Case Red Light State Supreme Court

FILED
17-0713
1/8/2018 3:41 PM
tex-21680049
SUPREME COURT OF TEXAS
BLAKE A. HAWTHORNE, CLERK
No. 17-0713
IN THE SUPREME COURT OF TEXAS
LUIS GARCIA, ET AL.,

Petitioners,
v.
CITY OF WILLIS, LEONARD REED, IN HIS OFFICIAL CAPACITY AS

[MAYOR] OF THE CITY OF WILLIS, JAMES NOWAK IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF WILLIS, HECTOR
FORESTIER, IN HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY
OF WILLIS,
Respondents.
From the Ninth Court of Appeals, Cause No. 09-16-00164-CV, and

the 410th District Court for Montgomery County, Cause No. 16-01-00297,
Hon. J. Sandel, Judge Sitting for Presiding Judge, Hon. K. Michael Mayes
RESPONSE TO PETITION FOR REVIEW
Patricia L. Hayden OLSON & OLSON, L.L.P.

State Bar No. 09269200 Wortham Tower, Suite 600
phayden@OlsonLLP.com 2727 Allen Parkway
Eric C. Farrar Houston, Texas 77019
State Bar No. 24036549 (713) 533-3800 – Telephone
efarrar@OlsonLLP.com (713) 533-3888 – Facsimile
ATTORNEYS FOR RESPONDENTS,
THE CITY OF WILLIS, LEONARD REED IN HIS OFFICIAL CAPACITY AS

MAYOR OF THE CITY OF WILLIS, JAMES NOWAK IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF WILLIS, AND
HECTOR FORESTIER IN HIS OFFICIAL CAPACITY AS CITY MANAGER OF
THE CITY OF WILLIS
TABLE OF CONTENTS
Table of Contents ...................................................................................................... ii
Index of Authorities ..................................................................................................iv
Statement of the Case.............................................................................................. vii
Respondents’ Issues ..................................................................................................ix
Respondents’ Reply to Issues Not Addressed in the Petition for Review

But Included by Petitioners in Their Issues Presented .............................................ix
Objections to Petitioners’ Supplement to Appendix to Petition for Review ............. 1
Statement of Facts ...................................................................................................... 2
Summary of the Argument......................................................................................... 2
Argument and Authorities.......................................................................................... 5
I. Reply to Issue No. 1: Argument Made by Petitioners—that the Lack of

Jurisdiction Exception to Exhaustion of Administrative Remedies Doctrine
Applies—is Without Merit and is Waived.................................................... 5
A. Petitioners’ Article V, Section 19 Constitutional Challenge to the

Administrative Remedies Provided by Chapter 707 and City
Ordinance No. 09-0721A Masquerades as a Subject Matter
Jurisdiction Challenge ........................................................................... 5
B. Subject Matter Jurisdiction for the Administrative Remedies of

Chapter 707 of the Texas Transportation Code and City of Willis
Ordinance No. 09-0721A is Not Lacking ............................................. 8
II. Reply to Issue No. 2: Court of Appeals Was Correct in Determining That
Petitioners Failed to Identify Ultra Vires Acts by City Officials ............... 11
ii
III. Reply to Issue No. 3: Court of Appeals Was Correct in Holding that
Petitioners’ Failure to Exhaust Administrative Remedies Barred Their
Constitutional Challenges to the Red Light Camera Statute and Ordinance
and in Dismissing Petitioners’ Reimbursement Claim ............................... 12
A. Constitutional Claims Can Be Barred by the Failure to Exhaust

Administrative Remedies .................................................................... 13
B. No Error in Dismissing Reimbursement Claim .................................. 13
IV. Reply to Issue No. 4: Court of Appeals Correctly Concluded

that Amending Their Pleading Would Not Cure the Defects in
Petitioners’ Suit ........................................................................................... 15
Prayer ....................................................................................................................... 17
Certificate of Compliance ........................................................................................ 18
Certificate of Service ............................................................................................... 18
Respondents’ Appendix ........................................................................................... 19
iii
INDEX OF AUTHORITIES
CASES PAGES
Berkman v. City of Keene,

311 S.W.3d 523 (Tex. App.—Waco 2009, pet. denied) ................................. 7
Blue Cross Blue Shield of Tex., Inc. v. Duenez,

201 S.W.3d 674 (Tex. 2006) (per curiam) .................................................... 10
City of Dallas v. Stewart,

361 S.W.3d 562 (Tex. 2012) ..................................................................... 4, 13
City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) ......................................................................... 14
City of Willis v. Garcia,

523 S.W.3d 729 (Tex. App.—Beaumont 2017, pet. filed).....................passim
Clint Indep. Sch. Dist. v. Marquez,

487 S.W.3d 538 (Tex. 2016) .......................................................4, 7, 8, 13, 16
Dallas County Community College Dist. v. Bolton,

185 S.W.3d 868 (Tex. 2005) ......................................................................... 15
Dreyer v. Greene,
871 S.W.2d 697 (Tex. 1993) ........................................................................... 6
Harris County Hosp. Dist. v. Tomball Reg’l Hosp.,

283 S.W.3d 838 (Tex. 2009) ......................................................................... 14
In re Entergy Corp.,
142 S.W.3d 316 (Tex. 2004) (orig. proceeding) ........................................... 11
Kubosh v. Harris County,

416 S.W.3d 483 (Tex. App.—Houston [1st Dist.] 2013, pet. denied) .......... 15
Lowenberg v. City of Dallas,

261 S.W.3d 54 (Tex. 2008) ........................................................................... 13
iv
MAG-T, L.P. v. Travis Cent. Appraisal Dist.,
161 S.W.3d 617 (Tex. App.—Austin 2005, pet. denied) .............................. 11
Reasonover v. Reasonover,
122 Tex. 512, 58 S.W.2d 817 (1933) ........................................................9, 10
State v. Beeson,
232 S.W.3d 265 (Tex. App.—Eastland 2007, pet. dism’d) ............................ 7
Subaru of Am., Inc. v. David McDavid Nissan, Inc.,

84 S.W.3d 212 (Tex. 2002) ........................................................................... 11
Tex. A & M Univ. Sys. v. Koseoglu,

233 S.W.3d 835 (Tex. 2007) ......................................................................... 15
Thomas v. Long,
207 S.W.3d 334 (Tex. 2006) ......................................................................... 10
Torres v. Haynes,
432 S.W.3d 370 (Tex. App.—San Antonio 2014, no pet.) ............................. 7
Waco Indep. Sch. Dist. v. Gibson,

22 S.W.3d 849 (Tex. 2000) ............................................................................. 7
Whisenhunt v. Lippincott,
474 S.W.3d 30 (Tex. App.—Texarkana 2015, no pet.) .................................. 6
Young Chevrolet, Inc. v. Texas Motor Vehicle Bd.,

974 S.W.2d 906 (Tex. App.—Austin 1998, pet. denied) ................................ 7
STATUTES AND RULES
Tex. Gov’t Code
§ 29.003(g) .............................................................................................. vii, 10
Tex. R. App. P.
9.4(i)(1) .......................................................................................................... 18
33.1 .................................................................................................................. 6
v
Tex. Transp. Code
§§ 707.001 — .019 or Chapter 707 or Red Light Camera Statute .........passim

§ 707.003(c) ............................................................................................ix, 2, 3
§ 707.014 ......................................................................................................... 5
§ 707.016 ......................................................................................................... 5
OTHER AUTHORITIES
Tex. Const.
art. V, § 1 ................................................................................................ix, 3, 9
art. V, § 8 ................................................................................................ix, 3, 9
art. V, § 19 .....................................................................................3, 4, 5, 8, 15
Willis, Tex., Code of Ordinances Title VII
§§ 70.01 — .99 or “Ordinance No. 09-0721A” or “Red Light Camera

Ordinance” or “Ordinance” ....................................................................passim
§ 70.09 ............................................................................................................. 5
§ 70.11 ............................................................................................................. 5
vi
STATEMENT OF THE CASE
Nature of the Case: This case originated in the court of appeals as an

interlocutory appeal from the denial of a plea to the
jurisdiction. No decision was made on the class
certification; thus, only the individual claims of the four
Petitioners, Luis Garcia, Shelby D. Glazier, Alisa Davie,
and Debra Earle,1 are before the Court.
The suit is a putative class action against the City2 and

City Officials,3 brought on behalf of all registered owners
who have paid a civil penalty for violating the City of
Willis’s Red Light Camera Ordinance, which seeks
injunctive relief, temporary and permanent; declaratory
relief; a refund of penalties paid or, alternatively,
damages for inverse condemnation; certification of a
class; appointment of attorneys to act as class counsel;
and attorney’s fees.
Specifically, the suit seeks (i) a declaration that

provisions of Chapter 707 of the Texas Transportation
Code, provisions of Chapter 70 of Willis, Tex. Code of
Ordinances Title VII,4 and Section 29.003(g) of the
Texas Government Code are unconstitutional; (ii) a
declaration that City Officials acted ultra vires in
enforcing the City of Willis’s Red Light Camera
Ordinance and are liable to the putative class for
reimbursement of civil penalties paid under the
Ordinance; (iii) an injunction prohibiting the City from
operating and enforcing its Red Light Camera Ordinance;
(iv) a refund of the civil penalties paid pursuant to the
1
Petitioners, Luis Garcia, Shelby D. Glazier, Alisa Davie, and Debra Earle, are hereinafter
referred to as “Petitioners.”
2
Respondent, the City of Willis, is hereinafter referred to as “the City.”
3
“City Officials” include Respondents, Leonard Reed in his official capacity as Mayor of the
City of Willis, James Nowak in his official capacity as Chief of Police of the City of Willis, and
Hector Forestier in his official capacity as City Manager of the City of Willis.
4
Willis, Tex., Code of Ordinances Title VII, Chapter 70 is hereinafter referred to as “Ordinance
No. 09-0721A,” “Red Light Camera Ordinance,” or “Ordinance.”
vii
City’s Red Light Camera Ordinance; or (v) alternatively,
damages for inverse condemnation, to be assessed
against the City or the City Officials.
The City and City Officials filed a plea to the jurisdiction

maintaining that the court lacked subject matter
jurisdiction over the Petitioners’ claims.
Trial Court: The Hon. J. Sandel, sitting for presiding judge, Hon. K.
Michael Mayes, 410th District Court, Montgomery
County, denied the plea to the jurisdiction filed by the
City and City Officials.
Court of Appeals: Ninth Court of Appeals, Beaumont
Parties in the
Court of Appeals: Appellants: City of Willis, Leonard Reed in his official
capacity as Mayor of the City of Willis, James Nowak in
his official capacity as Chief of Police of the City of
Willis, and Hector Forestier in his official capacity as
City Manager of the City of Willis
Appellees: Luis Garcia, Shelby D. Glazier, Alisa Davie,

and Debra Earle
Disposition: Justice Johnson authored the court’s opinion, joined by

Chief Justice McKeithen and Justice Horton. The court of
appeals reversed and rendered judgment in favor of
Appellants. Appellees filed a motion for rehearing on
July 21, 2017, Pet. Appx Tab C, and an amended
motion for rehearing on July 24, 2017, Pet. Appx Tab E.
The court of appeals asked for a response to the amended
motion for rehearing, Resp. Appx Tab A, which
Appellants filed on August 4, 2017, Resp. Appx Tab B.
The court of appeals denied the amended motion for
rehearing on August 15, 2017. Pet. Appx Tab F.
Status of the Opinion: The court’s opinion is published. City of Willis v. Garcia,
523 S.W.3d 729 (Tex. App.—Beaumont 2017, pet. filed).
viii
RESPONDENTS’ ISSUES
Reply to Issue 1: The argument made by Petitioners—that the lack of jurisdiction

exception to the exhaustion of administrative remedies doctrine
applies—is waived and is without merit.
Reply to Issue 2: The court of appeals was correct in determining that Petitioners
failed to identify ultra vires acts by City Officials.
Reply to Issue 3: The court of appeals was correct in holding that Petitioners’
failure to exhaust administrative remedies barred their
constitutional challenges to the Red Light Camera Statute and
Ordinance and in dismissing Petitioners’ reimbursement claim.
Reply to Issue 4: The court of appeals correctly concluded that amending their
pleading would not cure the defects in Petitioners’ suit.
RESPONDENTS’ REPLY TO ISSUES NOT ADDRESSED IN THE

PETITION FOR REVIEW BUT INCLUDED BY PETITIONERS IN THEIR
ISSUES PRESENTED
Reply to Issue 5: The court of appeals did not err in dismissing Petitioners’
claims for reimbursement.
Reply to Issue 6: The Texas Legislature, in accordance with the authority

provided by Tex. Const. art. V, §§ 1, 8, enacted a pervasive
regulatory scheme in Chapter 707 of the Texas Transportation
Code, which it intended to be the exclusive means for
remedying the issues related to that scheme.
Reply to Issue 7: Assuming arguendo that the City of Willis failed to perform a
traffic engineering study per Tex. Transp. Code Ann.
§ 707.003(c), such failure is not a jurisdictional defect that
prevents the hearing officer and the municipal court judge from
performing the duties provided by Chapter 707 and the City’s
Ordinance.
ix
TO THE HONORABLE SUPREME COURT OF TEXAS:
Respondents request that the Court deny the Petition for Review because the
court of appeals’ opinion and judgment reversing the trial court’s order and
rendering judgment granting the Respondents’ plea to the jurisdiction is correctly
decided.
OBJECTIONS TO PETITIONERS’ SUPPLEMENT TO APPENDIX TO

PETITION FOR REVIEW
Respondents object to the Petitioners’ Supplement to Appendix to Petition
for Review, filed on September 15, 2017, because it contains matters not before the
trial court or the court of appeals, specifically, two alleged “investigative reports”
done by an alleged “channel” in Austin. The accuracy of the hearsay reports has
not been subjected to any scrutiny, and the alleged “expert conclusions” contained
therein have not been subjected to any scrutiny. The reports contain hearsay, and
conclusory and argumentative statements to a reporter by Petitioners’ attorney and
others. These reports will not aid the Court in consideration of the issues proposed
by Petitioners. Respondents ask that the Court strike Petitioners’ Supplement to
Appendix and not consider it for any purpose.

