the specific dates on which
the internet notices were created for each of the board meetings from August 13, 2008 to
May31,2009. .
ANSWER: Defendant objects to Interrogatory No. 17 for the reason that the term
'"format'' is not defined. Th.erefoi:e, Defendant is unable to properly respond. Subject to
this objection_:pefendant would state that the internet notices are created using a form
from Boardbook.:'Once the notice is created it is ·~eleased" to the District's webSite.
-There no
is. particular "fonnaf' of the notice. The notices for all of the meetings in
question were created by Karen Linder more than 72 hours before each respective
meeting. All of the notices were posted more than 72 hours before each respective
meeting by Karen Linder except those meetings between January 15, 2009 and May 19,
2009. As explained in answer to Interrogatory No. 15 above these notices were created
and thought to have been posted more than 72 hours before the meetings but due to the
technical difficulty of having the link between Board.book and the website s~vered were
not actually posted.
INTERR.OGATORYN0.18: Explain in detail what specific :functions or services
BoardBook provides to you concerning posting the intert1.et notices of your board
Defendant's Answers to PJaintiffs' Second Set of IDtem>gatories,
Requests for Admissions and Request for Production -Page 3
#491701
.. ·,
meetings on your website and the manner in which Board.Book provides the said
:functions or services to yau.
ANSWER: Boardbook serves as a platform for creating and posting the internet
notices. The notice is created in a fonn contained in Boardbook. Upon completion the
notice is "releasedn to the website. There is a 1ink: between Boardbook and the website
which upon release of the notice sends the notice for posting on the website.
JNTERROGATORY NO. 19: Explain in detail the process of how the intemet website
notices of your board meetings are created and posted to your website for public viewing
and the roles of persons involved in this process.
ANSWER: Defendant incozporates its answers to Interrogatory Nos. 15-18 above.
Additionally, Defendant would respond that the only ''person involved" is Karen Linder.
INTERROGATORY NO. 20: Identify all persons that you contend authorized or
designated Karen Linder to sign the notices of board meetings from August 13, 2008 to
May 19, 2009.
ANSWER: Barry Haenisch with the authority of the School Board.
INTERROGATORY NO. 21: Ex.plain all reasons in support of your contention that
posting notices of board meetings on the front entrance door of your central
administrative office building complies with the notice requirement for school districts to
post notices on a Bulletin Board in the central administrative office per TOMA Sec.
551.051.
.ANSWER: The posting of the Board Meeting Notices on the front door of the central
building is; proper because it meets the provisions of Section 551.051 of
aa.,,;nistrative
the Texas Open Meetings Act. The notice was inside the bulleting and it was placed in the
area for which the District posts many other bulletins and notices.
INTERROGATORY NO. 22: Concerning the reposting of the notice for your
3/2612009 board meeting, descn'be in detail the date and time and how you became aware
(e.g. who told you, and the date and time) that the previous notice dated 3/20/2009 of the
said meeting was not on the front door of your central administrative building.
.ANSWER: Karen Linder was informed by Plaintiff Thanedar that the notice which
she had originally posted on March 20, 2009 for the March 26> 2009 meeting was now
missing from the front door of the administrative building. Ms. Linder immediately
reposted the notice on the front door. This was done on March 23> 2009 more than 72
hours before the March 26th meeting.
INTERROGATORY NO. 23: Concerning your new website, explain how the link to
the internet notices of the board meetings was severed or lost and the roles of all persons
Defendant's Answers to Plain1iffs' Second Set oflnterragatorie.s,
Requests for Admissions and Request for .Production - Page 4
#491701
. -.
responsi'ble or involved in updating the link to the intern.et notices of board meetings on
your website and the identify the date on which you changed over to a new website
ANSWER: The link was severed because changes were made to the District website
by Information Technology Department head Suzie Jameson in the regular comse of
business. This technical problem was discovered on or about May 19, 2009 when the
problem was brought to the attention of Karen Linder when she was told the notices for
the meetings were not appearing on the website as they were supposed to. Ms. Linder
contacted Ms. Jameson and asked her to look into the problem. Ms. Jameson quickly
discovered the problem and corrected it. The website changes occurred on or about
January 15~009.
INT.EBROGATORY NO. 24: Authenticate each of the following documents in
ExhibitB, specifically identified as B.l, B.3, B.S, B.7, B.9, B.11, B.13, B.15, B.17, B.19,
B.21, B.23, B.25, B.27, B.29, B.31, B.33, B.35, B.37, B.39, B.41, B.43, B.45, B.47,
B.49, B.51, B.53, B.SS, B.57, B.59, B.61, B.63, B.65, B.67, B.69, B.71, B.73, B.75,
B.77, B.79, B.81, B.83, B.85, B.87, B.89, and B.91, of Plaintiffs' Motion for Summary
Judgment filed and served on you in this case on June IS, 2009 as your intemet website
notices of your board of trustees' meetings that appear on your website.
ANSWER: Defendant objects to this Interrogatory for the reason that it is overly
broad and unduly burdensome. Defendant :further objects for the reason that this
Interrogatory seeks the production of information which is not relevant and not calculated
to lead to the discovery of any relevant information and is therefure beyond the scope of
the rules. Defendant further. objects to the extent that Plaintiffs do not give enough detail
as to what they wish to have authenticated and therefore Defendant is unable to properly
respond. Subject to the above objections and without waiving the same Defendant would
respond as follows: Defendant authenticates that each of the documents identified in this ·
Interrogatory are in fact attached to Plaintiffs' Motion for Stunmary Judgment. Defendant
cannot authenticate anything else because Defendant is unaware of the date(s) that each
of these documents was printed out by PJaintifI. However, it would appear that the
notices referenced in this Interrogatory are in fact duplicates of the actnal notices
originally posted and placed on the website.
INTERROGATORY NO. 25: Authenticate each of the following documents in
Ex:1nl>it B, specific identified as B.2, B.4, B.6, B.8, B.10, B.12, B.14, B.16, B.18, B.20,
B.22, B.24, B.26, B.28, B.30, B.32, B.34, B.36, B.38, B.40, B.42, B.44, B.46, B.48,
B.50, B.52, B.54, B.56, B.58, B.60, B.62, B.64, B.66, B.68, B.70, B.72, B.74, B.76,
B.78, B.80, B.82, B.84, B.86, B.88, jB.90, and B.92, of Plaintiffs' Motion for Summary
. Judgment filed and served on you in this case on June 15, 2009 as the document property
con.tamed in the respective internet website notices that appear on your website as noted
in Inteuogatory No. 24 herein above.
ANSWER: Defendant objects to this Interrogatory for the reason that it is overly
broad and unduly burdensome. Defendant far.her objects for the reason that tbis
Interrogatory seeks the production of iD:fo:anation which is not relevant and not calculated
Defendant's Ans\\-ers to Plalotlffi' Second Set of Interrogatories,
Requests for Admlsslous and Request for Production-Page 5
11491701
to lead to the discovery of any relevant information and is therefore beyond the scope of
the rules. Defendant :further objects to the extent that Plaintiffs do not give enough detail
as to what they wish to have authenticated and therefore Defendant is unable to properly
respond. Subject to the above objections and without waiving the same Defendant would
respond as follows: Defendant authenticates that each of the documents identified in this
Interrogatory are in fact attached to Plaintiffs' Motion for Summary Judgment Defendant
cannot authenticate anything else and in particular the "created" or "modified" times on
each document as being the actual times that the notices in question were originally
created and placed on the website through Board.book Whenever a notice is viewed
through the "prepate/ed.if' function of Board.book, which is the manner in which Ms.
Linder often views notice$, the create and modify dates and times change whether any
actual changes are made. Defendant can authenticate that each of the notices above was
~riginally created and pc;istedthrouib Boardbook at least 72 hours before the_iespective
·``etirig -``~ n~ti.ced. · ·-
INTERROGATORY NO. 26: Authenticate Exhibits C and D of Plaintiffs' Motion for
Summary Judgment filed and served on you in this case on June 15, 2009 as the internet
website notice (Exhibit C) and document properties (Exlnoit D) of the said notice for
your board of trustees' meeting on 3/26/2009.
ANSWER: Defendant objects to this Interrogatory for the reason that it is overly
broad and unduly burdensome. Defendant .further objects for the reason that this
Inteuogatory seeks the production of information which is not relevant and not calculated.
to lead to the discovery of any relevant infonnation and is therefore beyond the scope of
the rules. Defendant further objects to the extent that Plaintiffs do not give enough detail
as to what they wish to have authenticated and therefore Defendant is llllable to properly
respond. Subject to the above objections and without waiving the same Defendant would
respond as follows: Defendant authenticates that each of the documents referenced in the
Interrogatory above are in fact attached to Plaintiffs• Motion for Summary Judgment.
Defendant would further respond that the March 26 notice attached as Exhibit C appears
to be the one originally posted. The document properties attached as Exhibit D is not the
original one that was created on Board.book and released to the website on or about
March 20. 2009.
INTERROGATORY NO. 27: Authenticate each of the following Exhibits E, F, G, H,
I, J, K, and L of Plaintiffs' Motion for Summary Judgment filed and served on you in this
case on June 15, 2009.
ANSWER: Defendant objects because it is unclear what Plaintiff wishes to have
..auth.enticated". Therefore, Defendant is unable to properly respond.. Subject to this
objection Defendant would respond that E and F appear t<? be accurate copies of the
original notices. G appears to be a copy of the incomplete notice referenced in the letter
dated May 26th and attached to F. H appears to be an accurate copy of the minutes
depicted. I, J, and K appear to be an accurate screen grab of the website. It is unclear
what L is but it appears to be something that comes fro.n the Boardbook program.
Defendant's Answer5 to PlaindflS' Second Set af Interrogatories,
Requests for Admissions and Request for Production - Page 6
#491701
INTERROGATORY NO. 28: Authenticate each of the following Bxbl'bits I, 2, 3, 4, 5,
and 6 of Plaintiffs' Original Petition and Application for Issuance of a Tempomy
Restraining Order without Notice and Temporary Injunctions with Supporting
Documentation and Affidavit filed and served on you in this case on May 29, 2009.
ANSWER: Defendant objects to this Interrogatory for the reason that it is duplicative
of Interrogatory Nos. 24 through 27. Therefore, Defendant would make refeience to its
answers therein.
INTERROGATORY-NO. l9: Authenticate each of the following Ex1noits 4, 5, 7, 9,
10, and 11including11.1, 11.2, and 11.3 of Plaintiffs' Supplement to Their Motion for
Summary Judgment filed and served on you in this case on August 14, 2009.
ANSWER: Defendant objects to this Jntem>gatory for the reason that it is overly
broad and unduly burdensome. Defendant further objects for the reason that this
Interrogatory seeks the production of :information which is not relevant and not calculated
to lead to the discovery of any relevant infonnation and is therefore beyond the scope of
the rules. Defendant further objects to the extent that Plaintiffs do not give enough detail
as to what they wish to have authenticated and therefore Defendant is unable to properly
respond. Subject to the above objections and without waiving the same Defendant would
r~pond as follows: Defendant authenticates that each of the documents referenced in the
Interrogatory above are in fiict attached to Plaintiffs' Supplement to Their Motion for
Summary Judgment. Otherwise, Defendant would make reference to its Answers to
Interrogatory Nos. 24-27. Finally, Defendant cannot authenticate anytbing else regarding
these Exln"bits.
REOUEST FOR ADMISSION NO. 36: Admit that internet notices of the board
meetings from August 13, 2008 to May 19, 2009 currently appear on your website.
RESPONSE: Admit.
REQUEST FOR ADMISSION NO. 37: Admit that Karen Linder is your
superintendent Ban:y Hacmisch"s secretary.
RESPONSE: Admit.
REOUESTFORADM.ISSIONN0.38: Admit that Suzie Jameson manages your
technology department and her job title is technology director.
RESPONSE: Admit.
REOUE§T FOR ADMISSION NO. 39: Admit that Suzie Jameson did not establish a
link to board meeting notices on the new website until May 2009.
RESPONSE: Deny.
Def'endant's AllS\vers to PJaiDtiffs' Second Set of Interrogatories,
Requests for Admissions and Requestfor Production-Page 7
#491701
REQUEST FOR ADMISSION NO. 40: Admit that Suzie Jameson was responsiole
for establishing the link to the internet board meeting notices on your website after you
updated your website in January 2009.
RESPONSE: Deny.
REQUEST FORADl\fiSSION NO. 41: Without refening to your claim of good
faith exception under TOMA, admit that intern.et notices did not appear for public view
on your website after you updated your website in January 2009.
RESPONSE: Admit that beginning on approximately January 15, 2009 through May 19,
2009 that the BoardBook link with the website had been severed and that although the
notices were properly and timely created in Boardbook and sent for posting to the website
that such notices did not actually get posted to the website. Otherwise, denied.
REQUEST FOR ADMISSION NO. 42i Without referring to your claim of good
faith exception under TOMA, admit that Suzie Jameson and Karen Linder did not know
that the link to intern.et notices for public view did not appear on your new website from
January 2009 until May 2009.
RESPONSE: Admit that Ms. Llnder and Ms. Jameson were unaware th.at the website
update work which was completed on or about January 15, 2009 severed the link with
Boardbook which had formerly allowed notices to be posted to the website via
Boardbook Otherwise, denied.
REOUESTFORADMISSIONN0.43: Without referring to your claim of good
faith exception under TOMA, admit that Suzie Jameson and Karen Linder did not know
from January 2009 until May 2009 that internet notices did not appear on your website
and were not available for public viev.rin.g.
RESPONSE: Admit for the period of approximately January 15, 2009 through May 18,
2009. Otherwise, denied.
REQUEST FOR ADMISSION NO. 44: Admit that Karen Linder w~. neither
designated nor authorized to sign notices of board meetings by your board of trustees.
RESPONSE: Deny.
REQUEST FOR AD1\1ISSION NO. 45: Admit that Karen Linder was neither
designated nor authorized to sign notices of board meetings by defendant's
superintendent.
RESPONSE: Deny.
REQUEST FOR ADMISSION NO. 46: Admit that Ramiro Soto was your employee
during the school year 2008-2009.
Defendant's Answers to Plain1iiJS' Second Set of JnterrogatOrles,
Requests for Admissions and Requ~ for Production - Page 8
#491701
- ... 'II
RESPONSE: Admit
REOUESTFORADMISSIONN0.47: Admit that Ramiro Soto's job included
custodial functions at your central administrative office building, Carver Center, during
school year 2008-2009.
RESPONSE: Admit.
REQUEST FOR ADMISSION NO. 48: Admit that the board approved school
calendar for the year 2008-2009 designated March 16, 2009 through March 20, 2009 as
ooli``- ·
RESPONSE: Admit..
REQUEST FOR PRODUCTION NO. 23: Produce all electronic internet website
notices of your board meetings on a Compact Disk (''CD'') including notices or
documents in Adobe PDF, Microsoft Word. or WordPerfect formats for the board
meetings
a. for which the internet notices did not appear on your website for public
view at any time during August 13, 2008 to May 19, 2009 and for which
you claim good faith exception under TOMA
b. for all other board meetings {other than in "Request for Production No.
23a., herein above) between August 13, 2008 to May 19, 2009.
RESPONSE: Defendant objects to Request for Production No. 23 for the reason that
Defendant has previously produced to Plaintiffs these same documents.
REQUEST FOR PRODUCTION NO. 24: Without rofcning to your assertion of claim
to exception under TOMA Sec. 551.056(d)
a. Produce all documents, including information in electronic form, in
support of your contention that you complied with the intern.et website
posting requirement for school districts pursuant to TOMA Sec.
551.056(b);
b. Ifthe documents in "Request for Production No. 24a." herein above are in
electronic fonn, produce such documents on a Compact Disk ("CD").
RESPONSE: See the emails between Ms. Linder and Ms. Jameson which were
previously produced in response to Plaintiffs' First Interrogatories, Requests for
Admission and Requests for Production.
REQUEST FOR PRODUCTION NO. 25: Produce all documents in support of your
assertion th.at the non-appearance of the internet notices for public view on your website
of any board of trustees' meetings during the time period August 2008 through May 14,
2009 was due to a technical problem beyond your control and that you made a good faith
Defendant's Answers to PlaintiflS' Second Set oflDtemJgatorles,,
Requests for Admlssious and Request for Production - Page 9
#491701
attempt to comply with TOMA's requirement to post concurrent internet notices on your
website.
RESPONSE: See the emails between Ms. Linder and Ms. Jameson which were
previously produced in response to Plaintiffs• First Interrogatories, Requests for
Admission and Requests for Production.
REQUESTFORPRODUCTIONNO. 26:Produce all documents in support of your
assertion that Karen Linder is authorized to verify defendant's answers to plaintiffs'
interrogatories served on you in this lawsuit pursuant to Texas Rules of Civil procedure.
RESPONSE: None.
REQUEST FOR PRODUCTION NO. 27: Produce all documents in support of your
assertion that Karen Linder was authorized or designated to sign notices of board
meetings.
RESPONSE: None.
REQUEST FOR PRODUCTION NO. 28: Produce all documents in support of your
assertion that Karen Linder was authorized or designated to post notices of board
meetings.
RESPONSE: None.
REQUEST FOR PRODUCTION NO. 29: Produce job descriptions of Karen Linder,
Suzie Jameson, and Ramiro Soto for the years 2007, 2008, and 2009.
nESPON.SE: Defendant has already produced a job description for Karen Linder. See
her Affidavit attached in Response to Plaintiffs Motion for Swnmazy Judgment.
Defendant objects to the request to produce job descriptions for Ms. Jameson and Mr.
Soto for the reason that they are not relevant and not calculated to lead to the discovery of
any relevant :information and is therefore beyond the scope of the Texas Rules.
REQUEST FOR PRODUCTION NO. 30: Produce your School Calendars approved by
your Board ofTrustees for the years 2008-2009 and 2009-2010.
RESPONSE: Defendant objects to this Request for the reason that it is overly broad and
seeks the production of information which is not relevant and not calculated to lead to the
production of any relevant information and is therefore beyond the scope of the Texas
Rules.
REQUEST FOR PRODUCTION NO. 31: Produce all contracts, including BoardBook
contracts. that provided you services concerning posting internet notices on your website
for your board meetings for the years 2007, 2008, and 2009.
Defendant's .Answers to Plaintiffs' Second Set of Interrogatories.
Reqoemfor Admissions and Request for Production - Page I 0
#491701
.'
RESPONSE: None.
REQUEST FOR PRODUCTION NO. 32: Produce all documents evidencing that
March 16, 2009 through March 20, 2009 were work days for you.
RESPONSE: Defendant objects for the reason that ''you" is not defined. Therefore, it is
unclear who this Request is directed to.
REQUEST FOR PRODUCTION NO. 33: Produce all documents including contracts
with web service providers in support of your assertion that you updated your website in
January 2009.
RESPONSE: None.
Defendant's Answers to Plaintiffs' S~ond Set or Interrogatories,
Reqnests for Admissions and Request for Production-Page 11
#491701
.... • \•' !'
YERIFICATION
STATE OF TEXAS §
§
COUNTY OF GRAY §
BEFORE ME, the undersigned authority9 on this day personally appeared Karen
Linder9 Secretary/Assistant to the Superintendent of Pampa Independent School District.
known to me personally by presenting her driver's license, who being duly sworn on her
oath deposed and said that she is duly qualified and authorized in all respects to make this
affidavit, that she has read the above and foregoing Defendanes Answers to Plaintiffs'
Second Set of Interrogatories, Requests for Admissions and Request for Production; and
that every statement contained therein is within her knowledge and is true and cozrect.
Karen Linder
Defendant'• Answers to Plaintiffs' Second Set of Interrogatories.
