Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District

• Court: Court of Appeals of Texas
• Decided: March 26, 2015
• Docket: 07-14-00014-CV
• Status: Published

Opinion

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

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.

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

REBECCA TERRELL and § IN THE 223RD DISTRICT COURT CHANDRASHEKHARTHANEDAR § § lXI -< ~ ........ Plaintiffs, § c:...., en 0(1) :t) § -l> (/).:Z: .<:= )>

-io <:::::> c:::::: -< v. § INANDFOR § :O:::o ol> .,_ N o., 0 c:_ PAMPA INDEPENDENT SCHOOL § -leo ~r- (") c: -II"T; -o .-< DISTRICT, § r-- ::::iJ 0 t-:;J rq ~"" .::3 § rn GRAYCOUNTY, TEXAS -o .:::0 lq -1 ;::>o;; -t w rn >< Defendant § c: ...., -i ;:::.. ....c:

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 336 • 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 337 338

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 338 339

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 339 340

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 340 341

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 341 342

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

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 342 • 343

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

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 343 344

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 344 345

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 345 • 346

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 346 347

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 347 348

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 348 349

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 349 350

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 350 351

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 351 352

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 352 • 353

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 353 • 354

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 354 355

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.

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.

Motion for New Trial Cause No. 35621 Page24 of24 355 356 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 13 356

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

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 •

357 3 4

CHRONOLOGICAL INDEX EXHIBIT INPEX 2 2 October 9, 2013 PAGE EXHIBIT NO. IDENTIFICATION OFFERED ADMITTED 3 3

4 Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Called for hearing ................................ 5 I 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 10 10 11 11 12 12 13 13 357

14 14

15 15

16 16

17 17

18 18

19 19

20 20 21 21 22 22

23 23 24 24 25 25

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 358 5 6

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 358

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.

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 359 7 8

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. 359

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?

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 360 9 10

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 360

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?

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 361 11 12

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? 361

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

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 362 13 14

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? 362

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

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 •

363 15 16

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 363

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

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 •

364 17 18

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 364

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

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 "

365 19 20

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 365

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.

KAREN MORRIS, CSR - 806-282-9932 KAREN MORRIS, CSR - 806-282-9932 •

..

366 21 22

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. 366

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 •

367 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 •

368 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 •

•

369 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 •

370 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 •

371 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 "

372 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 •

373 f.l! • i:;j· f. .J • Page • Safety • Tools • ·:f;• ij

\:>,ttil'c:U ih'lSl\'t llttp·I•""""'.Ot""~IS~ntll Close X

-~·- .l:l!ul ;•

Pampa 1so is committed to hm!

Pampa ISO Dress Code ~~

Approved Budget For 2008·09

x: 373

~20011 P..,;pa IIIUpt11denl School Dit!rict m W. Allltlt Pampa. TX not$ Pl!~t: (80i! 161-4700 F.''.'. (8Q6) '!USoa rooolitseartiq Go">gle' ·•· Search The Pampa ISO Web Site

W@Multt

0064\034 t

• " v;,•, < ~ibl'.?' ~~; ~~ qq'·'~.1

'1>rucl\~ 2 • • 374 1 2 3 4 5 6 7 a t• 10 .· 17 18 19 20 21 ~· ~ ~ 34 36 36 v 36 • • ~ G 374 .. .. 375

O 2008 Pampa Independent School District

321 w. ALbert Pampa, TX 79065
400, Phone: (806) 669-4700 Fax: (806) 665-0506 401

408 401

408

409 - - src="/web/20090126011100~ /http;//wyw.gpoq1e.;om/loqos/Lpqg 40wht.qif" border="O" alt="Google" align="middle" />

410 411

412
413 ·. Search The Pampa ISD Web Site

414 416 418 417 .· 418 419
420 Web Master
421
422 375 • ~

376 {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 . • 377 1 2 3' 4 5 e t

Cite This Page — Counsel Stack

Bluebook (online)

Rebecca Terrell and Chandrashekhar Thanedar v. Pampa Independent School District, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rebecca-terrell-and-chandrashekhar-thanedar-v-pampa-independent-school-texapp-2015.