STATEMENT OF FACTS
Respondents maintain that the evidence offered by Petitioners, and
mentioned in their Statement of Facts is irrelevant to determining the trial court’s
jurisdiction. Respondents also dispute Petitioners’ implication that they “proved”
the City failed to conduct a traffic engineering study per Tex. Transp. Code Ann.
§ 707.003(c). Whether a traffic engineering study was performed by the City is a
disputed fact issue for which the City produced evidence that it did conduct the
study. See Resp. Appx Tab C, CR 410–16. See also, Garcia, 523 S.W.3d at 738–
39, wherein the court of appeals detailed some of the evidence submitted by
Respondents in support of their assertion that the City did, in fact, conduct a traffic
engineering study.
SUMMARY OF THE ARGUMENT
Petitioners seek to challenge the Red Light Camera Statute,5 and the City
Ordinance incorporating that law, under every possible theory in order to recoup
the fines paid under that law. In fact, Petitioners’ attorneys have several of these
unconstitutional/ultra vires/refund/takings challenges to the Red Light Camera
Statute, and red light camera ordinances of assorted cities, in various courts
throughout the State, which are in various stages of litigation. While there may be
a plaintiff in one of those lawsuits in a position to bring at least some of these
5
Tex. Transp. Code Ann. §§ 707.001–.019 (West, Westlaw through 2017 C. Sess.).
2
diverse claims, it is not these Petitioners, and it is not this lawsuit. The court of
appeals committed no error in determining that Petitioners’ failure to exhaust their
administrative remedies precludes their lawsuit.
The court of appeals’ conclusion that the trial court lacked subject matter
jurisdiction of Petitioners’ suit because Petitioners failed to exhaust their
administrative remedies is correct and does not violate this Court’s precedent.
Petitioners’ “administrative remedies lacked subject matter jurisdiction” argument
is essentially yet another constitutional challenge to the Red Light Camera Statute
and Ordinance, i.e., that the Statute and Ordinance are unconstitutional because
they violate Tex. Const. art. V, § 19. This constitutional challenge was waived
because Petitioners failed to raise it in the trial court, and only raised it in the
appellate court on motion for rehearing. Further, the challenge is without merit in
light of Tex. Const. art. V, §§ 1, 8, which authorize the acts of the Legislature in
enacting the Red Light Camera Statute.
Further, the court of appeals correctly held that Petitioners’ complaint that
the City failed to conduct a traffic engineering study per Tex. Transp. Code Ann.
§ 707.003(c) was not an allegation of ultra vires actions on the part of City
Officials, but instead, was “nothing more than allegations that the officials have
failed to fully comply with regulatory requirements.”6
6
Garcia, 523 S.W.3d at 744 (interior quote and citation omitted).
3
Additionally, the court of appeals correctly held that Petitioners’ failure to
exhaust administrative remedies barred their constitutional challenges to the Red
Light Camera Statute and Ordinance and their reimbursement claim. The court of
appeals’ conclusion that Petitioners’ constitutional challenges were barred was
based on this Court’s reasoning in Clint Indep. Sch. Dist. v. Marquez, 487 S.W.3d
538 (Tex. 2016), City of Dallas v. Stewart, 361 S.W.3d 562 (Tex. 2012), and other
Supreme Court cases cited in the court of appeals’ opinion. See Garcia, 523
S.W.3d at 745. Further, Petitioners’ reimbursement claim hinges on a finding that
the Statute and Ordinance are unconstitutional and resulted in an illegal fee being
paid under duress, i.e., findings that are not possible in this lawsuit because their
constitutional challenges are barred by their failure to exhaust administrative
remedies.
Finally, the court of appeals correctly held that an amended pleading would
not cure the defects in Petitioners’ suit. The only additional claim that Petitioners
have stated they would add is an allegation that the Red Light Camera Statute and
Ordinance violate Tex. Const. art. V, § 19. That constitutional claim, if made,
would also be barred by their failure to exhaust administrative remedies under the
reasoning in Marquez and Stewart.
Petitioners have identified no error in the court of appeals’ opinion and
judgment. Their Petition for Review should be denied in its entirety.
4
ARGUMENT AND AUTHORITIES
I. Reply to Petitioners’ Issue No. 1:
Argument Made by Petitioners—that the Lack of Jurisdiction

Exception to Exhaustion of Administrative Remedies Doctrine
Applies—is Without Merit and is Waived
The court of appeals’ holding that the trial court lacked subject matter
jurisdiction of Petitioners’ suit because Petitioner failed to exhaust their
administrative remedies is correct and does not violate this Court’s precedent.
A. Petitioners’ Article V, Section 19 Constitutional Challenge to the

Administrative Remedies Provided by Chapter 707 and City
Ordinance No. 09-0721A Masquerades as a Subject Matter
Jurisdiction Challenge
Petitioners argue that the administrative remedies provided by Chapter 707
of the Texas Transportation Code and City Ordinance No. 09-0721A, i.e., (i) an
administrative adjudication hearing before a hearing officer to contest the
imposition of a civil penalty for running the red light7 and (ii) an appeal of the
hearing officer’s determination before the City’s municipal court,8 are
unconstitutional because they conflict with the exclusive civil jurisdiction of the
justice of the peace courts that is provided by Tex. Const. art. V, § 19. Petitioners,
7
Tex. Transp. Code Ann. § 707.014 (West, Westlaw through 2017 C. Sess.); City Ordinance No.
09-0721A, § 70.09.
8
Tex. Transp. Code Ann. § 707.016 (West, Westlaw through 2017 C. Sess.); City Ordinance No.
09-0721A, § 70.11.
5
however, present this argument as a challenge to subject matter jurisdiction in
order (i) to argue that they did not have to exhaust administrative remedies before
filing suit in district court; and (ii) to avoid Respondents’ argument that Petitioners
failed to raise this constitutional challenge to the Red Light Camera Statute and
Ordinance in their trial court pleading, see Resp. Appx Tab D, CR 85-127, or in
their appellate briefing, both pre- and post-submission. In fact, the first time
Petitioners raised this argument was on motion for rehearing before the court of
appeals. Pet. Appx Tab E. Consequently, the argument is not preserved for
review. Tex. R. App. P. 33.1; see Dreyer v. Greene, 871 S.W.2d 697, 698 (Tex.
1993) (“As a rule, a claim, including a constitutional claim, must have been
asserted in the trial court in order to be raised on appeal.”); Whisenhunt v.
Lippincott, 474 S.W.3d 30, 39 (Tex. App.—Texarkana 2015, no pet.) (“A party to
a lawsuit waives the right to raise even a constitutional claim on appeal if that
claim is not presented to the trial court.”).
Although their argument is cleverly worded to appear as a subject matter
jurisdiction argument, which can be raised for the first time on appeal, Petitioners
are not challenging the jurisdiction of the trial court where they filed their suit.
Instead, the crux of their argument is found in their Petition for Review, buried in
their concluding argument on their first issue:
6
The “remedies” in the red light camera laws (hearing before a hearing
officer and appeal by trial de novo to the municipal court judge) are
unconstitutional because they are in violation of Article V, Section 19
and Article I, Section 19 of the Texas Constitution.
Petition for Review, Argument, Section I, subsection E, p. 31.
Anticipating that Respondents would point out their failure to raise this
argument at the trial court or on appeal, Petitioners filed a Supplement to Petition
for Review to address whether they have waived this point of error. However, in
each case cited by Petitioners,9 it was the subject matter jurisdiction of the tribunal
whose procedures the complaining party engaged in, that was challenged for the
first time on appeal. Here, Petitioners challenge the subject matter jurisdiction of a
tribunal without having participated in its procedures. They challenge the subject
matter jurisdiction of the hearing officer and the municipal court to hear contested
red light camera violations in order to bootstrap themselves into the argument that
their suit fell within one of the exceptions to the exhaustion of administrative
remedies doctrine. Petitioners have attempted to follow in the footsteps of the
9
Marquez, 487 S.W.3d at 558; Waco Indep. Sch. Dist. v. Gibson, 22 S.W.3d 849 (Tex. 2000);
Torres v. Haynes, 432 S.W.3d 370, 372 (Tex. App.—San Antonio 2014, no pet.) (party
complained for first time on appeal that trial court lacked jurisdiction to enter default judgment
against him because record did not show strict compliance with rules regarding service; in
contrast, here Petitioners did participate in administrative process by paying the fine without
taking advantage of procedures available to contest the fine); Berkman v. City of Keene, 311
S.W.3d 523 (Tex. App.—Waco 2009, pet. denied); State v. Beeson, 232 S.W.3d 265 (Tex.
App.—Eastland 2007, pet. dism’d); Young Chevrolet, Inc. v. Texas Motor Vehicle Bd., 974
S.W.2d 906, 908 (Tex. App.—Austin 1998, pet. denied) (party challenging subject matter
jurisdiction of an administrative agency for the first time on appeal actually participated in the
agency hearing and challenged that agency’s order on a motion for rehearing was untimely and
without jurisdiction).
7
plaintiff parents in Marquez, 487 S.W.3d at 547, by using artful pleadings, or
arguments, to circumvent, in this case, the appellate rules of procedure. Petitioners’
complaint that the Red Light Camera Statute and Ordinance violate Tex. Const. art.
V, § 19 is not preserved for review.
B. Subject Matter Jurisdiction for the Administrative Remedies of

Chapter 707 of the Texas Transportation Code and City of Willis
Ordinance No. 09-0721A is Not Lacking
Assuming arguendo that, to excuse their failure to exhaust administrative
remedies, Petitioners have raised a subject matter jurisdiction issue by arguing that,
per Tex. Const. art. V, § 19,10 exclusive jurisdiction of a civil matter in which the
amount in controversy is $200 or less resides in the justice of the peace courts and
that the Legislature’s enactment of Tex. Transp. Code Chapter 707 violates such
jurisdiction. Petitioners’ argument still has no merit because it ignores other,
equally applicable constitutional provisions that support the Legislature’s actions in
enacting the administrative remedy of Chapter 707.
Although Petitioners argue that “jurisdiction conferred to a court by the
Texas Constitution cannot be altered or changed by legislative enactments,”
10
Justice of the peace courts shall have original jurisdiction in criminal matters of
misdemeanor cases punishable by fine only, exclusive jurisdiction in civil matters
where the amount in controversy is two hundred dollars or less, and such other
jurisdiction as may be provided by law. Justices of the peace shall be ex officio
notaries public.
Tex. Const. art. V, § 19.
8
Petition for Review, p. 22, the Texas Constitution, article V, sections 1 and 8,
contradict that argument. Article V, Section 1 of the Texas Constitution provides:
The judicial power of this State shall be vested in one Supreme Court,
in one Court of Criminal Appeals, in Courts of Appeals, in District
Courts, in County Courts, in Commissioners Courts, in Courts of
Justices of the Peace, and in such other courts as may be provided by
law.
The Legislature may establish such other courts as it may deem

necessary and prescribe the jurisdiction and organization thereof,
and may conform the jurisdiction of the district and other
inferior courts thereto.
Tex. Const. art. V, § 1 (emphasis added). Article V, Section 8 of the Texas
Constitution provides, in part:
District Court jurisdiction consists of exclusive, appellate, and

original jurisdiction of all actions, proceedings, and remedies, except
in cases where exclusive, appellate, or original jurisdiction may be
conferred by this Constitution or other law on some other court,
tribunal, or administrative body. …
Tex. Const. art. V, § 8 (emphasis added).
Case law, too, contradicts Petitioners’ argument. In Reasonover v.
Reasonover, 122 Tex. 512, 58 S.W.2d 817 (1933), the Supreme Court responded to
a certified question regarding the jurisdiction of district courts:
The amendment to section 1, article 5, adopted in 1891, does not

purport to take away from the district court, or to authorize the
Legislature to take away from it, its constitutional jurisdiction. It
does authorize the Legislature to take from it the exclusive
nature of its jurisdiction over the subjects mentioned in section
8, article 5, and permits the Legislature to give jurisdiction over
9
them also to other courts. The Legislature cannot take away from a
district court jurisdiction given it by the Constitution.
Reasonover, 122 Tex. at 517, 58 S.W.2d at 819 (emphasis added). The logical
extension of Reasonover’s holding pertaining to district courts dictates that the
Legislature can “take from [a justice of peace court] the exclusive nature of its
jurisdiction over the subjects mentioned … and permit[] the Legislature to give
jurisdiction over them also to other courts.” Id. This is what the Legislature did
when it created Chapter 707 of the Texas Transportation Code, which authorized
the creation of City Ordinance 09-0721A; it placed jurisdiction for the
administrative adjudication hearing in the administrative hearing officer, and then
exclusive appellate jurisdiction in the municipal court. See Tex. Gov’t Code Ann.
§ 29.003(g) (West, Westlaw through 2017 C. Sess.) (“A municipal court, including
a municipal court of record, shall have exclusive appellate jurisdiction within the
municipality’s territorial limits in a case arising under Chapter 707, Transportation
Code.”).
Legislatively-created administrative remedies are not a new concept in
Texas. See, e.g., Thomas v. Long, 207 S.W.3d 334, 337, 342 (Tex. 2006) (Harris
County Sheriff’s Department Civil Service Commission has exclusive
jurisdiction over employment dispute involving county jailer); Blue Cross Blue
Shield of Texas v. Duenez, 201 S.W.3d 674 (Tex. 2006) (per curiam) (health
insurance disputes arising from the state employees’ health insurance plan are
10
subject to the provisions of the Texas Employees Group Benefits Act); In re
Entergy Corp., 142 S.W.3d 316, 321–22 (Tex. 2004) (orig. proceeding) (Public
Utility Commission has exclusive jurisdiction over dispute regarding utility rates,
operations, and services); Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84
S.W.3d 212 (Tex. 2002) (recognizing the exclusive, original jurisdiction of Texas
Motor Vehicle Board to regulate distribution, sale, and leasing of motor
vehicles); MAG-T, L.P. v. Travis Cent. Appraisal Dist., 161 S.W.3d 617, 624
(Tex. App.—Austin 2005, pet. denied) (taxing authorities have exclusive
jurisdiction over tax disputes and taxpayers must exhaust their administrative
remedies before seeking judicial review; “[t]he intent of the administrative
review process is to resolve the majority of tax protests at the administrative level
and to relieve the burden on the court system.”).
Petitioners demonstrated no error in the court of appeals’ opinion and
judgment by this issue. The petition for review should be denied on this issue.
II. Reply to Petitioners’ Issue No. 2:
Court of Appeals Was Correct in Determining That Petitioners Failed

to Identify Ultra Vires Acts by City Officials
Petitioners argue that they were excused from exhausting the administrative
remedies provided by the Red Light Camera Statute and Ordinance because certain
City Officials acted ultra vires. Their argument has no merit.
11
The court of appeals engaged in a lengthy, well-reasoned, and well-
supported discussion of this issue in its opinion, see Garcia, 523 S.W.3d at 741–
44, and concluded:
We need not determine whether the City completed a traffic

engineering study as required by the statute because we conclude that
the failure to strictly comply with that provision of the statute would,
under the facts of this case, be insufficient to trigger the ultra vires
exception to the exhaustion requirement because such allegations
would be nothing more than allegations that the officials have failed
to “fully comply” with regulatory requirements, which would not
make the actions of the official ultra vires.
Id. at 744. Respondents adopt the discussion and holding of the Beaumont Court of
Appeals as their argument that Petitioners have identified no reversible error by
their Issue No. 2. The petition for review on this issue should be denied.
III. Reply to Petitioners’ Issue No. 3:
Court of Appeals Was Correct in Holding that Petitioners’ Failure to

Exhaust Administrative Remedies Barred their Constitutional
Challenges to the Red Light Camera Statute and Ordinance and in
Dismissing Petitioners’ Reimbursement Claim
Petitioners argue that their constitutional challenges to the Red Light
Camera Statute and Ordinance, and their claim for reimbursement, are not barred
by their failure to exhaust the administrative remedies provided by the Ordinance
or by governmental immunity. Again, however, Petitioners do not demonstrate that
the court of appeals erred in its decision.
12
A. Constitutional Claims Can Be Barred by Failure to Exhaust
Administrative Remedies
Respondents adopt the reasoning of the Beaumont Court of Appeals and the
case law cited thereby, in support of the court’s refutation and rejection of
Petitioners’ argument that their constitutional challenges to the Red Light Camera
Statute and Ordinance were not waived by their failure to exhaust the
administrative remedies provided by those laws. See Garcia, 523 S.W.3d at 744–
45.
Petitioners demonstrate no error in the court of appeals’ opinion and
judgment by this issue. The petition for review should be denied on this issue.
B. No Error in Dismissing Reimbursement Claim
Regarding Petitioners’ reimbursement claim, the court of appeals noted that
Petitioners conceded in appellate briefing that their claim for reimbursement of the
alleged “unlawful” fee or penalty under Lowenberg11 “would only apply in the
event this Court finds the ordinance and statutory scheme that authorized it to be
unconstitutional.” Garcia, 523 S.W.3d at 745, n.7. Consequently, because the court
of appeals found that Petitioners’ constitutional claims were barred for failure to
exhaust their administrative remedies, per the “reasoning of the Court in
Marquez[12] and Stewart[13],” Garcia, 523 S.W.3d at 745, the trial court lacked
11
Lowenberg v. City of Dallas, 261 S.W.3d 54, 59 (Tex. 2008).
12
Marquez, 487 S.W.3d at 544.
13
jurisdiction to consider the constitutional issues; the necessary findings to support a
reimbursement issue do not and cannot exist. The court of appeals did not err in
dismissing Petitioners’ reimbursement claims. The petition for review should
be denied on this issue.
Additionally, Respondents asserted additional reasons why Petitioners did
not have a reimbursement claim. First, Petitioners made it clear in their appellate
briefs, and in their First Amended Petition, Resp. Appx Tab D, CR 108–09; 111–
112, that they brought this suit for one purpose: to collect retrospective damages.
This Court has repeatedly affirmed the distinction between prospective relief—to
which immunity may not apply—and retrospective money damages, which remain
barred by immunity. See, City of El Paso v. Heinrich, 284 S.W.3d 366, 375–76
(Tex. 2009); Harris County Hosp. Dist. v. Tomball Reg’l Hosp., 283 S.W.3d 838,
849 n. 6 (Tex. 2009). The court of appeals noted:
“[S]overeign immunity is inapplicable when a suit challenges the

constitutionality of a statute and seeks only equitable relief.” Patel v.
Tex. Dep’t of Licensing & Regulation, 469 S.W.3d 69, 75-76 (Tex.
2015). In the case at bar, Appellees seek more than equitable relief.
Garcia, 523 S.W.3d at 743.
Second, Respondents also maintain that Petitioners do not have a
reimbursement claim, even if the Red Light Camera Statute and Ordinance were
found to be unconstitutional, because their actions (rather than just their words)
13
Stewart, 361 S.W.3d at 579.
14
demonstrated that they did not pay the civil penalty under duress; they did not
attempt to use the administrative remedies available to them to contest the penalty.
See Dallas County Community College Dist. v. Bolton, 185 S.W.3d 868 (Tex.
2005) (finding that students voluntarily paid fees later determined to be unlawful
because they did not take advantage of options to avoid, lower, or seek exemption
from or waiver of, the fees); Kubosh v. Harris County, 416 S.W.3d 483, 487 (Tex.
App.—Houston [1st Dist.] 2013, pet. denied) (“If a process exists to contest a fee,
then a person who nonetheless pays it cannot later claim to have paid the fee under
duress.”).
IV. Reply to Petitioners’ Issue No. 4:
Court of Appeals Correctly Concluded that Amending Their Pleading