Requests for Admissions and Request for Production-Page 12
fl491701
Appendix 11
Defendant’s Supplemental Answers
to Plaintiffs’ First Interrogatories,
Requests for Production, and
Requests for Admission (PX11)
No. 35,621
REBECCA TERRELL and § IN THE 223rd DISTRICT COURT
CHANDRASHEKRAR THANEDAR §
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DEFENDA.l\1T'S SUPPLE1\1ENTAL Al"\1SWERS TO
PLAlNTIFFS' FIRST INTERROGATORIES,
REQUESTS FOR PRODUCTION, AND REQUESTS FOR ADMISSION
TO: Plaintiffs, Rebecca Terrell and Chandrashekhar Thanedar, 1000 North Wells St.,
Pampa, Texas 79065.
COMES NOW Defendant, PAMPA INDEPENDENT SCHOOL DISTRICT,
(hereinafter "Defendant'') in the above-styled and numbered cause, and, pursuant to the
Texas Rules of Civil Procedure, makes the following Supplemental Answers to Plaintiffs'
First Interrogatories, Requests for Production and Requests for Admission to Defendant.
Respectfully submitted,
W. Wade Arnold
State Bar No. 00783561
Andrea Slater Gulley
State Bar No. 24045994
UNDERWOOD, WILSON, BERRY,
STEIN & JOHNSON, P.C.
P.O. Box 9158
Anlarillo, Texas 79105-9158
806-3 76-5613 - FAX: 806-349-9471
By: v.
W. Wade.Amold
~
ATTORNEYSFORDEFENDANT
1
PX
Defendant's Supplemental Answers to Plaintiffs'
First Jntcrragatories, Requests for Production, and
Requests for Admission
EXHIBIT
II
#494359
D
CERTIFICATE OF SERVICE
I hereby certify that on the 14th day of April, 2010 a true and correct copy of the
above and foregoing document was delivered via certified mail to and properly addressed
as follows:
Rebecca Teirell
Chandrashekbar Thanedar
1000 N. Wells Street
Pampa, Texas 79065.
Defllndant's Supplemenllll Answels to Plainlillii• 2
First Jntunoptarles. Requests for Production, and
Requesis for Admbsion
#494359
.....
INTERROGATORIES
INTERROGATORY NO. 3: Identify the names and the positiODS of all persons
involved in posting the internet notices ofboard meetings on your website.
SUPPLEMENTAL .ANSWER: Karen Linder. For clarification, Karen Linder is
solely responsiole for posting internet notices. Suzie Jameson is the IT coordinator. Ms.
Jameson was the one responsible for making changes to the District website in January of
2009 which inadvertently resulted in the severance of the link between Boardbook and
the website.
INTERROGATORY NO. S: State all teclinical problems that you believe caused
your failure to comply with the legal requirement of posting internet notices of your
board.meetings on your website per TOMA.
SUPPLEMENTAL ANSWER: See Answer to Interrogatory No. 4. Defendant did
comply with all requirements of TOMA. Defendant would further supplement its BDSWer
by stating that Suzie Jameson was the IT employee that updated the District website on or
about January 15, 2009. This update resulted in the severing ofth.e in.temet link between
Boardbook and the website. This technical issue was not discovered until May of 2009 at
which time the link was reestablished. The technical problem was the severance of the
link with the updating of the website. Defendant would further supplement by stating that
it was a technical problem beyond Defendant>s control because the website link with
Boardbook was severed during a website maintenance update by Defendant's IT
department. This severance of the link with Boardbook was not known by Defendant and
was therefore beyond Defendant's control.
INTERROGATORY NO. 6: State all reasons why you believe the technical
problem(s) td.entificd in !Dtoaogatory No. S herein above were beyond yaur control.
SUPPLEMENTAL ANSWER: See Answer to Interrogatory No. 4. Defendant
would supplement its answer as stated for Interrogatory No. S above and would :further
state that the technical probl~ i.e. the severance of the link between the website and
Boardbook, was not known to Detendant or its employees until May 2009. Defendant
would further supplement by stating that it was a technical problem beyond Defendant's
control because the website link with Boardbook was severed during a website
maintenance update by Defendant's IT deparbnent. This severance of the link with
Boardbook was not lm.own by Defendant and was therefore beyond Defendant's control.
INTERROGATORY NO. 7: State when and how you became awaro of the
technical pmblem(s) identified in Jntetrogatory No. S herein above.
SUPPLEMENTAL ANSWER: Defendant became aware when it was reported to
Defim.dant by PlaintiffS herein that the notices were not online. Defendant would :further
supplement by stating that it was a technical problem beyond Defendant's control
because the website link with Boardbook: was severed dming a website maintenance
Defemlant"s 5uppllmallll Amweas to .Plainuffs• 3
First fn1lmlp1vries. Reques1s fbr Procluclion.1111d
Requests tbr Admission
#494359
.....
update by Defendant's IT department. This severance of the link with Boardbook was not
known by Defendant and was therefore beyond Defendant's control. Defendant will
supplement its answer by stating that Plaintiffs brought to the attention of Defendant the
non appearmce on the notices on the District website. This occurred on or about May IS~
2009. It was brought to the attention of Karen Linder who then checked with SU2ie
Jameson about the problem. The problem was then immediately corrected.
INTERROGATORY NO. 8: Identify the names of the persons who were aware
of the technical problem(s) identified in Interrogatory No. S herein above and of your
efforts to resolve them between. the time period August 13, 208 [sic] to May 19, 2009.
SUPPLEMENTAL ANSWER: Karen Linder. The problem was resolved when Ms.
Linder reported it to Technology Services Department head Suzie Jameson who then
determined that the form.er link between Boardbook and the District website had been
severed. She then reestablished the link. Defendant would supplement by making
reference to the emails (email string in May 2009 between Linder and Jameson) attached
to by Defendant to its original Responses to Plaintiffs' Requests for Production.
Defendant would :further supplement that the technical problem was discovered in May
2009.
INTERROGATORYN0.10: State when and how the technical problem(s)
identified in Interrogatory No. 5 herein above were resolved.
SUPPLEMENTAL ANSWER: See Answers to Interrogatories 6 through 9.
Defendant would supplement its answer by stating that the technical problem with the
website notices was both discovered and fixed on or about May 15111 through19th 2009.
See the emails attached to Defendant's discovery responses. Also see the Affidavit of
Karen Linder attached to Defendant's Response to Plaint:ifrs Motion for Summary
Judgment as if si;C: £ort:h. at lcmgth herein..
REQUESTS FOR PRODUCTION
REQUEST FOR PRODUCTION NO. 6: Produce all documents concerning
communication to and from vendors includmg BoardBook, of the-technical problems in
connection with your failure to comply with the intemet posting requirement of board
meetings per TOMA and the resolution of such technical problems.
SUPPLEMENTAL RESPONSE: Object to rhe extent that no violations of TOMA
occurred. Otherwise, Defendant would respond none. Defendant would further make
reference to its Interrogatory· answers above (Interrogatory Nos. 5-8) conceming the
technical problem which caused the intemet notices not to be posted (i.e. the severance of
the link with Board.book in January 2009) and would further direct Plaintiffs to the emails
previously produced in response to Plaintiffs First Requests for Production which
represents an email string between Ms. Linder and Ms. Jameson. ·
Ddendant's Supplemental Ans\\'ers to Plaintiffs' 4
FUst Jn1e1JOpturies. Requests for Producnon. and
Requests for Adlrlimon
#4943S9
REQUEST FOR PRODUCTION N0.15: Produce all documents concerning
your response to Request for Admission No. I, herein. above.
SUPPLEMENTAL RESPONSE: None. Defendant would additionally respond that a
copy of the •".Boardbook Contraof' as referenced in the Comt's letter m1ing of April 12,
2010 was previously produced to Plaintiffs by Defendant by letter dated August 27, 2009
from Defendant Counsel Andrea Slater Gulley to Plaintiff Thanedar. Defendant would
make reference to this production as if set forth at length herein.
REQUESTS FOR ADMISSION
REQUEST FOR ADMISSION NO. 6: Admit that you have never posted notices of
board meetings on a bulletin board in your central administrative building.
SUPPLEMENTAL RESPONSE: Defendant withdraws its original objection and
response to this Request and responds as follows: Denied.
REQUEST FOR ADM1SSION NO. 13: Admit that Karen Linder does not have a
college degree or work experience in computer technology.
SUPPLEMENTAL RESPONSE: Defendant objects to Request for Admission No. 31
for the reason that it is harassing and seeks the production of information which is not
relevant and not calculated to. lead to the production of any relevant information and is
therefore beyond the scope of the Texas Rules of Civil Procedure. Subject to the above
objection Defendant denies the Request for Admission.
REQUEST FOR ADMISSION NO. 26: Admit that internet website notices were not
on your website for public viewing 72 hours prior to the board meetings for the period
fiom August 13, 200S to Ma.y IR. 2009.
SUPPLEMENTAL RESPONSE: Defendant admits that due to a technical difficulty the
notices did not actually appear on the website for the period January 15, 2009 until May
19, 2009. Otherwise. Defendant denies.
.Defendant's Supplemental Answers w Plaitatiffs' 5
First Jntenogatories. Requests far Production, and
RequeslS for Admission
#494359
...
> •
VERIFICATION
STATE OF TEXAS §
§
COUNTY OF GRAY §
BEFORE ME, the undersigned authority, on this day personally appeared Karen
Linder, H:irea Ui?dec of Pampa Independent School Distrl~ known to me
personally by presenting her driver's license, who being duly swom on her oath deposed
and said that she is duly qualified and authorized in all respects to make this affidavit,
that she has read the above and foregoing Defendanes .Answeis to Plaintiffs,
Interrogatories; and that every statement contained therein is within her knowledge and is
true and correct. ··
Karen Linder
SUBSCRIBED AND SWORN TO BEFORE ME on the JJ/ tJ. day of April,
2010 to certify which witness my band and official seal.
omodant's SupplemCD181ADswC1s10 PlaislliffS• 6
f"im IuterroploriE. RequcslS filr Plocluaion. and
ReqllllSIS 1br Admission
1#494359
Appendix 12
Plaintiffs’ Second No-Evidence
and Traditional Motion
for Summary Judgment
.. . 217
CAUSE NO. 35621
REBECCA TERRELL and
CHANDRASHEKHARTHANEDAR
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IN THE 223 RD DISTRICT CQVRT
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Defendant §
PLAINTIFFS' SECOND NO-EVIDENCE AND TRADITIONAL
MOTION FOR SUMMARY JUDGMENT
TO THE HONORABLE JUDGE OF THE COURT:
Plaintiffs Rebecca Terrell and Chandrashekhar Thanedar file this their second no-
evidence and traditional summary judgment motion (Second Motion), and in support respectfully
show the Court the following:
I. REASON FOR THE SECOND MOTION
1. On remand of this case from the ih Court of Appeals, plaintiffs have filed two
supplemental petitions - first supplemental petition on June 11, 2012 and the second
supplemental petition on October 18, 2012. Plaintiffs' amended no-evidence and traditional
motion for summary judgment was denied by Judge Vanderpool on August 24,2012.
2. Plaintiffs filed their motion to recuse the 223rd district court Judge Phil Vanderpool on
September 24, 2012 due to partiality towards defendant PISD and violation of plaintiffs' due
process rights. On September 26, 2012, the district clerk entered an order of recusal by Judge
Vanderpool. On October 15, 2012, senior Judge Abe Lopez was assigned to this case.
217
•
218
3. The only fact question identified by the 7th Court of Appeals in its opinion was PISD's
claim of "good faith" regarding the untimely "creation dates" and the "non-appearance" of its
internet notices from Jan. 2009 through 5119/2009 on its website and/or on BoardBook's
website. Terrell vs. Pampa ISD, 345 S.W.3d 641 (Tex. App.--Amarillo 2011, pet. denied). See
TOMA §§551.056(b) and (d).
4. PISD's alleged "good faith" defense is a fraud on taxpayers of Texas, appeals
court, and this Court and a brazen obstruction of justice for the last 3 Y2 years. This defendant
governmental entity, a taxpayer funded school district no less, is under the mistaken impression
that it can continue to engage in this fraud against pro se Texas citizen taxpayers in this case.
Since the beginning of this lawsuit in May 2009, PISD deliberately engaged in obstruction of
justice by refusing and failing to produce documents in response to plaintiffs' discovery requests
1
that will show that PISD did not have BoardBook service for the period from January 15, 2009
to May 19, 2009 - period of 5 months for which it claims it had BoardBook service and for
which it claims "good faith" exception under §551.056(d) for "non-appearance" of its internet
notices. PISD admits the "non-appearance" of notices for said 5 months and blames the "link" to
BoardBook service for not working. CR807, CR814-816. CR766-767. 2 It further admits that the
untimely notices appeared on BoardBook's website on 5/19/2009 for the previous 5 months.
CR816. But PISD refuses to produce documents that show that it paid license fees or renewal
fees to BoardBook for 1/2009 to 5/19/2009 or for the relevant years 2008 and 2009 for
1
PISD frivolously refuses and resists discovery for the last 3 112 years objecting to such discovery as "not
relevant" and "beyond the scope of Texas Rules of Civil Procedure" while brazenly claiming good faith
exception based on the same BoardBook service. This is nothing but mockery of TOMA and the justice
system. PISD alleges that a link to BoardBook is necessary for public to view TOMA mandated internet
notices which reside on BoardBook's website.
2
The Clerk's Record is cited as "CR[page]," and Supplemental Clerk's Record cited as "SCR[page]."
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 2 of 43
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BoardBook service. Exhibits 20, 21. PISD refuses to produce requested documents and its
personnel for deposition. PISD's motion to quash depositions has been denied.
PISD has further refused to supplement discovery in violation of Tex. R. Civ. Pro 193.5
concerning its alleged contract for service with BoardBook for the period 1/2009 to 5/19/2009.
PISD refused and failed to produce documents showing that it ever paid the initial licensing fee
of$1,600 or any subsequent renewal fees for service to BoardBook. Exhibits 14, 20, and 21.
There is no evidence of an executed contract with BoardBook for the relevant time period
in question- 1/2009 to 5/19/2009. Because there is no evidence of consideration moving from
PISD to BoardBook for the above period and because PISD refuses to provide such evidence, as
a matter of law, the allegation of BoardBook service is legally invalid and at best speculation and
not legal evidence. Kindred v. Con!Chem., Inc., 650 S.W. 2d 61, 63 (Tex. 1983). Advantage
Physical Therapy, Inc. v. Cruse, 165 S.W. 3d 21, 24 (Tex.App.-Houston [14th Dist.], 2005 no
pet.) (without consideration, there is no contract). PISD could not and did not have an executed
contract and service with BoardBook for the period in question for which PISD claims good
faith. Notably, PISD does not claim good faith defense for 8/13/2008 through 12/2008 and there
is no evidence in the record of consideration from PISD, valid contract or service with
BoardBook for that period.
PISD further refused and failed to provide documents in response to discovery requests
evidencing it paid license or renewal fees for BoardBook service and has refused to supplement
discovery in violation of TRCP 193.5. The draft BoardBook agreemene (signed only by PISD,
3
The Texas Attorney General's opinion (CR368-371) in favor of plaintiff Thanedar forced PISD to
produce this fabricated draft agreement. This draft agreement presumably covers a 12 month period from
10/12/2007 to 10/12/2008. However this draft, even if presumed valid, would cover at the most only
about 2 months in question in this case - part of August 2008 to part of October 2008 and does not cover
the period Jan. 2009-May 19, 2009 for which PISD claims good faith defense under TOMA.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 3 of 43
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but not by BoardBook) clearly states that the subscription agreement is not effective until the
$1,600 fee or a purchase order in that amount is received by BoardBook. Exhibit 14 (see "Fees"
and "Terms"). Because there is absolutely no evidence in the record that PISD ever paid the
original $1,600 (or a purchase order for $1 ,600) or subsequent renewal fees to BoardBook for
2008 or 2009, PISD cannot as a matter of law prove that it had BoardBook service for the period
in question from 8/13/2008 through 5/19/2009. Thus, there is not even a scintilla of evidence
that PISD had BoardBook service in effect from January 2009 through 5119/2009 - a period for
which PISD claims good faith defense concerning why internet notices did not "appear" on
PISD/BoardBook website.
PISD willfully engaged in subterfuge and obstruction of justice by fabricating a good
faith defense of missing "link" to BoardBook service in this lawsuit knowing full well that it did
not even have BoardBook service because it did not pay the license fees to BoardBook for the
period in question. For this obstruction of justice and subterfuge PISD and its counsel deserve
substantial sanctions as punishment for this misconduct. In addition, this case concerns
persistent willful pattern of violations of Texas Open Meetings Act, Gov't Code Ch. 551, for 22
Meetings from 8/13/08 through 5/19/09 by defendant PISD.
5. PISD's misrepresentation concerning its unsupported assertion that "create dates of
BoardBook notices were in actuality print dates" requires sanctions. PISD deliberately
misrepresented to the 7th Court of Appeals that the "create dates" of the untimely PDF internet
notices in BoardBook were in fact the dates on which website notices were "printed" for
plaintiffs. See Appeals Court's Opinion Pgs. 5-6; Exhibit 3. PISD has failed to provide
supplementation in question in violation of the appeals court's opinion and TRCP 193.5 and
further failed to indicate where in the record such evidence exists, if at all.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 4 of 43
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As noted by the appeals court, it does not. Opinion Pgs. 5-6. Thus PISD's argument
before the appeals court was a deliberate misrepresentation made to delay this case and obstruct
justice. Such misconduct on the part of PISD and counsel deserves substantial sanctions.
II. PISD'S TOMA VIOLATIONS AND FRAUD
A. Actions Taken In 22 Board Meetings Are At Issue: PISD's violations of notice
provisions of TOMA concern the actions taken in the 22 meetings of the Board of Trustees of
PISD between August 13, 2008 to May 19, 2009 ("22 Meetings"). Specifically, the 22 Meetings
were held on 8/13/08; 8/21/08; 9/4/08; 9/18/08; 10/2/08; 10/9/08; 10/23/08; 1116/08; 11120/08;
12/4/08; 12/18/08; 1/15/09; 2/5/09; 2/19/09; 3/12/09; 3/26/09; 4/2/09; 4/16/09; 4/21/09; 4/23/09;
517109; and 5/19/09. Exhibit 7, Exhibit 11 (Req. for Admission No. 19).
Thus, PISD's Board of Trustees (Board) held 11 meetings each in 2008 and 2009 from
8/13/08 to 5/19/09.
B. Violations of TOMA provisions4 at Issue in this motion:
• §551.051: PISD violated §551.051 by failing to post notices of 3/26/09 board meeting
and 22 Meetings in a specifically designated place - Bulletin Board in its Central
Administrative Office (Central Office) as required by TOMA.
• §551.056: PISD violated §551.056 by failing to concurrently post internet notices of
3/26/09 board meeting and 22 Meetings on its website for prescribed time and manner.
• §551.043: PISD violated §551.043 by failing to post notices of 3/26/09 board meeting
and 22 Meetings at a physical location for prescribed time (72 hours) and manner.
• §551.041: PISD violated §551.041 by failing to specify "place" (Pampa, Texas) in its
notices (internet and paper notices) of 3/26/09 board meeting and 22 Meetings.
• §551.101 and §551.074(b): PISD violated §551.101 by failing to legally close the
3/26/09 Board meeting and violated §551.074(b) by deliberating on Terrell's termination
in closed meeting.
4
References to the Texas Government Code Chapter 551 (TOMA) will be by reference to"§ _ _" or
"Sections_ _," or "TOMA §_ _."
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 5 of 43
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222
• §551.045(d): PISD violated §551.045(d) because PISD's notices (website and physical
location) of 3/26/09 board meeting and 22 Meetings were signed on behalf of the Board
and posted by a person (Karen Linder) not so designated nor authorized by PISD's Board
of Trustees (Board).
