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Plaintiffs respectfully file this petition for writ of mandamus, declaratory judgment, and
injunctive relief to enforce the requirements of the Texas Open Meetings Act.
PARTIES
1. AIM Media Texas, LLC, doing business as The Odessa American (The
American), publishes The Odessa American, a newspaper that is published and sold in Ector
County.
2. Defendant David Turner is the Mayor of The City of Odessa, and may be served at
his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.
Plaintiffs Original Petition for Writ of Mandamus, Declaratory Judgment, and Injunctive Relief Page 1 of 8
3. Defendant Malcolm Hamilton is a member of the City of Odessa City Council, and
may be served at his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.
4. Defendant Dewey Bryant is a member of the City of Odessa City Council, and may
be served at his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.
5. Defendant Barbara Graff is a member of the City of Odessa City Council, and may
be served at her office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.
6. Defendant Michael Gardner is a member of the City of Odessa City Council, and
may be served at his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.
7. Defendant Filiberto Gonzales is a member of the City of Odessa City Council, and
may be served at his office at Odessa City Hall, 411 W. 8th Street, Odessa, Texas 79761.
8. This suit is brought against the Defendants in their official capacities as members
of the City of Odessa City Council (collectively, City Council). The City Council is a
governmental body, as the term is defined by the Texas Open Meetings Act.
9. Venue is proper in Ector County pursuant to TEX. CIV. PRAC. & REM. 15.015.
10. This Court has jurisdiction over this action pursuant to the Texas Declaratory
FACTUAL BACKGROUND
11. The American files this lawsuit to remedy and to prevent City Councils actual,
threatened, and continuing violations of the Texas Open Meetings Act (the Act), as determined
by the Ector County Attorney, Dusty Gallivan, after an investigation by the Texas Rangers.
12. The Act was enacted to ensure public access to the decision making of government
bodies. It generally mandates that governmental meetings be open to the public unless narrow
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exceptions apply. The Act requires that members of the news media, like The American, receive
advance written notice of the date, hour, place, and subject of each meeting by governmental
bodies, like the City Council. Generally, at least 72 hours of public notice must be provided.
13. The City Council conducted a regularly scheduled public meeting on Tuesday, May
9, 2017. During this meeting, City Council violated the Open Meetings Act by meeting in closed
session to discuss and decide to remove a member of the Odessa Development Corporation
(ODC), Jimmy Breaux, without providing the notice required by the Act.
14. Defendants Graff and Gonzales placed an item on the agenda for that meeting that
called for City Council to consider the removal of current ODC board members prior to the
expiration of their terms. Directly before the meeting, the City Attorney advised City Council that
they would need to specially name any ODC members they planned to discuss removing.
Consequently, when Defendant Graff moved, during the meeting, that City Council turn to the
ODC agenda item, she named each of the five ODC members individually.
15. The Open Meetings Act required (1) the City Council to begin its meeting with an
open session, (2) the presiding officer to publicly announce that a closed meeting would be held,
and (3) an announcement identifying the section or sections of the Act that would authorize a
closed session. None of these three requirements was obeyed at the May meeting.
16. Following the closed session, the City Council voted to remove Mr. Breaux from
17. Neither The American nor the public was provided fair and proper notice of the
subject of the closed-session meeting nor of City Councils purpose in meeting in closed session.
Furthermore, City Council failed to announce any applicable exception to the Texas Open
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18. Upon information and belief, City Council has held other improper closed sessions
19. On May 12, 2017, a complaint was filed with the Honorable Dusty Gallivan,
County Attorney of Ector County, alleging the City Council violated the Texas Open Meetings
Act by holding the closed session. The complaint was subsequently referred to the Texas Rangers
20. Mr. Gallivan sent a letter to Mayor Turner on May 25, 2017 relating to the closed
session. Specifically, the letter detailed certain findings from the Texas Rangers reports including
specific findings that the closed session was subject to the Open Meetings Act and that City
Council violated the Open Meetings Act by (1) failing to announce an exception allowing the
closed session; and (2) failing to properly give notice to the public of the intent and purpose of the
closed session.
