plaintiffs original petition original declaratory judgment action application for temporary and...

7/25/2019 Plaintiffs Original Petition Original Declaratory Judgment Action Application for Temporary and Permanent Injunction

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Cause No. ________________

ADRIENNE B. MURRY; NANCY A. ABREGO; ADRIEN ADAMS; RON E. IN THE DISTRICT COURT

KAHANEK; KATHY KAHANEK; SHIRLEY HORTON; JOHN FAULK; NICK HARIS; AND MARK SCHULTZ,

Plaintiffs,

v. HARRIS COUNTY, TEXAS

HOUSTON INDEPENDENT SCHOOL DISTRICT,

Defendant. _______ JUDICIAL DISTRICT

PLAINTIFFSORIGINAL PETITION, ORIGINAL DECLARATORY-JUDGMENT

ACTION, APPLICATION FOR TEMPORARY AND PERMANENT INJUNCTION,

AND REQUEST FOR DISCLOSURE

Plaintiffs file this original petition, original declaratory-judgment action, application for

temporary and permanent injunction, and request for disclosure against Defendant, Houston

Independent School District (HISD). In support, they allege the following:

DISCOVERY-CONTROL PLAN

1. Plaintiffs intend to conduct discovery under Level 3 of Texas Rule of Civil

Procedure 190.4 and affirmatively plead that this suit is not governed by the expedited-actions

process in Texas Rule of civil Procedure 169.

PARTIES

2.

Plaintiff Adrienne Brooks Murry is an individual property owner and taxpayer

zoned to Houston Independent School District who resides in Houston, Harris County, Texas.

She can be reached through her attorneys at Goforth Law Firm.


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3. Plaintiff Nancy A. Abrego is an individual property owner and taxpayer zoned to

Houston Independent School District who resides in Houston, Harris County, Texas. She can be

reached through her attorneys at Goforth Law Firm.

4. Plaintiff Adrien Adams is an individual property owner and taxpayer zoned to

Houston Independent School District who resides in Houston, Harris County, Texas. He can be

reached through his attorneys at Goforth Law Firm.

5. Plaintiff Ron E. Kahanek is an individual property owner and taxpayer zoned to



6. Plaintiff Kathy Kahanek is an individual property owner and taxpayer zoned to



7. Plaintiff Shirley Horton is an individual property owner and taxpayer zoned to



8. Plaintiff John Faulk is an individual property owner and taxpayer zoned to



9. Plaintiff Nick Haris is an individual property owner and taxpayer zoned to




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10. Plaintiff Mark Schultz is an individual property owner and taxpayer zoned to



11. Defendant Houston Independent School District is a governmental unit operating

within Harris County, Texas and may be served by delivering a copy of the petition and citation

to General Counsel Elneita Hutchins-Taylor or Superintendent Kenneth Huewitteach located

4400 West 18thStreet, Houston, Texas 77092-8501.

JURISDICTION

12.

The amount sought by Plaintiffs is within the jurisdictional limits of the court.

Additionally, this Court has jurisdiction over this matter under 65.021 of the Texas Civil

Practices and Remedies Code.

VENUE

13. Venue is proper in Harris County, Texas, for that is where HISD maintains its

principal office in Texas and where all or a substantial part of the events or omissions giving rise

to Plaintiffs claims occurred.1

FACTS

13. HISD is in dire financial straits. In December 2015, a desperate HISD approved

borrowing over $212 million to cover a shortfall in its nearly $2-billion bond program, the

largest school bond in Texas history.2The shortfall resulted from ballooning construction costs,

which an internal audit suggests were caused by HISDs mismanagement and lack of

1See TEX.CIV.PRAC.&REM.CODE 15.002(a)(1), (3).

2(Ex. 1, at Pkt. Pg. 11920); (Ex. 7, at 11); (Ex. 22).


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competitive bidding.3Compounding the hemorrhaging of these $212 million was the states

finding that HISD is a property-wealthy districteven though three out of four HISD students

live in poverty.4Because of this finding, HISD must send over a billion local-tax dollars to the

state over the next four years as part of the states Robin Hood program.5That includes about

$419 million in the next two years and over $162 million for the 20162017 school year alone.6

As a tourniquet, HISD enacted a 20162017 budget that addresses a resulting $95 million

shortfall by cutting over $80 million in programs.7Of course these cuts have consequences. For

instance, they strip funding from campuses and eliminate administrative and tutoring positions.

Specifically the budget ends the districts Apollo program, which spread about $20 million to

low-performing schools for tutors and longer hours.8The budget also abandons a program that

awarded bonuses to teachers.9And the budget slashes student funding by $179 per student.10As

a result of these drastic cuts, HISD concedes that its classrooms will be impacted.11

14. Instead of using the funds it does have to lessen the classroom impact, HISD has

chosen now to rename eight of its schoolsa choice that will directly cost HISD taxpayers

millions of dollars. In doing so, HISDs actions are not only fiscally irresponsible but also legally

3(Ex. 20); (Ex. 21); (Ex. 22).