C. TOMA Violations Are Distinct: The statutory language of TOMA is clear that the
above notice provisions are distinct, and failure to comply with any one of the notice provisions
renders the action(s) in violation ofTOMA and thus voidable. §551.141.
III. LEGAL STANDARD
A. Post-Remand Proceedings
Reason for Remand: On appeal by plaintiffs, the 7th court of appeals acknowledged that
PISD indeed was untimely in posting internet notices in violation of TOMA §551.056(b).
However, appeals court reversed and remanded the case on the grounds that there is no evidence
in the record concerning PISD's alleged argument that "create" dates of its electronic PDF
notices posted on PISD/BoardBook's website were in fact dates on which PISD printed the
website notices for plaintiffs for delivery to them. See appeals court's Opinion Pages 5-6, Terrell
vs. Pampa ISD, ih District Court of Appeals, 07-10-00212-CV, 345 SW3d 641, 04-29-11.
Appeals court has further ordered that post-remand proceedings be consistent with its opinion
and reason for remand. See 7th court of appeals mandate dated 1/6/12.
It is well established that trial court lacks the power to deviate from the instructions in the
mandate issued by the court of appeals. "The [lower tribunal] on remand is ... required to proceed
in accordance with the rules and reasoning stated in the appellate court's opinion, as both the
letter and the spirit of the mandate is to be implemented." 5 Am. Jur. 2d, Appellate Review
(1995), §785 at 454. Therefore, [a lower tribunal] is not free to ignore the mandate and opinion
of the remanding appellate court, but instead must proceed in conformity with the v1ews
expressed by the appellate court. 5 Am. Jur. 2d, Appellate Review (1995), §786 at 455.
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 6 of43
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223
As the appeals court has given specific reason for remand and instructions, the mandate
controls the framework of post-remand proceedings. The trial court is required to comply
exactly with the mandate in effecting the remand. Hudson v. Wakefield, 711 S.W.2d 628, 630-
631 (1986); ATSPAC v. Sierra Club, 843 S.W.2d 683, 690 (1992); Dallas County v. Sweitzer,
971 S.W. 2d 629 (Texas. App.--Dallas 1998). Therefore in this case, trial court's jurisdiction
extends to conducting proceedings and further discovery regarding the reason for remand and
applying law to the record facts concerning all of the violations of TOMA alleged by plaintiffs in
this case.
B. Summary Judgment Standard
Plaintiffs move for no-evidence and traditional summary judgment under Rule 166a of
the Texas Rules of Civil Procedure. A party moving for summary judgment must show that no
genuine issue of material fact exists and that the party is entitled to judgment as a matter of law.
Tex. R. Civ. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex.
1995); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex. 1985). A party
seeking to recover upon a claim may move for a summary judgment in his favor upon all or any
part thereof and a summary judgment may be rendered on the issue of liability alone although
there is genuine issue as to the amount of damages. Tex. R. Civ. P. 166a(a).
Under the no-evidence summary judgment standard, a court properly grants a no-
evidence summary judgment if the non-movant fails to bring forth more than a scintilla of
probative evidence to raise a genuine issue of material fact as to an essential element of the non-
movant's claim. See Tex. R. Civ. P. 166a(i); Merrell Dow Pharmaceuticals, Inc. v. Havner,
953 S. W. 2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 119 (1998). Less than a scintilla of
evidence exists when the evidence is "so weak as to do no more than create a mere surmise or
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 7 of 43
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224
suspicion" of a fact, and legal effect is that there is no evidence. Kindred v. Con/Chem., Inc.,
650 S.W. 2d 61,63 (Tex. 1983). The party with the burden of proof at trial will have the same
burden of proof in a summary judgment proceeding. Esco Oil & Gas, Inc. v. Sooner Pipe &
Supply Corp., 962 S.W.2d 193, 197 n.3 (Tex. App.-Houston [1st Dist.] 1998, writ denied). Thus
plaintiffs without presenting summary judgment evidence may move for summary judgment on
the ground that there is no evidence of one or more essential elements of a defense on which
defendant has burden of proof at trial. See Tex. R. Civ. Proc. Rule 166a(i). Weiss v. Mechanical
Associated Serv., Inc., 989 S.W. 2d 120, 123 (Tex. App.-San Antonio 1999, writ denied).
C. Texas Open Meetings Act, Government Code Ch. 551 (TOMA)
1. Standing under TOMA: §551.142(a) authorizes any interested person to bring a
civil action under TOMA. §551.142(a); see Cameron Cnty. Good Gov't League v. Ramon, 619
S.W.2d 224, 230-31 (Tex. App.--Beaumont 1981, writ refd n.r.e.). In keeping with the purpose
of TOMA, standing under TOMA is interpreted broadly. See Burks v. Yarbrough, 157 S.W.3d
876, 880 (Tex. App.--Houston [14th Dist.] 2005, orig. proceeding; Hays Cnty. Water Planning
P 'ship, 41 S. W.3d at 177. Also see City of San Antonio v. Fourth Court ofAppeals, 820 S. W.2d
762,765 (Tex. 1991)(holding that the intended beneficiaries of the Open Meetings Act are
"members of the interested public").
Standing conferred by TOMA is broader than taxpayer standing, and a citizen does not
need to prove an interest different from the general public, "because 'the interest protected by the
Texas Open Meetings Act is the interest of the general public."' See Hays Cnty. Water Planning
P'ship, 41 S.W.3d at 177-78 (quoting Save Our Springs Alliance, Inc. v. Lowry, 934 S.W.2d
161,163 (Tex. App.--Austin 1996, orig. proceeding). See also City of Fort Worth v. Groves, 746
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 8 of 43
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225
S.W.2d 907 (Tex.App.--Fort Worth 1988, no writ)(resident of Arlington had standing to bring
suit for declaratory judgment and injunction against City of Fort Worth for violation ofTOMA).
Plaintiffs have standing as members of the general public in Texas. Exhibits 7, 26. See
Burks, !d.; Hays Cnty Water Planning P'ship, !d. Further plaintiffs have standing because they
are interested persons under TOMA. Exhibit 7. See §551.142(a); Cameron Cnty Good Gov't
League, !d. Further plaintiffs Terrell and Thanedar have standing in this case because they are
Texas residents, citizens, and taxpayers that fund defendant PISD and all other public school
districts, and who are interested in government entities' honest and voluntary compliance with
TOMA and open government. Exhibits 7, 23, 24, 25 and 26. Further, Terrell and Thanedar are
interested persons under TOMA because PISD terminated Terrell's teaching contract (Exhibit
22) in PISD's 3/26/2009 Board meeting which was held in violation of TOMA's notice
provisions as set forth in plaintiffs' original petition and in this motion. Terrell seeks the relief of
reinstatement upon voidance of the unlawful Board action terminating her contract on 3/26/09.
As such Terrell is interested in resuming her employment with PISD as a Texas certified teacher
upon successful conclusion of this legal action in her favor. §551.142(a). Exhibits 7, 25, 26.
2. Unlawful Actions Judicially Voided: An action taken by a governmental body in
violation of TOMA is voidable. Tex. Gov't Code §551.141. Swate v. Medina Cmty. Hospital,
966 S. W.2d 693, 699 (Tex. App.--San Antonio 1998, pet denied). Governmental actions in
violation of the Texas Open Meetings Act have been judicially declared void. See Ferris v.
Texas Board ofChiropractic Examiners, 808 S.W.2d 514, 518-519 (Tex. App.--Austin 1991,
writ denied); Also See Point JsabellS.D. v. Hinojosa, 797 S.W.2d 176, 179 (Tex. App.--Corpus
Christi 1990, writ denied). An interested person may bring an action by mandamus or injunction
to stop, prevent, or reverse a violation or threatened violation of TOMA. Texas Gov't Code §
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 9 of 43
225
•
226
551.142. Hays County Water Planning P'ship, 41 S.W.3d at 177-78 (quoting Save Our Springs
Alliance, Inc., 934 S.W. 2d at 163).
3. Texas Supreme Court has demanded Exact and Literal Compliance: The law
with respect to the compliance with the notice provisions of TOMA has been well settled for
more than 20 years. The Texas Supreme Court has demanded Exact and Literal Compliance
with TOMA. See Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990). ("The
explicit command of the statute is for openness at every stage of the deliberations. Accordingly,
we have demanded exact and literal compliance with the terms of this statute." [citing]
Smith County v. Thornton, 726 S.W.2d 2, 3 (Tex. 1986); City of San Antonio v. Fourth Court of
Appeals, 820 S.W.2d 762 (Tex. 1991)). Thus, "substantial compliance" under TOMA, whether
done in good faith or not, is no longer sufficient nor valid law in the State of Texas.
Nevertheless, the record shows that PISD does not even meet the overruled substantial
compliance standard concerning any of the TOMA violations alleged in this case.
Whether defendant's actions comply with TOMA is a matter of law and the controlling
material facts in this case are admitted or undisputed. This case is ripe for summary judgment in
plaintiffs' favor due to violations of TOMA detailed below. Plaintiffs are entitled to summary
judgment on facts and law presented herein.
IV. SUMMARY JUDGMENT EVIDENCE
Plaintiffs rely on the following summary judgment evidence on file which is adopted and
incorporated herein. Citations to the Clerk's Record (CR) are included when available.
Exhibit 1 Suzie Jameson's E-mail response to Karen Linder (CR820)
Exhibit 2 Information about BoardBook software by Tex. Assn. of Sch. Boards (TASB) and
its role in posting PISD's internet notices under §551.056(b) which is on file as
Exhibit 2 to the plaintiffs' amended no-evidence and traditional motion for
summary judgment filed on 5/18/2012 and referenced herein.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause
226 No. 35621 Page 10 of 43
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227
Exhibit 3 Plaintiffs' letter dated 2/28/12 requesting supplementation concerning "create
dates" of internet notices in BoardBook (which is on file as Exhibit 3 to the
plaintiffs' amended no-evidence and traditional motion for summary judgment
filed on 5/18/2012 and referenced herein.
Exhibit 4 Hardcopy of the website internet notice of the 3/26/09 board meeting. (CR 83-84)
Exhibit 5 Hardcopy of PDF document properties of the website internet notice of the
3/26/09 board meeting. (CR85)
Exhibit 6 "Revised" Notice of the 3/26/09 board meeting taped to front door of central
administrative office (Central Office) (CR18-19)
Exhibit 7 Plaintiffs' affidavit dated May 15,2012 in support of Plaintiffs' Amended No-
evidence and Traditional Motion for Summary Judgment which is on file as
Exhibit 7 to the plaintiffs' amended no-evidence and traditional motion for
summary judgment filed on 5/18/2012 and referenced herein.
Exhibit 8 Plaintiffs' receipts for monies paid for paper copies of board meeting notices
on 5/15/09 which is on file as Exhibit 8 to the plaintiffs' amended no-evidence
.and traditional motion for summary judgment filed on 5/18/2012 and referenced
herein.
Exhibit 9 CD-ROM containing PISD's Internet notices of Board meetings in PDF document
format and the electronic document properties of the PDFs posted by PISD to its
website at http://www.pampaisd.net, which is on file and referenced herein
(2SCR1).
Exhibit 10 Hardcopies of the internet notices and document properties on the above
CD-ROM, which are on file and referenced herein (CR63-184).
Exhibit 11 PISD's answers to plaintiffs' first interrogatories, requests for production and
requests for admissions dated 2/23/10, which are on file and referenced herein
(CR764-788).
Exhibit 12 PISD's answers to plaintiffs' Second set of interrogatories, requests for
admissions and requests for production (dated 4/5/10), which are on file and
referenced herein (CR800-811).
Exhibit 13 PISD's supplemental answers to plaintiffs' first interrogatories, requests for
production and requests for admissions (dated 4/14/10), which are on file and
referenced herein (CR812-817).
Exhibit 14 BoardBook draft subscription agreement dated 10/12/2007 which is on file and
referenced herein (CR420-423).
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 11 of 43
227
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228
Exhibit 15 Defendant's Notice of Employment termination to Rebecca Terrell (dated April 7,
2009), which is on file and referenced herein (CR312).
Exhibit 16 Audio recording of defendant's Board Meeting of March 26, 2009-3 CDs
(2SCR3), which is on file and referenced herein.
Exhibit 17 Photos of TOMA notices posted on the front door of PISD central administrative
office and of central administrative office (CR318-320), which are on file and
referenced herein.
Exhibit 18 Linder Affidavits (Linder Affidavit 1 at CR338-340; Linder Affidavit 2 at
CR726-729) and Haenisch Affidavits (Haenisch Affidavit 1 at CR336-337;
Haenisch Affidavit 2 at CR724-725) which are on file and referenced herein.
Exhibit 19 PDF Reference, Adobe Portable Document Format (PDF) Version 1.3 on
Compact Disk (CD) which is on file as Exhibit 19 to the plaintiffs' amended
no-evidence and traditional motion for summary judgment filed on 5/18/2012 and
referenced herein.
Exhibit 20 Plaintiffs' Third Set of Interrogatories, Requests for Admissions, and Request for
Production to Defendant; and Defendant PISD's Response which is on file as
Exhibit 20 to the plaintiffs' amended no-evidence and traditional motion for
summary judgment filed on 5/18/2012 and referenced herein.
Exhibit 21 Defendant's Responses to Plaintiffs' Third Set oflnterrogatories, Requests for
Admissions, and Request for Production to Defendant; and Defendant PISD's
Response which is on file as Exhibit 21 to the plaintiffs' amended no-evidence
and traditional motion for summary judgment filed on 5/18/2012 and referenced
herein.
Exhibit 22 Plaintiff Terrell's employment contract for 2008-2009 with defendant Pampa
Independent School District which is on file as Exhibit 2 to the plaintiffs'
second supplemental petition filed on 10/18/2012 and referenced herein.
Exhibit 23 Annual Financial Report of Pampa ISD for 2008-2009 is adopted and
incorporated as if set forth verbatim herein, with Pages 18, 20, 80 of the report
attached thereto, detailing sources of defendant's funding and expenditures
which is on file as Exhibit 3 to the plaintiffs' second supplemental petition filed
on 10/18/2012 and referenced herein.
Exhibit 24 Texas Fact Book 2008 (the Fact Book) by State of Texas Legislative Budget
Board is adopted and incorporated by reference as if set forth verbatim herein -
Pages 33, 42, 46, 49, 53 from the Fact Book concerning the Sources of Revenue
and Spending on public education in Texas for 2008-2009 attached thereto,
which is on file as Exhibit 4 to the plaintiffs' second supplemental petition filed
on 10/18/2012 and referenced herein.
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 12 of 43
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229
Exhibit 25 Defendant's salary schedules and information for years 2008-2009, 2009-2010,
2010-2011, 2012-2013; and health insurance premium information for Year 2011-
2012 which is on file as Exhibit 5 to the plaintiffs' second supplemental petition
filed on 10/18/2012 and referenced herein.
Exhibit 26 Second Supplemental Affidavit of Rebecca Terrell and Chandrashekhar
Thanedar which is on file as Exhibit 1 to the plaintiffs' second supplemental
petition filed on 10/18/2012 and referenced herein.
V. UNDISPUTED FACTS
1. Undisputed facts concerning untimeliness of PISD's website internet notices and
Good Faith exception under §551.056(b) and (d)
PISD admits that internet website notices required under TOMA §551.056(b) did not
"appear" in the prescribed time on PISD or BoardBook's website for 11 meetings from 1/2009 to
5/19/2009. CR814-816, CR767.
PISD did not pay any consideration to BoardBook for its service for the relevant period
from 1/2009 to 5/19/2009 for which PISD claims good faith exception, or for any other period
relevant to this lawsuit.
There is no evidence that PISD had BoardBook service from 1/2009 to 5/19/2009. There
is no evidence of an executed contract or payment of license fees or renewal fees to BoardBook
for 1/2009 to 5/19/2009. PISD has admitted no such documents exist. CR781 (PISD's Response
to Request for Production 15).
An alleged draft agreement with BoardBook for 2007 is not signed by BoardBook.
Exhibit 14. PISD does not claim good faith exception for any period in 2007 or 2008.
The properties of the website internet notices show untimeliness in violation of TOMA
from 1/2009 to 5/19/2009 for which PISD claims good faith exception. Opinion Pgs. 5-6.
There is no evidence that the untimely "created" dates of the PDF notices of meetings in
question were the dates when "PISD [allegedly] printed the notices for delivery to plaintiffs."
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 13 of 43
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230
2. Undisputed facts concerning notice requirement of posting meeting notices on Bulletin
Board - a specifically designated place for school districts under §551.051
PISD admits and does not dispute that it posted board meeting notices on the front door
of its central administrative building for the time period in question from 8/13/2008 to 5/19/2009
(22 Meetings). Exhibits 7, 17. See Exhibit 11- Req. for Admission nos. 5 and 7.
3. Undisputed facts concerning "place" requirement under §551.041
PISD admits that for both paper and internet notices it did not specify or include the name
of the city in its notices from the period 8/13/2008 to 5/19/2009 (22 Meetings). Exhibit 6,
Exhibit 11-Req. for Admission no. 15. In certain cases, defendant's notices merely state
"Pampa High School" or "Pampa Junior High School" without stating the address. PISD does
not dispute this. Exhibit 10- See CR70-71, CR75, CR89-90, CR129-130, CR147-148, CR156,
CR167-168, CR170.
4. Undisputed facts concerning "72 Hour" notice requirement under §551.043 concerning
3/26/2009 and 5/19/2009 board meetings
Plaintiffs did not see the notice for 3/26/2009 meeting posted on the front door of the
central administrative office or in a bulletin board inside the central administrative office at 5
p.m. or 6 p.m. on 3/23/2009. Exhibit 7. This is undisputed.
Plaintiffs saw the notice for 5/18/2009 meeting posted on the front door of the central
administrative building on Saturday, 5116/2009. Karen Linder confirmed to plaintiff Thanedar
that there was an error in posting this notice because the meeting date changed to 5/19/2009 and
that Linder posted a corrected notice for a board meeting on 5/19/09 on the front door of Carver
Center -central administrative office- on 5/18/2009 because the change in meeting date to
5/19/09. Exhibit 7. No board meeting took place on 5/18/2009.
5. Undisputed facts concerning requirement to identify section(s) authorizing closed
meeting under §551.101
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 14 of 43
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231
The presiding officer of the Board did not identify the section or sections under TOMA
that authorized closing of the 3/26/2009 board meeting to public. See Exhibit 11-Req. for
Admission no. 14; Exhibits 7, 16.
6. Undisputed facts concerning requirement to deliberate in open session under §551.074(b)
The audio recording of the closed meeting on 3/26/2009 shows discussion among PISD
Superintendent Haenisch and the PISD board members on Terrell's termination. Terrell had
specifically requested the action be deliberated in open meeting per §551.074(b). Exhibits 15,
16 (Tape 2 at Counter 43:45).
7. Undisputed facts concerning "designated person" requirement under §551.045(d)
PISD's Board of Trustees did not designate or authorize Karen Linder to sign meeting
notices or post board meeting notices on Board of Trustees' behalf. PISD admits this. Exhibit
12-Req. for Production 28. Karen Linder signed and posted board meeting notices on behalf of
the Board of Trustees ofPISD. See e.g. Exhibit 6.
VI. ARGUMENT
Plaintiffs repeat the preceding paragraphs in their entirety as if set forth verbatim herein.
A. Declaratory Relief under TOMA
Plaintiffs are entitled to declaratory relief under TOMA whether or not any other relief is
granted and whether or not PISD's actions in violation ofTOMA are voided.
1. Plaintiffs are entitled to declaration that PISD violated TOMA §551.056 specifically
concerning the 3/26/09 Board meeting and 22 Meetings.
a. PISD refused and failed to produce evidence that it paid the required $1,600 fee
and any renewal fees for service to BoardBook to post internet notices for PISD
PISD admits that from January 15, 2009 through May 19, 2009 internet website notices
did not appear on its website (or its agent BoardBook's website) as required by §551.056(b).
