Krgv Lawsuit

C-1361-15-E

Electronically Filed4/1/2015 1:59:48 PMHidalgo County District ClerksReviewed By: Alexis Bonilla

C-1361-15-E


3. Defendant Mike Perez ("Perez"), is the City Manager of the City of Weslaco and

as such, is the public information officer of Defendant City. Defendant Perez may be served

with process at 500 South Kansas, Weslaco, Hidalgo County, Texas 78596.

VENUE

4. Venue is proper in this County pursuant to 552.321 of the Texas Government

Code and 15.002 and 15.0151 of the Texas Civil Practice & Remedies Code because this is

an action for mandamus against a governmental body located in this County.

BACKGROUND FACTS AND CAUSES OF ACTION

5. Defendant City is a municipal governing body within the meaning of the Texas

Public Information Act, Tex. Govt. Code Ann. 552.001, et seq. ("TPIA"), and/or is otherwise

subject to the TPIA.

6. The TPIA provides that the public is entitled to information "collected,

assembled, or maintained by a governmental body." Tex. Govt. Code Ann. 552.001 and

552.021. Governmental bodies may not discriminate against members of the media in executing

their obligations under the TPIA and must treat all public information and document requests

uniformly. Tex. Govt. Code Ann. 552.223.

7. By written request that was hand-delivered on October 27, 2014, Melissa Correa,

a reporter for KRGV, made a written request (the "Request") to Defendant City under the TPIA,

requesting the following document: Weslaco Police Cases: Report Nos. 14-23128, 09-28963,

09-2896; and 10-10340.

8. The information sought by KRGV in the Request constitutes public information

under the TPIA because without limitation, the Request seeks information and documents

Page 2 of7

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collected, assembled or maintained by a governmental body in connection with the transaction of

official business. Tex. Govt. Code Ann. 552.002.

9. The Request was received by Defendant City on October 27, 2014. A true and

correct copy of the Request is attached hereto as Exhibit "A" and is incorporated by reference as

if fully set forth herein.

10. In response to the Request, Defendant City produced only cursory information

which does not comply with the requirements of the statute.

11. Based on information and believe, the Defendant City has produced substantial

portions of the requested items to KGBT-TV without formal request. Tex. Govt. Code

552.007 requires that if a governmental body or public information officer voluntarily makes

information available to the public, in this case, KGBT-TV, that such information must be made

available to any person. The Defendants in this case have refused to provide the information

previously provided to KGBT-TV to the Plaintiff, in clear violation of the statute.

12. The TPIA provides that "an officer for public information of a governmental body

shall promptly produce public information for inspection, duplication, or both on application by

any person to the officer." Tex. Gov. Code Ann. 552.221(a). The TPIA further provides that

"if an officer for public information cannot produce public information for inspection or

duplication within ten (10) days after the date the information is requested under Subsection (a),

the officer shall certify that fact in writing to the requestor and set a date and hour within a

reasonable time when the information will be available for inspection or duplication." Tex.

Govt. Code Ann. 552.221(d).

Page 3 of7

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13. On November II, 2014, KRGV demanded from Defendant City, the information

and documents set forth in the Request. (See Exhibit "B" attached hereto.) Defendant City

failed to respond to that demand.

14. On February 9, 2015, KRGVagain made demand forthe documents and

compliance with the statute. (See Exhibit "C" attached hereto.) Once again, Defendant failed to

respond.

15. Despite KRGV's repeated demands for information and documents responsive to

the Request, Defendants City and Perez have continued to refuse to produce the information and

documents requested, in violation of their obligations under the TPIA. In addition, Defendants

City and Perez have failed to certify that production of information and documents responsive to

the Request could not have occurred and/or cannot occur within ten (I 0) business days and have

failed to indicate when production will occur, in further violation of their obligations under the

TPIA.

16. Upon information and belief, Defendants City and Perez are withholding public

information and documents responsive to the Request in bad faith for the purpose of delaying,

hindering and frustrating the right of KRGV to gather and report newsworthy public information.

17. Upon information and belief, Defendants City and Perez have instituted and

implemented policies regarding Defendant City's responses to TPIA requests that are designed to

have the effect of and/or that have the purpose of delaying, hindering, and frustrating the right of

the media to gather and report newsworthy public information.