4(Ex. 23, at pp. 15); (Ex. 24); (Ex. 25); (Ex. 26).

5(Ex. 23, at pp. 15); (Ex. 24); (Ex. 25); (Ex. 26).

6(Ex. 23, at pp. 15); (Ex. 24); (Ex. 25); (Ex. 26).

7(Ex. 23, at pp. 15); (Ex. 24); (Ex. 25); (Ex. 26).

8(Ex. 23, at pp. 15); (Ex. 24); (Ex. 25); (Ex. 26).

9(Ex. 23, at pp. 15); (Ex. 24); (Ex. 25); (Ex. 26).

10(Ex. 23, at pp. 15); (Ex. 24); (Ex. 25); (Ex. 26).

11(Ex. 24, at 1) (Because the vast majority of HISDs budget is spent directly on schools, there was no way to implement the state-mandated cuts without impacting classrooms.).


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prohibited. Thats because the way HISD has gone about renaming these schools violates state

laws and HISD regulations. So Plaintiffs, as concerned HISD taxpayers, are suing to halt HISD

from expending the publics funds illegally.

15. HISDs illegal conductbegan in January 2016. That month, HISDs board of

education convened to vote on whether to rename eight of its schools.12The schools that the

board proposed to rename were:

Richard Dowling Middle School;

Thomas Stonewall Jackson Middle School;

Albert Sidney Johnston Middle School;

Jefferson Davis High School;

Lee High School;

Henry Grady Middle School;

Sidney Lanier Middle School; and

John Reagan High School.13

According to the boards agenda, these schools would be renamed because each had been named

after a prominent confederate leader.

14

16. But the boards agenda item containing the renaming proposal offered little more

information for the public to consider. Perhaps thats becauseas internal board e-mails

suggestthis agenda item was not reviewed and placed on the agenda at the regularly scheduled

agenda-review meeting.15Rather the renaming proposal was strategically inserted at the last

12

(Ex. 2, at Pkt. Pgs. 2224).

13(Ex. 2, at Pkt. Pgs. 2224).

14(Ex. 2, at Pkt. Pg. 24).

15 See (Ex. 15) (e-mail from board-member criticizing how the school-renaming item was placed on the agenda atthe last minute and the lack of communication by other board members in offering this item);see also (Ex. 16)(indicating that the board-member strategically offered renaming item at last minute to ensure its placement on theagenda).


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minute by a board member to ensure its placement on the agenda: I had to keep this under my

hat and be strategic about it. Wouldnt have made it to the agenda any other way.16

17. The effect of these tactics was that the school-renaming agenda item omitted facts

that HISDs policy regulations require it to disclose. For instance, one regulation in HISDs

policy manual states that an agenda items description of cost and funding sources must detail

the total dollars being spent and identify all funding sources.17Yet the agenda item to rename

these eight public schools failed to identify the costsand the source of funds for renaming

them.18Just the opposite, the agenda item misrepresented that renaming these schools had no

costs.

19

Of course thats not only impossible but also inaccurate, which HISD has since

admitted.20

18. Nevertheless, the boards agenda item hid how much it would cost to rename

these eight schools and how the renaming would be paid for. Despite violating its regulations by

failing to publicize these critical details, the board voted to change the names of four schools and

to establish committees to rename them.21The board also postponed the vote to rename the other

four schools so that board-members could meet with their communities.22

16(Ex. 16).

17Policy Manual BE3 (REGULATION)Board Meetings, at pp. 23; (Ex. 13, at pp. 23).

18

Policy Manual BE3 (REGULATION)Board Meetings, at pp. 23; (Ex. 13, at pp. 23); (Ex. 2, at Pkt. Pg. 22).

19(Ex. 2, at Pkt. Pg. 22).

20See, e.g.,(Ex. 18).

21(Ex. 8, at pp. 35); (Ex. 2 at Pkt. Pg. 2224).

22(Ex. 8, at pp. 35).


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19. Less than a month lateron February 11, 2016the board reconvened to vote on

whether to rename three out of these four remaining schools.23And just like the renaming agenda

item from the January board meeting, the February agenda item omitted information that HISD

policy regulations require to be disclosed.24That is, the agenda item failed to detail the costs to

rename the three schools and identify the money source to fund the renaming.25Instead the

agenda item misrepresented that the renaming costs were none.26

20. To say its a misrepresentation that the board failed to disclose there would be

costs and a funding source is confirmed by HISDs internal e-mails. In the two days before the

February board meeting, a board-member e-mailed HISDs deputy superintendentwho is also

HISDs chief financial officer.27In the e-mail, the board-member asked if HISD had looked at

the budget cost for renaming the schools and whether that cost was reflected in the budget.28The

deputy superintendent responded that the renaming was not a budgeted item and that HISD

would pay for the one-time cost out of the fund balance.29To this, the board-member asked if

HISD knew what the projected cost would be.30The deputy superintendent replied that HISD

didnt know at that time and that facilities would have to assess and provide an estimate by

23(Ex. 3, at Pkt. Pgs. 2223).