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 15 of 43
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CR816. PISD alleges that it had BoardBook service 5 to post internet website notices of its Board
meetings on BoardBook's website since 2007. CR772. Thus by PISD's admission, BoardBook
is an agent of PISD and they were parties in joint enterprise to post PISD's Board meeting
notices as required in §551.056(b) on BoardBook website via a link on PISD website. See
CR206; CR772. PISD claims good faith defense under TOMA §551.056(d) because it claims
that the "Link" to internet notices on BoardBook's website was not established in error for 5
months until plaintiff Thanedar pointed out the problem to PISD on 5/15/2009. CR767. PISD
has the burden to produce evidence and persuade on its good faith statutory defense under
TOMA. See §551.056(d); §§551.043(b)(l) and (b)(3).
Inspite of PISD's bare self-serving claim, PISD has steadfastly refused and failed to
produce absolutely any competent evidence that PISD in fact had BoardBook service for the
period in question from 112009 to 5/19/2009 or from 8/13/08 to 5/19/2009 for 22 Meetings and
that PISD paid consideration ($1600 or any renewal fees) to BoardBook to have a valid
agreement. Exhibit 14 (See "Terms" and "Fees"). PISD refuses to produce documents or
checks showing payment of license fees and their dates, renewal notices, purchase orders from
BoardBook, or any document or communication between BoardBook and PISD showing that
BoardBook service was in effect from 1/2009 thru 5/19/2009- the period for which PISD claims
a technical problem with "Link" to BoardBook internet notices. In addition, PISD further
refused and failed to produce evidence of BoardBook service from 8/13/08 to 12/2008 - See
5
It is not disputed that BoardBook software is licensed by Texas Association of School Boards, Inc.
(TASB) to its members and that TASB is governed by its member school districts according to its public
website. Exhibit 2. BoardBook is an agent of PISD to post PISD's internet website notices to comply
with TOMA §551.056(b) as the internet notices are produced in PDF format by BoardBook and posted
and presented for public view on BoardBook website on behalf on PISD. CR205-206. Further,
BoardBook is a party in joint enterprise with PISD in posting PISD's TOMA internet notices on
BoardBook's website. Tex. Dept. ofTransp. v. Able, 35 S.W.3d 608, 613 (Tex. 2000).
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 16 of 43
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PISD's objections to plaintiffs' subpoena duces tecum at CR356-357. Incredibly, PISD further
stated no such documents exist. CR781 (PISD's Response to Request for Production 15).
Inspite of PISD's refusal, the Attorney General of Texas ordered PISD to produce
"BoardBook agreement" pursuant to plaintiff Thanedar's Texas Public Information Act request.
See CR368-371 (Attorney General's Opinion); and CR367 (Thanedar's Open Records Request).
It is revealing that the "BoardBook agreement" PISD produced was a "Draft" agreement for
2007 (Exhibit 14) which was not executed because there is NO evidence of payment of
consideration of $1 ,600 from PISD to BoardBook in the record. This "draft" or "offer" is not
signed by BoardBook and contains no space for BoardBook's signature. Thus the purported
agreement (Exhibit 14) was not executed, and is invalid because no consideration was paid.
Further the alleged 2007 draft agreement with BoardBook clearly states that unless and
until payment of fees (or a purchase order) is received by BoardBook, the BoardBook service
will not be in effect. Exhibit 14 (see "Terms" and "Fees"). Here, PISD produced no evidence
whatsoever that it ever paid the license fee for BoardBook service, nor issued a purchase order
for the license fees, for the period in question in this lawsuit from August 13, 2008 to May 19,
2009. In fact, PISD refused to produce any evidence that it ever paid license fee for BoardBook
service for any year from 2007, 2008, and 2009. See CR356-357. Exhibits 20, 21. It further
refused and failed to produce renewal notices, payments, any correspondence concerning
delivery and execution of agreement, communication between PISD and BoardBook concerning
the alleged BoardBook service PISD claims it had for these years (CR356-357) further stating no
such documents exist. CR781 (Response to Req. for Prod. 15). Exhibits 20, 21. Because PISD
refused and failed to show that it paid consideration for BoardBook service, and refused and
failed to show that it did delivery and execution of agreement, as a matter of law, there was no
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 17 of43
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•
234
agreement between PISD and BoardBook for BoardBook service to post internet notices under
TOMA. See Exhibit 14 ("Terms and "Fees"). Advantage Physical Therapy, Inc. v. Cruse, 165
S.W. 3d 21, 24 (Tex.App.-Houston[14th Dis.], 2005 no pet.) (without consideration, there is no
contract). Thus as a matter of law, PISD's good faith defense based on the alleged link to
BoardBook service [which it did not have] for posting PISD's internet notices must fail.
PISD's bare unsupported assertion that it had BoardBook service from 8113/2008 through
5/19/2009 is hearsay, mere surmise, speculation which is not legal evidence. Kindred v.
Con/Chem, Inc. at 63. Because PISD refused and failed to produce evidence of payment of
license fees for service posting internet notices to BoardBook, as a matter of law, PISD's good
faith defense under §551.056(d) must be rejected and it must be concluded that PISD's good
faith defense was subterfuge and obstruction of justice deserving sanctions by this Court.
b. "Created" Dates of Internet Notices Show Untimeliness:
The ih Court of Appeals in its opinion on 4/29/2011 ("Opinion") on this matter has
found that internet notices of the 22 Meetings in question (including the 3/26/09 meeting) were
indeed untimely i.e. appeared on PISD/BoardBook's website well after the meetings in question
were held. See Opinion at 5-6. Also see Exhibit 13-CR814-815; Exhibit 12-CR802; Exhibit 7.
The appeals court, however, remanded the case due to PISD's alleged contention that the
"created dates" of its internet Adobe PDF notices on BoardBook website were in actuality the
dates on which PISD printed the internet notices for delivery to plaintiffs. See Opinion at 5-6.
On remand, plaintiffs requested supplementation on this issue (Exhibit 3), but PISD failed to
supplement written discovery concerning the above argument it made before the appeals court,
nor did it indicate where in the record it produced such pertinent evidence. Exhibits 20, 21.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 18 of 43
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As explained above, there is no evidence that PISD even had BoardBook service, thus
"created" dates being "print" dates in BoardBook is an issue created to divert court's attention
and to mislead it- and is fraud on this Court and the appeals court. Importantly, this is an absurd
contention by PISD wholly unsupported in the "PDF Reference version 1.3." See Exhibit 19.
6
Curiously, there is no evidence that "created" dates in the document properties of PISD's
internet website notices are in actuality dates on which PISD "printed" notices for plaintiffs. In
fact the record shows the opposite - PISD did not print PISD's [untimely] website internet
notices for plaintiffs. Exhibit 7-pgs 3-6. The copies plaintiffs obtained from Linder were paper
copies of signed originals made on PISD' s office copier in the presence of plaintiff Thanedar and
had nothing to do with printing website notices which are unsigned and undated. 7 Exhibit 7-pgs
3-6; Exhibits 8, 10. Thus PISD's argument is frivolous.
The "created" date appearing in the "document properties" of PISD's own internet
notices posted and appearing on the BoardBook website effective 5/19/2009 means what it states
in the document properties - 1) the document is in Adobe PDF format and 2) it was produced
("created") in that format at the stated date and time. See Exhibit 19. Similarly, "Modified"
means what it states - the date and time on which the said document was "modified" or changed.
Created date and Modified date are standard properties in Adobe's PDF format and are
automatically generated information in Adobe PDF. Exhibits 7, 19. In fact PISD does not
6
Collins English Dictionary-complete and unabridged, Harper Collins publishers, 1991-2003 defines
create: ''to cause to come into existence." Merriam-Webster Dictionary 2012 defines create: "to bring
into existence."
7
Plaintiffs filed PISD's internet notices with document properties on CD-ROM and Hardcopies of CD-
ROM in the record as they were posted by PISD on PISD's website. Plaintiffs downloaded the internet
notices to CD-ROM and printed hard copies for filing in the record of this case as evidence. Neither said
CD-ROM nor Hardcopies of CD-ROM were given to plaintiffs by PISD. Exhibits 4, 5, 9, 10.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 19 of 43
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dispute plaintiffs' assertion that plaintiffs printed the internet notices from PISD's public website
themselves. Exhibit 12-Interrogatory No. 24(CR804).
Further PISD's vague unsupported assertion that v1ewmg PDF notices changes the
"created" and "modify" dates and times is mere surmise, incorrect, and speculation and is not
evidence. Exhibit 12-Interrogatory No. 25; Kindred, Id at 63. Also see Exhibits 7, 19.
The competent summary judgment facts are indisputable that defendant's postings of its
internet notices of board meetings from August 13, 2008 through May 19, 2009 are untimely and
they were not posted during the prescribed period under TOMA in violation of Sections
551.056(b); 551.041, 551.043(a). The web notice document properties posted by defendant
PISD on its/BoardBook website for 22 Meetings unambiguously show that the web notices were
produced or created in May 2009 and then were posted on the website untimely on 5/19/09.
Exhibits 1, 7; CR807; CR816. The definition of"created" here means to prepare or produce the
internet notices in Adobe PDF format for posting to the website for public to view the internet
notices. See Exhibit 7; Exhibits 9, 10, 19. PISD admits that internet notices did not appear on its
website from 112009 until5/19/2009. Exhibit 1; Exhibit 13-CR814-815; Exhibit 12-CR802.
The properties of the website notice of the 3/26/09 meeting (Exhibits 4 and 5) show that
the web notice was created on 5/8/09 and untimely posted on defendant's/BoardBook's website
on 5/19/09 in violation of TOMA, Texas Gov't Code §551.0568 , §551.041 9, §551.043(a) 10 •
8
The Open Meetings Act requires a school district to post notices of its board meetings on its website
concurrently for the prescribed 72 hours before the meetings. Texas Gov't Code §551.056
9
TOMA requires that "A governmental body shall give written notice of the date, hour, place, and subject
of each meeting held by the governmental body." Texas Gov't Code §551.041.
10
The notice of a meeting of a governmental body must be posted in a place readily accessible to the
general public at all times for at least 72 hours before the scheduled time of the meeting, except as
provided by Sections 551.044-551.046. Tex. Gov't Code §551.043(a).
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 20 of 43
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Exhibit 1; Exhibit 7. PISD admits that the internet notice for 3/26/09 meeting did not timely
"appear" on its website. Exhibit It-Interrogatory 13.
c. PISD's Good Faith Defense Fails As A Matter Of Law:
Remarkably, notwithstanding the subterfuge and obstruction described above, PISD's
"good faith" defense still fails as a matter of law. For the 11 out of 22 Meetings in question
concerning the violation of §551.056(b), PISD claims good faith defense under §551.056(d).
TOMA §551.056(d) provides that:
The validity of a posted notice of a meeting or an agenda by a governmental body
or economic development corporation subject to this section that made a good
faith attempt to comply with the requirements of this section that is due to a
technical problem beyond the control of the governmental body or economic
development corporation.
The definition of "Good faith" is statutorily defined: A governmental body satisfies good
faith under TOMA when it "makes a good faith attempt to continuously post the notice on the
internet during the prescribed period ... " See TOMA §§551.043(b)(l) and (b)(3).
PISD admits that for 11 meetings from January 15 to May 19, 2009 (including the
3/26/09 Board meeting) for about five months, the internet notices did not appear on its website,
but claims that it did not know that the "link" to the notices on BoardBook was not established or
was allegedly "severed." The ih court of appeals did not find that a material fact question
remains regarding the above assertion of good faith of the alleged "severance" of the "link" to
notices for 5 months. See Opinion 1-6. Thus good faith claim by PISD is ripe for summary
judgment in plaintiffs favor for the following reasons.
1. Failure to Establish Link: Because PISD failed to show competent evidence that it
paid for or had BoardBook service in January 2009, PISD's good faith defense fails. PISD failed
to "establish the link" on its new website in 1/2009 to BoardBook because PISD did not have
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 21 of 43
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BoardBook service. Exhibit 1. As explained before, PISD refused and failed to produce
evidence of payment to BoardBook for its service. Thus, the alleged claim of "severance" of
link to BoardBook is subterfuge. Suzie Jameson simply did not think the link to BoardBook
notices was necessary because there was no BoardBook service in January 2009 through
May 19, 2009. Exhibit 1. There was no "accidental" "problem" here. PISD admits that it
did not "know" of the severance of the link to BoardBook for 5 months until plaintiff Thanedar
told PISD (Linder) of the "non-appearance" of internet notices on 5/15/09. CR814-816. Such
claim of "ignorance" of the link problem for 5 months flies in the face of common sense and is
further proof of subterfuge. Exhibits 1, 7.
2. PISD Failed to Verify "Appearance" of Internet Notices on its website and failed
to Verify Compliance with TOMA for 5 Months: PISD's good faith defense fails because
PISD failed to verify compliance with §551.056(b) for 5 months, and even notice or remedy the
non-establishment of "link" to notices for 5 months. This is in violation of §551.043(b)(1) and
(3) which requires the continuous attempt to comply i.e. verify compliance and fix any problems
during the prescribed 72 hours. See §551.043(b)(l) and (b)(3); Exhibits 1, 7. The simple truth
here is that PISD did not verify "appearance" of its internet notices on BoardBook because it
knew that it did not have BoardBook service during 1/2009 thru 5/19/2009- there was no need
to verify what it already knew, that is, it was not posting internet notices on its website and was
not complying with §551.056(b).
3. Failure to Establish Link is not a "Technical" problem and is not "Beyond the
Control" of PISD: PISD's good faith defense fails because the only evidence PISD produces is
Jameson's claim that she did not establish the link to internet notices on BoardBook because she
did not think it was necessary on PISD's new website. Exhibit 1. This belief, or negligence, or
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 22 of43
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239
mistake by PISD (Jameson) is neither "technical," nor "beyond PISD's control" for 5 months.
Due diligence in compliance with TOMA is PISD's obligation under law and is well under the
control of PISD. Thus PISD fails the §551.056(d) test.
PISD tries mighty hard to pass its negligence or consciOus indifference to TOMA
§551.056(b) as a "technical problem" "beyond its control," but produces no evidence in support.
PISD produces no authority or evidence to justify why negligence or mistake is a technical
problem beyond its control. The truth is PISD (Jameson) very quickly established the link when
told that it was "necessary" after 5 months. Exhibit 1. The above is merely subterfuge because
PISD produces no evidence that it even had BoardBook service from Jan. 2009 to 5/19/2009.
4. Importantly, there is no evidence that PISD ~Checked its Website Even Once
in 5 long months to verify whether or not its internet notices required under TOMA "appeared"
on its website so that public can actually see them. No one at PISD, not Linder, not Jameson, not
superintendent Haenisch bothered to check the "appearance" of its internet notices on its website.
CR807; CR768. There is no evidence of due diligence during the 5 months of non-appearance of
internet notices on PISD's website. CR807. This is "conscious indifference" or admission of
guilt and cannot meet the good faith test under §551.056(d). Exhibit 1. CR768; CR807.
5. Plaintiffs objections to PISD's summary judgment evidence - Linder's Affidavits
and Haenisch Affidavits and PISD's answers to interrogatories
Plaintiffs object to Karen Linder Affidavit at CR338-340 ("Linder Affidavit 1") and her
supplemental affidavit at CR726-729 ("Linder Affidavit 2") and further object to Barry Haenisch
Affidavit at CR336-337 ("Haenisch Affidavit 1") and his supplemental affidavit at CR724-725
("Haenisch Affidavit 2") and PISD's answers to interrogatories.
A. Objections to Linder Affidavits (Exhibit 18): The Texas Supreme Court has held
that affidavits must be based exclusively on personal knowledge and a composite or hybrid
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 23 of 43
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affidavit must be disregarded. See Humphreys v. Caldwell, 888 S.W.2d 469, 470-71 (Tex.
1994). Linder Affidavit 1 and Linder Affidavit 2 are both defective substantively and in form as
they are not made exclusively from personal knowledge, make impermissible factual and legal
conclusions, are based on hearsay, vague, contradictory conflicting information, and are
irrelevant in part to the issues. Further, Linder is not competent to testify about any technology
issues, or TOMA and its provisions, as she purports to do in Linder Affidavits 1 and 2 which are
thus made in bad faith and must be disregarded. TRCP 166a(h); Also see Humphreys, id.,Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996). Tex. R. Civ. Proc. 166a(c);
Casso v Brand, 776 S.W.2d 551, 558 (Tex. 1989). Larson v. Family Violence & Sexual Assault
Prevention Ctr. Of S. Tex., 64 S.W.3d 506, 514 n.6 (Tex. App.-Corpus Christi 2001, pet.
denied)( Affidavits must set forth facts, not legal conclusions.) These case authorities apply to all
objections below. Objections to Linder Affidavit 2 cover same issues in Linder Affidavit 1.
1) Assertions regarding authorization to post notices (Linder Affidavit 2, ,-3, ,-4): must
be disregarded as they are vague i.e. do not state who (Board or otherwise) authorized/designated
Linder, make legal conclusions and opinions concerning compliance with TOMA which Linder
is not competent to make. Further, Linder's sworn statements are conclusively false and
contradict defendant's polices and bylaws viz. BE (Local) at CR821-823, BDAA (Local) at
CR832, and BJA (Local) at CR834-836 show that the Board retained the authority to call, sign,
and post board meeting notices to itself and did not delegate it to anyone.
2) Linder Affidavit 2, ,-5, ,-6, and ,-7 must be disregarded as they are composite and
hybrid, not exclusively made from personal knowledge, are hearsay, irrelevant in part, and make
impermissible legal and factual conclusions. Specifically:
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page24 of43
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~5- "Accessibility" of front door posting: is hearsay, vague, irrelevant to the issues, and
makes impermissible legal and factual conclusions and subjective opinions. Linder's assertion
that "[each notice] was posted on the front door at least 72 hours before each respective meeting"
is vague i.e. does not state the date and time and does not dispute that the notices of 3/26/09 and
5/19/09 board meetings were not continuously posted for the entirety of 72 hours before the
meetings, and thus her assertions must be disregarded as they do not raise a fact issue regarding
said meetings.
~6 and ~7 - Assertions about public complaints: are hearsay, vague, speculative, and
irrelevant to the issues in this case, and make factual and legal conclusions and subjective
opinions and must be disregarded. Linder is not competent, nor can make and express legal
opinions in her affidavit regarding compliance with TOMA.
3) Assertions about 3/26/09 notice (Linder Affidavit 2, ,.8): Linder's statement- "On or
before March 23, 2009, I became aware that the notice had been taken or lost from the front
door" is vague, composite, hybrid including collected "second hand" information, speculative
and must be disregarded. Linder's statement that she posted notice "still more than 72 hours" is
vague and irrelevant to TOMA issues herein as Linder does not specifically dispute that 3/26/09
meeting notice was not on the front door continuously for 72 hours without revisions before the
start time of 3/26/09 meeting. Linder does not specify the time and the date on which she taped
or re-taped the notices to the front door. Further 3/20/09 was a Board approved holiday-week of
"Spring Break", and Linder fails to assert that she worked during "Spring Break" holiday.
4) Linder's assertions about website changes by Jameson and BoardBook problems:
Linder Affidavit 2, ~9 lacks personal knowledge, is second hand information gathered
from others, composite in nature and not exclusively from Linder's personal knowledge. As
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 25 of 43
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242
secretary to Haenisch, Linder is not competent to testify about BoardBook software or any
alleged technical problems at issue here e.g. Jameson not establishing "link" to BoardBook
website concerning missing Board notices. Linder's statement - "Once the notice was created I
would release it to the District website and the BoardBook software would send and
automatically place the notice on the district website" must be disregarded as this is grossly
vague, speculative, contradictory, and draws factual conclusions and is not competent summary
judgment evidence as Linder is not competent to testify about the technology problems and
software technical matters between BoardBook software and PISD website. For example,
indisputable evidence shows that BoardBook software does not send internet notice to "district
website." To the contrary, BoardBook displays an internet meeting notice on BoardBook's
website after a notice is released. See CR205-206 showing notices on www. boardbook.org.