18. The conduct of Defendants City and Perez as alleged herein, violates the TPIA

and KRGV is entitled to a writ of mandamus compelling the production of all information and

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documents responsive to the Request for which relief KRGV now seeks of Defendants City and

Perez.

19. Pursuant to TPIA, KRGV is entitled to recover its costs and reasonable attorney's

fees incurred in connection with this lawsuit, especially because Defendants City and Perez have

no reasonable basis for their conduct and because, upon information and belief, Defendants City

and Perez have engaged in the conduct alleged herein for the purpose of delaying.

20. Pursuant to Tex. Civ. Prac & Rem. Code 37.001, et seq., KRGV seeks judgment

declaring that the conduct of Defendants City and Perez, as alleged herein, violates the TPIA. In

addition, KRGV should be awarded a permanent injunction restraining and enjoining Defendants

City and Perez from such conduct in the future for all of which relief KRGV now seeks of

Defendants City and Perez.

21. WHEREFORE, PREMISES CONSIDERED, Plaintiff, Mobile Video Tapes, Inc., d/b/a

KRGV-TV, prays that upon final hearing hereof, a Writ of Mandamus be issued directing

Defendants City and Perez to make all information and documents sought herein available to

Plaintiff KRGV for inspection and copying, that Plaintiff, KRGV recover its costs and

reasonable attorney's fees, that the Court enter its judgment declaring the conduct of Defendants

City and Perez to be in violation of the TPIA, that a permanent injunction be entered restraining

and enjoining Defendants City and Perez from such conduct in the future, and for such other and

further relief to which Plaintiff, KRGV may be justly entitled.

Page 5 of7

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Respectfully submitted,

ATLAS, HALL & RODRIGUEZ, LLP P. 0. Drawer 3725 (78502) 818 West Pecan Boulevard McAllen, Texas 78501 (956) 682-550 l (956) 686-6 109 - Facsimi le [email protected] ' Om

By: Rex N. each Texas State Bar No. 12086300

Attorney for Plaintiff

Page 6 of7

C-1361-15-E


STATE OF TEXAS

COUNTY OF HIDALGO

AFFIDAVIT OF JENNY MARTINEZ

Before me, the undersigned Notary Publ ic, on this day personally appeared JENNY

MARTINEZ, to me well known, who upon her oath deposes and says:

"My name is Jenny Martinez. I am over the age of 18 years and am fully competent and

authorized to make this Affidavit. I have read the attached Plaintiff's Original Petition and

Application for Writ of Mandamus and based on personal knowledge as to all statements of fact

relating to me, all such statements of fact therein are true and correct."

Subscribed and sworn to before me on this, the 3/.st' day of ~ 2015, by Jenny Mattinez, for the purposes therein expressed and in the capacit

C-1361-15-E

EXHIBIT ''A''

C-1361-15-E

Request to Access City Records Consistent with the Public Information Act, an indiVidual may request documentation about the affairs of the City of Weslaco. Kindly complete this form In order to Inspect or receive public records. fil'Ji'&)~~J~~fprescribed by the Attorney Generars Office for the production of certain documents.

Name of Business, if applicable: Fax Number: Gh nr1el -ews Address:

qoo E. Bxore:-SSJND.. .3

City: State: . .es!aco

Zip Code: /8'500

Specific Record Information Requested: Wes l aco P& /"Ice Cases ~ Re.:;:..:pc.;o:...r..:...+-_~;__1..:..s ___ ~ .. I L-J - J.. 3 1 z.~ o CJ - & 8 q w5 oq- z.'iSqeo 3 l 0 -

OGT 21 2Ul4

Signed Receipt of City Secretary's Office: Date Received:

Release Authorization: Reason(s): Initials of City Attorney: [] Approved

NotA roved Office of the City Secrelal'y tel. 956.968.3181 fax. 956.968.6717

EXHIBIT

IA ' ...

C-1361-15-E

EXHIBIT ''B''

C-1361-15-E

ATLAS, HALL & RODRIGUEZ, LLP TAA VIS Cot!NT'l OFFICE

7200 N. MO PAC EXPY., STB 430 . AUSTIN, 1'ExAs 78731

T!!L. (512) 583-0579 FAX(800) 808-1132

Mr. Leonardo Olivarez CITY OF WESLACO CITY MANAGER 255 South Kansas Avenue Weslaco, Texas 78596

ATIORNEYSATLAW P.O. llOX 372S (7SS02-372S}

818 W. PECAN BLVD. (785012418} McALLEN, TEXAS

'l'EL.(956) 682-5501 FAX(956)686-0109 ATLASHAU..COM

November 11, 2014

RE: Public Information Request

Dear Mr. Olivarez:

CAMERON COmm'OmCE . SOW. MORRISON RD., STEA

BROWNSVJLLE, TExAs 785207262 TEL. (956) 574-9333 FAX(956)574-9337'

REXN.LEACH [email protected] .