24(Ex. 3, at Pkt. Pgs. 2223).

25(Ex. 3, at Pkt. Pgs. 2223).

26

(Ex. 3, at Pkt. Pgs. 2223).

27(Ex. 17).

28(Ex. 17).

29(Ex. 17).

30(Ex. 17).


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school.31In other words, in the two days before the February board meeting, HISD

acknowledged that there would be costs and a funding source for the renaming. And it conceded

that the exact costs were still unknown and that the renaming costs hadnt been budgeted.

21. The failure to budget for the renaming costs is especially surprising. To be sure,

the 20152016 budget began months earlier.32But state law prohibits a school district from

spending public funds in any manner other than as provided for in the budget.33So HISD needed

to either budget for the renaming costs initially or amend the budget to cover them.34But the

internal e-mails show it had done neitherchoosing instead to write a blank check for one-time

costs out of the fund balance.

35

So by not disclosing the renaming costs, concealing the renaming

funding source, and spending public funds on costs not covered by the budget, HISD violated the

law.

22. But violating the law didnt stop HISDs board from voting. Two days after the e-

mail exchange, the board voted to rename the three schoolsclaiming in its agenda that

renaming the schools would cost nothing.36And with its vote, the board also established

committees to propose new names.37Within a one-month period, HISD decided to change the

31(Ex. 17).

32See HISDs adopted budget effective July 1, 2015June 30, 2016 for HISDs 20152016 school year. This 944-page budget can be found at the following link:http://www.houstonisd.org/site/default.aspx?PageType=14&DomainID=8008&PageID=127782&ModuleInstanceID=181569&ViewID=1e008a8a-8e8a-4ca0-9472-a8f4a723a4a7&IsMoreExpandedView=True

33See TEX.EDUC.CODE ANN. 44.006(a) (Public funds of the school district may not be spent in any manner otherthan as provided for in the budget adopted by the board of trustees, but the board may amend a budget or adopt a

supplementary emergency budget to cover necessary unforeseen expenses.)..

34See id.

35(Ex. 17).

36(Ex. 9, at pp. 35); (Ex. 3, at Pkt. Pg. 22).

37(Ex. 9, at pp. 35); (Ex. 3, at Pkt. Pgs. 2223).
http://www.houstonisd.org/site/default.aspx?PageType=14&DomainID=8008&PageID=127782&ModuleInstanceID=181569&ViewID=1e008a8a-8e8a-4ca0-9472-a8f4a723a4a7&IsMoreExpandedView=Truehttp://www.houstonisd.org/site/default.aspx?PageType=14&DomainID=8008&PageID=127782&ModuleInstanceID=181569&ViewID=1e008a8a-8e8a-4ca0-9472-a8f4a723a4a7&IsMoreExpandedView=Truehttp://www.houstonisd.org/site/default.aspx?PageType=14&DomainID=8008&PageID=127782&ModuleInstanceID=181569&ViewID=1e008a8a-8e8a-4ca0-9472-a8f4a723a4a7&IsMoreExpandedView=Truehttp://www.houstonisd.org/site/default.aspx?PageType=14&DomainID=8008&PageID=127782&ModuleInstanceID=181569&ViewID=1e008a8a-8e8a-4ca0-9472-a8f4a723a4a7&IsMoreExpandedView=Truehttp://www.houstonisd.org/site/default.aspx?PageType=14&DomainID=8008&PageID=127782&ModuleInstanceID=181569&ViewID=1e008a8a-8e8a-4ca0-9472-a8f4a723a4a7&IsMoreExpandedView=True


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names of seven public schools without disclosing the real price or a properly-budgeted-for

funding source. And now only one school remained.

23. The next monthon March 10, 2016HISDs board of education met again to

vote on whether to rename the eighth and final school.38Once again the renaming agenda item

failed to detail the costs to rename the school.39Once again the renaming agenda item failed to

publicize the school-renaming costs funding source.40Once again the renaming agenda item

misrepresented that the renaming costs were none.41And once again, HISD violated its

regulations and state law by failing to disclose these details and, if paid for with public funds, to

ensure any school-renaming costs were properly budgeted.

42

But the board nonetheless voted to

rename this school and to establish a committee to propose its new name.43Along with deciding

to rename this last school, the board officially renamed one of the eight schools.44And just like

the agenda items authorizing the renaming of the eight schools, the agenda item that actually

renames the school misrepresented that there were no renaming costs.45

24. As the school-renaming issue transformed into controversy, however, HISD

openly admitted that renaming the eight schools entailed costs. But it never formally recognized

this reality in its agenda, its resolutions, and its budgetas it was legally required to do. After

38(Ex. 4, at Pkt. Pgs. 910).