Further, Linder fails to even aver whether she had personal knowledge that PISD did or
did not have BoardBook service at all during 112009 through 5/19/2009 for which PISD claims
good faith exception. Further, Linder's statement "On or about January 15, 2009 Suzie Jameson
of the Information Technology Department made some changes to the District website. In the
course of making these changes the link between BoardBook and the website was severed" is
hearsay, lacks personal knowledge, is second hand collected information, and is based on vague
speculation. Linder's hearsay testimony on behalf of Jameson is not competent summary
judgment evidence and thus, must be disregarded. Linder's hearsay about "some changes" being
made and the link being "severed" is vague, misrepresent facts and are in contradiction with
Suzie Jameson's email to Linder. See Exhibit 1. Linder's repetitive impermissible hearsay
statements about how BoardBook software worked are irrelevant to the issues in this case as
there is no competent evidence that PISD even had BoardBook software from 8/13/2008 through
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page26 of43
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5/19/2009, and Linder is not competent to testify about technical workings of BoardBook
software. Linder's statement "However, I was unaware that the link between BoardBook and the
website had been severed and BoardBook did not indicate that the link had been severed.
Instead, it appeared that the notices were still being posted to the website just as before. It was
not until May of 2009 that I was informed that the notices were not appearing on the website"
must be disregarded as it is grossly vague, speculative, composite and hybrid in nature, lacking
personal knowledge of the facts. Thus the entire ~9 must be disregarded. Humphreys, id.
5) Assertions of appearance of Notices on website (Linder Affidavit 2, ,10): Linder's
assertions are bare conclusions, vague, and speculative, thus are not admissible as evidence
because Linder does not affirmatively state that she verified appearance of each of PISD's
internet website notices on PISD's website or BoardBook website for the public to view for the
prescribed period for Board meetings from August 13, 2008 to January 15, 2009. Linder further
fails to state how she "knows it for a fact" that postings were properly made to the website and
how many times and whether she checked the appearance of notices on PISD website or
BoardBook website during the said time. This is pertinent because there is absolutely no
competent evidence that PISD even had BoardBook service until May 19, 2009 and further PISD
has admitted that TOMA notices did not "appear" on PISD website or BoardBook website for 11
Meetings from January 2009 to May 19, 2009. Further defendant's own website postings
conclusively show that the electronic TOMA notices posted on BoardBook's website were
untimely created in May, 2009, weeks or months after the board meetings in question took place.
CR814-815. Thus the entire ~10 must be disregarded. Humphreys, id.
6) Linder's assertions about TOMA compliance (Affidavit 2., 11) must be disregarded
as Linder makes impermissible legal conclusions and Linder is not competent to make them.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 27 of 43
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Thus, Linder's statement "All of the notices for the meetings of the District's Board held
between August 13, 2008 and May 19, 2009 meet the requirements or an exception set forth in
the Act" must be disregarded.
Plaintiffs object to the entirety of Linder Affidavit 2 and Linder Affidavit 1 as they are
egregiously defective substantively and in form as explained above. PISD introduced Linder
Affidavits in bad faith. Linder Affidavits are not in compliance with TRCP 166a(f). Linder
Affidavits must be disregarded in this summary judgment proceeding.
B. Objections to Haenisch Affidavits (Exhibit 18): The Texas Supreme Court has held
that affidavits must be based exclusively on personal knowledge and a composite or hybrid
affidavit must be disregarded. Humphreys v. Caldwell, 888 S.W.2d 469, 470-71(Tex. 1994).
Haenisch Affidavit 1 and Haenisch Affidavit 2 both are not made exclusively from personal
knowledge, are based on hearsay, vague, conclusory, and are irrelevant to the issues, thus must
be struck and disregarded. Objections to Haenisch Affidavit 2 cover same issues in Haenisch
Affidavit 1. See Exhibit 18.
1) Assertion concerning Linder's authorization to post notices for 8 years (Haenisch
Affidavit 2, ,3): is hearsay, vague and conclusory as Haenisch does not state who exactly
authorized Linder and how, lacks personal knowledge as Haenisch was not employed for 8 years.
Further, Haenisch's sworn affidavit is conclusively false and contradict PISD's polices and
bylaws viz. BE (Local) at CR821-823, BDAA (Local) at CR832, and BJA (Local) at CR834-
836 show that Board retained the authority to sign and post board meeting notices to itself and
did not delegate it. The entire ~3 must be disregarded as vague, hearsay, composite, and lacking
personal knowledge.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 28 of 43
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245
2) Legal conclusions about "accessible," "convenient", "visible," and "place" CHaenisch
Affidavit 2, ,4, ,7): must be disregarded as they are vague, hearsay, and make impermissible
factual and legal conclusions concerning TOMA about - what is "accessible," what is "visible"
for 24/7, the convenience of posting notices on the front door, what affords most access to
general public, and legal requirements of "place." Haenisch' s opinions are hearsay as they make
assumptions on behalf of the general public and Haenisch is not a competent authority to make
these legal conclusions or opinions. Further, Haenisch has not been employed by defendant for 8
years. This paragraph must be disregarded in entirety. Humphreys, id; Larson v. Family
Violence & Sexual Assault Prevention Ctr. OfS. Tex., 64 S.W.3d 506, 514 n.6 (Tex.App.-Corpus
Christi 2001, pet. denied) (Affidavits must set forth facts, not legal conclusions.)
3) Discussion of Terrell contract in closed meeting (Haenisch Affidavit 2, ,5) must be
disregarded as it is false and is conclusively contradicted by the audio tapes of the 3/26/09
meeting (2SCR3- Exhibit 8.3 at Counter 43:45 onwards, and Exhibit 8.2 at Counter 19.44
which is the undisputed competent evidence in this case that show that Haenisch and the Board
members discussed Terrell's employment status and contract in the closed session of the Board
meeting on 3/26/09. ~5 must be disregarded as it is in bad faith and contradicted by undisputed
evidence. Humphreys, id. Haenisch affidavits are not in compliance with TRCP 166a(f).
C. Objections to PISD's answers to interrogatories: PISD did not attach verification
to its answers and supplemental answers to Terrell's interrogatories in compliance with TRCP
Rules 197.2(d) and 193.5(b). See CR764-769; CR685-690; CR708-711; CR800-811; CR812-
817. TRCP 197.2(d) requires that "A responding party- not an agent or attorney as otherwise
permitted by Rule 14 - must sign the answers under oath ... " The "Responding Party" here is
Pampa Independent School District. PISD has attached Karen Linder's affidavit or PISD
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page29 of43
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attorney's signature to its answers to plaintiffs' interrogatories; however, her affidavit or
counsel's signature is not sufficient to comply with TRCP 197.2(d).
Linder performs clerical duties at PISD as secretary to Haenisch. Linder neither has real,
express, implied, nor apparent authority to represent PISD, a government body, to make legal
representations on behalf of PISD. It is obvious here that Linder is being put up by PISD as a
shield. As Linder Affidavits above must be struck, it is proper that answers to interrogatories
verified by Linder and PISD counsel must also be struck. It is well established PISD can only
act through its Board as a whole and did not grant any kind of authority to Linder in this matter.
PISD's above answers and supplemental answers to plaintiffs' interrogatories should be struck
and disregarded for failure to comply with TRCP 197.2(d) and 193.5(b).
Further, Linder's affidavits and PISD's assertions concerning BoardBook (CR800-811)
are not legal evidence because Linder does not claim expertise, nor assert knowledge or
experience in technical matters relating to PISD's website or the alleged "link" issues, or
BoardBook software. PISD's claims concerning how "created" dates in document properties of
Adobe PDFs in BoardBook changed due to printing (refer to appeals court's opinion at 5-6) are
frivolous, vague, mere surmise and are not legal evidence. Kindred, Id at 63. Further, there is no
evidence that Linder has any knowledge, responsibility, or experience concerning document
properties of internet notices or BoardBook software's technical or security functions.
Plaintiffs note that PISD has deleted the internet notice for 5/19/09 meeting and replaced
it with a notice for meeting on 5/18/09. It is not disputed that no meeting ever took place on
5/18/2009. Plaintiffs object to this tampering with evidence. The original correct internet notice
for 5/19/09 is in the record on CD-ROM and in Hardcopy formats. Exhibits 9, 10.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 30 of 43
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PISD's good faith defense under §551.056(d) is a fraud on the Court, a subterfuge and
must be rejected. Plaintiffs are entitled to summary judgment in their favor in this regard.
2. Plaintiffs are entitled to declaration that PISD violated TOMA §551.051 specifically
concerning the 3/26/09 Board meeting and 22 Meetings.
TOMA §551.051: School District: Place of Posting Notice specifically states:
A school district shall post notice of each meeting on a bulletin board at a place
convenient to the public in the central administrative office of the district.
Tex. Gov't Code §551.051.
No material fact question remains here. It is undisputed that PISD taped TOMA notices
to front door of its central administrative office (Central Office) for Board meetings for 3/26/09
and 22 Meetings e.g. See Exhibits 7, 17. See Exhibit 11-Req. for Admission nos. 5 and 7.
TOMA mandates a physical location i.e. Bulletin Board in central administrative office,
where PISD must post TOMA notices. §551.051. This is further emphasized by §§551.043(b)(2)
and (b)(3).
The statutory language of "Bulletin Board" is clear and unambiguous. Therefore, the
court lacks the power to interpret or change it and must apply the most obvious and common
meaning of the words. See the Tex. Dept. ofTransp. v. City of Sunset Valley, 146 S.W. 3d 637,
642 (Tex. 2004) (If a statute is clear and unambiguous, courts should afford it its common
11
meaning). The meaning of words "Bulletin Board" has been well established for more than
150 years as a board for posting notices at a school.
11
Merriam-Webster's Collegiate Dictionary, Eleventh Edition defining bulletin board ( 1831 ): "a board
for posting notices (as at a school)." Merriam-Webster, http://www.merriam-webster.com/dictionary (last
visited 3/16/2012) defining bulletin board (1831): "a board for posting notices (as at a school)."
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 31 of 43
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The meaning of front door 12 has been well established for more than 250 years. It is
obvious to a reasonable person that the predominant purpose of a "door" is to "enter or leave a
structure" or create a "barrier" to close or open an entry and the predominant purpose of a
"Bulletin Board" is to "post notices." Thus as a matter of law front door is not bulletin board and
does not meet the requirement of §551.051.
PISD violated §551.051 by failing to post notices of the 3/26/09 meeting and the 22
Meetings on a bulletin board in the Central Office. Further it is undisputed that PISD had a glass
enclosed bulletin board inside the central administrative building that PISD did not use for
TOMA notices. PISD taped notices on the front door of its Central Office building so that the
general public is forced to stand outside of the building to read notices of meetings. Exhibits 7,
17. After this lawsuit was filed, defendant knowingly removed the bulletin board in the Central
Office lobby and placed it outside the front door of the Central Office building on or about
6/5/09. See Exhibit 11-Req. for Admission 3 and 4; Exhibit 7. Thus it is obvious that PISD
knows the difference between front door and bulletin board.
Front door is not bulletin board under TOMA. Even assuming arguendo, "Front Door" is
bulletin board, front door of a central administrative office building as place to post TOMA
12
Cambridge Dictionary of American English, http://dictionaries.cambridge.org (last visited l 0/21120 l 0)
defining 'the "front door" of a building, esp. a house, is the door on the side of the building that faces
the street, or the main entrance door.'
Dictionary.com, http://dictionary.reference.com (last visited 10/211201 0) defining "front door (1740-
1750): "the main entrance to a house or other building, usually facing a street."
Merriam-Webster (thesaurus), http://www.merriam-webster.com/dictionary (last visited 3/16/2012)
defining door: 1) "a barrier by which an entry is closed and opened"; 2) "the opening through which one
can enter or leave a structure" <a steady stream of visitors through the front door>.
Plaintifrs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 32 of 43
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notices is not "convenient" 13 and further is not "accessible" 14 under TOMA as a matter of law.
Forcing general public, citizens, and taxpayers to stand outside the administrative building
braving snow, rain, heat, cold, traffic in and out of the building is neither safe, accessible, easy,
comfortable, advantageous, nor suited to read notices, thus not convenient under TOMA
§551.051.
Further forcing taxpaying public to stand outside of the building they paid for is offensive
to the purpose of TOMA. Being forced to stand outside of a building is not proper, suitable, or
safe as it exposes readers to harm coming from the street's unsafe conditions including crime.
PISD's front door posting of notices of 3/26/09 and 22 Meetings does not comply with
the "in" the Central Administrative Office requirement of §551.051 because PISD's notice
cannot physically be read from inside PISD' s central administrative office. Exhibits 7, 17.
To read PISD's meeting notice posted on its Central Office front door, one must stand outside
the Central Office building to read the notice. The clear language and intent of §551.051 is that a
reader must be able to enter the Central Office and read a notice "in" the central administrative
office. Because PISD's front door posting of notices of 3/26/09 and 22 Meetings fail this
requirement, PISD is in violation of §551.051.
Based on above, posting TOMA notices on front door does not meet "convenient" test of
§551.051 and further fails the "readily accessible" test under §551.043.
As explained above, PISD fails even the overruled "substantial compliance" standard
here - posting notices on front door does not meet reasonable standard of suitability for reading
13
The American Heritage Dictionary defining convenient: "Suited or favorable to one's comfort,
purpose, or needs." Merriam-Webster Dictionary defining convenient: "Suited to personal comfort or to
easy performance; suited to a particular situation; affording accommodation or advantage."
14
Merriam-Webster Dictionary defining accessible: "capable of being used or seen." Collins English
Dictionary defining accessible: "easy to approach, enter, or use."
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 33 of 43
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notices and because it is an "unwelcome mat" to "keep out" or to discourage, frustrate taxpayers
and public from entering the central administrative office to participate and observe their school
district. PISD fails the Texas Supreme Court law of the Exact and Literal compliance standard
because PISD failed to post notices of the 3/26/09 and 22 Meetings in question in the place
specifically mandated for school districts by law- "Bulletin Board." See §551.051; Acker, !d.
If this court were to permit PISD to make its own law and not comply with the
specifically designated place in TOMA, it would be an invitation to government entities
throughout the State of Texas to post TOMA notices on back doors, side doors, front/back/side
windows, on plants in central office, on restroom doors, office doors, and so on. This is not only
offensive, but will eviscerate TOMA.
Plaintiffs are thus entitled to declaratory relief that PISD violated TOMA §551.051 for
the 3/26/09 Board meeting and 22 Meetings in question.
3. Plaintiffs are entitled to declaration by the court that PISD violated §551.043 concerning
the 3/26/09 Board meeting and 5/19/09 Board Meetings
Plaintiffs' sworn testimony is undisputed that the notice of 3/26/09 Board meeting was
not witnessed or seen posted in the bulletin board in PISD's Central Office nor on its front door
at 5 P.M. and after 6 P.M. on 3/23/09 i.e. notice was posted less than the prescribed 72 hours in
violation of §551.043. Exhibit 7. PISD's (Linder) vague claims and surmise that it posted all
notices on the front door more than 72 hours ahead of time are not competent summary judgment
evidence or legal evidence and must be disregarded. Kindred, Supra, Further such conclusory
assertions do not specifically dispute 1) Thanedar and Terrell's conversation with PISD's
employee Ramiro Soto that there was no board meeting notice posted at or immediately after 6
P.M. on 3/23/09 and 2) that plaintiffs noticed that Linder was not at work at central office at
PISD at 5 P.M. or at or after 6 P.M. on 3/23/09 and that 3) the notice appeared on the front door
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 34 of 43
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251
the next day on 3/24/09 i.e. less than prescribed 72 hours (a "revised" notice was taped to the
front door of central office building on 3/24/09). Exhibit 7.
Similarly, plaintiff Thanedar's sworn testimony about his conversation with Linder
regarding PISD's 5/19/09 Board meeting is undisputed i.e. Linder mentioned to Thanedar that
the notice for 5/19/09 meeting was posted on 5/18/09 because the date of the meeting had
changed. This caused the notice to be posted for less than the prescribed 72 hours in violation of
§551.043 and the Exact and Literal Standard of compliance with TOMA promulgated by the
Supreme Court in Acker. Exhibit 7. Because PISD posted (paper) notices of 3/26/09 and
5/19/09 Board meetings at a physical location for less than the prescribed 72 hours, PISD
violated §551.043.
4. Plaintiffs are entitled to declaration by the court that PISD violated §551.041 when
PISD failed to give notice of "place" of its 3/26/09 Board meeting and 22 Meetings
There is no evidence and it is undisputed that PISD's notices of 3/26/09 board meeting
and 22 Meetings refer to "321 W. Albert" and do not specify a city where the meeting will be
held. See e.g. Exhibit 6, Exhibit 11-Req. for Admission no.15. In certain cases, defendant's
notices merely state "Pampa High School" or "Pampa Junior High School" without stating the
address. PISD does not dispute this. Exhibit 10- See CR70-71, CR75, CR89-90, CR129-130,
CR147-148, CR156, CR167-168, CR170. Such truncations require the general public to "fill in
the blanks" which is in violation of TOMA. TOMA §551.041 specifically requires that the
general public or a "reader" be notified of the "place," but PISD failed to do so. The Texas
Supreme Court has "demanded exact and literal compliance" with the Open Meetings Act. See
Acker v. Texas Water Commission, 790 S.W.2d 299 (Tex. 1990). Here defendant's truncations
mentioned above violate the plain language of TOMA. Further it is public record and is
undisputed that PISD encompasses two counties - Gray county and parts of Roberts county,
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 35 of 43
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252
where meetings could be held in different cities. 15 Thus plaintiffs are entitled to declaration that
PISD violated §551.041 's "place" requirement in regards to 3/26/09 Board meeting and 22
Meetings in question.
5. Plaintiffs are entitled to declaration by the court that PISD violated §551.045(d)
concerning the notices of 3/26/09 Board meeting and 22 Meetings
It is undisputed that Karen Linder, secretary to Superintendent, signed notices of 3/26/09
board meeting and 22 Meetings on behalf of the Board of Trustees. 16 See e.g. Exhibit 6. There
is no evidence that PISD Board of Trustees ever designated or authorized Linder to sign on its
behalf or post notices of its meetings. PISD admits that Board never authorized nor designated
Karen Linder under TOMAto sign notices of meetings on behalf of the Board. Exhibit 12-Req.
for Production 28. §551.045(d) requires an authorized or designated person to post notices of
meetings. The language of the section in this regard is clear - it applies to all notices - not just
emergency meetings. 17 See §551.045(d). Thus plaintiffs are entitled to declaration that PISD
failed to comply with §551.045(d) because Linder was neither authorized nor designated by
Board to post meeting notices when she did so for 3/26/09 meeting and 22 Meetings. Acker.
6. Plaintiffs are entitled to declaration that PISD violated TOMA §551.101 by improperly
closing its March 26,2009 meeting and further violated §551.074(b)
It is not disputed that defendant's president, Mr. Charles Smith did not identify the
section or sections of TOMA that authorized closing the 3/26/09 board meeting to the public
15
While it may seem possible to guess that "321 W. Albert" is in Pampa, Texas, there are over 1,030
school districts whose names do not necessarily lend to guessing names of the cities where the meetings
may be located e.g. Pharr-San Juan-Alamo (PSJA) lSD; Spring Branch lSD, etc.
16
The internet notices required under §551.056(b) posted untimely by PISD were not signed by anyone.