Would Not Cure the Defects in Petitioners’ Suit
Although imprecisely worded, Petitioners appear to complain that the
appellate court failed to grant their motion for rehearing. Petitioners complain that,
after they brought forward a new constitutional challenge14 to Chapter 707 and
City Ordinance No. 09-0721A in their amended motion for rehearing, the Court of
Appeals failed to allow them an opportunity to replead to raise that complaint in an
amended petition in violation of Tex. A & M Univ. Sys. v. Koseoglu, 233 S.W.3d
14
The new challenge to Chapter 707 and City Ordinance No. 09-0721A that Petitioners raised in
their amended motion for rehearing is that the remedies provided by the statute and ordinance
violate Tex. Const. art. V, § 19—the same challenge that Petitioners have extensively briefed in
their petition for review and that has been waived and also that has no merit.
15
835 (Tex. 2007). However, Petitioners do not demonstrate that the Court of
Appeals erred.
After Petitioners made this argument to the Court of Appeals for the first
time in their amended motion for rehearing, the next day, the Court of Appeals
asked that the City and the City Officials file a response to the amended motion for
rehearing, Resp. Appx Tab A, presumably so that the court could consider
briefing on the new argument raised by Petitioners. After the City and City
officials filed their response on August 4, 2017, Resp. Appx Tab B, the court of
appeals denied the amended motion for rehearing on August 15, 2017. Pet. Appx
Tab F. Thus, the Court considered the argument that Petitioners seek to include in
an amended petition, and found it to be without merit.
In any event, the right to amend typically arises when the pleadings
fail to allege enough jurisdictional facts to demonstrate the trial
court’s jurisdiction. (citation omitted) … The parents do not propose
to add more jurisdictional facts. Instead, they suggest they can “cure”
the jurisdictional defect by changing the claims they are bringing.
Generally, remand is a mechanism for parties, over whose claims the
trial court may have jurisdiction, to plead facts tending to establish
that jurisdiction, not for parties, over whose claims the trial court does
not have jurisdiction, to plead new claims over which the trial court
does have jurisdiction. (citation omitted).
Marquez, 487 S.W.3d at 559. Petitioners’ new constitutional challenge to the Red
Light Camera Statute and Ordinance would suffer the same fate as their other
constitutional challenges: barred by their failure to exhaust the administrative
remedies provided by the Red Light Camera Statute and Ordinance.
16
Petitioners have demonstrated no error in the court of appeals’ opinion and
judgment on this issue. The petition for review should be denied on this issue.
PRAYER
Petitioners have demonstrated no error in the court of appeals’ opinion and
judgment. For the reasons stated in this response, Respondents ask the Supreme
Court to deny the petition for review.
Respectfully submitted,
OLSON & OLSON, L.L.P.
By: /s/ Patricia L. Hayden

Patricia L. Hayden
State Bar No. 09269200
phayden@OlsonLLP.com
Eric C. Farrar
efarrar@OlsonLLP.com
Wortham Tower, Suite 600
2727 Allen Parkway
Houston, Texas 77019
(713) 533-3800 – Telephone
(713) 533-3800 – Facsimile
ATTORNEYS FOR RESPONDENTS,
THE CITY OF WILLIS, LEONARD REED IN HIS

OFFICIAL CAPACITY AS MAYOR OF THE CITY OF
WILLIS, JAMES NOWAK IN HIS OFFICIAL
CAPACITY AS CHIEF OF POLICE OF THE CITY OF
WILLIS, AND HECTOR FORESTIER IN HIS
OFFICIAL CAPACITY AS CITY MANAGER OF THE
CITY OF WILLIS
17
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft
Word and contains 3,953 words, as determined by the computer software’s word-
count function, excluding the sections of the document listed in Texas Rule of
Appellate Procedure 9.4(i)(1).
/s/ Patricia L. Hayden

Patricia L. Hayden
CERTIFICATE OF SERVICE
I certify that on January 8, 2018, I served a copy of Respondents’ Response to
Petition for Review on the parties listed below by electronic service and that the
electronic transmission was reported as complete. My e-mail address is
phayden@OlsonLLP.com:
Mr. Russell J. Bowman

BOWMAN & STELLA, P.C.
800 West Airport Freeway, Suite 860
Irving, Texas 75062
russelljbowman@sbcglobal.net
Mr. Scott A. Stewart

101 ½ West Main Street, Suite 200
Grand Prairie, Texas 75050
sastewartlawoffice@gmail.com
ATTORNEYS FOR PETITIONERS,

LUIS GARCIA, ET AL.

Patricia L. Hayden
18
No. 17-0713
IN THE SUPREME COURT OF TEXAS

Petitioners,
v.
CITY OF WILLIS, LEONARD REED, IN HIS OFFICIAL CAPACITY AS

FORESTIER, IN HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE CITY
OF WILLIS,
Respondents.
RESPONDENTS’ APPENDIX TO RESPONSE TO PETITION FOR

REVIEW
LIST OF DOCUMENTS
Letter from Court of Appeals, dated July 25, 2017

(no record citation) ................................................................................. Tab A
Appellants’ Response to Amended Motion for Rehearing, filed August 4, 2017

(no record citation) ................................................................................ Tab B
Affidavit of Brenda Burns, containing evidence of the City’s compliance with Tex.
Transp. Code 707.003, attached to Defendants’ Objections to Plaintiffs’ Exhibit A,
Attached to Plaintiffs’ Motion for Partial Summary Judgment and Plaintiffs’
Response to Defendants’ Plea and Motion to Strike Exhibit A, filed March 28,
2016
(CR 410-416) .......................................................................................... Tab C
Plaintiffs’ First Amended Petition, filed February 15, 2016

(CR 85-127) ............................................................................................ Tab D
19
Tab A
FILE COPY
CHIEF JUSTICE
STEVE MCKEITHEN Court of Appeals CLERK
CAROL ANNE HARLEY
JUSTICES
CHARLES KREGER
State of Texas OFFICE
SUITE 330
HOLLIS HORTON
LEANNE JOHNSON
Ninth District 1001 PEARL ST.
BEAUMONT, TEXAS 77701
409/835-8402 FAX 409/835-8497
WWW.TXCOURTS.GOV/9THCOA.ASPX
Tuesday, July 25, 2017
Patricia L. Hayden Russell J. Bowman

Olson & Olson L.L.P. Bowman & Stella
2727 Allen Pkwy Ste 600 800 W Airport Fwy Ste 860
Houston, TX 77019-2133 Irving, TX 75062-6287
* DELIVERED VIA E-MAIL * * DELIVERED VIA E-MAIL *
Larry L. Foerster
Darden, Fowler & Creighton
414 West Phillips, Ste 100
Conroe, TX 77301
* DELIVERED VIA E-MAIL *
RE: Case Number: 09-16-00164-CV

Trial Court Case 16-01-00297-CV
Number:
Style: City of Willis, Leonard Reed, in His Official Capacity as the (Mayor)of the
City of Willis, James Nowak , in His Official Capacity as Chief of Police
of the City of Willis, Hector Forestier, in His Official Capacity as City
Manager of the City of Willis
v.
Luis Garcia, et al
This Court requests that a response to Appellee’s amended motion for

rehearing in the above styled and numbered cause be filed. The Appellant’s
response is due to be filed on or before Friday, August 04, 2017.
Sincerely,
CAROL ANNE HARLEY,

CLERK OF THE COURT
FILE COPY
cc: Barbara Adamick (DELIVERED VIA E-MAIL)

Scott A. Stewart (DELIVERED VIA E-MAIL)
Robin Cooksey (DELIVERED VIA E-MAIL)
Scott Bounds (DELIVERED VIA E-MAIL)
Judge K. Michael Mayes (DELIVERED VIA E-MAIL)
Tab B
ACCEPTED
09-16-00164-CV
NINTH COURT OF APPEALS
BEAUMONT, TEXAS
8/4/2017 5:04 PM
CAROL ANNE HARLEY
CLERK
NO. 09-16-00164-CV
__________________________________________________________________
IN THE COURT OF APPEALS

FOR THE NINTH DISTRICT OF TEXAS
AT BEAUMONT, TEXAS
__________________________________________________________________
CITY OF WILLIS, LEONARD REED IN HIS OFFICIAL CAPACITY AS

FORESTIER IN HIS OFFICIAL CAPACITY AS CITY MANAGER OF THE
CITY OF WILLIS,
Appellants,
v.
Appellees.
__________________________________________________________________
On Appeal from the 410th Judicial District Court
of Montgomery County, Texas
Cause No. 16-01-00297
Honorable J. Sandel, Judge Presiding
__________________________________________________________________
APPELLANTS’ RESPONSE TO
APPELLEES’ AMENDED MOTION FOR REHEARING
__________________________________________________________________
Patricia L. Hayden OLSON & OLSON, L.L.P.
State Bar No. 09269200 Wortham Tower, Suite 600
phayden@olsonllp.com 2727 Allen Parkway
Eric C. Farrar Houston, Texas 77019
State Bar No. 24036549 Telephone: (713) 533-3800
efarrar@olsonllp.com Facsimile: (713) 533-3888
ATTORNEYS FOR APPELLANTS,

THE CITY OF WILLIS, ET AL.
TABLE OF CONTENTS
TABLE OF CONTENTS .............................................................................................ii
INDEX OF AUTHORITIES........................................................................................iv
ARGUMENT ...............................................................................................................2
I. Response to Appellees’ First Error: No Merit to Appellees’ Assertion

that there is no Subject Matter Jurisdiction for the Administrative
Remedies Provided in Chapter 707 and City Ordinance
No. 09-0721A ...........................................................................................2
A. Appellees Lacks Standing to Bring This Challenge ...................... 2
B. Appellees’ Argument Has Been Rejected by the Austin Court of

Appeals ...........................................................................................3
C. Legislature Can Establish Jurisdiction for the Administrative

Adjudication Hearing and Appellate Jurisdiction for the
Municipal Court ............................................................................. 6
D. No Merit to Argument Regarding Review by Trial De Novo ....... 8
II. Response to Appellees’ Second Error: Failure to Conduct the Traffic

Engineering Study of §707.003(c) is a Procedural Irregularity, Not a
Jurisdictional requirement ........................................................................ 9
A. Court’s Holding is Correct ............................................................. 10
B. Section 707.003(c) Is Not Jurisdictional ........................................ 10
III. Response to Appellees’ Third Error: Court’s Conclusion that Failure to

Complete a Traffic Engineering Study is a Procedural Deficiency, Not
an Ultra Vires Act .....................................................................................14
ii
IV. Response to Appellees’ Fourth Error: Dismissal of Appellees’
Constitutional and Reimbursement Claims is Proper .............................. 15
A. Court’s Holding that Exhaustion of Administrative Remedies is

Required is Correct......................................................................... 15
B. No Error in Dismissal of Appellees’ Suit for Reimbursement of

Penalties Paid ................................................................................. 16
C. Appellees’ Criticism of the Court’s Statement Regarding

Lowenberg Has No Merit ............................................................... 17
V. Response to Appellees’ Fifth Error: Appellees Cannot Cure The Lack

of Jurisdiction for Their Suit by Repleading ............................................ 18
PRAYER ......................................................................................................................24
CERTIFICATE OF COMPLIANCE ........................................................................... 26
CERTIFICATE OF SERVICE.....................................................................................26
iii
INDEX OF AUTHORITIES
CASES PAGES
Albertson’s Inc. v. Sinclair,

984 S.W.2d 958 (Tex. 1999) ................................................................................11
Brown v. Todd,
53 S.W.3d 297 (Tex. 2001) ....................................................................................3
City of DeSoto v. White,

288 S.W.3d 389 (Tex. 2009) ......................................................................... 10, 11
City of El Paso v. Heinrich,

284 S.W.3d 366 (Tex. 2009) ................................................................................17
City of Willis v. Garcia,

No. 09-16-00164-CV, 2017 WL 2871414 (Tex. App.—Beaumont July 6, 2017,
no pet. h.). ..................................................................................................... passim
Crosstex Energy Servs., L.P. v. Pro Plus, Inc.,

430 S.W.3d 384 (Tex. 2014) ................................................................................11
DaimlerChrysler Corp. v. Inman,

252 S.W.3d 299 (Tex. 2008) ..................................................................................3
Dallas County Cmty. Coll. Dist. v. Bolton,

185 S.W.3d 868 (Tex. 2005) ................................................................................18
Dubai Petroleum Co. v. Kazi,

12 S.W.3d 71 (Tex. 2000) ....................................................................................13
Edwards v. City of Tomball,

343 S.W.3d 213 (Tex. App.—Houston [14th Dist.] 2011, no pet.) ............. passim
G.E. Am. Commc'n v. Galveston Cent. Appraisal Dist.,

979 S.W.2d 761 (Tex. App.-Houston [14th Dist.] 1998, no pet.) .............................8
Heckman v. Williamson County,

369 S.W.3d 137 (Tex. 2012) ..................................................................................3
iv
Helena Chem. Co. v. Wilkins,
47 S.W.3d 486 (Tex. 2001) ..................................................................................11
Howell v. Texas Workers' Comp. Com'n,

143 S.W.3d 416 (Tex. App.—Austin 2004, pet. denied) .............................. 4, 5, 6
In re Edwards Aquifer Auth.,

217 S.W.3d 581 (Tex. App.—San Antonio 2006, no pet.) ....................................8
In re Entergy Corp.,
142 S.W.3d 316 (Tex.2004) (orig. proceeding) .....................................................4
In re Guardianship of Jordan,
348 S.W.3d 401 (Tex. App.—Beaumont 2011, no pet.). .....................................11
Kubosh v. City of Houston,

2 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) ......................18
Lowenberg v. City of Dallas,

261 S.W.3d 54 (Tex. 2008) ........................................................................... 17, 18
MAG-T, L.P. v. Travis Cent. Appraisal Dist.,

161 S.W.3d 617 (Tex. App.—Austin 2005, pet. denied) .......................................4
Manderscheid v. Laz Parking of Texas, LLC,

506 S.W.3d 521 (Tex. App.—Houston [1st Dist.] 2016, pet. denied) ..................12
Neeley v. W. Orange–Cove Consol. Indep. Sch. Dist.,

176 S.W.3d 746 (Tex. 2005) ..................................................................................3
Reasonover v. Reasonover,
122 Tex. 512, 58 S.W.2d 817 (1933) .....................................................................7
Shaw v. Phillips Crane & Rigging of San Antonio, Inc.,

636 S.W.2d 186 (Tex. 1982) ................................................................................18
Subaru of Am., Inc. v. David McDavid Nissan, Inc.,

84 S.W.3d 212 (Tex. 2002) ................................................................................4, 6
Texas A & M Univ. Sys. v. Koseoglu,