39(Ex. 4, at Pkt. Pg. 9).

40(Ex. 4, at Pkt. Pg. 9).

41

(Ex. 4, at Pkt. Pg. 9).

42(Ex. 4, at Pkt. Pg. 9); Policy Manual BE3 (REGULATION)Board Meetings, at pp. 23; (Ex. 13, at pp. 23).

43(Ex. 10, at pp. 23); (Ex. 4, at Pkt. Pg. 10).

44(Ex. 4, at Pkt. Pgs. 2627); (Ex. 10, at pp. 6).

45(Ex. 4, at Pkt. Pgs. 26).


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the fact, HISD did guesstimate that the cost to rename the eight schools would be about $250,000

per school.46So according to HISDs own figures, renaming these eight schools would cost the

taxpayers $2 million. That figure, however, seems to be underestimated. A study by a group not

affiliated with HISD assessed the cost to rename just one school at about $500,000.47If the study

is accurate and indicative, then the taxpayerscosts for renaming all eight schools would be

doubled to $4 million.

25. Amidst this backdrop, a concerned alumnus e-mailed HISD on May 8, 2016 about

its $250,000-per-school estimate.48An HISD representative replied that the $250,000 figure was

an average estimate based on previous efforts in the district.

49

The representative further

reminded that he previously said each campus would be evaluated on a case-by-case basis with

some campuses needing less and some campuses needing more.50And he added that the faculties

team will conduct a cost assessment.51So in this May 2016 e-mail, HISD acknowledged that no

cost assessment for renaming the eight schools had been done yet.52And it admitted that its

$250,000-per-school estimate was not based on any assessment of these schoolsand perhaps

the costs for some campuses will be even more.53

46See e.g., (Ex. 18).

47(Ex. 19).

48(Ex. 18).

49

(Ex. 18).

50(Ex. 18).

51(Ex. 18).

52(Ex. 18).

53(Ex. 18).


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26. Four days after this e-mailon May 12, 2016HISDs board of education met to

officially rename the remaining seven schools.54This time the agenda items describing the

renaming proposals for each school were different. They did not state that the renaming costs and

funding source were none. Instead the agenda items reported next to the costfunding category:

General Fund Fund Balance.55In other words, the agenda items implicitly recognized that

renaming costs could be incurred and explicitly stated that the costs would be paid for by the

districts general fund. Of course this new information is a significant departure from HISDs

earlier formal declarations that there would be no renaming costs. To add insult to injury, HISD

still hadnt disclosed how much it would actually cost to rename these schoolsas it was

required to do under its regulations.56And HISD hadnt updated its budget to cover the costs to

rename the schools. Yet these legal hurdles didnt stop HISDs board. The board officially

renamed these seven schoolswithout telling the taxpayers of the actual costs.57And through

this resolution, it essentially endorsed a blank check from the general fund to pay the hidden

costs.

27. Since the May board meeting, the reality of issuing a blank check for the

renaming costs has emerged. HISD has proceeded to order new team uniforms for the renamed

schools.58And the costs are astronomical. Indeed at its board meeting on June 9, 2016, the board

54(Ex. 5, at Pkt. Pgs. 2437).

55(Ex. 5, at Pkt. Pgs. 2437).

56(Ex. 5, at Pkt. Pgs. 2437); Policy Manual BE3 (REGULATION)Board Meetings, at pp. 23; (Ex. 13, at pp. 23).

57(Ex. 11, at pp. 79); (Ex. 5, at Pkt. Pgs. 2437).

58(Ex. 6, at Pkt. Pg. 116).


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considered approving a school-uniforms contract for $7 million.59Tucked in at page 116 of the

agenda, the approval states that that average historical expenditure on uniforms is $2 million,

with the expenditures last year totaling $1,154,033.60But this year, the expenditures increased to

$7 million because of new-uniform requests for the name-changed schools: The dollar increase

represent new uniforms request for schools affected by the name change. The projected annual

expenditures for this project is $7,000,000.61So just changing team uniforms alone will cost the

taxpayers over $5 million.

28. Given HISDs informal assessment of about $2 million in total costs to rename all

eight schools, HISDs decision to spend over $5 million on uniforms alone is troubling. But its

not necessarily surprising, considering the lack of competitive bidding HISDs internal auditor

uncovered in the construction-bond saga. On information and belief, the skyrocketing school-

renaming costs may have resulted from HISD failing to fulfill its legal duty to use best-value

methods, like competitive bidding, when contracting for goods and services of $50,000 or

more.62State law requires HISD to use certain types of best-value methods when contracting for

goods or services of $50,000 or more.63And HISD apparently did not employ the sanctioned

best-value methods when ordering team uniforms. Of course that revelation is obvious on its

face. After all, HISD will be spending $3 million more than it had forecastedjust from buying

uniforms. If HISD has failed to use best-value methods for purchasing team uniforms or in

59(Ex. 6, at Pkt. Pg. 116).