17
Tex. Gov't Code §551.045(d) requires: "A person who is designated or authorized to post notice of a
meeting by a governmental body under this subchapter" to post notice for the governmental body. The
"subchapter" referenced above is unambiguously the "Subchapter C: Notice of Meetings" and the
requirement of an authorized or a designated person posting notices of meetings applies to all postings of
notices under TOMA and not just the emergency meetings.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 36 of 43
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•
253
under TOMA before closing the 3/26/09 meeting. See Exhibit 11-Req. for Admission no.14;
Exhibits 7, 16. PISD thus did not comply with the Tex. Gov't Code §551.101(2). Therefore,
plaintiffs are entitled to declaration that PISD unlawfully closed meeting on March 26, 2009 in
violation of Tex. Gov't Code §551.1 01. Acker, Supra. Plaintiffs are entitled to all legal and
equitable relief and that 3/26/09 closed meeting and actions taken in it be declared unlawful and
contents of the closed meeting be made public and allowed to be freely copied and distributed.
PISD further violated §551.074(b) by deliberating on Terrell's contract termination in the
closed meeting on 3/26/09 when Terrell had specifically requested the action be deliberated in
open meeting per §551.074(b). Exhibits 15, 16 (Tape 2 at Counter 43:45.). Plaintiffs are
entitled to the declaration that PISD violated §551.074(b). Acker, Supra.B. Voidance of PISD's unlawful actions is proper due to subterfuge, persistent conscious
and defiant violations of TOMA committed over numerous months
The action taken in 3/26/09 Board meeting terminating Terrell's contract violated
TOMA's notice provisions as shown before, thus it is voidable and should be voided. §551.141;
Ferris, Infra; Acker, Supra.The 22 Meetings including the 3/26/09 meeting were unlawfully convened as shown
before. Since all the actions taken in the 3/26/09, 5/19/09 and 22 Meetings violate TOMA's
notice provisions as demonstrated before, said actions in 22 Meetings are voidable and should be
voided. §551.141; Ferris, Infra; Acker, Supra. See other additional case authorities below.
Therefore, upon voidance of the action terminating Terrell's employment contract
(Exhibit 15), this Court should issue mandamus ordering PISD to reinstate Terrell and pay her
damages for back pay and benefits, currently estimated at $209,000 to date and continuing
(Exhibits 25, 26). Ferris v. Texas Board ofChiropractic Examiners, 808 S.W.2d 514, 518-519
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 37 of 43
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(Tex. App.--Austin 1991, writ denied) (Employee terminated in violation ofTOMA is entitled to
back pay and reinstatement).
Even if PISD's Board attempts a second time to terminate Terrell, such termination
cannot be retroactive to 3/26/09. Ferris, ld. Further, Terrell's termination cannot be retroactive
under Texas Education Code. Pursuant to Texas Education Code, Terrell's teacher contract
cannot be terminated without providing 45 days notice (for 2012-13 school year- 10 days)
before the last day of instruction in a school year. Failure to provide 45 days notice and
termination in a lawfully convened meeting in compliance with TOMA automatically renews
Terrell's teaching contract for another year. See Texas Education Code §21.103.
This court should further issue injunction against PISD to stop and prevent further
violations ofTOMA's notice provisions. Plaintiffs should be granted litigation costs and attorney
fees as plaintiffs have substantially prevailed in this litigation having established TOMA
violations and prosecuting this case in good faith and for public good and to augment public
interest. §551.142(b).
Authority For Voidance Is Overwhelming: There is overwhelming authority for
voidance of PISD's actions taken in violation of TOMA's notice provisions in unlawfully
convened Board meetings and for other relief requested in this suit. Courts have repeatedly
voided actions of governmental bodies taken in violation of TOMA. Ferris v. Texas Board of
Chiropractic Examiners, Supra; City of Bells v. Greater Texoma Uti!. Auth., 744 S.W.2d
636,640 (Tex. App.-Dallas 1987, no writ); Point Isabel ISD v. Hinojosa, 797 S.W.2d 176(Tex.App-Corpus Christ 1990, writ denied).
There is not a single case in TOMA jurisprudence where a court did not void unlawful
actions under TOMA faced with subterfuge, a defiant willful persistent pattern of violations of
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 38 of 43
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..
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TOMA and obstruction of justice as here. Further PISD has refused and failed to ratify its
18
unlawful actions in meetings held in compliance with TOMA.
Courts have also imposed special damages, as requested here, for conscious indifference
and failure to comply with the Open Meetings Act, as here. See Wells v. Hutchinson, 499
F.Supp. 174, 198 (E.D. Tex. 1980). As demonstrated in the record and in this motion, PISD has
engaged in frivolous arguments, subterfuge, and obstruction of justice: 1) claiming good faith
defense concerning BoardBook service while refusing to produce evidence that PISD ever paid
consideration to BoardBook i.e. license fees, maintenance/support fees as required by
BoardBook (Exhibit 14) for the period it claims good faith defense. For lack of proof of
consideration, the alleged 2007 contract (Exhibit 14) with BoardBook is invalid. There is simply
no evidence whatsoever that PISD even had BoardBook service from 8/13/2008 through
5/19/2009; 2) arguing before appeals court that printing notices for plaintiffs "changed" the
create dates of its internet website notices, and then refusing and failing to provide evidence of it.
Making this worse, PISD even admitted that plaintiffs printed the internet notices themselves
from PISD's public website. CR804.
PISD's defiant willful longstanding violations ofTOMA require voidance to demonstrate
to government entities that TOMA will be upheld and honored by Texas courts. Special
damages in the amount to be determined by the court should be granted to plaintiffs for
prosecuting this unduly protracted litigation pro se expending substantial money, energy, effort,
18
In Austin Transportation Study Policy Advisor Committee v. Sierra Club, 843 S.W.2d 683,686-87 (Tex.
App.--Austin 1992, writ denied), the court did not void the unlawful actions because the governmental
entity acknowledged its violations of TOMA on 33 occasions and ratified the actions in subsequent
meetings convened in compliance with TOMA upon admitting its violations. Sierra Club was granted
in excess of $146,000 in costs and attorney fees plus additional attorney fees for each stage of appeals,
because Sierra Club was found to have substantially prevailed.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 39 of 43
255
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256
and time (over 1,650 hours over 3 ~ years). Exhibit 26. Plaintiffs will produce details of hours
and money spent by plaintiffs for Court's review at the direction of the Court.
C. Special damages and Sanctions on PISD and counsel are appropriate in this case:
Special damages are warranted here due to the subterfuge and obstruction of justice by
defendant and counsel in this case. Plaintiffs rely on the facts and arguments in the preceding
paragraphs in this regard. PISD which is entirely funded by taxes from Texas citizens continues
to flaunt its defiance against TOMA and the will of Texas citizens, legislature, taxpayers, and the
Texas Supreme Court. Plaintiffs' urge sanctions on PISD.
This case isn't only about plaintiffs- it's about the Texas citizens who expect honesty and
voluntary compliance to openness, transparency, and integrity from their government. The
failure to void PISD's egregious and defiant violations of TOMA will eviscerate protections
granted to Texas citizens under TOMA, undermining and abrogating concepts of honest
voluntary compliance with the promise of open government and transparency, and further
lowering Texans' regard for democratic processes, judiciary, and the rule of law.
VII. CONCLUSION
The appeals court identified only one fact question - PISD's good faith claim under
§551.056(d). However, as shown above, PISD's good faith claim is brazenly fraudulent and is
constructed to obstruct justice against pro se plaintiffs and Texas citizens and taxpayers. PISD
and its counsel deliberately misrepresented its good faith claim to the 7th Court of Appeals to
improperly obtain remand of this case. After achieving its purpose of delay and obstruction,
PISD now has defiantly refused to supplement the discovery concerning its claim of good faith.
This Court should not countenance PISD's misconduct and perversion of TOMA's
purpose to foster openness and integrity in government.
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 40 of43
256
257
For these reasons, plaintiffs ask for summary judgment on all their claims as set forth
above in their favor.
VIII. PRAYER
FOR THE FOREGOING REASONS, plaintiffs Terrell and Thanedar pray that the Court
grant their second no-evidence and traditional motion for summary judgment, and
1) Declare that defendant violated TOMA Sections 551.051, 551.056, 551.043, 551.041,
551.045(d), 551.101, and 551.074(b) in regards to its actions in the 3/26/09 Board meeting; and
2) Declare the March 26, 2009 board meeting unlawfully convened; and
3) Declare the termination of plaintiff Terrell's employment contract (adverse action
taken by defendant in March 26, 2009 meeting) unlawful, and void, and issue an injunction to
reverse, stop, and prevent illegal termination and removal of Terrell from her job as a teacher,
and further violations of TOMA; and
4) Issue mandamus to reinstate Terrell as a teacher and pay her all back wages and
benefits (currently calculated at $209,000 from said adverse action from 2009-2010 school year
through 2012-2013 school year) accrued to her, and set this matter for subsequent hearing to
determine the amount of back wages and benefits accrued and payable to Terrell; and prohibit
PISD from preventing Terrell from resuming her duties as teacher at PISD; and
5) Declare the closed meeting of Board of Trustees on March 26, 2009 unlawfully
convened in violation of TOMA and grant legal and or equitable relief of making the certified
agenda, transcript, and/or audio recording of this meeting fully available to public inspection and
copying and make its contents public; and
6) award plaintiffs costs, fees, expenses, attorney fees, special damages (plaintiffs have
currently incurred 1,650 hours of their time prosecuting this case as of the filing of this motion
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 41 of 43
257
,.. ..
258
multiplied by hourly rate to be fixed by the Court), and damages accrued to date and continuing;
and set this matter for subsequent hearing to determine the amount of special damages; and
7) Declare that PISD violated TOMA Sections 551.051, 551.056, 551.043, 551.041, and
551.045(d) in regards to all actions taken in 22 Meetings and 551.101 and 551.074(b) in regards
to the 3/26/09 meeting; and
8) Declare 22 Meetings held during the period August 13, 2008 to May 19, 2009
unlawfully convened; and
9) Declare all actions taken in the 22 Meetings unlawful, and void; and
10) Issue a permanent injunction to prevent future and further violations of TOMA and
impose appropriate sanctions on defendant PISD and its counsel due to its subterfuge and
obstruction of justice in this case now for more than 3 Y2 years and continuing;
Alternatively, plaintiffs Terrell and Thanedar pray that the court grant partial summary
judgment in their favor; further declare that plaintiffs have substantially prevailed in their
lawsuit, grant them costs, damages, special damages, and fees in this case, and that plaintiffs
have all other and further relief to which they may justly be entitled to receive.
Date: October 29, 2012 Respectfully submitted,
Rebecca Terrell
CB/t~
Chandrashekhar Thanedar
Plaintiffs
Plaintiff's Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page42 of43
258
...
259
6503 Dancing Ct.
San Antonio, Texas 78244
(956) 445-3107
(512) 271-6840 Fax
rterrell152@gmail.com
CERTIFICATE OF SERVICE
The undersigned certifies that a true and correct copy of the foregoing Plaintiffs' Second
No-evidence and Traditional Motion for Summary Judgment has been served upon the following
by United States priority mail on October 29, 2012 as follows:
W. Wade Arnold
Andrea Slater Gulley
Underwood Law Firm
500 S. Taylor Street, Suite 1200
Amarillo, Texas 79101-2446
Rebecca Terrell
Chandrashekhar Thanedar
Plaintiffs Second No-evidence and Traditional
Motion for Summary Judgment Cause No. 35621 Page 43 of 43
259
Appendix 13
Notices for 3/26/09 Meeting - Physical
and Internet Notices (PX3, PX5)
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A Regular Meeting of the Board of Trustees of Pampa Independent School District will be held March 26.
2009, beginning at 6:00 PM in the Carver Center Administration Office, 321 W. Albert. ·-·-· ·
.---:--
The subjects to be discussed or considered or upon which any formal action may be taken are as listed below.
Items do not have to be taken in the order shown on this meeting notice.
Unless removed from the consent agenda, items identified within the consent agenda will be acted on at one.
time.
I. Call to Order I Declaration of a quorum
II. Public Comments (7:00 p.m.)
III. CONSENT AGENDA
A. Consideration and action to approve monthly financial reports
B. Consideration and action to approve board minutes for January 15. February 19,
2009 and March 12, 2009.
C. Consideration and action to approve professional development absences for some
staff.
D. Consideration and possible action to approve the Fall Sports Bids.
E. Consideration and action to approve signatures on bank accounts.
IV. ACTION I DISCUSSION ITEMS
A. Consideration and possible action to approve a fund raiser for the PHS Prom
Committee
B. Cast Votes for Region 16 Board of Directors
c. Consideration and possible action to approve a resolution from Pampa ISD School
Health Advisory Council for recess for elementary school students.
D. Consideration and possible action to approve a Board Resolution in support of a
Safe and Drug Free Schools and Communities Act Fund Grant for PISD.
E. Consideration and possible action to approve revised employment contracts
F. Consideration and possible action to approve a resolution to extend the depository
contract.
G. Discuss Gun Free Zone Act
H. Construction Update: Pampa Junior High School
EXHIBIT 2
.. ·- .
I. Construction Update: Pampa High School
J. Identify future agenda items
V. REPORTS
A. Buildings, Grounds, and Facilities Report
B. Career and technology and college credit opportunities for PISD students.
C. Personnel Management Report
D. Food Services Report
E. Wind Energy Report
VI. PERSONNEL
A. Employment of professional employee
B. Approval ~d renewal of term contract employees
C. Approval and renewal of probationar}r contract employees
D. Approval of termination of probationary contract employees.
E. Approval of non-renewal of term contract employees.
T/1e Board may close dris meeting ID consult with its attorney on any item posted on this agenda in order lo receive (egal
adirice or to maintain 1/1e auomey-client privilege. The Board may also doie the meeting 10 consrdt with its allomey an any
01/1er matter wl1en 1J1e attorney's professionJJI and ethical duQ• 10 the Board requires a confidential comnumicalion If. d11ri11g
tile course of the meeting, discussion ofany item on the agenda mould be held in a closed meeting, the Board 1111{/ cond11ct a
closed meeting in accordance 1vi1h the Taos Open Meetings Act, Texas Govenunent Code, Chapter SSI, Subchapters D and
E. Before any closed meeting ii convened, the presiding officer 1vill publicly identify tlie section of the Act authorrJng 1/1e
closed meeting. Allfmal votes, actions, or decisions 1vill be taken fn open meeting.
CARVER CENTER IS WHEELCHAIR ACCESSmLE. HEARJNG IMPAIRED PERSONS MUST REQUF.sT AN
INTERPRETER 48 HOURS IN ADVANCE OF THE MEETING. PLEASE CAIJ. 669-4700 FOR ASSISTANCE.
AGENDA Posted By 5:00 p.m. on 3/ d 3 / q
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A Regular Meeting of the Board of Trustees of Pampa Independent School District will be held March 26,
2009, beginning at 6:00 PM in the Carver Center Administration Office, 321 W. Albert.
The subjects to be discussed or considered or upon which any formal action may be taken are as listed below.
Items do not have to be taken in the order shown on this meeting notice.
Unless removed from the consent agenda, items identified within the consent agenda will be acted on at one
time.
I. Call to Order I Declaration of a quorum
IT. Public Comments (7:00 p.m.)
ill. CONSENT AGENDA
A. Consideration and action to approve monthly financial reports
B. Consideration and action to approve board minutes for January 15, February 19,
2009 and March 12, 2009.
C. Consideration and action to approve professional development absences for some
staff.
D. Consideration and possible action to approve the Fall Sports Bids.
E. Consideration and action to approve signatures on bank accounts.
IV. ACTION I DISCUSSION ITEMS
A. Consideration and possible action to approve a fund raiser for the PHS Prom
Committee
B. Cast Votes for Region 16 Board of Directors
C. Consideration and possible action to approve a resolution from Pampa ISD School
Health Advisory Council for recess for elementary school students.
D. Consideration and possible action to approve a Board Resolution in support of a
Safe and Drug Free Schools and Communities Act Fund Grant for PISD.
E. Consideration and possible action to approve revised employment contracts
F. Consideration and possible action to approve a resolution to extend the depository
contract.
G. Discuss Gun Free Zone Act
H. Construction Update: Pampa Junior High School
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EXHIBIT
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L Constmction Update: Pampa High School
J. Identify future agenda items
V. REPORTS
A. Buildings, Grounds, and Facilities Report
B. Career and technology and college credit opportunities for PISD smdents.
C. Personnel Management Report
D. Food Services Report
E. Wind Energy Report
VI. PERSONNEL
A Employment of professional employee
B. Approval and renewal of term contract employees
C. Approval and renewal of probationary contract employees
D. Approval of termination of probationary contract employees.
E. Approval of non-renewal of term contract employees.
77rB Boanl may clan this meeting ta consult with it8 attorney on any item poSled on this agenda in owler to receive legal
advice or to maintain the anomey-client privilege. The Board may also c1me the meeting to consult with its attomey on any
other matter when the attomey'.s professional and ethical duly ta the Boanl requires a co'f1ji1Jential C0111111111dcatian ({. dllring
the caru.se ofthe meeting, di.scusslon of any ilem an the apnda .should be held in a closed meerlng, the Baanl wUl conduct a
cla.sed meeling in aa:onlanee with tlu! Tam Open Meetinp Act. Tam Govemment Code, Cluipter SSJ, Subdrapten D and
E. Before any cla.sed meeting i.s convened, the pnz.siding officer will publicly identify the .seclian of the Act authariilng the
closed meeling. AU.final 1IOle.s, action.r. or declslans will be tam& in open meeting.
CARVER CENTER. IS WHBELCHAIR. ACCESSIBLB. HEARING IMPAIRED PERSONS MUST REQUFSr AN
lN'IERPREl'BR 48 HOURS IN ADVANCE OFTHB MEETING, PLBASB CAIL 6694700 FOR ASSISTANCE.
AGENDA Posted By 5:00 p.m. on _ _ _ _ _ __
Appendix 14
Notices for 3/26/09 Meeting-Document
Properties of the Internet Notice (PX4)
FILED
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Pampa Independent School District
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Appendix 15
Suzie Jameson Testimony - Excerpts
134
1 Q. Oh. You talked to them over the phone?
2 A. Yes, sir.
3 Q. How many -- was it like a conference call with
4 them?
5 A. I don't remember exactly. I -- most of my
6 conversations were with Angela.
7 Q. But she's not a technology person. Correct?
8 A. She's not a programmer.
9 Q. Now, for SchoolCenter -- correct me if I'm wrong,
10 was interested with the responsibility of changing the
11 website of PISD. Correct?
12 A. Yes.
13 Q. Did you submit to them specifications of data,
14 how to change the system from old to new, that type of
15 technical details as the technology director? Did you
16 pass on that information to them?
17 A. They specialize in websites for school districts
18 all over the country, so we provided them with the content
19 from our previous website, the articles that we had
20 already posted, the -- all of the data, and they went
21 through that information and created the new site.
22 Q. They never came to PISD to have meetings with
23 you?
24 A. No, they did not.
25 Q. So you submitted them information over -- over
KAREN MORRIS, CSR - (806) 282-9932
135
1 e-mails?
2 A. Yes, sir.
3 Q. Okay. How many links does PISD have with respect
4 to the variety of different websites that are accessed
5 through the Pampa ISD's website?
6 A. Thousands.
7 Q. Did you give them a list?
8 A. Did I give them a list?
9 Q. Yes.
10 A. No. They had access to the previous website.
11 Q. So they downloaded -- apparently, they -- they
12 worked with the access to your system, collected the
13 information and created a new website. Right?
14 A. Yes.
15 Q. Okay. Did you -- you said they created a new
16 website in January of 2009?
17 A. Yes.
18 Q. What time -- do you recall any date in
19 particular?