(956) 632-8285-Direct

Please find enclosed a copy of a Public Information Act request that was submitted to the City of Weslaco, Texas by Melissa Correa as a representative of Mobile Video Tapes, Inc., d/b/a KRGV-TV. This request was submitted on October 27, 2014. To date, the City has not produced the requested information and has not stated any reason for its failure to do so. In fact, a representative of the Weslaco Police Department has affirmatively stated that they were refusing to produce the requested information, but has not given any reason for such refusal.

As I am sure you are aware, Texas Government Code Section 552.001, et seq. requires the City of Weslaco to produce such information unless there is some exception to production under the statute. If there is some claimed exception, the City must state said exception in writing within ten days of receipt of the request. The City has, in this case, not made any such claim.

In addition, in regard to some of the material requested, we are aware that such material was produced to KGBT-TV by representatives of the City of Weslaco without any request having been made. This production to KGBT-TV would clearly establish that (1) No claim of privilege is being made by the City; and (2) The material is immediately available to be produced. When there is no privilege claimed and requested material is readily available, the statute requires immediate production to the requesting party. In addition, Section 552.007 of the Government Code states that even if disclosure of certain information might not be required, voluntary disclosure to one person makes disclosure to all persons mandatory. Failure to make such production constitutes violation of the statute.

Given the circumstances of Ms. Correa's request, we believe that the City of Weslaco is currently in violation of the statute and demand is hereby made on behalf of Ms. Correa and her employer, KRGV-TV, that the requested materials be produced by the City of Weslaco immediately.

EXHIBIT f!J

C-1361-15-E

Mr. Leonardo Olivarez Pagel 2 November 11, 2014

If the requested materials are not produced on or before Friday, November 14, 2014, we will have no other option than to pursue our legal remedies through the Court to enforce " compliance by the City with the requirements of the statute.

Thank you for your immediate attention to this matter.

RNL:jb Enclosures: (1)

cc w/enclosure: VIA FACSIMILE: (956) 969-0762 Acting Chief of Police WESLACO POLICE DEPARTMENT 901 North Airport Drive Weslaco, Texas 78596

VIA FACSIMILE: (956) 800-4341 Mr. Juan L. Guerra, Jr. Weslaco City Attorney GUERRA & FARRAH, PLLC 421 South 12th Street McAllen, Texas 78501

Sincerely,

By:

C-1361-15-E

Request to Access City Records Consistent with the Public Information Act, an individual may request documentation about the affairs of the City of Weslaco. Kindly complete this form in order to inspect or receive public records. lli'Jf.~!i))'.jf'~J~e:fprescribed by the Attorney General's Office for the production ofc.ertain documents.

Telephone Number: q . &50 _ a 8 z_;

3 City: State:

.-eSlaco Zip Code: /'[:)';JC, 0


Release Authorization: Reason(s): Initials of City Attorney: [ ] Approved

NotA roved Office ofthe City Secretary tel. 956.968.3181 fax. 956.968.6717

C-1361-15-EJob number 539

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*** SEND SUCCESSFUL ***

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r.o. lll~:s:r2s t1'1ll!22...s'12'1 111 W. PllCA.H l..VD. t'litOl..ZU)

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C-1361-15-E

Group Send Report

Job number

Date

Number of pages

Start time

End time

Successful nbrs.

Fax numbers

Unsuccessful nbrs.