60

(Ex. 6, at Pkt. Pg. 116).

61(Ex. 6, at Pkt. Pg. 116).

62See TEX.EDUC.CODE ANN. 44.031(a) (Except as provided by this subchapter, all school district contracts forthe purchase of goods and services, except contracts for the purchase of produce or vehicle fuel, valued at $50,000or more in the aggregate for each 12-month period shall be made by the method, of the following methods, thatprovides the best value for the district: .).

63See id.


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contracting for any other goods and services of $50,000 or more, then these purchases must be

stopped immediately, before taxpayer dollars are squandered.

29. HISD has gone about renaming eight of its schools in a way that violated its

statutory and regulatory duties. Those duties were largely created for two purposes. First, to

provide taxpayers fair notice so they have the opportunity to oppose any proposals being

considered by HISDs board. Second, to safeguard taxpayer dollars. Underlying these dual

purposes is the requirement that HISDs board be transparent with its constituents. This school-

renaming incident highlights precisely what can happen when those legal duties are disregarded.

Without full disclosure to the public, millions of taxpayer dollars can be wasted. If HISD

believes that renaming the eight schools is worth the effort and cost in light of its drastic budget

cuts, it must comply with its legal obligations. It must be upfront to the public about the costs

and whether those costs will burden the taxpayers. Because HISD violated its statutory and

regulatory duties in the way it went about renaming these schoolsat the price of millions of

taxpayer dollarsPlaintiffs ask for this Courts help in holding HISD accountable. Plaintiffs ask

that HISD be enjoined from renaming these schools until it has complied with its legal

responsibilities.

CAUSES OF ACTION

30. Plaintiffscauses of action are described in the following claims. These claims

arose from HISD violating its legal duties under the Texas Government Code, the Texas

Education Code, and HISDs own regulations. Plaintiffs are taxpayers and are suing to stop

HISD from expending public funds on its illegal activities stemming from its violating these

laws. Plaintiffsclaims incorporate the facts alleged in this pleading. And when appropriate,

these claims should be understood as pleaded in the alternative.


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Count 1Violation of Texas Education Code 44.006

31. HISD has violated Texas Education Code 44.006, which restricts a school

districts use of public funds to budgeted items.

64

In renaming the eight public schools at issue,

HISD has spent, is spending, and will spend public funds of the school district. The public funds

that HISD is spending have not been budgeted for, and HISDs board of education has not

amended the budget or adopted an emergency supplement to the budget to cover the school-

renaming costs, which will ultimately be millions of taxpayer dollars. Because 44.006 of the

education code prohibits public funds of the school district from being spent in any manner other

than as provided for in the budget, HISD has violated 44.006 by failing to adopt a budget that

covers the costs to rename the eight schools. In violating 44.006 to effectuate the renaming of

these eight schools, HISD is spending public funds on an illegal activity.

Count 2Violation of Texas Education Code 44.031

32. HISD is violating Texas Education Code 44.031, which governs school-district

purchasing contracts.65In renaming the eight public schools at issue, HISD has spent, is

spending, and will spend public funds of the school district. Portions of these funds will be paid

through contractswhich HISD has entered intofor the purchase of goods and services valued

at $50,000 or more in a 12-month period. That includes a $7 million contract to purchase

uniforms, which apparently includes over $5 million to be spent on new team uniforms for the

64TEX.EDUC.CODE ANN. 44.006(a) (Public funds of the school district may not be spent in any manner otherthan as provided for in the budget adopted by the board of trustees, but the board may amend a budget or adopt asupplementary emergency budget to cover necessary unforeseen expenses.).

65TEX.EDUC.CODE ANN. 44.031(a) (Except as provided by this subchapter, all school district contracts for thepurchase of goods and services, except contracts for the purchase of produce or vehicle fuel, valued at $50,000 ormore in the aggregate for each 12-month period shall be made by the method, of the following methods, thatprovides the best value for the district: .).


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schools that were renamed. The Texas Education Code requires all school-district contracts for

the purchase of goods and services valued at $50,000 or more in the aggregate for each 12-month

period to be made by a provided method that offers the best value for the district. HISD is

apparently not using a sanctioned best-value method when entering into purchasing contracts

valued at $50,000 or moreincluding the school-uniforms contractin renaming the eight

schools. HISD is therefore violating 44.031 in renaming these schools and spending public

funds on an illegal activity.