20 A. I don't recall the date.
21 Q. And this was a brand new website. Right?
22 A. Yes, sir.
23 Q. Was -- was the website -- was cleared -- was
24 there an automated process of validating data conversion?
25 A. I'm sorry. What?
KAREN MORRIS, CSR - (806) 282-9932
144
1 not realize needed to go on the new one. Why did you
2 think that there was no need for this particular link to
3 go onto the new one?
4 A. I didn't specifically think there wasn't a need
5 for the link. I did not realize it was one of the things
6 that had gotten left off.
7 Q. Well, I was just asking you, if you recall. Why
8 did you think it was not needed on the new website, by
9 your own e-mail here? Had -- was -- if you -- if you have
10 a reason for it?
11 MR. ARNOLD: Objection, Your Honor. She
12 just testified that's not what she meant by that. She
13 meant that these things were left off, not that they were
14 not needed. That was her testimony.
15 Q. (BY MR. THANEDAR) Well, I'm not sure -- well,
16 you can -- you can testify exactly what you mean by, I did
17 not realize needed to go on the new one. And how did you
18 come to that understanding?
19 A. I'm sorry. I don't understand your question.
20 Q. My question is: On what basis did you think that
21 the link to the school district's meeting notices was not
22 needed?
23 A. I didn't think that the link to the meeting
24 notices was not needed. I did not realize that it was not
25 there and was needed on the new site.
KAREN MORRIS, CSR - (806) 282-9932
149
1 Honor.
2 THE COURT: Sustained.
3 MR. THANEDAR: Well, the relevance, Your
4 Honor, is the fact that Carol Fields was the director of
5 finance, and she would have to pay SchoolCenter, and that
6 was -- you know, if you know. That was the basis for
7 asking the question.
8 THE COURT: You don't have to answer the
9 question. I've sustained the objection.
10 MR. THANEDAR: All right.
11 Q. (BY MR. THANEDAR) Ms. Jameson, has this problem
12 occurred again at PISD?
13 A. What problem would that be?
14 Q. The link being severed.
15 A. No, sir.
16 Q. Would you call this problem, a link being severed
17 or not -- what -- what kind of description would you give
18 this problem?
19 A. It was a missing link.
20 Q. A missing link. And this is a problem with the
21 vendor not transferring that link. Correct?
22 A. That's correct.
23 Q. Was it your understanding that this was a -- this
24 was a problem that was -- was it your understanding that
25 this was a problem of just negligence? What type of
KAREN MORRIS, CSR - (806) 282-9932
150
1 problem would you call it, as a technology person?
2 A. It was an oversight.
3 Q. It was an oversight, plain and simple oversight.
4 Correct?
5 A. Pardon me?
6 Q. It was a plain and simple oversight. Correct?
7 A. That's correct.
8 Q. As a technology person you would call that.
9 Now, the fact of putting the old link on the
10 new one, what kind of technical difficulty is that?
11 A. When they put the link --
12 Q. Well, no. I mean, in terms of just copying the
13 old link onto the new website, from a scale from one to
14 ten, how would you rate it? If you're a technology expert
15 or a knowledgeable person, how would you rate the
16 difficulty level?
17 A. It's not difficult.
18 Q. It's -- it's just simple negligence, you would
19 say?
20 A. It was an oversight.
21 Q. Would negligence be a good word for it?
22 MR. ARNOLD: Asked and answered, Your Honor.
23 Objection.
24 THE COURT: Sustained.
25 Q. (BY MR. THANEDAR) Did you ever write an
KAREN MORRIS, CSR - (806) 282-9932
Appendix 16
Suzie Jameson E-mail (PX32)
Linder Karen
Subject: FW: webpage stuff
From: Jameson Suzie
sent: Tuesday, May 19, 2009 10:10 AM
To: Under Karen
Subject: RE: webpage stuff
Karen,
I finally got this done. Charles !s off, but who is pres!dent?
Also, I apologize for not having that !ink on the site. i have added it on the School Board page. There were lots of things
* that were on the old site that I didn't reaHze needed to go on the new one. ~:
Thanks,
Suzie
From: Under Karen
Sent: Friday, May 15, 2009 2:57PM
To: Jameson Suzie
SUbject: webpage stuff
Suzie,
When you have a chance, would you take Charles Smith's picture and info off the board webpage.
You can list David Teichmann as Place 4. I will work on getting his picture and information.
Also, 1can't seem to find the link on the new website to click on that lists all the notices and minutes for
board meetings. I may just be overlooking it?? It use to be linked to the BoardBook program that I use ••• so
that when I release the documents, they would show up on this link.
Call me if you need to, and I'll explain better.
Thanks!
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Appendix 17
Letter Returning Evidence on
Judge Lopez’s Order
Appendix 18
Amended Notice of Appeal
CAUSE NO. 35621
REBECCA TERRELL and § IN THE 223RD DISTRICT COURT
CHANDRASHEKHAR THANEDAR §
§
Plaintiffs, §
§
v. § IN AND FOR
§
PAMPA INDEPENDENT SCHOOL §
DISTRICT, §
§ GRAY COUNTY, TEXAS
Defendant §
AMENDED NOTICE OF APPEAL
Notice is hereby given that Rebecca Terrell and Chandrashekhar Thanedar, Plaintiffs in
the above styled and numbered cause hereby appeal to the Seventh Court of Appeals, Amarillo,
Texas from the final judgment entered in this case on October 25, 2013, and from the following:
District court’s denial of motion for new trial filed by plaintiffs on November 21, 2013
and district court’s failure to hold hearing on the newly discovered evidence; and its
Failure to grant plaintiffs’ motion to modify judgment filed on 11/22/2013; and its
Failure to grant additional and amended findings of fact and conclusions of law requested
by plaintiffs on or about December 2, 2013; and its
Denial of plaintiffs’ second no-evidence and traditional motion for summary judgment
filed on or about October 29, 2012; and its
Denial of plaintiffs’ motions to exclude evidence, for continuance of trial, for post
remand discovery, failure to rule on or denial of plaintiffs’ trial exhibits, and refusal to deny and
vacate the award of attorney fees in the amount of $30,000 and costs to defendant; and its
Denial and refusal by trial court to hold trial and rule on mandamus, injunctive and
declaratory relief on plaintiffs’ causes of action under Texas Gov’t Code Sections 551.041,
551.043, 551.045(d), 551.051, 551.074(b), 551.101, 551.142(a) ; and that
Assigned trial court judge Abe Lopez was disqualified from sitting in this case and was
disqualified from conducting final trial in this case on October 9, 2013; and district court’s
Failure by the district court to grant plaintiffs’ Motion for Reconsideration filed on or
about February 5, 2014.
On January 17, 2014, plaintiff filed a Notice of Appeal prior to the district court’s
disposition of plaintiffs’ Motion for Reconsideration. The district court failed to rule on it. This
Amended Notice of Appeal is filed pursuant to Texas Rules of Appellate Procedure 25.1(g).
Date: March 24, 2015 Respectfully submitted,
Rebecca Terrell
Chandrashekhar Thanedar
6503 Dancing Ct.
San Antonio, Texas 78244
(956) 445-3107
rterrell152@gmail.com
Appellants
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing Amended Notice
of Appeal has been served on March 24, 2015 as follows:
W. Wade Arnold, Underwood Law firm, P.O. Box 9158, Amarillo, TX 79105-9158, Telephone:
(806) 376-5613, Fax: (806) 379-0316, E-mail: wade.arnold@uwlaw.com, lead counsel for
Pampa ISD, defendant appellee. Via regular mail and e-service through EFSP.
District Clerk, 223rd District Court, Gray County, P.O. Box 1139, Pampa, TX 79066, for filing in
this case, Via fax to (806) 669-8053 and regular mail.
Rebecca Terrell
Amended Notice of Appeal Cause No. 35621 Page 2 of 2
Appendix 19
7th Court of Appeals Opinion
in the First Appeal
NO. 07-10-00212-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
APRIL 29, 2011
REBECCA TERRELL AND
CHANDRASHEKHAR THANEDAR, APPELLANTS
v.
PAMPA INDEPENDENT SCHOOL DISTRICT, APPELLANT
FROM THE 223RD DISTRICT COURT OF GRAY COUNTY;
NO. 35621; HONORABLE LEE WATERS, JUDGE
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
OPINION
Appellants, Rebecca Terrell and Chandrashekhar Thanedar,1 are appealing the
granting of a summary judgment in favor of PISD, Pampa Independent School District,
regarding appellants’ action alleging violations of the Texas Open Meetings Act
(TOMA)2 and a request to void all actions of PISD taken as a result of alleged illegal
meetings. We will reverse and remand.
1
Appellants are husband and wife.
2
See TEX. GOV’T. CODE ANN. §§ 551.001-.146 (West 2004 & Supp. 2010).
Factual and Procedural Background
Appellant Terrell was a first-year teacher in the PISD whose probationary
contract of employment was terminated by action of the PISD School Board on March
26, 2009. On May 29, 2009, appellants filed their original petition alleging numerous
violations of TOMA and requesting that the trial court issue a temporary restraining
order against PISD, issue a temporary and permanent injunction against PISD, and
enter an order declaring that all meetings of the School Board held between certain
specified dates to be void and that all actions taken by the School Board at those
meetings to be void, specifically identifying the termination of Terrell’s employment.
Further, appellants requested that the trial court enter a writ of mandamus ordering the
School Board to reinstate Terrell. Appellants requested an unspecified amount of
damages, costs of court, and attorneys fees. PISD duly filed an answer to the
allegations contained in appellants’ original petition.
Appellants obtained a setting for a hearing on the application for a temporary
injunction and, in connection with the setting, caused to be issued a subpoena duces
tecum for PISD employee, Karen Linder. PISD filed an objection to the subpoena
duces tecum and to certain of the documents requested. Appellants subsequently filed
a motion to “show cause and strike defendant’s original answer.” The trial court granted
PISD’s objections to the subpoena duces tecum and denied appellants’ motion to show
cause and strike PISD’s original answer by order dated June 10, 2009. After the trial
court refused to enter a temporary restraining order, appellants requested the trial court
to vacate a setting on the temporary injunction.
2
On June 15, 2009, appellants filed a traditional motion for summary judgment
and a no-evidence motion for summary judgment. See TEX. R. CIV. P. 166a; 166a(i).
After PISD had filed a response to the motions, appellants subsequently filed objections
to PISD’s summary judgment evidence. The trial court denied appellants’ motion for
summary judgment by order dated October 12, 2009. Appellants then filed a motion
requesting the trial court to reconsider its ruling on the summary judgment and to enter
a ruling on appellants’ objections to PISD’s summary judgment evidence. The trial court
denied both the motion to reconsider and the objections to PISD’s summary judgment
evidence by order dated December 23, 2009. On that same day, PISD filed a traditional
and no-evidence motion for summary judgment. On May 14, 2010, the trial court
granted PISD’s motion for summary judgment without specifying upon which ground the
motion was granted.
Appellants appeal the order of the trial court, asserting an extensive number of
reasons why the trial court’s judgment was in error. The issues presented may be
broken down into allegations that the trial court erred in not finding that PISD violated
the provisions of TOMA regarding: 1) posting of notice of meetings, 2) requirements for
specificity in the notice of meetings and the place of the meetings, 3) internet posting
provisions, 4) requirement that all deliberations of the type involved be held in a public
meeting, 5) allegations that the notices posted were not posted by a person with
authority to post notices of meetings. In addition to the alleged violations of TOMA,
appellants allege that the trial court erred in: 6) ruling on various objections to some of
PISD’s summary judgment evidence, 7) in granting PISD’s motion for summary
judgment, and 8) in denying appellants’ motion for summary judgment. Because one of
3
the issues appellants raise regarding violations of TOMA is dispositive of this matter, we
will address it first.
Standard of Review
We review the granting or denial of a motion for summary judgment de novo.
See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When both
parties file a motion for summary judgment, as in this case, and one is granted and one
is denied then we, as the reviewing court, must determine all questions presented and
render the judgment that should have been rendered by the trial court. See HCBeck,
Ltd. v. Rice, 284 S.W.3d 349, 352 (Tex. 2009).
Internet Posting of Notices
TOMA requires a school district, among other governmental bodies, to
concurrently post notice of a School Board meeting on the school district’s internet
website. TEX. GOV’T CODE ANN. § 551.056(b) (West 2010).3 Section 551.056 provides
that a good faith attempt to comply with the requirements is not affected when the
failure to comply with the requirement is due to a technical problem beyond the control
of the school district. § 551.056(d).
The record before us clearly demonstrates that, for the period of time between
January 15, 2009, and May 19, 2009, the notices of the School Board meetings could
not have been posted on the PISD website. Further, summary judgment evidence
proves that the failure to post was due to a cutting of the link between the software
3
Further references to the Texas Government Code Annotated will be by
reference to “section ___”, “Section ___” or “§ ____.”
4
program used to post the notices, BoardBook, and the website. PISD contends,
through Linder’s affidavit, that, although the link was cut to the website, the notices
continued to be posted as required. They simply did not appear on the website.
According to PISD’s theory, the failure to post was due to a technical problem
beyond its control and, therefore, PISD’s failure to post is excused under the good faith
exception of the statute. Appellants, however, contend that the missing notices, when
produced by PISD, reflect that they were “created” not around the time of the original
meeting, but after PISD was notified of the failure of the connection between the
software and the website. Under appellants’ theory, this summary judgment evidence
establishes a material fact issue regarding the good faith attempt of PISD to post the
notices on its website as required by the statute. See § 551.056(d).
A review of the summary judgment evidence does, indeed, reflect that the
notices in question show to have been “created” after PISD was notified of the failure to
post the required website notices. Neither party offered any summary judgment
evidence as to what the term “created,” as it appears under the properties tab of the
notice, means. Both parties have opined as to what it means. Appellants contend it
means the notices were not prepared and entered until after the notification that PISD
had failed to post notices of the School Board meetings as required. PISD contends
“created” means the date the particular notice was printed for delivery to appellants.
We, however, have no evidence to support either interpretation.
In our analysis of the summary judgment under the de novo standard of review,
evidence favorable to appellants must be taken as true and every reasonable inference
5
must be indulged in favor of appellants. See Diversicare Gen. Partner, Inc. v. Rubio,
185 S.W.3d 842, 846 (Tex. 2005). Accordingly, we find that there is a material fact
issue about whether PISD actually attempted to post the notices and, therefore, met the
good faith exception to the requirement to concurrently post notices of the School Board
meetings on its website.
PISD argues that this case is similar to the allegations in Argyle Indep. Sch. Dist.
v. Wolf in which the Fort Worth court determined that there was no evidence of bad faith
on the part of the school district. See 234 S.W.3d 229, 248-49 (Tex.App.—Fort Worth
2007, no pet.). However, in Argyle the parties had a stipulation of evidence that the
webmaster had, in fact, received the notice of the meeting in question and attempted to
post the same on the school district’s website. See id. at 248. Further, the parties
stipulated that the failure of the notice to appear was beyond the control of the school
district and the problem was corrected a few hours before the meeting. See id. The
evidence in Argyle is factually distinguishable from the summary judgment evidence in
this case and does not control our disposition of this matter.
Conclusion
Because the issue of concurrently posting notices on the PISD’s website involves
a genuine issue of material fact not established as a matter of law, we reverse the
judgment of the trial court. We remand this matter for further proceedings consistent
with this opinion.
Mackey K. Hancock
Justice
6
Appendix 20
Judge Lopez – 223rd Court
Final Judgment
324
No. 35,621
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Defendant § GRAY COUNTY, TEXAS
FINAL JUDGMENT
On the 9th day of October, 2013, after due and proper notice to all parties, this case was
called to trial. Plaintiffs REBECCA TERRELL and CHANDRASHKHAR THANEDAR
appeared in person representing themselves and announced ready for trial. Defendant PAMPA
INDEPENDENT SCHOOL DISTRICT appeared in person through its authorized representative
and through their attorneys and announced ready for trial.
The case was tried to the bench in a non-jury trial. The Court received the testimony and
evidence submitted by the parties and heard the arguments of counsel. After hearing the
testimony, evidence, and arguments of Plaintiffs and Defendant the Court hereby renders
judgment for Defendant.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED:
1. That Plaintiffs' take nothing by their suit against Defendant; and
2. That court costs be taxed against Plaintiffs; and
3. That Defendant recover from Plaintiffs, jointly and severally, the sum of
m attorney fees pursuant to Section 551.142 of the Texas
Government Code.
Final Judgment
Thanedar v Pampa I. S.D.
Page 11
324
325
.·
SIGNED on the 2E.!dayof t2c p{,~ , 2013
Final Judgment
Thanedar v Pampa I.S.D.
Page 12 325
Appendix 21
Judge Lopez – Findings of Fact and
Conclusions of Law
326
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Defendant § GRAY COUNTY, TEXAS
FINDINGS OF FACT AND CONCLUSIONS OF LAW
On this day came on to be considered the Plaintiff's Request for Findings of Fact and
Conclusions of law which was filed in this Cause on behalf of Plaintiffs Rebecca Terrell and
Chandrashekhar Thanedar on or about October 24, 2013. In accordance with Rules 296 and 297
of the Texas Rules of Civil Procedure, the Court makes the following findings of fact and
conclusions of law.
A. Findings of Fact
1. Rebecca Terrell ("Terrell") and Chandrashekhar Thanedar (collectively
"Plaintiffs") are residents of Bexar County, Texas and were sb at the beginning of the trial of this
cause on October 9, 2013.
2. Plaintiffs represented themselves prose and were not represented by counsel at
trial or at any time during this litigation.
3. Pampa Independent School District ("PISD") IS a School District with its
Administrative offices located in Pampa, Gray County, Texas.
4. At the commencement of trial on October 9, 2013, Plaintiffs did not reside within
the PISD district boundaries but instead resided in Bexar County, Texas.
326
327
5. Terrell was employed by PISD in 2008 under a probationary teaching contract
whose term was 10 months which expired by its own terms at the end of the 2008-2009 school
year.
6. In March of 2009 Terrell was given actual notice that PISD intended to terminate
her probationary contract as required by the Texas Education Code. Thereafter, the termination
of Terrell's probationary contract was placed on the School Board agenda for the regularly
scheduled meeting to take place on March 26, 2009. The written notice for the March 26, 2009
school board meeting was properly placed on the front door of the PISD administration building
located in Pampa, Gray County, Texas more than 72 hours prior to the start of the meeting.
7. Plaintiffs had actual notice of March 26, 2009 board meeting and each Plaintiff
personally attended the meeting. Further, Terrell spoke to the board during the public comment
:l
section of the board meeting regarding the termination of her probationary contract.
8. At the March 26, 2009 board meeting the School Board voted unanimously to
terminate Terrell's probationary contract.
9. In 2007 PISD purchased a computer program called Boardbook which PISD used
to create its school board meeting notices and to post these notices on its district website (the
"internet postings"). PISD has used Boardbook for this purpose continuously since 2007 and has
paid for the Boardbook program each year since 2007.
10. Karen Linder, a PISD employee, was tasked with using the Boardbook program to
create each school board meeting notice and to then place a copy of the notice on the district
website in conformance with the requirements of Section 551.056 of the Texas Government
Code for internet postings.
327
328
11. Once Ms. Linder created the notice in Boardbook she then utilized the Boardbook
program to "release" the notice to the public for viewing. The public was able to review the
notice on the district website through a hyperlink on the website which directed the public to
Boardbook where the notice had been created and was available for viewing. This was the
manner in which internet postings were accomplished from the time PISD purchased the
Boardbook program.
12. In January of 2009 PISD transitioned its website to a new format. The new
website was built and maintained by an outside independent third party contractor hired by PISD
for this purpose. PISD instructed the contractor to make sure the new website had all of the same
hyperlinks as the old website, including the hyperlink to Boardbook which allowed the public to
view the school board meeting notices on the internet. The contractor failed to carry the
Boardbook hyperlink from the old website to the new one and as a result the school board
meeting notices which formerly appeared on the internet through the PISD website were
unavailable from the time the website switch occurred.in January 2009 through May 19, 2009
which was the date that PISD was informed of the problem.