21. On May 25, 2017, The American requested a copy of the Texas Rangers
investigation reports pursuant to the Texas Public Information Act. In response, Mr. Gallivan
informed The American that the Texas Rangers reports would not be disclosed because their
disclosure would indeed interfere with the prosecution of the charged offense. There is no threat
of criminal prosecution, however, and The American therefore intends to seek a copy of these
reports pursuant to the Public Information act, through discovery in this case, or other means.
22. The American has and continues to suffer harm as a direct result of City Councils
violations of the Open Meetings Act, and The American and all other interested persons will
continue to suffer harm in the future absent final judgment from this Court awarding The American
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REQUEST FOR WRIT OF MANDAMUS AND DECLARATORY JUDGMENT
23. Each of the foregoing paragraphs is incorporated herein for all purposes.
24. City Council violated the Texas Open Meetings Act by failing to give proper notice
of Odessa City Council closed sessions, holding closed sessions without announcing an applicable
exception, failing to release public information detailing the substance of improperly held closed
sessions, and through other improper conduct further described herein and to be developed through
25. Any information relating to improper closed City Council sessions is public
information to which The American and the public have a vested interest and are entitled to obtain,
and that City Council must disclose. Accordingly, The American requests this Court grant
a) The closed session was subject to the Open Meeting Act and City Council violated
the Texas Open Meetings Act by holding the closed session and other closed
sessions;
b) City Council violated the Texas Open Meetings Act by failing to give proper notice
of the intent and purpose of the closed session and other closed sessions;
c) City Council violated the Texas Open Meetings Act by failing to announce an
exception allowing the closed session and other closed sessions; and
d) Any other declaratory relief to which The American may justly be entitled.
26. The American further requests this Court issue a writ of mandamus and order City
Council to disclose to The American any details and information relating to any improper closed
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REQUEST FOR INJUNCTIVE RELIEF
27. Each of the foregoing paragraphs is incorporated herein for all purposes.
28. The American has suffered and will continue to suffer irreparable injury from City
Councils improper conduct for which The American is entitled to relief, but has no adequate
remedy at law.
29. The circumstances of this case, as investigated by the Texas Rangers, suggests that
City Council is improperly using closed meetings to discuss business that should be conducted in
30. Therefore, The American requests this Court grant temporary and permanent
a) Prohibiting Defendants from failing to give proper notice to the public relating to
the intent and purpose of closed City Council sessions;
f) such other similar and further conduct that causes harm to The American and for
which The American has no adequate remedy.
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ATTORNEYS FEES AND COSTS
31. Each of the foregoing paragraphs is incorporated herein for all purposes.
32. The American seeks recovery of all costs incurred herein and its reasonable
attorneys fees, pursuant to the express authority granted in the Texas Public Information Act, TEX.
GOV. CODE 552.323, the Texas Open Meetings Act, TEX. GOV. CODE 551.142, and the
Declaratory Judgments Act, TEX. CIV. PRAC. & REM. CODE 37.009.
33. Pursuant to TEX. R. CIV. P. 190, The American intends to conduct discovery under
34. Pursuant to TEX. R. CIV. P. 194, City Council is hereby requested to disclose to The
American, within fifty (50) days of service of this request, the information and/or materials
35. Pursuant to TEX. R. CIV. P. 193.7, The American hereby gives actual notice to City
Council that any and all documents and materials produced in response to written discovery may
be used as evidence against the party producing the document(s) at any pretrial proceeding and/or
at the trial of this matter, without the necessity of authenticating the document and/or materials
produced in discovery.
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CONCLUSION AND PRAYER
36. The American respectfully requests the Defendants be cited to appear and answer,
a) A temporary injunction to preserve the status quo prior to the conduct by defendant
in violation of the Open Meetings Act;
d) An order awarding The American its reasonable attorneys fees, taxable costs of
court, and all other costs of litigation; and
Respectfully submitted,
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