Count 3Violation of HISD Regulation BE3

33. HISD has violated HISD policy-manual regulation BE3, which states what

information must be included on an agenda item.66According to this regulation, an agenda item

must detail the total dollars being spent on the action. And it must disclose all sources of

funding, with an exact dollar amount and budget strings being shown following the statement of

total cost. Under this standard, the agenda items for the renaming of the eight HISD schools

should have specified the total dollars that will be spent on renaming the schools. And the items

should have pinpointed the funding source to pay for the renaming costsshowing the exact

dollar amount and budget strings. But that didnt happen. The agenda items deciding to rename

the eight schools simply said none in the costfunding section, even though HISD estimated

that it will pay roughly $2 million for the name changes out of the districts general fund.

Moreover, agenda items that actually renamed these schools merely said, General Fund Fund

Balance in the costfunding section. In other words, HISD never stated in the agenda items the

total dollars being spent on the renaming of these schools. And it didnt correctly identify in the

agenda items the funding source with exact dollar amounts and budget strings. Accordingly,

66See Policy Manual BE3 (REGULATION)Board Meetings;see also (Ex. 13, at pp. 23).


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HISD violated policy regulation BE3 by failing to identify the costs and funding source in its

school-renaming agenda items. In violating BE3 to effectuate the renaming of these eight

schools, HISD is spending public funds on an illegal activity.

Count 4Violation of HISD Regulation BE2

34. HISD is violating HISD policy-manual regulation BE2, which requires certain

expenditures be placed as an item on the agenda.67According to this regulation, an agenda item

is required when seeking approval by the board of education for authority to negotiate, execute,

and approve service contracts over $50,000. An agenda item is also required when seeking

approval by the board of education to approve vendor awards for purchases over $100,000 or to

ratify vendor awards for purchases under $100,000. In renaming the eight public schools at issue,

HISD has spent, is spending, and will spend public funds of the school district. Indications are

that portions of the funds to rename these schools are for purchases and contracts that trigger

policy regulation BE2 and must be placed as items on the agenda to be approved by the board.

Unless these purchases and contracts are properly voted on as agenda items, HISD is violating

policy-manual regulation BE2. And in violating BE2 to effectuate the renaming of these eight

schools, HISD is spending public funds on an illegal activity.

Count 5Violation of Texas Government Code 551.041

35. HISDthrough its board of educationviolated Texas Government Code

551.041, which governs the notice requirements of the Texas Open Meetings Act.68HISDs

board of education is a governmental body within the meaning of 551.041. As a governmental


68TEX.GOVT CODE ANN. 551.041 (A governmental body shall give written notice of the date, hour, place, andsubject of each meeting held by the governmental body.).


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body meeting to vote on whether to rename eight of its schools, the board was required to give

written notice of the date, hour, place, and subject of that meeting. Because the controversial

renaming of these schools was a topic of special interest to the public, the board had to describe

the subject of the meeting with greater detail and with reasonable specificity of the subject matter

to be considered. In other words, the boardsrenaming agenda item had to describe not only the

boards consideration of whether to rename these eight schools but also the costs and funding

source associated with renaming the schools. Because the board failed to describe the costs and

funding source in the agenda items to rename the schools, it violated its duty to provide

sufficient notice under this section of the Texas Open Meetings Act. HISD is expending public

pubic funds as a result of the boardsillegal activity.The boards actions are therefore voidable.69

Count 6Violation of Texas Government Code 2166.5011

36. HISD is violating Texas Government Code 2166.5011which governs the

removal, relocation, and alteration of monuments and memorials.70In seeking to rename schools

named after confederate leaders, HISD is targeting the names of schools honoring Texas citizens

for their military or war-related service. These schools are located on property protected under

2166.5011. The names of these school buildings are therefore monuments and memorials within

the meaning of 2166.5011. As it applies to this case, the schools names may be alteredonly by

the: (1) the legislature; (2) the Texas Historical Commission; or (3) by the State Preservation

Board. None of these authorities sanctioned HISDs renaming of these eight schools. Thus,

HISD has violated Texas Government Code 2166.5011 by renaming these schools and

expending public funds on this illegal activity.

69TEX.GOVT CODE ANN. 551.141 (An action taken by a governmental body in violation of this chapter isvoidable.).

70TEX.GOVT CODE ANN. 2166.5011.