233 S.W.3d 835 (Tex. 2007) ................................................................................18
v
Thomas v. Long,
207 S.W.3d 334 (Tex. 2006) ..................................................................................4
CONSTITUTIONAL PROVISIONS
Tex. Const. art. V, § 1 ................................................................................................7
Tex. Const. art. V, § 19 ............................................................................................19
STATUTES
Tex. Gov’t Code Ann. § 29.003(g) ......................................................................8, 19
Tex. Transp. Code Ann. § 707.003(c) .......................................................... 9, 12, 14
Tex. Transp. Code Ann. §§ 707.014, 707.016 ...........................................................3
Tex. Transp. Code Ann. § 707.003 ..........................................................................12
OTHER AUTHORITIES
City Ordinance 09-0721A ............................................................................ 7, 14, 19
City Ordinance No. 09-0721A, §§ 70.09, 70.11 ..................................................3, 15
Texas Towing and Booting Act, Tex. Occ. Code Ann. 2308.001 – .505 ................12
vi
TO THE HONORABLE JUSTICES OF THIS COURT:
Appellants, the City of Willis, Leonard Reed in his official capacity as
[Mayor], James Nowak in his official capacity as Chief of Police, and Hector
Forestier in his official capacity as City Manager (“Appellants”), file this Response
to Appellees’ Amended Motion for Rehearing. Appellants rely on the Court’s
holding, reasoning and authorities cited in its opinion; on the arguments made and
authorities cited in Appellants’ Brief, Appellants’ Reply Brief, and Appellants’
Post-Submission Brief, and on the arguments and authorities stated herein.
The Court of Appeals correctly held that the Appellees failed to exhaust
their administrative remedies and that an amended pleading would not cure the
defects in their claims. 1 Accordingly, the Court correctly reversed the trial court’s
denial of Appellants’ Plea to the Jurisdiction and rendered judgment for
Appellants. Appellees have demonstrated no error in the Court’s opinion and
judgment.
1
City of Willis v. Garcia, No. 09-16-00164-CV, 2017 WL 2871414,*13 (Tex. App.—Beaumont
July 6, 2017, no pet. h.).
1
ARGUMENT
I. Response to Appellees’ First Error:
NO MERIT TO APPELLEES’ ASSERTION THAT THERE IS NO SUBJECT

MATTER JURISDICTION FOR THE ADMINISTRATIVE REMEDIES PROVIDED
IN CHAPTER 707 AND CITY ORDINANCE NO. 09-0721A
For the first time in this case, on a Motion for Rehearing, Appellees
introduce an alleged “lack of jurisdiction” argument. They argue that the
administrative hearing officer, and consequently, the municipal court, lack
jurisdiction to determine whether the City’s Ordinance No. 09-0721A was violated
because “[j]ustice of the peace courts shall have … exclusive jurisdiction in civil
matters where the amount in controversy is two hundred dollars or less, ….” Tex.
Const. art. V, § 19. Appellees argue that because the Legislature cannot withdraw
jurisdiction given a court by the Constitution,2 the administrative hearing officer
and the municipal court lack jurisdiction to conduct hearings on the red light
camera violations, and there was no administrative remedy required to be satisfied.
A. Appellees Lacks Standing to Bring This Challenge
A court has no jurisdiction over a claim made by a plaintiff who lacks
standing to assert it. Heckman v. Williamson County, 369 S.W.3d 137, 150 (Tex.
2
Appellees’ Amended Motion for Rehearing, p. 15.
2
2012). 3 The standing doctrine requires a concrete injury to the plaintiff and a real
controversy between the parties that will be resolved by the court. Id. at 154 citing
DaimlerChrysler Corp. v. Inman, 252 S.W.3d 299, 304, 307 (Tex. 2008); Neeley v.
W. Orange–Cove Consol. Indep. Sch. Dist., 176 S.W.3d 746, 774 (Tex.
2005); Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001).
None of the Appellees have been injured by an alleged lack of jurisdiction
for the administrative hearing officer to hear their contest because none of them
have followed the statutory/ordinance remedies 4 to protest their red light civil
penalties by filing a written request for an administrative adjudication hearing, and
subsequently, an appeal petition in municipal court. Thus, none of the Appellees
have standing to challenge the subject matter jurisdiction of an administrative in
which they did not participate.
B. Appellees’ Argument Has Been Rejected by the Austin Court of

Appeals
The Court correctly held:
We agree with the Fourteenth Court of Appeals that Chapter 707

legislatively authorizes municipalities such as the City of Willis to
establish a red light camera enforcement system.[ 5] Once the
3
“Just as it must dismiss a case where the plaintiff lacks standing to bring any of his claims, a
court must dismiss a class action for want of jurisdiction if the named plaintiff entirely lacked
individual standing at the time he sued.” Id. at 151 (emphasis in original).
4
See Tex. Transp. Code Ann. §§ 707.014, 707.016 (West 2011); Ordinance No. 09-0721A §§
70.09, 70.11.
5
citing Edwards v. City of Tomball, 343 S.W.3d 213, 221-22 (Tex. App.—Houston [14th Dist.]
2011, no pet.).
3
municipality chooses to set up a red light enforcement program,
Chapter 707 requires the municipality to establish an exclusive
administrative procedure to handle disputes relating to the red light
enforcement program.
City of Willis v. Garcia, 09-16-00164-CV, 2017 WL 2871414, at *10 (Tex. App.—
Beaumont July 6, 2017, no pet. h.).
Legislatively-created administrative remedies are not a new concept in
Texas. See, e.g., Thomas v. Long, 207 S.W.3d 334, 337, 342 (Tex. 2006) (Harris
County Sheriff's Department Civil Service Commission has exclusive jurisdiction
over employment dispute involving county jailer); In re Entergy Corp., 142
S.W.3d 316, 321–22 (Tex.2004) (orig. proceeding) (Public Utility Commission has
exclusive jurisdiction over dispute regarding utility rates, operations, and services);
Subaru of Am., Inc. v. David McDavid Nissan, Inc., 84 S.W.3d 212 (Tex. 2002)
(recognizing the exclusive, original jurisdiction of the Texas Motor Vehicle Board
to regulate distribution, sale, and leasing of motor vehicles); MAG-T, L.P. v. Travis
Cent. Appraisal Dist., 161 S.W.3d 617, 624 (Tex. App.—Austin 2005, pet. denied)
(taxing authorities have exclusive jurisdiction over tax disputes and taxpayers must
exhaust their administrative remedies before seeking judicial review “The intent of
the administrative review process is to resolve the majority of tax protests at the
administrative level and to relieve the burden on the court system.” Id. at 624.).
In Howell v. Texas Workers' Comp. Com'n, 143 S.W.3d 416 (Tex. App.—
Austin 2004, pet. denied), the court rejected an argument similar to that raised by
4
Appellees. In Howell, Plaintiff Dr. Howell was owner and director of First Rio, a
chiropractic facility, in Brownsville. Workers’ compensation claimants constituted
seventy to eight percent of First Rio’s business. Under the Workers’ Compensation
Act (and its administrative rules) in effect at the time of the Howell suit, a health
care provider seeking payment from an insurance carrier for treatment of a
workers’ compensation claimant was required to submit its medical bill to the
carrier. Id. at 427. If the carrier denied or reduced the payment and the health care
provider was dissatisfied, the Act dictated the steps the health care provider had to
take to resolve the dispute.
Dr. Howell filed suit in Travis County against the Workers’ Compensation
Commission and others, challenging the constitutionality of certain IRO 6 fee rules,
seeking declaratory relief concerning the validity of the rules, and seeking an
injunction to permit First Rio to file medical necessity disputes without having to
pay the IRO fees. Id. at 429. First Rio also filed approximately 723 suits against
workers’ compensation carriers in Cameron County justice of peace courts seeking
payment of medical bills that the carriers had either partially paid or denied. Id.
As part of its holding, the court concluded:
Because the statutory scheme demonstrates that the legislature has

granted to the Commission the sole authority to make an initial
6
IROs were created by the legislature to conduct medical necessity reviews of health care
provided to workers’ compensation claimants. Id. at 427-28.
5
determination of a medical fee or medical necessity dispute, we hold
that the Commission has exclusive jurisdiction over these disputes.
Howell, 143 S.W.3d at 435 citing Subaru of Am., Inc. v. David McDavid Nissan,
Inc., 84 S.W.3d 212, 221 (Tex.2002) (op. on reh'g). One of the arguments raised by
First Rio is the same argument raised by the Appellees here, which the court
summarily dismissed:
First Rio next asserts that the court's declaration that First Rio must
exhaust administrative remedies before seeking resolution of a
medical fee dispute in a court is unconstitutional for all disputes under
$200. First Rio's ground for this argument is that justice of the peace
courts have “exclusive jurisdiction in civil matters where the amount
in controversy is two hundred dollars or less.” Tex. Const. art. V, §
19. Having determined that the Commission has exclusive jurisdiction
over medical fee and medical necessity disputes, we do not find any
constitutional violation in this declaration.
Howell, 143 S.W.3d at 445.
C. Legislature Can Establish Jurisdiction for the Administrative

Adjudication Hearing and Appellate Jurisdiction for the
Municipal Court
Although Appellees argue that the jurisdiction conferred on a court by the
Texas Constitution cannot be altered or changed by legislative enactments, 7 they
are wrong. Article V, Section 1 of the Texas Constitution provides, in part:
The Legislature may establish such other courts as it may deem

necessary and prescribe the jurisdiction and organization thereof, and
may conform the jurisdiction of the district and other inferior courts
thereto.
7
6
Tex. Const. art. V, § 1. The seminal case on the question of whether the
Legislature can alter the jurisdiction of a constitutionally-created court is
Reasonover v. Reasonover, 122 Tex. 512, 58 S.W.2d 817 (1933), certified question
answered, 59 S.W.2d 887 (Tex. Civ. App.—San Antonio 1933, no writ).
In response to a certified question regarding the jurisdiction of District
Courts, the Supreme Court stated:
The amendment to section 1, article 5, adopted in 1891, does not

purport to take away from the district court, or to authorize the
Legislature to take away from it, its constitutional jurisdiction. It does
authorize the Legislature to take from it the exclusive nature of its
jurisdiction over the subjects mentioned in section 8, article 5, and
permits the Legislature to give jurisdiction over them also to other
courts. The Legislature cannot take away from a district court
jurisdiction given it by the Constitution.
Reasonover, 122 Tex. at 517, 58 S.W.2d at 819 (emphasis added). The logical
extension of Reasonover’s holding pertaining to District Courts dictates that the
Legislature can “take from [a justice of peace court] the exclusive nature of its
jurisdiction over the subjects mentioned … and permit[] the Legislature to give
jurisdiction over them also to other courts.” Id. This is what the Legislature did
when it created Chapter 707 of the Texas Transportation Code, which authorized
creation of City Ordinance 09-0721A; it placed jurisdiction for the administrative
adjudication hearing in the administrative hearing officer, and then exclusive
appellate jurisdiction in the municipal court.
7
D. No Merit to Argument Regarding Review by Trial De Novo
Appellees argue that the City’s Ordinance and the Red Light Camera Statute
provide for an appeal to the municipal court by trial de novo, which, because a trial
de novo is a new and original action, would usurp the exclusive jurisdiction of the
justice of peace courts. 8 Appellees’ argument, however, ignore two key concepts.
First, the jurisdiction provided to the municipal court is exclusive appellate
jurisdiction, not exclusive original jurisdiction. Tex. Gov’t Code Ann. § 29.003(g)
(West 2004 and Supp. 2017) (emphasis added).
Second, Appellees are confused by the meaning of the trial de novo provided
by the City Ordinance and Chapter 707. “Trial de novo” does not mean a new and
original action; instead, it is an evidentiary standard for review of administrative
decisions. See In re Edwards Aquifer Auth., 217 S.W.3d 581 (Tex. App.—San
Antonio 2006, no pet.) (“Texas recognizes a range of standards for reviewing
administrative decisions: (1) pure trial de novo; (2) pure substantial evidence; and
(3) substantial evidence de novo. G.E. Am. Commc'n v. Galveston Cent. Appraisal
Dist., 979 S.W.2d 761, 764 (Tex. App.-Houston [14th Dist.] 1998, no pet.).” Id. at
586.).
Appellees have raised no error in the Court’s opinion or judgment. Their
Amended Motion for Rehearing should be denied.
8
Appellees’ Amended Motion for Rehearing, pp. 13-14.
8
II. RESPONSE TO APPELLEES’ SECOND ERROR:
FAILURE TO CONDUCT THE TRAFFIC ENGINEERING STUDY OF §707.003(C)

IS A PROCEDURAL IRREGULARITY, NOT A JURISDICTIONAL REQUIREMENT
After extensive analysis, the Court of Appeals held:
We agree with the Fourteenth Court of Appeals that Chapter 707

legislatively authorizes municipalities such as the City of Willis to
establish a red light camera enforcement system.[ 9] Once the
municipality chooses to set up a red light enforcement program,
Chapter 707 requires the municipality to establish an exclusive
administrative procedure to handle disputes relating to the red light
enforcement program. Furthermore, … assuming without deciding
that the City of Willis failed to conduct a traffic engineering study as
provides for in Section 707.0031 before it installed the red light
cameras, we conclude that such irregularity does not allow a party to
completely circumvent or ignore the administrative procedures in the
City’s Red Light Camera Ordinance.[ 10]
Garcia, 2017 WL 2871414, at *10.
In their second error, Appellees challenge the Court’s holding, arguing that
the traffic engineering study mentioned in Tex. Transp. Code Ann. § 707.003(c)
(West 2011) is not an irregularity, but a jurisdictional requirement to be met prior
to imposition of a penalty for violation of the statute/ordinance. This argument is
yet another new argument that Appellees have raised for the first time on
rehearing.
9
citing to Edwards, 343 S.W.3d at 221-22.
10
citing Edwards, 343 S.W.3d at 222.
9
A. Court’s Holding is Correct
The Court correctly concluded that the City’s failure to conduct a traffic
engineering study, if in fact it failed to do so, was an “irregularity [that] does not
allow a party to completely circumvent or ignore the administrative procedures in
the City’s Red Light Camera Ordinance” 11 and that “such allegations would be
nothing more than allegations that the officials have failed to ‘fully comply’ with
regulatory requirements, which would not make the actions of the officials ultra
vires. … The Fourteenth Court of Appeals expressly rejected such arguments.[ 12]
Therefore, we conclude the reasoning in Edwards is equally applicable to the facts
before us.” Garcia, 2017 WL 2871414, at *10-11.
B. Section 707.003(c) Is Not Jurisdictional
In order to determine whether a statutory provision is jurisdictional, the
Texas Supreme Court
adopted an approach to jurisdictional questions designed to strengthen

finality and reduce the possibility of delayed attacks on judgments,
regardless of whether the claim was anchored in common law or was
a specially-created statutory action.
City of DeSoto v. White, 288 S.W.3d 389, 394 (Tex. 2009). The court begins with
the presumption that the Legislature did not intend to make the statutory provision
jurisdictional; a presumption overcome only by clear legislative intent to the
11
citing Edwards, 343 S.W.3d at 222.
12
citing Edwards, 343 S.W.3d at 221-23.
10
contrary. Id. “A mandatory statutory requirement is not presumed to be
jurisdictional.” In re Guardianship of Jordan, 348 S.W.3d 401, 409 (Tex. App.—
Beaumont 2011, no pet.). See also Albertson’s Inc. v. Sinclair, 984 S.W.2d 958
(Tex. 1999) (“[J]ust because a statutory requirement is mandatory does not mean
that compliance with it is jurisdictional.” Id. at 961.). The Court applies statutory
construction principles with the goal of ascertaining legislative intent. Crosstex
Energy Servs., L.P. v. Pro Plus, Inc., 430 S.W.3d 384, 392 (Tex. 2014) (citing
White, 288 S.W.3d at 394). Relevant factors to consider in determining whether a
statutory requirement is jurisdictional are: (i) the plain meaning of the statute; (ii)
the presence or absence of specific consequences for noncompliance; (iii) the
purpose of the statute; and (iv) the consequences that result from each possible
interpretation. Crosstex Energy Servs., 430 S.W.3d at 92 (first citing White, 288
S.W.3d at 395; then citing Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 495 (Tex.
2001).
The plain meaning of the statute, Chapter 707 of the Tex. Transp. Code, and
its purpose, has been explained by the Fourteenth Court of Appeals in Edwards v.
City of Tomball, 343 S.W.3d 213 (Tex. App.—Houston [14th Dist.] 2011, no pet.),
and this Court has agreed with that reasoning:13
When the Legislature enacted the pervasive regulatory scheme found