13. The Boardbook school board meeting notices for PISD which were created by
Karen Linder using the Boardbook program were available for viewing by the public from
January 2009 through May 19, 2009 on the Boardbook website even though they were not on
available on the PISD website during this time.
14. Karen Linder and PISD were unaware that the Boardbook hyperlink was no
longer available on the PISD website as they had directed the contractor to carry forward to the
new website all such hyperlinks. Karen Linder continued to create the school board meeting
328
329
notices in Boardbook and "releasing" them to the public when completed, all the while thinking
they were still available on the website through the Boardbook hyperlink on the website.
15. The actions of Karen Linder and PISD in attempting to post the internet notices
required by Section 551.056 of the Texas Government Code from January 2009 through May 19,
2009 were all in good faith and any failure to comply with the statute was due to a technical
problem beyond the control ofPISD.
16. PISD was unaware that that the Boardbook hyperlink was not carried over to the
new website and the independent contractor hired by PISD for the website conversion was at
fault for failing to carry over the hyperlink.
17. Plaintiffs' claims in this suit included a claim und\er Section 551.142(a) of the
Texas Government Code.
18. PISD was the substantially prevailing party at trial in regards to any claims under
Chapter 551 of the Texas Government Code and in regards to any claims brought under Section
551.142(a).
'
19. PISD is entitled to an award of litigation costs and reasonable attorney fees
incurred in defending the claims of Plaintiffs which were brought in bad faith.
20. In awarding $30,000.00 in attorney fees the Court tpok judicial notice of the file
and has considered that the actions of the Plaintiffs in bringing this suit were in bad faith and that
the actions of PISD in defending Plaintiffs claims were reasonable under the law and in
particular under Chapter 551 of the Texas Government Code. This award of attorney fees and
costs is both reasonable and just considering the time involved. in defending this suit, the
~
voluminous number of pleadings and motions filed by Plaintiffs, boUt in the District Court and in
329
(,---""
330
the Appellate Court, and in consideration of the bad faith exercised by Plaintiffs in bringing this
action.
21. Plaintiffs first filed their suit against PISD on May 29, 2009.
22. PISD complied with all provisions of Chapter 551 of the Texas Government Code
concerning the posting of notice of PISD's school board meetings and in particular the meeting
of March 26, 2009 which were the subject of trial.
B. Conclusions of Law
1. PISD complied with all provisions of Chapter 551 of the Texas Government Code
concerning the posting of notice of PISD's school board meetings, both physical posting and
internet posting, and in particular the meeting of March 26, 2009 which were the subject of trial.
2. Any failure on the part of PISD to post an internet notice of an upcoming
school board meeting on its website from January 2009 through May 19, 2009 as required by
Section 551.056 of the Texas Government Code was due to a technical problem beyond the
control of PISD and PISD exercised good faith efforts to comply with the requirements of
Chapter 551 concerning internet posting notices.
3. PISD was the substantially prevailing party at trial in the Section 551.142(a)
action brought by Plaintiffs under the Texas Government Code and is entitled to an award of
litigation costs and reasonable attorney fees incurred in defending the claims of Plaintiffs which
were brought in bad faith.
4. The award of $30,000.00 in attorney fees is both reasonable and just taking into
consideration the file, the time involved in defending this suit, the voluminous number of
pleadings and motions filed by Plaintiffs, both in the District Court and in the Appellate Court,
and in consideration of the bad faith exercised by Plaintiffs in bringing this action.
330
------------- -- ---
, .. ..
331
SIGNED ON THIS ~y OF NOVEMBER, 2013.
331
Appendix 22
BoardBook Draft Agreement (PX31)
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P.O. Box 400
Austin, Texas 78767·0400 z
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512.467.0222. 1388.587.2665 _-< CJ
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Board Book® CJi
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Subscription Agreement
This Subscription Agreement (this "Agreement") is entered into as of 10 I I a ,
20.If2_, by and
between the Texas Association of School Boards, Inc. ("TASB") and Pam.~Q 1SQ
School District (the "District•) for the TASB BoardBook brand online meetingcilitation software.
("BoardBook").
Definition of BoardBook is an Internet-based application available to TASS members that enables
Service the user to create electronic board meeting agendas and then to compile those
agendas with supporting documents into complete electronic board meeting packets.
Meeting packets can be compiled from a variety of source document formats,
including Microsoft Word, HTML, plain text, Rich Text Format, graphical files, and
other file formats as specified by TASS. A finished board meeting packet is an
Adobe Acrobat PDF file that may be downloaded to the user's computer, from which
point the packets may be distributed at the user's discretion in a variety of ways (via
e-mail, CD-ROM, floppy disk, the District network, etc.). THE DISTRIBUTION OF
THE COMPLETED BOARD PACKET IS NOT A COMPONENT OF THE
BOARDBOOK APPLICATION .
Technical TASS will provide on-line and telephone technical support to the District for the
Support BoardBook application. Such assistance does not constitute legal advice. In the
event that the user requires legal advice on any issue, including but not limited
to issues about meeting agendas, the user should consult the District's attorney.
TASS is not responsible for supporting third party software applications installed on
the District's computers or network. On-site training for BoardBook will be available
to the District for an additional cost above and beyond that set out in this Agreement.
Fees The first-year licensing and maintenance/supportffi:e will be $1 ,sooJ
TASS will
provide the BoardBook service to the District after TASB receives this executed
Agreement and either a purchase order or payment of this fee. Maintenance/support
fees for subsequent years will be determined and assessed by TASS before the
annual renewals. Maintenance/support fees for subsequent years will be established
and communicated in writing to the District at least 30 days before the anniversary
date of this Agreement.
Ownership of The District acknowledges and agrees that TASS owns BoardBook and all
BoardBook® proprietary rights related to BoardBock. The District will not attempt to resell, rent or
otherwise distribute any part of Board Book or TASB's services relating to BoardBook
to any other party. TASB's proprietary rights regarding BoardBook include but are
not limited to all Board Book software and programming codes, documentation for the
BoardBook system and databases, the end user interface, the BoardBook name and
all BoardBook features. Notwithstanding the forgoing, the District has a Tight to
access its information that is stored on the TASS server within the BoardBook
application.
8/06
--------·~·
.
•
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I
Application Data Meeting packets created with BoardBook belong to the District. and the Dialrict may
use them as it sees flt, subject only to applicable law and local policy. Under no
circumstance may any user attempt to modify the programs on the TASB server or to
acquire the prog1811U11ing code for .BoardBock. Both remain 'the physical and
intellectual properfy afTASB, Inc. Legal action may be initiated byTASB agaJnstany
user who violates these conditions. The DJstrk:t may not modify, adapt. translate,
distribute, reverse engineer, decompile or disassemble any component or
Information associated with or accessed through BoardBaok.
Appfacation TASB wlU ·provide a Web-based interface for the application, which is hosted on
Access TASB's Web server. Ar.cess 1D the appllcatlon is restricted to authorized users
designated by the Dislricl Authorized users wiU be able to use the application by
means of Individualized myTASB accounts.
Contact Data The District agrees to provide contact data for all designated users of BoardBook, to
andMyTASB include, at a minimum, the names, titles, phone numbers, and e-mail addresses of all
authorized users. TASB wDI use this data exclusively to· provide users with
indlviduar.zed myTASB'"aCCOUnlS and to support those users as needed. The DJstrfct
agrees to keep all contact Information up-to.date In response to changes In
employment and board membership.
ResponslbUlty The District Is responsible for the District's user account(s) and pasawords used to
for Account and access BoardBook. The District Is responsible fOr maintaining the confidenttallly of Its
Password account(s) and passwords. The District agrees to notify TASB Immediately of any
unauthorized use of the District's account(s) of which the District becomes aware.
subscriber's Obligation to conduct board meetings in accordance with applicable law at'!d local
ResponslbUity policy resides entirely with the Dfstrfct. The District is solely responsible for all
communications performed by means of BoardBook. The District agrees not to use
BoardBook to communicate any message or material that Is harassing, libelous,
threatening. or obscene; that would VfoJate any intelleclual p~ rights of any
party or that Is otherwise unlawful; that would give rise to civil riabllily; or that
constitutes or encourages conduct that could constitute a criminal offense, under any
applicable law or regulation. The Dlsbict understands that although TASB is not
responsible fOr the DJstrlcfs communications, If TASS becomes aware of any
communication that would violate this section, it may suspend the communk:iltfon
and may suspend the District's use of BoardBook or may terminate this Agreement
Open Meetings The District agrees that the District ls sole!v responsible for complying with the Texas
and Publlc Open Meetings Act. and the Texas Public Information Act TASB's responsibilities are
Information limited to those specifically set out herein. Because TASB is not subject to the Texas
Open Meetings Act and the Texas Public lnfonnatlon Act, TASB cannot be
responsible for the District's compliance With these laws. In the event a third party
requests information or otherwise su0mits an inquiry conceining the Dlstrtcl's
compliance with these acts, TASB will direct the third party to contact the District.
TASB Is not the custodian of the District's records for any purposes.
ArchlVing of The District is responsible for creating Its own archive of the board materials c;reated
Records by use of the BoardBook applfcation. However, as long as this Agreement is. in
effect. TASS will preserve the Information that the District pJacas on the BoaRiBaok
server for two years. Thirty (30) days after this Agreement terminates, for any
reason, TASB will no longer stora the District's BoardBoolc material and information.
Confldentlallty The District acknowledges that the BoardBook and the supporting documentation
and programming for BoardBook Is confidential In nature and constitutes a trade
secret belonging to TASB. The District agrees to hold all BOSRIBook Information
confidential and shall instruct Its employees of the District's obligallons under this
Agreement and ensure that Its employees comply with sueh obllgatlons. TASS
agrees to hold private the Otstncrs BoardlBook archives and files and not to release
the Dlstrfct's dais unless TASB Is legally required to do so or the Dlslrict gives its
written consent to release such dala.
No Warranty The District understands and agrees that TASB's BoarctBook services and the
BoardBook itself are provided ·as ts• and •as available: TASB expressly disclaims
all warranties of any kind, express or Implied, ·including wflhout limftatfon any
warranty of merchantability or fitness for a particular purpose. TASB makes no
warranty or representation regarding TASB's services, any information, materials,
goods or services obtained through TASB or the BoardBook Web sit& or that TASB's
services will meet the District's requirements. or be uninterrupted, timely, secure or
error free. -Use of TASB's S8IVlces and the BoardBock Web Site are at the District's
sole risk. The District will be solely responslbre for any damage to the District
resulting from the use of TASB's BoardBook services or Web site.
Umltatlonof TASB's liablllty under this Agreement Is Dmited to the fees paid by the District to
Uablllty TASB under this Agreement for one year.
Term This Agreement will automatically renew on each anniversary of the Effective Date,
unless the Oisbict notifies TASB fn writing of its intent to tennlnate the Agreement
prior to the anniversary date of the Agreement or unless tennlnated earlier as
othelWise set out herein. If TASB has not received payment from the District within
one month after the annl\leraary of the Effectlv& Date of thiS Agreement, then TASB
will terminate this Agreement immediately.
Early If the District ceases to be a TASB member, this Agreement will lmmedialely
Tennlnatfon terminate. If the District violates the Subscnber's Re&ponslbllll¥ Section of this
Agreement, TASB may terminate this Agreement Immediately. The District may
terminate this Agreement for any rHson by giving TASB 30 days' written notice.
However, no prorated refunds wlD be given to the District after any early tennJnation.
Authority The Dlstrfi:t repre&enls. that the person signing this Agreement has full authority to
enter Into the Agreement
Amendment This Agreement may be amended by TASB by providing at least 30 days' written
notice to the District.
Attorneys' Fees The parties agree that, in the event of a lawsuit relating to this Agraement, the
prevalllng patty is entitled to recover lls reasonable and necessary attorney's fees
pursuant to Section 271.159 of the Texas Local Government Code.
.Effectiveness This Agreement Is effective upon the District's delivery (by mall or facslmDe) of an
and executed Agreement to TASB rEffectiVe Date"). The District shaD execute. and
Counterparts provide one original, manually executed copy to TASB. The District's faBure to
provide such orlglna~ manuaJJy executed copy to TASB does not aft'ect the varldily,
enfon:eabDlly or binding effect of this Agreement and either party may rely upon a
facsimile copy of this Agreement if an original, manually executed copy la not
available for production. The eft8dlve date of fee changes made under this
Agreement wiU neither alter the Agreemenfs Effective Date nor alter the
Agreamenfs anniversary date
3
. .... ~ .
•
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TASS Bound Upon TASB's racelpt of this signed Agreement, TASB agrees to be bound by all
tann& of this Agreement.
signed Agreement to Patricia Horton at the addra&s listed
Tllla:``~S~u~p.e__~_i_~_~_e_n_O_U\~-~----``­
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Dlstrfet __________.,~------~----------~--
County District Number: _ _o_q_o_-_q_o_4_____
4
Appendix 23
Texas Open Meetings Act,
Gov’t Code Ch. 551
Selected Provisions
GOVERNMENT CODE
TITLE 5. OPEN GOVERNMENT; ETHICS
SUBTITLE A. OPEN GOVERNMENT
CHAPTER 551. OPEN MEETINGS
SUBCHAPTER C. NOTICE OF MEETINGS
Sec. 551.041. NOTICE OF MEETING REQUIRED.
A governmental body shall give written notice of the date,
hour, place, and subject of each meeting held by the
governmental body.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.
Sec. 551.043. TIME AND ACCESSIBILITY OF NOTICE; GENERAL
RULE.
(a) The notice of a meeting of a governmental body must be
posted in a place readily accessible to the general public
at all times for at least 72 hours before the scheduled
time of the meeting, except as provided by Sections
551.044-551.046.
(b) If this chapter specifically requires or allows a
governmental body to post notice of a meeting on the
Internet:
(1) the governmental body satisfies the requirement that
the notice must be posted in a place readily accessible to
the general public at all times by making a good-faith
attempt to continuously post the notice on the Internet
during the prescribed period;
(2) the governmental body must still comply with any duty
imposed by this chapter to physically post the notice at a
particular location; and
(3) if the governmental body makes a good-faith attempt
to continuously post the notice on the Internet during the
prescribed period, the notice physically posted at the
location prescribed by this chapter must be readily
accessible to the general public during normal business
hours.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993. Amended by: Acts 2005, 79th Leg., Ch. 624 (H.B.
2381), Sec. 1, eff. September 1, 2005.
Sec. 551.051. SCHOOL DISTRICT: PLACE OF POSTING NOTICE.
A school district shall post notice of each meeting on a
bulletin board at a place convenient to the public in the
central administrative office of the district.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.
Sec. 551.056. ADDITIONAL POSTING REQUIREMENTS FOR CERTAIN
MUNICIPALITIES, COUNTIES, SCHOOL DISTRICTS, JUNIOR COLLEGE
DISTRICTS, AND DEVELOPMENT CORPORATIONS.
(a) This section applies only to a governmental body or
economic development corporation that maintains an Internet
website or for which an Internet website is maintained.
This section does not apply to a governmental body
described by Section 551.001(3)(D).
(b) In addition to the other place at which notice is
required to be posted by this subchapter, the following
governmental bodies and economic development corporations
must also concurrently post notice of a meeting on the
Internet website of the governmental body or economic
development corporation:
(1) a municipality;
(2) a county;
(3) a school district;
…
(d) The validity of a posted notice of a meeting or an
agenda by a governmental body or economic development
corporation subject to this section that made a good faith
attempt to comply with the requirements of this section is
not affected by a failure to comply with a requirement of
this section that is due to a technical problem beyond the
control of the governmental body or economic development
corporation.
Added by Acts 2005, 79th Leg., Ch. 340 (S.B. 1133), Sec. 1,
eff.January 1, 2006.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 814 (S.B. 1548), Sec. 1,
eff.September 1, 2007. Acts 2007, 80th Leg., R.S., Ch. 885
(H.B. 2278), Sec. 3.10,
eff. April 1, 2009.
SUBCHAPTER D. EXCEPTIONS TO REQUIREMENT THAT MEETINGS BE
OPEN
Sec. 551.074. PERSONNEL MATTERS; CLOSED MEETING.
(a) This chapter does not require a governmental body to
conduct an open meeting:
(1) to deliberate the appointment, employment, evaluation,
reassignment, duties, discipline, or dismissal of a public
officer or employee; or
(2) to hear a complaint or charge against an officer or
employee.
(b) Subsection (a) does not apply if the officer or
employee who is the subject of the deliberation or hearing
requests a public hearing.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.
SUBCHAPTER E. PROCEDURES RELATING TO CLOSED MEETING
Sec. 551.101. REQUIREMENT TO FIRST CONVENE IN OPEN MEETING.
If a closed meeting is allowed under this chapter, a
governmental body may not conduct the closed meeting unless
a quorum of the governmental body first convenes in an open
meeting for which notice has been given as provided by this
chapter and during which the presiding officer publicly:
(1) announces that a closed meeting will be held; and
(2) identifies the section or sections of this chapter
under which the closed meeting is held.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.
Sec. 551.102. REQUIREMENT TO VOTE OR TAKE FINAL ACTION IN
OPEN MEETING.
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.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.
Sec. 551.103. CERTIFIED AGENDA OR RECORDING REQUIRED.
a) A governmental body shall either keep a certified agenda
or make a recording of the proceedings of each closed
meeting, except for a private consultation permitted under
Section 551.071.
(b) The presiding officer shall certify that an agenda kept
under Subsection (a) is a true and correct record of the
proceedings.
(c) The certified agenda must include:
(1) a statement of the subject matter of each deliberation;
(2) a record of any further action taken; and
(3) an announcement by the presiding officer at the
beginning and the end of the meeting indicating the date
and time.
(d) A recording made under Subsection (a) must include
announcements by the presiding officer at the beginning and
the end of the meeting indicating the date and time.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.
Amended by:
Acts 2013, 83rd Leg., R.S., Ch. 87 (S.B. 471), Sec. 8, eff.
May 18, 2013. Acts 2013, 83rd Leg., R.S., Ch. 87 (S.B.471),
Sec. 9, eff. May 18, 2013.
Sec. 551.104. CERTIFIED AGENDA OR RECORDING; PRESERVATION;
DISCLOSURE.
a) A governmental body shall preserve the certified
agenda or recording of a closed meeting for at least two
years after the date of the meeting. If an action involving
the meeting is brought within that period, the governmental
body shall preserve the certified agenda or recording while
the action is pending.
(b) In litigation in a district court involving an alleged
violation of this chapter, the court:
(1) is entitled to make an in camera inspection of the
certified agenda or recording;
(2) may admit all or part of the certified agenda or
recording as evidence, on entry of a final judgment; and
(3) may grant legal or equitable relief it considers
appropriate, including an order that the governmental body
make available to the public the certified agenda or
recording of any part of a meeting that was required to be
open under this chapter.
(c) The certified agenda or recording of a closed meeting
is available for public inspection and copying only under a
court order issued under Subsection (b)(3).
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.
Amended by: Acts 2013, 83rd Leg., R.S., Ch. 87 (S.B. 471),
Sec. 10, eff. May 18, 2013.
SUBCHAPTER G. ENFORCEMENT AND REMEDIES; CRIMINAL VIOLATIONS
Sec. 551.141. ACTION VOIDABLE.
An action taken by a governmental body in violation of this
chapter is voidable.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.
Sec. 551.142. MANDAMUS; INJUNCTION.
a) 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.
(b) 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.
Added by Acts 1993, 73rd Leg., ch. 268, Sec. 1, eff. Sept.
1, 1993.