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REQUEST FOR DECLARATORY JUDGMENT

37. Plaintiffs adopt and incorporate by reference the allegations set forth in this

pleading. Given the laws set forth in the Texas Government Code, the Texas Education Code,

and HISD regulationsall of which HISD has violatedPlaintiffs respectfully ask for

declaratory relief. Specifically, Plaintiffs ask that the Court declare the following:

HISD has violated Texas Education Code 44.006 by spending public funds ofthe school district in a manner not provided for in HISDs budget to rename eightschools;

HISD is violating Texas Education Code 44.031 by entering into contracts for

goods or services valued at $50,000 or more in a 12-month periodwithout usinga sanctioned method that provides the best value for the districtto rename eightschools;

HISD has violated policy-manual regulation BE3 by voting to rename eightschools through agenda items that do not identify the costs to rename the schoolsand the funding source to pay these costs;

HISD is violating policy-manual regulation BE2 to the extent its authorizing,approving, and ratifying certain contracts and awardsto pay for renaming eightschoolsthat are required to be, but are not being, voted on through board-of-

education agenda items;

HISD violated Texas Government Code 551.041 by failing to give sufficientnotice of the subject of the board-of-education meeting to vote to rename eightschools when it noticed the meeting with agenda items that do not identify thecosts to rename the schools and the funding source to pay these costs; and

HISD is violating Texas Government Code 2166.5011 by altering monumentsand memorialsthrough the renaming of eight schoolswithout authorization.

38. Plaintiffs are entitled to recover reasonable and necessary attorneysfees that are

equitable and just under Texas Civil Practices and Remedies Code 37.009 because this is a suit

for declaratory relief.


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REQUEST FOR TEMPORARY AND PERMENANT INJUNCTIVE RELIEF

39. Plaintiffs ask the Court to set their application for temporary injunction for a

hearing and, after the hearing, issue a temporary injunction against HISD. And Plaintiffs ask the

Court to set their request for a permanent injunction for a full trial on the merits, and after the

trial, issue a permanent injunction against HISD.

40. Plaintiffs have joined all indispensable parties under Rule 39 of the Texas Rules

of Civil Procedure.

41. Plaintiffs adopt and incorporate by reference the allegations set forth in this

pleading.

42. Plaintiffs application for a temporary injunction is authorized by Texas Civil

Practices and Remedies Code 65.011(1).

43. Plaintiffs apply for injunctive relief seeking to enjoin HISD from renaming the

eight schools at issue because it hasntsatisfied statutory and regulatory duties. Plaintiffs

request for injunctive relief is supported by the attached affidavit.

44. The specific facts that Plaintiffs rely on to justify the issuance of a writ of

injunction are contained in this pleading. In sum, Plaintiffs maintain that HISD had statutory and

regulatory duties to comply with in renaming the eight schools at issue. Those statutory and

regulatory duties include:

spending public funds of the school district in a manner provided for inHISDs budget;71

using a sanctioned method that provides the best value for the school districtwhen entering into contracts for goods or services valued at $50,000 or morein a 12-month period;72

71SeeTEX.EDUC.CODE ANN. 44.006(a).

72SeeTEX.EDUC.CODE ANN. 44.031(a).


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identifying costs and funding sources for agenda items considered by HISDsboard of education;73

using board-of-education agenda items to authorize service contracts over

$50,000, approve vendor awards for purchases over $100,000, and ratifyvendor awards for purchases under $100,000;74

giving sufficient notice of the subject of board-of-education meetingsinvolving topics of special interest to the public;75and

obtaining proper authorization from the legislature, Texas historical

commission, or State Preservation Board before altering monuments andmemorials.76

45. For the reasons described in this pleading, HISD failed to comply with these

statutory and regulatory duties in proceeding to rename the eight schools at issue. Plaintiffs

therefore seek the Court to enjoin HISD from spending public funds on renaming these schools

until it has complied with its legal obligations.

46. Plaintiffs have a probable right to relief in this case, after a trial on the merits,

because HISD has violated the statutes and regulations that govern HISDs conduct in the

renaming of these eight schools. Specifically, HISD has violated and is violating statutes and

regulations in the following ways:

HISD has violated Texas Education Code 44.006 by spending public funds ofthe school district in a manner not provided for in HISDs budget to rename eightschools;

HISD is violating Texas Education Code 44.031 by entering into contracts forgoods or services valued at $50,000 or more in a 12-month periodwithout usinga sanctioned method that provides the best value for the districtto rename eight

schools;

73See Policy Manual BE3 (REGULATION)Board Meetings;see also (Ex. 13).


75SeeTEX.GOVT CODE ANN. 551.041.

76SeeTEX.GOVT CODE ANN. 2166.5011.


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HISD has violated policy-manual regulation BE3 by voting to rename eightschools through agenda items that do not identify the costs to rename the schoolsand the funding source to pay these costs;

HISD is violating policy-manual regulation BE2 to the extent its authorizing,approving, and ratifying certain contracts and awardsto pay for renaming eightschoolsthat are required to be, but are not being, voted on through board-of-education agenda items;

HISD violated Texas Government Code 551.041 by failing to give sufficientnotice of the subject of the board-of-education meeting to vote to rename eightschools when it noticed the meeting with agenda items that do not identify thecosts to rename the schools and the funding source to pay these costs; and

HISD is violating Texas Government Code 2166.5011 by altering monuments

and memorialsthrough the renaming of eight schoolswithout authorization.