in Chapter 707, we conclude its intent in doing so was to ensure that
13
Garcia, 2017 WL 2871414, at *10-11.
11
the vast majority of claims arising out of the use of red light camera
systems would be resolved at the administrative level and the creation
of this new enforcement system would not overburden the courts. See
MAG–T, L.P. v. Travis Central Appraisal Dist., 161 S.W.3d 617, 624
(Tex. App.-Austin 2005, pet. denied) (addressing real property tax
appraisals). An administrative agency has exclusive jurisdiction when
the Legislature grants it the sole authority to make an initial
determination in a matter and the regulatory scheme indicates that the
Legislature intended for the regulatory process to be the exclusive
means for remedying issues related to that scheme.
Edwards, 343 S.W.3d at 221–22. While the statute does have consequences for
noncompliance,14 it does not expressly state that a failure to “conduct a traffic
engineering study of the approach to determine whether, in addition to or as an
alternative to the system, a design change to the approach or a change in the
signalization of the intersection is likely to reduce the number of red light
violations at the intersection” 15 before installing the red light camera system
deprives the administrative hearing officer, or the municipal court, of jurisdiction.
See Manderscheid v. Laz Parking of Texas, LLC, 506 S.W.3d 521, 525 (Tex.
App.—Houston [1st Dist.] 2016, pet. denied)16 and cases cited therein.
14
(f) A local authority may not impose a civil penalty under this chapter on the
owner of a motor vehicle if the local authority violates Subsection … (c).
Tex. Transp. Code Ann. § 707.003 (West 2011).
15
Tex. Transp. Code Ann. § 707.003(c) (West 2011).
16
The Manderscheid court concluded that a provision of the Texas Towing and Booting Act,
Tex. Occ. Code Ann. 2308.001 – .505 (West 2012 and Supp. 2017), that established a mandatory
timeframe in which to request a hearing on the booting of a person’s vehicle, although the
provision had a consequence for failure to comply, did not “expressly state that a failure to meet
either deadline deprives the justice court of jurisdiction to conduct the hearing.” Id. at 525. Thus,
the court concluded that the mandatory statutory timeframe provision was not jurisdictional. Id.
12
Finally, the court considers the fourth factor in ascertaining legislative
intent: a review of the possible consequences of each interpretation, specifically,
what are the consequences if the failure to conduct the traffic engineering study is
not jurisdictional vs. what are the consequences if the failure to conduct the traffic
engineering study is jurisdictional. If the failure to conduct the traffic engineering
study is not jurisdictional, that fact can be raised at the administrative hearing as a
defense to payment of the penalty for violating the Red Light Camera Ordinance,
and it can be waived if not raised, thereby insulating the administrative proceeding
from collateral attack. If the failure to conduct the traffic engineering study is
jurisdictional, such a holding would leave the findings or admissions of liability
under the Red Light Camera Ordinance, and consequent payment of penalties,
vulnerable to collateral attacks well after completion of the proceedings, a
consequence that the Texas Supreme Court backed away from in Dubai Petroleum
Co. v. Kazi, 12 S.W.3d 71, 76 (Tex. 2000). In light of Dubai and its progeny, and
in light of the clear legislative intent that the Red Light Camera Statute was
enacted “to ensure that the vast majority of claims arising out of the use of red light
camera systems would be resolved at the administrative level and the creation of
Further, the court referenced several other Texas courts’ opinions where “Texas courts have
concluded that similar statutory provisions are not jurisdictional because they do not expressly
state that failure to comply with a deadline deprives a court of jurisdiction.” Id.
13
this new enforcement system would not overburden the courts,” 17 it is clear, in
considering all four factors, that the Legislature did not intend that Tex. Transp.
Code Ann. §707.003(c) be jurisdictional. Appellees have raised no error in the
Court’s opinion.
III. Response to Appellees’ Third Error:
COURT’S CONCLUSION THAT FAILURE TO COMPLETE A TRAFFIC

ENGINEERING STUDY IS A PROCEDURAL DEFICIENCY, NOT AN ULTRA
VIRES ACT
The Court correctly held that, assuming the City failed to complete a traffic
engineering study, 18 such
failure to strictly comply with that provision of the statute would,

under the facts of this case, be insufficient to trigger the ultra vires
exception to the exhaustion requirement because such allegations
would be nothing more than allegations that the officials have failed
to “fully comply” with regulatory requirements, which would not
make the actions of the officials ultra vires.
Garcia, 2017 WL 2871414, at *11. The authorities cited by the Court in support of
its conclusion are clear, well-reasoned, and applicable. Id. at *12. The Appellees
have presented no arguments to demonstrate that the authorities cited by the Court
are inapplicable.
Moreover, as pointed out in Appellants’ original brief, 19 Appellees did not
raise this alleged ultra vires act or procedural irregularity before the administrative
17
Edwards, 343 S.W.3d at 221.
18
per City Ordinance No. 09-0721A, § 70.03(A) and Tex. Transp. Code Ann. § 707.003 (c).
14
hearing officer in the administrative hearing or before the municipal court during
an appeal of the hearing officer’s determination. See City Ordinance No. 09-
0721A, §§ 70.09, 70.11. Consequently, even if the Appellees’ complaint had merit,
it has been waived by their failure to exhaust their administrative, exclusive
remedies provided by Tex. Transp. Code ch. 707 and City Ordinance No. 09-
0721A. The Appellees have raised no error in the Court’s opinion and judgment.
IV. RESPONSE TO APPELLEES’ FOURTH ERROR:
DISMISSAL OF APPELLEES’ CONSTITUTIONAL AND REIMBURSEMENT

CLAIMS IS PROPER
A. Court’s Holding that Exhaustion of Administrative Remedies is

Required is Correct
The Court correctly concluded that the Appellees were required to exhaust
their administrative remedies before bringing a constitutional challenge to Tex.
Transp. Code ch. 707 and City Ordinance 09-0721A:
Nevertheless, the Court “has never globally exempted claims based on

the Texas constitution from statutory exhaustion-of-administrative-
remedies requirements[.]” Clint Indep. Sch. Dist. v. Marquez, 487
S.W.3d 538, 552 n.9 (Tex. 2016). In Marquez, the Court stated further
that, “[t]o the contrary, we have, at least on some occasions, required
exhaustion of administrative remedies before asserting claims under
the Texas constitution.” Id. (citing Stewart, 361 S.W.3d at 579;
Cameron Appraisal Dist. v. Rourk, 194 S.W.3d 501, 502 (Tex. 2006);
Tex. Water Comm'n v. Dellana, 849 S.W.2d 808, 810 (Tex. 1993));
City of Dallas v. VSC, LLC, 347 S.W.3d 231, 236-37 (Tex. 2011)
(property owner barred from bringing constitutional takings claim
19
See Appellants’ Brief, pp. 18-24.
15
where owner failed to pursue administrative remedy that could have
resulted in return of property or just compensation).
The reasoning of the Court in Marquez and Stewart is equally

applicable to the claims asserted in the case at bar where the Plaintiffs
have failed to exhaust their administrative remedies as provided for in
the governing statute which the Legislature intended to be the
exclusive means for remedying issues related to that scheme. See
Marquez, 487 S.W.3d at 544; Stewart, 361 S.W.3d at 579.
Garcia, 2017 WL 2871414, at *13.
Appellees have raised no new arguments to challenge the Court’s holding,
other than to assert that the “`remedies’ this Court holds must be exhausted are
wholly lacking in subject matter jurisdiction under Article 5, Section 19 of the
Texas Constitution.”20 This argument is without merit as explained in Appellants’
Response to Amended Motion for Rehearing, Response to First Error, supra at pp.
2-8.
B. No Error in Dismissal of Appellees’ Suit for Reimbursement of

Penalties Paid
The Court correctly dismissed Appellees’ claim for reimbursement of
“unlawful or illegal” penalties because the Court correctly dismissed Appellees’
constitutional challenges to Chapter 707 and City Ordinance No. 09-0721A for
failure to exhaust administrative remedies, Garcia, 2017 WL 2871414, at *13, and
correctly determined that “allegations [that City officials failed to complete a
traffic engineering study as required by the statute] would be nothing more than
20
16
allegations that the officials have failed to ‘fully comply’ with regulatory
requirements, which would not make the actions of the officials ultra vires. Garcia,
2017 WL 2871414,*12. The linchpin of Appellees’ reimbursement claim is that the
fees collected are “illegal or unlawful.” Because Appellees’ constitutional
challenges are barred for failure to exhaust administrative remedies,21 and because
the alleged failure to conduct a traffic engineering study is not an ultra vires act,22
Appellees’ claim for reimbursement of “illegal or unlawful” penalties is precluded.
They have no reimbursement claim in this lawsuit.
C. Appellees’ Criticism of the Court’s Statement Regarding

Lowenberg Has No Merit
Appellees argue that the Court erroneously distinguished the holding in
Lowenberg v. City of Dallas, 23 i.e., that common law claims for reimbursement
have never been limited to claims for an unlawful tax or fee imposed by the
government. Yet, every case cited by Appellees in their motion 24 involved a tax or
a fee imposed on a certain citizens or group of citizens. 25 The distinction between
21
As the Court noted, “Plaintiffs concede that Lowenberg would only apply in the event this
Court finds the ordinance and statutory scheme that authorized it to be unconstitutional.” Garcia,
2017 WL 2871414, at *13, n. 7.
22
Additionally, the rule of law announced in the holding in City of El Paso v. Heinrich, 284
S.W.3d 366 (Tex. 2009) bars retrospective money damages for a successful ultra vires claim. Id.
at 376.
23
261 S.W.3d 54 (Tex. 2008).
24
Amended Motion for Rehearing, pp. 25-27.
25
Lowenberg, 261 S.W.3d at 56 (fee for fire protection services imposed on commercial building
owners or operators); Shaw v. Phillips Crane & Rigging of San Antonio, Inc., 636 S.W.2d 186,
17
the cases cited by Appellees, as well as Lowenberg, and the case currently before
this Court is that the alleged “unlawful tax or fee” is not a tax or fee at all; it is a
penalty for violation of a statute incurred by Appellees, not merely because they
were members of a group of citizens charged a fee or tax, but because each
Appellee individually ran a red light, and then individually failed to take
advantage of the remedies available to them to challenge the imposition of the
penalty, and then, consequently, incurred a penalty.
Regardless, the Court’s notation that the facts in this case are distinguishable
from Lowenberg has no impact on the correctness of the Court’s holding and
judgment. As noted above on pp. 2-8, supra, there is no error in the Court’s
holding and judgment.
V. RESPONSE TO APPELLEES’ FIFTH ERROR:
APPELLEES CANNOT CURE THE LACK OF JURISDICTION FOR THEIR SUIT

BY REPLEADING
The Court of Appeals correctly held:
We further conclude that an amended pleading would not cure the

defects in the Plaintiffs’ claims and therefore we need not grant the
Plaintiffs further opportunity to amend.[ 26]
188 (Tex. 1982) (illegal tax on personal property owner due to mathematical miscalculation);
monthly water and sewer service fees on an apartment building); Vannerson v. Klevenhagen, 908
S.W.2d 37, 38 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (a bail bond processing fee
charged to bail bondsmen); Kubosh v. City of Houston, 2 S.W.3d 463, 465 (Tex. App.—Houston
[1st Dist.] 1999, pet. denied) ($35 warrant fee charged to arrestees prior to conviction); Dallas
County Cmty. Coll. Dist. v. Bolton, 185 S.W.3d 868, 870 (Tex. 2005) (technology fee and
student service fee imposed on students of community college).
26
citing Texas A & M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 840 (Tex. 2007).
18
Garcia, 2017 WL 2871414, at *13.
The Appellees argue that they should be allowed to re-plead to state that the
administrative remedies provided by Tex. Transp. Code Ann. Ch. 707; by Tex.
Gov’t Code Ann. § 29.003(g); and by the City’s Ordinance No. 09-0721A are
unconstitutional and void, and to plead that there is no jurisdiction for those
remedies. They base these new claims on the argument they made in Appellees’
Amended Motion for Rehearing, First Error, pp. 10-17. However, neither claim
would cure the defects in their suit. Thus, leave to amend is not warranted.
The Appellees’ constitutional challenge to Tex. Transp. Code Chapter 707,
Tex. Gov’t Code Ann. § 29.003(g); and City’s Ordinance No. 09-0721A has been
waived due to their failure to exhaust their administrative remedies, just as the
Court has held that the Appellees’ other constitutional challenges have been
waived by failure to exhaust their administrative remedies. See Garcia, 2017 WL
2871414, *13 and the cases cited therein.
Further, the Appellees’ claim that there is no subject matter jurisdiction for
the remedies provided by Tex. Transp. Code Chapter 707, Tex. Gov’t Code Ann. §
29.003(g); and City’s Ordinance No. 09-0721A because of the jurisdiction
established by Tex. Const. art. V, § 19 is equally without merit. See Appellants’
Response to Amended Motion for Rehearing, Response to First Error, supra at pp.
2-8.
19
The Appellees have demonstrated no error in the opinion and judgment of
the Court of Appeals, and the Amended Motion for Rehearing should be denied in
its entirety.
PRAYER
Appellants respectfully request that this Court deny Appellees’ Amended
Motion for Rehearing in its entirety. Appellants request costs and all other relief to
which they may be entitled.
20
By: /s/ Patricia L. Hayden

Patricia L. Hayden
phayden@olsonllp.com
Wortham Tower, Suite 600
2727 Allen Parkway
Telephone: (713) 533-3800
Facsimile: (713) 533-3888
ATTORNEYS FOR APPELLANTS,

CITY OF WILLIS, LEONARD REED IN HIS
OFFICIAL CAPACITY AS MAYOR OF THE
CITY OF WILLIS, JAMES NOWAK IN HIS
OFFICIAL CAPACITY AS CHIEF OF POLICE
OF THE CITY OF WILLIS, AND HECTOR
FORESTIER IN HIS OFFICIAL CAPACITY
AS CITY MANAGER OF THE CITY OF
WILLIS
By: DARDEN, FOWLER AND CREIGHTON, LLP

Larry L. Foerster
Foerster@dfcllp.com
414 West Phillips, Suite 100
Conroe, Texas 77301
Telephone: (936) 756-3337
Facsimile: (936) 756-2606
CITY ATTORNEY FOR

THE CITY OF WILLIS, TEXAS
21
CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing Brief of Appellants has a word count of
4,734. Appellees filed an Unopposed Motion for Leave to Extend the Word Count
of this Motion, August 4, 2017.