539

Nov-11 02:47pm

004

Nov-11 02:47pm

Nov-11 02:54pm

a1 s5s969D762 38004341

Paie : DOI Date l Time: Nov-11-14 02:54pm Line 1 Line 2 Machine ID : ATLAS l HALL L.L.P. 9566860187

Paies sent

C-1361-15-E

EXHIBIT ''C''

C-1361-15-E

ATLAS, HALL & RODRIGUEZ, LLP

Rex. N. Leach , t.leach@lltbshaltcom

(956) ~~-8285.- Direct' Line

VIA FACSIMILE: (956) 968-6672 AND VIA REGULAR MAIL Mr. Mike Peri.:z, City Manager CITY OF WESLACO 255 South Kansas Avenue Weslaco, Texas 78596

ATTORNEYS AT LAW P.OC BOX 3725 (78502C372l)

818 W PEC-o\N BLYQ .. (78501-2418) McAUEN,-TEXAS

T!!L (9$0)682-5501 f,U(956)6.86-6tQ9 ATI.AsHALL.COM

February 9, 2015

RE: KE.GV/City of Weslaco

Dear Mr. Perez:

We represent Mobile Video Tapes, Inc., d/b/a KRGV-TV, in connection with a Public Information Act request that was made to the City of Weslaco on October 27, 2014. I am enclosing herewith, a copy of the .correspondence that I sent to the former City Manager, Leonardo Olivares, on November 11, 2014, which outlines our position in this. matter. Following that letter, it was iny understanding that the City had agreed to comply with the request and that. the matter had 1:/een resolved. However, it has been 1:/rought to my attention \hat such is not the case and that the City is still refusing to comply with its statutory duties in regard to th.e request.

Once again, on behalf of our client, we are hereby making a demand that the City honor the request as reql)ired by law.

If the requested materials are not produced on or before Wednesday, February 11, 2015, we will have. no option but to pursue our legal reme.dies. through the Comt to enforce co!np!iance by the City with the requirements of the statute,

Thank you for your attention to this matter.

RNL:jb Enclosures: (1)

AUSTINOmCE noo N.MoPACF.XPY.,STl!4JO_

AUSTIN, TEXAS i87l!-:Ui96 'TEL.(512) SS3:0Si9 F,\X (9S6)57~9337

EXHIBIT

c Sincerely,

ATLASztHAL \ODRIGUEZ _ _,,_

By: \_., Rex . Leach

8ROWNSVJLL OFFICE P,Q, BOX6J69 (7SS2J~~69) SOW, MORrusONRD: -STEA

Q;RO\VNSVILLE, 1'..V.S 785201262 1EL(9S6)5N-9JJ3 FAX (956~ 5749H7

UV.,LDKOl'l'lCE 124 N. EAST STREET

UVALDF.", Ti;."(i(s ?SS0!-53 IZ TEl. {S~!l) 278-3100

FAX(S.44}272-4~09

C-1361-15-E

Mr. Mike Perez, City Manager Page 1.2 February9, 2015

cc w/enclosure:. VIA FACSIMILE: (956) 969-0762 Captain Ted Walensky Acting l'olice Chief WESLACO POLICE DEPARTMENT 901 North Airport Drive Weslaco, Texas 78596

VIA FACSIMILE: (956) 968-6672 Mr. Frank Garza WESLACO C!TY ATIORNEY 255 South Kansas Avenue Weslaco, Txas 785.96

C-1361-15-E

ATLAS, HALL & RODRIGUEZ, LLP A'ITORNBYSATLAW .

TR;.mCoVNTYOFrtct 720.0N. MoPAcExPY,STE430

. AUST!l'I, 1'EXAS 78731 Tl!I.. (SI2)S83--0579 FAX (800) 8081132

Mr. Leonardo Olivarez CITY OF WESLACO CITY MANAGER 255 South Kansas Avenue Weslaco, Texas. 785.96

P.O. BOX372l (78502-3725) .s1sw. PECAN BLVD. (78501-2418)

McALLEN, 'fE.'

C-1361-15-E

Mr. Leonardo Olivar.Z Pagel 2 Novembcrll,2014

If tl:J.e reqitested materials are not produced on or before Friday, November 14, 2014, we will have no other option than to pl.lrsue. oitr legal remedies through .the Court to enforce . compliance by the City with the requirements of the statute.

Thankyou for your immediate attention to this matter.

RNL:jb Enclosures: (1) cc w/enclosure:

VIA FACSIMILE: (956) 969-0762 Acting Chief of Police WESLACO POLICE DEPARTMENT 901 North Airport Drive Weslaco, Texas 78596

VIA FACSJM!LE: (956) 800-4341 Mr. Juan L. Guerra, Jr. Weslaco City Attorney GUERRA & FARRAH, PLLC 421 South 12th Street McAllen, Texas 78501

Sincerely,

ATI,AS,

By:

C-1361-15-E

.. ,.