47. Imminent and irreparable harm will result to Plaintiffs if injunctive relief is not

granted because HISD is proceeding with spending public funds on its illegal activities of

renaming these eight schools. Plaintiffs understand that HISD intends to complete all renaming-

related expenditures before the beginning of the 20162017 school year.77Once HISD proceeds

to waste millions of taxpayer dollars on renaming these schools, the damage will have been

done.

48. Plaintiffs do not have an adequate remedy at law. There is a substantial need to

prevent HISD from spending taxpayer dollars on acts that are illegal under statutes enacted by

the legislature and the regulations promulgated by HISD. Allowing HISD to implement the name

changes, just to have a court later invalidate its actions and require it to undo the name changes,

will have a foreseeable and negative impact on Plaintiffsas taxpayers of Houston. And

requiring HISD to spend more taxpayer dollars on damages only exacerbates the wasting of the

school districtspublic funds. Plaintiffs only remedy is for this Court to enjoin HISD from

77(Ex. 5, at Pkt. Pgs. 2437).


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spending public funds on the renaming of these schools. So the failure to immediately enjoin

HISD from wasting taxpayer dollars on illegal activities will cause irreparable harm to Plaintiffs

interests with no adequate remedy at law.

49. No damage will be done to HISD by the relief requested. Although HISD has

been taking shortcuts to rush its renaming crusade to completion, time is not of the essence. Nor

should time be of the essence when the requested relief is for HISD to be required to comply

with its legal obligations. Five of the eight schools to be renamed have had their names for

roughly 90 years. And the other three have had their names for about 50 years. Theres no need

to rush spending millions of taxpayer dollars to rename these schoolsand bypass the law in the

process.

50. Plaintiffs application for an injunction is authorized by Texas Civil Practices &

Remedies Code 65.01178; Texas Education Code 44.03279; and Texas Government Code

551.142.80

51. Under Texas Education Code 44.032 and Texas Government Code 551.142,

Plaintiffs also ask to be granted a judgment for the reasonable attorneysfees and expenses

incurred in obtaining a writ of injunction.

78TEX.CIV.PRAC.&REM.CODE ANN. 65.011 (A writ of injunction may be granted if: (1) the applicant isentitled to the relief demanded and all or part of the relief requires the restraint of some act prejudicial to theapplicant; . . . .).

79SeeTEX.EDUC.CODE ANN. 44.032 ((f) A court may enjoin performance of a contract made in violation of thissubchapter. A county attorney, a district attorney, a criminal district attorney, a citizen of the county in which the

school district is located, or any interested party may bring an action for an injunction. A party who prevails in anaction brought under this subsection is entitled to reasonable attorneys fees as approved by the court.) .

80See TEX.GOVT CODE ANN. 551.142 ((a) An interested person, including a member of the news media, maybring an action by mandamus or injunction to stop, prevent, or reverse a violation or threatened violation of thischapter by members of a governmental body. (b) The court may assess costs of litigation and reasonable attorneyfees incurred by a plaintiff or defendant who substantially prevails in an action under Subsection (a). In exercisingits discretion, the court shall consider whether the action was brought in good faith and whether the conduct of thegovernmental body had a reasonable basis in law.).


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52. Plaintiffs are willing and able to post an appropriate bond determined in this

Courts discretion.

JURY DEMAND

53. Plaintiffs demand a jury trial and tender the appropriate fee with this petition.

CONDITIONS PRECEDENT

54. All conditions precedent necessary to maintain this action have occurred or been

performed.

REQUEST FOR DISCLOSURE

55. Under Texas Rule of Civil Procedure 194, Plaintiffs request that HISD disclose,

within 50 days of the service of this request, the information or material described in Rule 194.2.

PRAYER

56. For these reasons, Plaintiffs ask that HISD be cited to appear and answer.

Plaintiffs are seeking monetary relief of $100,000 or less and nonmonetary relief.81Plaintiffs

therefore ask that they be awarded a judgment against HISD for the following:

temporary injunction;

permanent injunction;

declaratory judgment;

attorneysfees and expenses;

actual damages and consequential damages, if any, as allowed by law;

court costs;

81TEX.R.CIV.P. 47(c)(2).


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prejudgment and postjudgment interest as allowed by law; and

all other relief that Plaintiffs may be entitled to.

Respectfully submitted,

GOFORTH LAW FIRM

By: /s/ Daniel O. GoforthDaniel O. GoforthTexas Bar No.: [email protected] D. KingTexas Bar No.: [email protected]

Avi MoshenbergTexas Bar No.: [email protected] Pennzoil South Tower711 Louisiana StreetHouston, Texas 77002Tel: (713) 650-0022Fax: (713) 650-1669

ATTORNEYS FOR PLAINTIFFS
mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]

plaintiffs original petition original declaratory judgment action application for temporary and...

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