Patricia L. Hayden
As required by Texas Rule of Appellate Procedure 6.3 and 9.5(b), (d), (e), I
certify that I have served this document on all other parties to this appeal, through
their respective counsel of record, on August 4, 2017, as follows:
Mr. Russell J. Bowman CMRRR ______________________

800 West Airport Freeway, Suite 860 Facsimile: (214) 922-0225
Irving, Texas 75062 Hand Delivery
U.S.P.S.
Attorney for Appellees, E-Mail: russelljbowman@sbcglobal.net
Luis Garcia, et al. E-service
Mr. Scott Stewart CMRRR ______________________

101 ½ West Main Street, Suite 200 Facsimile: (866) 850-7666
Grand Prairie, Texas 75050 Hand Delivery
U.S.P.S.
Attorney for Appellees, E-Mail: sastewartlawoffice@gmail.com
Luis Garcia, et al. E-service

Patricia L. Hayden
22
Tab C
CAUSE NO. 16-01-00297
L UIS GARCIA, and OTHERS § IN THE DISTRICT COURT OF

SIMILARLY SITUATED, §
Plaintiffs §
§
VS. §
§
CITY OF WILLIS, LEONARD REED § MONTGOMERY COUNTY, TEXAS
IN HIS OFFICIAL CAPACIT Y, §
JAMES NOWAK IN HIS OFFIC IAL §
CAPACTIY, and HECTOR §
FORESTIER IN HIS OFFICIAL §
CAPACITY, §
Defendants § 410TH JUDICIAL DISTRICT
AFFIDAVIT
THE STATE OF TEXAS §

§
COUNTY OF MONTGOMERY §
BEFORE ME, the undersigned authority, on this date appeared Brenda Bums. who is
known personally to me and, after being first duly sworn according to law, upon oath deposed
and said as follows:
«My name is Brenda Burns. I am over the age of eighteen (18) years and I am in
all respects competent to make this affidavit. 1 have personal knowledge of the
statements made herein and they are all true and correct.
"I am the City Secretary of the City of Willis. Texas ("the City"). I am the
custodian of the official records of the City of Willis, Texas and am familiar with
the manner in which its records are created and maintained by virtue of my duties
and responsibilities.
«Attached to this affidavit are 54 pages of records, entitled as follows :
• Correspondence from Robert Zaitooni, P.E. to Larry Foerster, City

Attorney of the City of Willis, dated June IS. 2015; and
• Red Light Running Enforcement Traffic Engineering Evaluation ReJX>rt

City o[Willis, Texas. prepared for the City of Willis. Texas by Robert B.
Zaitooni. P.E., and dated June 15,2015.
EXHIBIT 1
410
"The above-listed records are exact duplicates of the original records.
" It is the regular practice of the City of Willis, Texas to make this type of record
at or near the time of each act, event, condition, opinion, or diagnosis set forth in
the record.
" It is the regular practice of the City of Willis, Texas for this type of record to be
made by, or from information transmitted by, persons with knowledge of the
matters set forth in them.
"It is the regular practice of the City of Willis, Texas to keep this type of record in
the course of regularly conducted business activity.
"It is the regular practice of the business activity to make the records. "
Further Affiant sayeth not.
Brenda Burns
SUBSCRIBED and SWORN to before me, the undersigned authority, on this the a ( day of
March, 2016, to certify which witness my hand and seal of office.
YYl~-
NO~FTEXAS
,
:1;tf!.J:"'
£"''h::.
' ')"
'MARISSA aUINTANILLA
Notary Publi?, ~lalG 01!e~,,_s
: \~~ _: My CommiSSion Expires
: ~Ol''-'''' September 05, 2019
2 411
Southern Traffic Services , Inc.
2911 Westfie ld Rand, Gulf Breeze. FL 32563
Phone: (800) 786-3374, Fax: (850) 934 -0373
www.southerntrafficservices.com
June 15,20 15
Mr. Larry L. Foe rster

City Attorney
City of Willis
414 West Philips, Suite 100
Conroe, Texas 7730 J
RE: City of Will is Red Light Running Cameras

Review of2009 Traffic Engineering Study
Dear Mr. Foerster:
Pursuant to the request from Texas Board of Professional Engineers. I have completed a review
of the traffic engince ring report submitted to thc 'Titizen Advisory COlllmittee" in October 2009.
A copy of my report is attached to thi s letter.
In summary, this study find s the fo ll owing:
I) The methodo logy. data collection, and analysis contained in the 2009 report generaJ ly
confonns to the requirement'S set forth by Texas Transportation Codes. Chapter 707.003
(e) and (d); and
2) The data and the analysis contai ned in the report meet minimum engineering standards
and generally support the install ati on of red li ght cameras at the se lected locations.
Based on thi s revi ew, I have incorporated the 2009 traffic engineering report as an appendix in
my evaluation report under my seal.
If you have any questions or require additional infonnation. please don't hesitate to contact me at
(407) 687-8754.
Sincerely,
S;Z;;~SERVI CES' INC.
Robert Zaitool1l, P.E.

Seni or Traffi c Engi neer
Texas Registration # 98003
412
RED LIGHT RUNNING ENFORCEMENT
TRAFFIC ENGINEERING EVALUATION REPORT
CITY OF WILLIS, TEXAS
Prepared for:
City of Wi lli s, Texas
Prepared by:
Robert B. Zaitooni, P.E.
Texas Regist'fation # 98003
SOllthern Traffic Services, Inc.
291 1 Westfield Road
Gulf Breeze, Florida 32563
Phone: (800) 786-3374
www.southemtrafficservices.com
June 15,2015
413
PURPOSE:
This “after-the-fact” engineering report is intended for the examination of the content of a traffic
engineering study prepared and submitted the City of Willis “Citizen Advisory Committee” in
October 2009. It is further intended that the examination determine that the traffic engineering
study (1) meets acceptable engineering standards and (2) conforms to the criteria established in
Texas Transportation Code, Chapter 707.003 (c) and (d).
HISTORY:
America Traffic Solutions, Inc.; an Arizona based provider of automated traffic enforcement
systems; conducted a “Site Evaluation Report” in April 2009 for 3 intersections in the City of
Willis, Texas. The report examined the constructability for red light running cameras on all
approached at the 3 intersections; and collected field incidents of red light running violations
using Violation Incident Monitoring System (VIMS). The intersection were:
 IH-45 (SB & NB) at FM 1097/W Montgomery Street

 FM 1097/W Montgomery Street at TX 75/Danville Street
 TX 75/Danville Street at FM 2432/E Powell Street
The report concluded that a total of 3 approaches at 2 intersections meet the warrants for the
installation of red light running cameras due to significant number of red light running
violations. This report was compiled by Mr. Jerry Minor, Program Manager; with American
Traffic Solutions. The report was not signed & sealed by a Texas registered professional
engineer.
Later in January of 2009, City staff conducted a crash analysis for the recent 18 month period
and summarized the results at 4 intersections which included the intersections 3 intersections
examined by field studies by American traffic Solutions with the addition of FM 1097/ W
Montgomery Street at Campbell Street. City staff further summarized the total of number of
citations issued for the recent 18 month period for the intersections. The crash and citation data
are summarized in a Memorandum dated January 12, 2009; from Chief Novak to a Mr.
McAlister. This memorandum does not indicate if a Texas registered professional engineer
compiled the data and it is not signed or sealed by a professional engineer. A copy of the entire
report submitted to the “Citizen Advisory Committee” s is included in the appendix of this
report.
Records indicated that City of Willis authorized American Traffic Solutions to construct 3 red
light running camera which were placed into operation in February 2010 at the following
locations:
 EB FM 1097/W Montgomery Street at IH-45 South Service Road (west side)

 EB FM 1097/W Montgomery Street at TX 75/Danville Street
 NB TX 75/Danville Street at FM 1097/W Montgomery Street
These installations are consistent with the recommendation by the “Site Evaluation Report”
which found substantial number of red light running violations at the 3 approaches.
1
414
ENGINEERING CRITERIA:
Texas Transportation Code, Chapter 707.003 (c) requires that before the installation of a red light
running camera, the local authority to conduct a traffic engineering study to determine the
installation is warranted. The Code also requires that the study examines other design changes to
reduce red light running incidents in addition to installation of red light running cameras.
Chapter 707.003 (d) further requires that an intersection approach must be selected based on
traffic volume, crash history of the approach, and the frequency of red light running violations
for the approach.
It is important to note that the codes above do not establish a minimum criteria for the
justification of the installation of the red light cameras. The decision is generally left to the
discretion of a competent professional engineer which will consider all applicable engineering
elements. However, justification for the installation of the red light running cameras are
universally based on the traffic safety implications where incidents of red light running often
result in severe angle type crashes that cause injuries or fatalities.
Hard evidence established through a crash analysis is often used in the decision matrix for the
installation of red light running counter-measures. However, this criteria alone cannot be used to
warrant installation. An intersection approach can often exhibit significant red light running
without a history of correctable crashes. Nevertheless, the conditions create potential for severe
crashes, cause significant driver distress, and consumes considerable public resources for
monitoring and enforcement. Red light running violations are taught to be indicators of the
potential for severe crashes. Therefore, measurement of the actual observed violations is a
critical element of the study.
There are many other red light running counter-measures that can be incrementally deployed to
reduce the rate of red light running violations. They include improving signal visibility, installing
advance warning signs to increase the likelihood of stopping, addressing intentional violations,
consistent enforcement, etc.
Texas Department of Transportation later in 2010 adopted a standard study templet that
considers the safety criteria as well as visibility and field conditions amongst other elements.
ANALYSIS:
Examination of the report submitted to the “Citizen Advisory Board” indicates that all required
elements set forth by the Texas Transportation Codes were generally followed. Below are the
significant findings:
 Report provides a field constructability review and recommends “constructible”

approaches for further field data collection.
 Field violation data collection includes intersection/approach, time period, signal
operation, and number of violations. All data appear to be correct and complete.
 Report provides analysis of the collected data and provides recommendation for
candidate locations for installations based on the significance of the violation rates.
 Site Evaluation Report does not contain data for intersection of US 1097 at Campbell that
listed on the crash summary and summary of citations.
2
415
 Crash data are provided for the recent 18 month period consistent with the Texas
Transportation Code requirements. Crash data are summarized by intersection and by
total number and type of crash. However, crash data is not broken down by approach as
intended to further isolate approaches with correctable crash history.
 Citations issued are summarized by intersection and total of red light running per
intersection, for 18 month period consistent with Texas Transportation Code
requirements. However, the summary does not further break down the data by
intersection approach to isolate the intersection approach with significant problem.
 Report does not provide information on condition of signals, signs, and markings; and
does not discuss any previous incremental counter-measures deployed at the
intersections. However, this was not an explicit requirement of the Texas Transportation
Codes.
 Report does indicate limited enforcement capability and resources to address red light
running issues in Willis, Texas. This is a critical element when addressing red light
running violation without use of automated systems.
 Report indicates support by local law enforcement for deployment of red light cameras.
 Site Evaluation Report clearly recommends 3 approaches for installation based on field
observations which were later installed and placed in operation in February 2010.
 Report appears to have been prepared by competent individuals in general conformance
with the Texas Transportation Code. However, it is not signed & sealed by a Texas
registered professional engineer.
CONCLUSIONS & RECOMMENDATIONS:
The report submitted to the “Citizen Advisory Committee” generally meets the intent of the
Texas Transportation Codes in which (1) a traffic engineering study was prepared prior to the
installation of the red light running, and (2) traffic engineering data including crash history and
the frequency of the red light running events; were examined prior approval and installation.
The report contains those critical elements and data that is used by professional traffic engineers
to determine the warrants for the installation of red light running cameras. Furthermore, the
approval to proceed with the installation of the red light running cameras were based on the data
and the analysis in the report.
The report does address the condition and adequacy of the signals, signs, and markings; and
consideration for other incremental counter-measures. However, those elements generally take a
longer period of time to implement by public agencies and may not necessarily be effective in
curtailing the red light running violations.
In final conclusion, in my opinion as a professional traffic engineer, the content of the study
generally supports the installation of the red light running cameras at the selected locations.
Pleasant Hill Rd
Intersection of Dr
Hill Pleasant
NW & N. Berkeley
Lake Rd/Hill Dr NW
N. Berkeley Lake Rd
416
Tab D
Received and E-Filed for Record
2/15/2016 11:20:21 AM
Barbara Gladden Adamick
District Clerk
Montgomery County, Texas
CAUSE NO. 16-01-00297
LUIS GARCIA, and § IN THE DISTRICT COURT