Request to Access. City Record$ Consistent with the Public Information Act, an Individual may request documentation about the affairs of the City of Weslaco. Kindly completethis form in order to inspector.receive public records. ~'iitflff.~llf:~)ffli.fprescrlbed by the Attorney General's Of!Tce Jor the production of certain docu.ments.

Name o~Requestor: Telephone Number: e Ir 0 n a . &50. o 8 Z./

Name of Business, if applicable: Fax Number: C:h 11cl . -ews Address:

C)oo ". Bx ressJAJV:. 3 City: State:

.-eS!a co Zip Code: 73'900

O~T 21 21114


Release Authorization: Reason(s): Initials of City Attorney: [ I Approved No!A roved

Office of the City Secretary tel. 956.968 .. 3181 fax. 956.968.6717

C-1361-15-EJob. nu~ber

~

539 .. *** SEND SUCCESSFUL *"*

.A.TL..A.S, HALL & D:.Ol:>RX., n"tOl-a-4\it) 'l'llr..(l'.1111)~;.~~l,l"~>IM\ft

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C-1361-15-E

Group Sehd Report

Job number

Date

Number af Pll.lle

start I.Im

End time

Successful nbr.s. Fax nubers

Unsuccessful nbrs.

539

Nov-11. 02:47pm

0.04

Nov-11 02:47pm

Nov-11 02:54pm

2!:19569690762 2!:8004341

Pail : 001 aate & Time: Hov-11"14 02:54pm Lina 1 Lin Z Machine lD : ATLAS l HALL L.L.P. 0566860187

Paces sent

C-1361-15-E

ATLAS, HALL & RODRIGUEZ, LLP mmcommromc:c

?200N.MOPAC!lXP11'.;Sm430 AUSTOt,')lllltl:Xll.LtAClli rle:[email protected] ,

(956) 6318235-D!icc!

Please find enclosed a copy of a Public Infurmation Act request that was submitted to the City of Weslaco, Texas by Melissa Correa as a representative of Mobile Video '.['apes, Jnc,, d/bfa KRGV-TV.. 'This request wss subinitted on October 27, 2014. To date, the City has not produced the requested information and hiJS not stated any reason for its failure to do so. Jn fuct,. a :representative of the Weslaco Police Departlllerit 'has affirmatively stated that they were refusing to produce the requested infoi:mation, but has riot given any reason for suchtefus!!l,

As I am sure you are aware, TBlIS Govemment Code Section 552.001, et seq. reqllli:es the City of Weslaco to produce such infarmatton unless there is some exception to production under the. statute. lf there is some claimed exception, the City must state said exception in writing within ten days of receipt of the request. The City has, in this. case,; not made any .. such claim,

In addition, in regard to some of the material requested, we are aware that such material was produced to KGBT-TV by representatives of the City of Weslaco without any request haVing been ma.de. 'This production to KGBT-TV would clearly establish that (1) No claim of prlvi.lege is being made by the City; .and (2) The material is immediately available to be produced. When there is no privilege claimed and requested matetjal is readily available, the statute requires immediate production to.the requesting party. In addition, Section.552.007 of the Government Code states that even if disclosure of certain information might not be required, voluntary disclosure to one person makes disclosure to all persons.mandarory. Failure to make such production constitutes violation of the statute.

Given the circumstances ofM& Con:ea's request, we believe that the City of Weslaco iS currently in violation of the statute and demand is b.ereby made on behalf of Ms. Correa and her employer, KRGV-TV, that the requested. materials be produced by the City of Weslaco immediately.

C-1361-15-E

Mr. Leonardo Olivarez Page[2 . Novembcr.11, 2014

If the reque$ted materials are not produced on or before Friday, November 14, 2014, we will have no other option than to pursue. our legal remedies through .the Court to enforce ., compliance by lhe Cify with the requirements of the statute,

Tliank you for y()ur immediate attention to this matter.

RNL:jb :Elnclosures: (1) cc w/enclosure:

VIA FACSIMILE: (956) 969-0762 Acting Chief of Police WESLA

C-1361-15-E

Request to.Access city .Records Consistent with the Public Information Act; an lnqMduar may request documentallon about the affairs oflhe City cf Weslaco. Kindly complete this form in order to Inspect or receive pul:>Uc recot

C-1361-15-E.,,

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Documents

Krgv Lawsuit