OTHERS SIMILARLY SITUATED §
§
v. § OF MONTGOMERY COUNTY, TEXAS
§
CITY OF WILLIS, LEONARD REED, in his §
Official Capacity as of the City of Willis, §
JAMES NOWAK, in his Official Capacity §
as Chief of Police of the City of Willis, AND §
HECTOR FORESTIER, in his Official Capacity§
as City Manager of the City of Wills § 410th JUDICIAL DISTRICT
PLAINTIFF’S FIRST AMENDED PETITION
Plaintiff, Luis Garcia, on behalf of himself and all others similarly situated (all collectively
hereinafter referred to as “Plaintiff”), files this First Amended Petition, bringing this class action
against all of the Defendants named in this suit, seeking a refund, and declaratory and injunctive
relief against Defendants, and in support, shows the following:
DISCOVERY CONTROL PLAN
1.
Plaintiff designates this case as a Level 3 Discovery Control Plan, such that discovery is to
be conducted under Level 3 Discovery Control Plan of Rule 190.4 of the Texas Rules of Civil
Procedure.
2.
Plaintiff pleads TRCP 47(c)(5), as the amount in controversy in this matter, including
attorney’s fees, but exclusive of interest and costs, is over $1,000,000, but less than $5,000,000.
PARTIES
3.
FIRST AMENDED PETITION - PAGE 1
85
Plaintiff Luis Garcia is a citizen of the State of Texas, residing in Montgomery County,
Texas. Also joining in this lawsuit and who are members of the class sought to be certified in this
lawsuit, are: (1) Shelby D. Glazier, a citizen of the State of Texas residing in Montgomery County,
Texas; (2) Alisa Davie, a citizen of the State of Texas residing in Montgomery County, Texas; and
(3) Debra Earle, a citizen of the State of Texas residing in Trinity County, Texas. These parties, as
well as Luis Garcia and all others similarly situated, will hereinafter be collectively referred to as
“Plaintiffs” where appropriate.
4.
Defendant City of Willis is a Texas municipality in Montgomery County, Texas incorporated
under the laws of the State of Texas, who has appeared in this lawsuit and who may be served with
a copy of this pleading by delivery of same to Defendant’s attorney of record, Patricia L. Hayden,
Olson & Olson, L.L.P., 2727 Allen Parkway, Suite 600, Houston, Texas 77019.
5.
Defendant Leonard Reed, in his official capacity as Mayor of the City of Willis, is a citizen
of the State of Texas, residing in Willis Montgomery County, Texas, who has appeared in this
lawsuit and who may be served with a copy of this pleading by delivery of same to Defendant’s
attorney of record, Patricia L. Hayden, Olson & Olson, L.L.P., 2727 Allen Parkway, Suite 600,
Houston, Texas 77019.
6.
Defendant James Nowak, in his official capacity as Chief of Police of the Willis Police
Department, is a citizen of the State of Texas residing in Willis, Montgomery County, Texas, who
has appeared in this lawsuit and who may be served with a copy of this pleading by delivery of same
86
to Defendant’s attorney of record, Patricia L. Hayden, Olson & Olson, L.L.P., 2727 Allen Parkway,
Suite 600, Houston, Texas 77019.
7.
Defendant Hector Forestier in his official capacity as City Manager of the City of Willis, is
a citizen of the State of Texas residing in Willis, Montgomery County, Texas, who has appeared in
this lawsuit and who may be served with a copy of this pleading by delivery of same to Defendant’s
attorney of record, Patricia L. Hayden, Olson & Olson, L.L.P., 2727 Allen Parkway, Suite 600,
Houston, Texas 77019.
NATURE OF SUIT
8.
This is an action under the Uniform Declaratory Judgment Act (Chapter 37.001 et. seq. of
the Civil Practice and Remedies Code) to declare Chapter 707 of the Texas Transportation Code
(hereinafter referred to as “Chapter 707") and Ordinance 09-2721A of the City of Willis, passed July
21, 2009, enacting Willis Ordinances Sections 70.01 through 70.12 (hereinafter “the Ordinance”),
unconstitutional under the Texas Constitution. In the alternative, this action further seeks declaratory
judgment that Defendants Nowak, Reed and Forestier, acting in their official capacities with the City
of Willis, either singularly or in combination, have authorized and permitted the installation and
operation of red light camera systems in the City of Willis in violation of Chapter 707 and the
Ordinance, and in their official capacities, have caused the issuance of Notices of Violation and
collection of fines therefrom which are invalid, unlawful, illegal, void, of no effect and/or
unauthorized because of the Defendants’ failure to comply with the traffic engineering study
requirement imposed by Section 707.003(c) of the Texas Transportation Code and/or Willis
87
ordinance Section 70.03(A) necessary to allow the City of Willis and the other Defendants to assess
and collect a red light camera penalty.
9.
This suit also seeks an injunction against Defendants from operating any red light camera
systems and from attempting to enforce any alleged red light camera violations entirely, because of
the unconstitutionality of Chapter 707 and the Ordinance, or alternatively, in the unlikely event that
Chapter 707 and the Ordinance are found constitutional, to have Defendants enjoined from operating
and enforcing any red light camera penalties unless and until they have complied with the traffic
engineering study requirement necessary under Chapter 707 and the Ordinance to allow the
assessment and collection of a red light camera penalty.
10.
Additionally, Plaintiffs, who have received and paid any such unlawful red light camera
penalties/fines assessed by the City of Willis and/or any of the other Defendants, either singularly
in combination, pursuant to the City of Willis’ illegal red light camera enforcement system, seek the
refund of all of the red light camera fines illegally assessed and appropriated by Defendants.
Alternatively, Plaintiffs, who have received and paid any such unlawful red light camera
penalties/fines assessed by the City of Willis and/or any of the other Defendants, either singularly
in combination, pursuant to the City of Willis’ illegal red light camera enforcement system, seek, as
the remedy afforded them under Article I, Section 17 of the Texas Constitution, the refund of all of
the red light camera penalties/fines illegally assessed and appropriated by Defendants. Plaintiff
estimates that the amount in controversy for these claims, exclusive of interest and costs, is over
$1,000,000 but less than $5,000,000.
88
CREATION OF RED LIGHT CAMERA LAW
11.
Transportation Code Title 7, subtitle C, sets out the “Rules of the Road” regulating traffic
in the State of Texas. The Transportation Code places limitations on a city like Defendant City of
Willis’ power to enact laws with respect to roadways under the city’s jurisdiction. Under Section
542.201 of the Transportation Code, a “local authority” (which under Section 541.002(3) of the
Transportation Code includes a county or municipality) may not enact or enforce an ordinance or rule
that conflicts with subtitle C of Title 7 of the Texas Transportation Code, unless expressly authorized
to do so. One of these “Rules of the Road” contained in Subtitle C Title 7 of the Transportation
Code is Transportation Code § 542.302 which provides an owner of a motor vehicle does not
commit a traffic offense by the mer ownership of the vehicle unless the vehicle owner requires or
knowingly permits the operator of the vehicle to operate the vehicle in a manner which violates the
law. Thus, the only way the City of Willis could enact an ordinance or ordinances dealing with red
light cameras, and enforcing such ordinance(s), is if expressly authorized to do by the Texas
Legislature.
12.
The Texas Legislature, by Acts 2007, 80th Leg., ch. 1149, effective September 1, 2007,
enacted Chapter 707 of the Transportation Code (consisting of Sections 707.001 through 707.019),
which act authorized local municipalities to establish, by ordinance, a photographic traffic signal
enforcement system authorizing the local authority to impose on the registered owner of a vehicle
a penalty of $75.00, plus a late payment penalty of $25.00 in the event the penalty is not paid timely,
for the registered owner’s vehicle being photographed running a red light, conduct which is a
89
violation of Section 544.007(d) of the Texas Transportation Code. Under Section 544.007(d), the
running of a red light is a crime, a misdemeanor, punishable by a fine of not less than a $1 or more
than $200. See Transportation Code §§ 542.301 and 542.401.
13.
Pursuant to Chapter 707 of the Transportation Code, Defendant City of Willis, enacted the
Ordinance, authorizing and creating a photographic traffic signal enforcement system in Willis.
Chapter 707 and the Ordinance establish an automated photographic enforcement system, or red light
camera law, whereby the registered owner of a vehicle, not the driver of the car, is assessed a civil
penalty, if the registered owner’s vehicle is photographed by a traffic camera running a red light.
14.
Plaintiffs would show that the individual Defendants, Reed, Nowak and Forestier, charged
with the knowledge of the requirements of Chapter 707 and the Ordinance, singularly or in
combination, used their official positions to authorize and implement the illegal red light camera
systems being operated within the City of Willis, acted to cause the issuance of illegal Notices of
Violation to parties like Plaintiffs, and collected and used such illegal fines for public use by the
City of Willis. Defendants authorized and implemented red light camera systems within the city
limits of Willis without conducting or having conducted the traffic engineering study required by
Section 707.003(c) of the Texas Transportation Code. Such conduct is in violation of Transportation
Code Section 707.003(f), which prohibits a municipality from assessing any red light camera penalty
when the city has failed to conduct the traffic engineering study required by Transportation Code
Section 707.003(c).
90
15.
Plaintiffs would show that under Section 707.008 of the Transportation Code, cities such as
Willis enacting red light camera systems and collecting fines from same must deposit 50% of the net
profit derived from their red light camera systems to the Comptroller of the State of Texas. As to
the other 50% of the net profit that municipalities like Willis derive from the payment of the civil
penalty for the violation of the city’s red light camera laws, Section 707.008(a)(2) of the Texas
Transportation Code requires each municipality to deposit such money into a special account in that
city’s treasury, which money may be used only to fund traffic safety programs, including pedestrian
safety programs, public safety programs, intersection improvements, and traffic enforcement.
Defendant Willis takes the money it unlawfully receives from red light camera penalties for public
use, being traffic safety programs, including pedestrian safety programs, public safety programs,
intersection improvements, and traffic enforcement.
FACTUAL BACKGROUND
16.
Plaintiffs were charged by Defendant City of Willis with a violation of the Ordinance.
Section 70.04 imposes a civil penalty of $75.00, and a late fee of $25.00 if the $75.00 fee is not paid
timely, on the registered owner of a motor vehicle for the owner’s car being photographed by an
automated traffic camera running a red light, irregardless of whether the owner was driving the
vehicle or even in the car at the time.
17.
The notice received by each Plaintiff from Willis, which were each mailed to each Plaintiff,
already assessed each Plaintiff liability for the penalty, and threatened each Plaintiff that he or she
91
would be reported to a collection agency, thereby falsely implying, or creating the false impression,
that the failure to pay the penalty would damage Plaintiff’s credit. The notice further advised each
Plaintiff that the failure to pay the penalty could result in the loss of the right to renew the
registration on his or her vehicle (which in effect would constitute the confiscation of the vehicle,
since driving a vehicle with an expired registration would constantly subject the owner to tickets for
an expired vehicle registration), if the $75.00 civil penalty was not paid to Defendant Willis.
18.
Plaintiffs, faced with the possible threat of damage to his or her credit, harassment from a
collection agency, and the loss of the right to renew his or her vehicle registration, paid the civil
penalty demanded by Willis under this threat of coercion and/or duress, and/or mistake of fact, as
Plaintiffs were not going to risk damage to his or her credit, be subjected to harassment from a
collection agency, or face the possible loss of the right to renew the registration on his or her vehicle
over the amount of $75.00 or $100.00. Named Plaintiff Luis Garcia paid his red light camera fine
to the City of Willis in March or April of 2015. All of the Plaintiffs have paid their unlawful red
light camera penalties to Willis within two years from the filing of this lawsuit. Plaintiffs did not
pay the $75.00 or $100 red light camera penalty assessed by Willis voluntarily. Plaintiffs paid such
under duress.
19.
The duress described in Paragraphs 17-18 above provided by the notices sent out by
Defendants, either singularly or in some combination, was not the only duress under which the red
light camera fines were paid. The red light camera laws themselves provide the duress necessary so
that the payments of the red light camera fines to Defendants were not paid voluntarily.
92
Transportation Code Section 707.017(a) allows the county assessor-collector or the Texas
Department of Motor Vehicles to refuse to renew the registration of the owner’s vehicle if the owner
fails to pay the red light camera penalty. This threatened action by the government, if carried
through, would effectively confiscates one’s vehicle, since driving a vehicle with an expired
registration would subject one to constant fines, thereby subjecting the vehicle owner to an
oppressive financial burden. Thus, Transportation Code Chapter 707 contains the threat by the
government that the vehicle owner will not be able to renew the registration on his or her vehicle if
the red light camera penalty is not paid. This threat of refusal to renew the vehicle registration by
the government is likewise set forth in the notice of violation Willis sends, as set forth above.
20.
Further, Willis ordinance Section 70.12 authorizes the Willis city attorney to file suit to
enforce collection of a red light camera penalty assessed by the City of Willis. Thus, the ordinance
itself adds additional duress by the threat of a lawsuit being filed against the vehicle owner if the red
light camera penalty is not paid. In short, duress exists not just by the notice of violation, but also
by the statute (Transportation Code Section 707.017(a)), and the city ordinance (Willis ordinance
Section 70.12). Duress clearly exists, as vehicle owners receiving red light camera tickets from
Willis do not have to take the risk of losing the right to renew their vehicle registration and the
financial burden such would impose, or risk being sued by the city, while litigating the issue of
whether the red light camera laws and penalty assesses are illegal, invalid, unlawful and/or
unconstitutional. As such, the payments of red light camera penalties to the City of Willis were
clearly under duress, so that the claims for reimbursement being made by Plaintiffs would not be
barred.
93
21.
Further, the red light camera penalties paid to the City of Willis were paid without the
knowledge that the City of Willis did not have the traffic engineering study required by
Transportation Code Section 707.003(c) performed. The red light camera penalties paid to the City
of Willis by Plaintiffs was paid without Plaintiffs having knowledge of all the relevant facts, namely,
the City of Willis’ failure to conduct the traffic engineering study required by Transportation Code
Section 707.003(c), which under Transportation Code Section 707.003(e) Willis had to perform
before it could assess any red light camera penalty. Defendants concealed, hid or otherwise failed
to disclose at any time to Plaintiffs making a red light camera penalty payment that Willis had failed
to conduct the traffic engineering study required by Transportation Code Section 707.003(c).
UNCONSTITUTIONALITY OF RED LIGHT CAMERA LAWS
A. Violation of Article I, Section 10 of Texas Constitution
22.
Chapter 707 of the Transportation Code is unconstitutional in may respects. The first major
respect in which Chapter 707 is unconstitutional is that it is seeking to deprive a person (the
registered owner of a vehicle like Plaintiffs) of his or her property ($75 or up to $100 if a $25 late
penalty is assessed) for what has been determined by the legislature for some time to be criminal
conduct, i.e., the running of a red light. Running a red light is a traffic offense, a violation of
Transportation Code Section 544.007(d). Under Section 542.301 of the Transportation Code, traffic
violations are criminal offenses. An offense under subtitle C, title 7 of the Transportation Code
(which would include a violation of Section 544.007(d) is a misdemeanor, punishable by a fine of
not less than $1 or more than $200. Transportation Code §§ 542.301 and 542.401.
94
23.
The fact that the registered owner of a vehicle like Plaintiffs have liability imposed on them
for the alleged violation of running a red light, conduct which is a crime, is important, because Texas
citizens are guaranteed certain rights by the Texas Constitution when accused by the state or a local
authority (like Defendant municipalities sued herein) of a crime. Specifically, such rights under
Article I, Section 10 of the Texas Constitution include the right against self incrimination, the right
to confront (i.e., cross-examine) the witnesses against him, the presumption of innocence, the right
to a presumption of innocence, and a requirement that the State (or city in this case) prove their case
beyond a reasonable doubt.
24.
Chapter 707 of the Transportation Code and the Ordinance deny these rights to the registered
owner of a motor vehicle like Plaintiffs. Plaintiffs can only challenge the predetermined finding of
liability by first requesting an “administrative adjudication hearing” before a hearing officer
designated by the local authority. Transportation Code § 707.014; Willis Ordinance Section 70.09.
25.
From there, the registered vehicle owner’s only appeal of the administrative adjudication
hearing is an “appeal” to the municipal court of the municipality, if the local authority is a
municipality. Transportation Code § 707.016(a)(2). An appeal under this section is a trial de novo
to the judge. Transportation Code § 707.016(a) and (e); Willis ordinance Section 70.11. Thus,
under Chapter 707 and the Ordinance, in every case, the registered owner of a vehicle like Plaintiffs
are deprived of the right to a trial by jury guaranteed under Article I, Section 10 of the Texas
95
Constitution.
26.
Further, Sections 707.014(e) and (f) of the Transportation Code and Willis Ordinance Section
70.09 provide that the local authority (here Willis) can prove its case merely by affidavits, so that
the registered vehicle owner like Plaintiffs from whom a penalty is being sought for conduct that is
a crime (the alleged running of a red light) is deprived of the right to confront, i.e., cross-examine,
the witnesses against him or her.
27.
Article I, Section 10 of the Texas Constitution guarantees the right against self incrimination.
Such right is violated by the irrebutable presumption created by Texas Transportation Code Chapter
707 and the Ordinance. As will be shown further below, Chapter 707 of the Transportation Code
and the Ordinance create an irrebutable presumption that the registered owner of a vehicle like
Plaintiffs was in fact the one driving the vehicle at the time of the alleged photographed red light
violation. Transportation Code § 707.013; Willis ordinance Section 70.07(A). This violates the
right guaranteed to Plaintiffs under the Bill of Rights of the Texas Constitution against self
incrimination, since in any criminal proceeding in Texas, one accused of a crime is presumed
innocent. Instead, under the red light camera laws at issue, the registered owner of a vehicle like
Plaintiffs are presumed guilty, based on the presumption established by Transportation Code
§ 707.013 and Willis ordinance Section 70.07(A). This forces the registered owner of a vehicle such
as Plaintiffs to testify to at least try to clear their name, infringing upon, and violating, the right
against self incrimination guaranteed by Article I, Section 10 of the Bill of Rights to the Texas
Constitution. However, even if a registered vehicle owner like any of the Plaintiffs does so testify,
96
their testimony is not sufficient to overcome the presumption established by Section 707.013 of the
Texas Transportation Code, as none of the Plaintiffs fall within the limited exceptions to the
presumption established by Section 707.013 of the Transportation Code and Willis ordinance
Section 70.07(B) whereby they are allowed to overcome this presumption. Therefore, on their face,
and as applied to Plaintiffs, Chapter 707 and the Ordinance are unconstitutional.
28.
Further, the presumption of innocence, although not articulated in the Texas Constitution,
is a basic component under the Texas judicial system of justice. Kimble v. State, 537 S.W.2d 254,
254-55 (Tex.Cr.App. 1976); Randle v. State, 826 S.W.2d 943, 944 fn. 3 (Tex.Cr.App. 1992) (noting
the presumption of innocence is a right protected by Article I, Section 13 of the Texas Constitution).
Chapter 707 of the Transportation Code (Section 707.013(a)) and the Ordinance (Section 70.07(A))
violate this presumption, as the registered owner of a vehicle like Plaintiffs are presumed liable
before any “administrative adjudication hearing” or appeal to the city municipal court ever start, with
no way to rebut that presumption. Thus, instead of a presumption of innocence one has under Texas
law, Chapter 707 of the Transportation Code and the Ordinance act in reverse, creating a
presumption of guilt, which registered vehicle owners like Plaintiffs cannot rebut. This would be
yet a further violation of the rights guaranteed under the Texas Constitution and/or Texas law, so that
Chapter 707 of the Transportation Code and the Ordinance are unconstitutional and void on their
face, and as applied to Plaintiffs.
29.
Transportation Code Chapter 707, including Sections 707.013, 707.014 and 707.016, and the
Ordinance (including Sections 70.07, 70.09 and 70.11), violate Article I, Section 10 of the Texas
97
Constitution and Texas law by depriving the registered owner of a vehicle of the presumption of
innocence, the right to trial by an impartial jury, the right to cross-examine witnesses, and the right
against self-incrimination. Such are unconstitutional on their face, and as applied to Plaintiffs.
B. Violation of Article I, Section 29 of Texas Constitution
30.
By enacting Chapter 707 of the Transportation Code, the legislature took conduct that is a
crime (running a red light, a traffic offense which is a misdemeanor), and made a civil penalty for
such, to attempt to transform such into a civil matter. Doing this usurps the rights guaranteed one
under Article I, Section 10 of the Texas Constitution. The City of Willis did the same thing in
enacting the Ordinance. The enactment of these laws by the legislature and the City of Willis violate
Article I, Section 29 of the Texas Constitution, which prohibits the State of Texas and its local
subdivisions like the City of Willis sued in this lawsuit, from usurping rights guaranteed in the Bill
of Rights (Article I) to the Texas Constitution. Article I, Section 29 of the Texas Constitution would
prohibit the State of Texas or the City of Willis, from enacting legislation that would usurp one’s
rights guaranteed under the Bill of Rights to the Texas Constitution. Chapter 707 of the
Transportation Code enacted by the legislature, and the Ordinance exacted pursuant to same, usurp
one’s rights under Article I, Section 10 of the Texas Constitution, as they seek to impose a penalty
on the registered owner of a vehicle like Plaintiffs for criminal conduct (violation of Transportation
Code § 544.007(d), the running of a red light), without giving the vehicle owner the rights afforded
under Article I, Section 10 of the Texas Constitution of one accused of a crime. As demonstrated
above, Transportation Code Chapter 707 and the Ordinance usurp one’s rights under Article I,
Section 10 of the Texas Constitution, because they deprive the registered owner of a vehicle like
98
Plaintiffs accused of running a red light, of the right to trial by an impartial jury, the right to cross
examine witnesses, the presumption of innocence, and the right against self-incrimination. This
would make Transportation Code Chapter 707 and the Ordinance unconstitutional under Article I,
Section 29, and therefore void.
31.
Chapter 707 and the Ordinance violate Article I, Section 29 of the Texas Constitution on their
face, since in every instance where a red light camera penalty is being assessed, Article I, Section
29 is being violated. Chapter 707 and the Ordinance violate Article I, Section 29 of the Texas
Constitution as applied to Plaintiffs, since any registered vehicle owner like Plaintiffs have none of
the protections guaranteed to them by Article I Section 10 of the Texas Constitution when they are
charged with a red light camera violation.
32.
If not for Article I, Section 29 of the Texas Constitution, the legislature could take any
number of matters that are crimes under the State of Texas, and transform them into civil matters,
effectively usurping one’s rights guaranteed under Article I, Section 10 of the Texas Constitution.
Article I, Section 29 of the Texas Constitution was made a part of the Bill of Rights to the Texas
Constitution to prevent the very type of action taken by the legislature in enacting Chapter 707.
Chapter 707 therefore violates Article I, Sections 10 and 29 of the Texas Constitution, so that it is
unconstitutional and therefore void. Sections, 707.002, 707.007, 707.009, 707.011, 707.012,
707.013, 707.014, 707.015, 707.016 and 707.017 of the Texas Transportation Code are
unconstitutional under Article I, Sections 10 and 29 of the Texas Constitution. Since all of the
Ordinance was enacted pursuant to Chapter 707 and contain the same provisions, they are
99
unconstitutional for the same reasons and therefore void as well.
C. Violation of Article I, Section 19 of the Texas Constitution
33.
Chapter 707 and the Ordinance also violate the right to due process guaranteed under Article
I, Section 19 of the Texas Constitution. Plaintiffs’ property (being $75 or $100 if the penalty is paid
late by the person) was taken by Defendant Willis pursuant to Chapter 707 and the Ordinance. As
such, Plaintiffs would have the right to substantive due process guaranteed by Article I, Section 19
of the Texas Constitution. Under Texas law, an irrebutable presumption violates this right to due
process guaranteed by the Texas Constitution. Chapter 707 and the Ordinance violate this
constitutional right to due process, by creating an irrebutable presumption against the registered
owner of a vehicle like Plaintiffs.
34.
Transportation Code Section 707.013(a) (and the Ordinance, Section 70.07(A)) create an
irrebutable presumption as to registered vehicle owners like Plaintiffs that the registered owner of
the car photographed in the notice of violation is the person driving the car that is depicted running
a red light. The presumption under Transportation Code Section 707.013(a) and Section 70.07(A)
of the Ordinance can be rebutted only if the motor vehicle depicted in the photograph taken by the
photographic traffic signal enforcement system is owned: (1) by a person in the business of selling,
renting, or leasing motor vehicles; (2) by a person who was not the person named in the notice of
violation; or (3) the vehicle was being test driven at the time. Transportation Code § 707.013(b);
Willis ordinance Section 70.07(B). Classifications (1) and (3) deal with car rental companies, auto
leasing companies, and new and used car dealers. Classification (2) deals with a situation where the
100
person named in the notice of violation had sold the car depicted in the photograph prior to the
violation. For registered vehicle owners like Plaintiffs, even though, as examples, there are other
licensed drivers in the vehicle owner’s family who may have been operating the vehicle, the vehicle
owner may have loaned the vehicle to another or let someone else use the vehicle, so that the
registered vehicle owner was not driving or even in the vehicle at the time of the alleged red light
camera infraction, the registered owner of the vehicle like Plaintiffs cannot rebut the presumption
of Transportation Code § 707.013(b) and Willis ordinance Section 70.07(A). Therefore, Chapter
707 and the Ordinance, as applied to Plaintiffs, violate Article I, Section 19 of the Texas
Constitution.
35.
The creation of an irrebutable presumption by Transportation Code § 707.013(b) and Willis
ordinance Section 70.07(A) as to registered vehicle owners like Plaintiffs violates the right to
substantive due process guaranteed by Article I, Section 19 of the Texas Constitution. This also
violates the presumption of innocence one has under Texas law. As Chapter 707, including
Transportation Code § 707.013(b), and the Ordinance, including Willis ordinance Section 70.07(A),
create an irrebutable presumption of liability as to the registered owner of a vehicle like Plaintiffs,
this violates Article I, Section 19 of the Texas Constitution and Texas law regarding the presumption
of innocence, so that Chapter 707 of the Transportation Code, including Transportation Code
§ 707.013, and the Ordinance, including Section 70.07(A), are unconstitutional and void. By
creating an irrebutable presumption against the registered owner of a vehicle like Plaintiffs, Chapter
707 of the Transportation Code and the Ordinance would also be in violation of Article I, Section
29 of the Texas Constitution, as such would be usurping the right of the registered vehicle owner like
101
Plaintiffs of the right to due process under Article I, Section 19 of the Texas Constitution, which
right is part of the Bill of Rights to the Texas Constitution. Chapter 707, including Transportation
Code § 707.013, is unconstitutional and void, and so therefore, are the Ordinance, Section 70.07,
which was enacted under the authority provided by Chapter 707 of the Transportation Code and has
the same provisions in all material respects. As such, Sections 707.002, 707.007, 707.009, 707.011,
707.012, 707.013, 707.014, 707.0165, 707.016 and 707.017 of the Texas Transportation Code, and
Willis ordinance Sections 70.03, 70.04, 70.05, 70.06, 70.07, 70.08, 70.09, 70.10, 70.11, and 70.12,
are unconstitutional under Article I, Sections 19 and 29 of the Texas Constitution and therefore void,
as is the Ordinance.
D. Violation of Jury Trial Right Under Article I, Section 15 of Texas

Constitution
36.
Even if the legislature could somehow be legally authorized to make the running of a red
light a civil penalty (which would be impossible, since Article I, Section 29 of the Texas
Constitution would prohibit such), Chapter 707 of the Transportation Code and the Ordinance would
still be unconstitutional on their face, and as applied to Plaintiffs, as in each and every instance, they
violate the right to a jury trial guaranteed under Article I, Section 15 of the Texas Constitution,
because no jury trial is available under the scheme set up by Chapter 707 and the Ordinance. Texas
law is clear that one is entitled to a trial by jury under Article I, Section 15 of the Texas Constitution
where a civil penalty is being sought against him or her by a governmental entity. State v. Credit
Bureau of Laredo, 530 S.W.2d 288, 291-92 (Tex. 1975).
37.
Here, Chapter 707 (Section 707.007) and the Ordinance (Section 70.04) attempt to make the
102
registered owner of a vehicle like Plaintiffs pay a civil penalty. This would entitle the registered
owner of a vehicle like Plaintiffs to a jury trial. As demonstrated above, Transportation Code
Chapter 707 and the Ordinance do not allow for a trial by jury to any registered vehicle owner
receiving a red light camera ticket, either in the farcical “administrative adjudication hearing”
provided for under Transportation Code Section 707.014 or Willis ordinance Section 70.09, or in
so called the “appeal” allowed under Transportation Code Section 707.016 or Willis ordinance
Section 70.11. Thus, Chapter 707 of the Transportation Code, including Transportation Code
§§ 707.014 and 707.016, and the Ordinance, including Sections 70.09 and 70.11 enacted pursuant
to same, are unconstitutional, as being in violation of Article I, Section 15 of the Texas Constitution.
As such, Sections 707.002, 707.007, 707.009, 707.011, 707.012, 707.013, 707.014, 707.015,
707.016 and 707.017 of the Texas Transportation Code, and the Ordinance, Willis ordinance
Sections 70.03, 70.04, 70.05, 70.06, 70.07, 70.08, 70.09, 70.10, 70.11, and 70.12 enacted pursuant
to same, are unconstitutional and void, both facially and as applied to Plaintiffs, since none of the
Plaintiffs would have been entitled to a jury trial at any stage concerning the red light camera tickets
received by them.
E. Violation of Open Courts Provision - Article I, Section 13

of Texas Constitution
38.
Chapter 707 and the Ordinance are also void, in that such violate the open courts provision
of Article I, Section 13 of the Texas Constitution. Transportation Code § 707.016 and Willis
ordinance Section 70.11 allow for an “appeal” of the “administrative adjudication hearing”, but to
be able to perfect such “appeal”, the person charged with a notice of violation like Plaintiffs must
file a notarized statement of financial obligation. This requires a supersedeas bond to make an
103
appeal. This violates the open courts provision of Article I, Section 13 of the Texas Constitution,
as was held by the Texas Supreme Court in Texas Association of Business v. Texas Air Control
Board, 852 S.W.2d 440, 448-50 (Tex. 1993). Thus Chapter 707 and the Ordinance are
unconstitutional on their face and as applied to Plaintiffs, and therefore void. As such, Sections
707.002, 707.007, 707.009, 707.011, 707.012, 707.013, 707.014, 707.015, 707.016 and 707.017 of
the Texas Transportation Code and the Ordinance, including Willis ordinance Sections 70.03, 70.04,
70.05, 70.06, 70.07, 70.08, 70.09, 70.10, 70.11, and 70.12 enacted pursuant to same, are
unconstitutional under Article I, Section 13 of the Texas Constitution, and therefore void.
39.
Chapter 707 and the Ordinance, also violate the open courts provision of Article I, Section
13 of the Texas Constitution, as the Legislature enacted Chapter 707 so as to try to prevent a
registered vehicle owner like Plaintiffs charged with a violation of a red light camera ordinance or
law, from challenging the constitutionality of such law. This would violate the open courts
guarantee of Article I, Section 13 of the Texas Constitution.
40.
Chapter 707 was enacted by Senate Bill 1119 and made into law by Acts 2007, 80th Leg., ch.
1149, effective September 1, 2007. As part of that act creating Chapter 707, the Legislature added
a subpart (g) to Section 29.003 of the Texas Government Code, so as to provide the municipal court
with exclusive appellate jurisdiction within the municipality’s territorial limits in cases arising under
Chapter 707 of the Texas Government Code. Section 29.003(g) of the Texas Government Code
violates the open courts provision of Article I, Section 13 of the Texas Constitution on its face and
as applied to Plaintiffs, as it attempts to deprive the registered owner of a vehicle like Plaintiffs from
104
having an appeal heard by a court of appeals or the Texas Supreme Court, as guaranteed by Article
V, Sections 3 and 6 of the Texas Constitution. Instead, under Section 29.003(g) of the Texas
Government Code, the only appeal the registered owner of a vehicle like Plaintiffs have for a red
light camera ticket is to the municipal court of the municipality which is trying to extort the fine from
the vehicle owner. This would be a clear violation of Article I, Section 13 of the Texas Constitution,
and is especially the case, since under Texas Government Code Section 29.003 and Chapter 30, a
municipal court has no jurisdiction to determine whether a state statute like Chapter 707, or Section
29.003 (g) of the Government Code, are constitutional or not.
41.
In short, in creating Chapter 707, the legislature attempted to create a system whereby the
registered owner of a vehicle like Plaintiffs have no way to challenge the constitutionality of Chapter
707. Instead, the only option for judicial review for ones like Plaintiffs is by the very kangaroo court
of the municipality trying to extort an unlawful penalty from them. This clearly violates the open
courts guarantee of Article I, Section 13 of the Texas Constitution. As such, Sections 707.002,
707.007, 707.009, 707.011, 707.012, 707.013, 707.014, 707.015, 707.016 and 707.017 of the Texas
Transportation Code, Section 29.003(g) of the Texas Government Code, and the Ordinance, since
enacted under the authority of Chapter 707, are unconstitutional, and therefore void.
42.
As the open courts provision is one of the Bill of Rights to the Texas Constitution, the
violation of the open courts provision of the Texas Constitution by the legislature’s enactment of
Section 29.003(g) of the Texas Government Code also constitutes a violation of Article I, Section
29 of the Texas Constitution, so that Sections 707.002, 707.007, 707.009, 707.011, 707.012,
105
707.013, 707.014, 707.015, 707.016 and 707.017 of the Texas Transportation Code and the
Ordinance, including Willis ordinance Sections 70.03, 70.04, 70.05, 70.06, 70.07, 70.08, 70.09,
70.10, 70.11, and 70.12 enacted pursuant to same, would be unconstitutional and void.
F. Violation of Article 5, Sections 3 and 6 of Texas Constitution
43.
Section 29.003(g) of the Texas Government Code also violates Article V, Sections 3 and 6
of the Texas Constitution, as these provisions of the Texas Constitution confer courts of appeal with
appellate jurisdiction within the limits of their respective districts. In the case of Plaintiffs, the
applicable court of appeals would be the Ninth District Court of Appeals sitting in Beaumont, Texas.
By enacting Section 29.003(g) of the Texas Government Code, the Legislature gave exclusive
appellate jurisdiction over matters involving Chapter 707 of the Texas Transportation Code to the
applicable municipal court, which in the case of Plaintiffs would be the City of Willis municipal
court. By doing this, Section 29.003(g) of the Texas Government Code violates Article 5, Sections
3 and 6 of the Texas Constitution by withdrawing the appellate jurisdiction conferred by those
sections of the Texas Constitution on the courts of appeal and the Texas Supreme Court, and instead
giving exclusive appellate jurisdiction to the municipal court over matters involving Chapter 707 of
the Transportation Code.
44.
Texas law is clear that the legislature cannot withdraw jurisdiction conferred to a court by
the Texas Constitution. Harrell v. State, 286 S.W.3d 315, 321 fn. 30 (Tex. 2009); State v. Dugar,
553 S.W.2d 102, 104-05 (Tex. 1977); Lord v. Clayton, 163 Tex. 62, 352 S.W.2d 718, 721-22 (1961);
Reasonover v. Reasonover, 122 Tex. 512, 58 S.W.2d 817, 819 (1933); Meraz v. State, 714 S.W.2d
106
108, 112 (Tex.App.-El Paso 1986), aff’d, 785 S.W.2d 146 (Tex.Cr.App. 1990). Section 29.003(g)
of the Texas Government Code completely withdraws appellate jurisdiction from the courts of
appeal and the Texas Supreme Court in cases arising under Chapter 707 of the Transportation Code.
The Legislature cannot eliminate appellate jurisdiction from those courts. This makes Section
29.003(g) of the Texas Government Code unconstitutional and void. For this additional reason,
Chapter 707 of the Transportation Code, and the Ordinance pursuant to same, are unconstitutional
and void on their face, and as applied to the registered owner of a vehicle like Plaintiffs. As such,
Sections 707.002, 707.007, 707.009, 707.011, 707.012, 707.013, 707.014, 707.015, 707.016 and
707.017 of the Texas Transportation Code, the Ordinance enacted pursuant to same, and Section
29.003(g) of the Government Code, are unconstitutional under Article I, Section 13 and 29, and
Article V, Sections 3 and 6 of the Texas Constitution, and therefore void.
SEVERABILITY ISSUE
45.
Plaintiffs would show that with all of the provisions of Chapter 707 of the Transportation
Code, Section 29.003(g) of the Texas Government Code, and the Ordinance being unconstitutional
for the reasons set forth above, those remaining provisions, if there are any, of Chapter 707 and the
Ordinance which might not be unconstitutional, would not be enough to keep those portions valid,
as any such remaining provisions would not provide any constitutional way to assess any red light
camera penalty. As such, there would be no purpose to the statute, since there would be no legally
constitutional way to assess any penalty against the registered owner of a vehicle like Plaintiffs. As
such, all of Chapter 707 of the Transportation Code fails, and no doctrine of severance can save it.
The Ordinance would likewise fail as a whole for the same reason, because such are completely
107
based on and incorporate Chapter 707 of the Texas Transportation Code, which is unconstitutional
for all of the reasons set forth above.
CAUSE OF ACTION - REIMBURSEMENT/REFUND OF FUNDS PAID
46.
For all of the reasons set forth above, the civil penalty which Plaintiffs paid to Defendant
Willis was under a law which is unconstitutional. Under Texas law, a law which is unconstitutional
is void from its inception, and cannot provide a basis for any right or relief. An unconstitutional law
amounts to nothing, accomplishes nothing, and is no law. A void law is no law and confers no
rights, bestows no power on anyone, and justifies no act performed under it. With the red light
camera penalties being received by Willis being unconstitutional and therefore unlawful, Plaintiffs
would have the right to be refunded or reimbursed by Defendant City of Willis for the unlawful red
light camera penalties received paid by the City of Willis. This is because Texas law is clear that
a person who pays a government fee, tax or penalty under duress or implied duress, has a valid claim
for repayment. Dallas County Community School Dist. v. Bolton, 185 S.W.3d 868, 877 (Tex. 2005);
Lowenberg v. City of Dallas, 261 S.W.3d 54, 59 (Tex. 2008) (affirming judgment for a plaintiff class
against city for refund of unlawful fees assessed by city); State v. Akin Prods. Co., 155 Tex. 348, 286
S.W.2d 110, 111-112 (1956) (holding plaintiff entitled to refund of unlawful taxes paid); Crow v.
City of Corpus Christi, 146 Tex. 558, 563, 209 S.W.2d 922, 925 (1948) (rendering judgment that
plaintiff recover against city unlawful taxes and charges paid to the city per the city’s ordinance);
Gatesco, Inc. v. City of Rosenberg, 312 S.W.3d 140, 144 (Tex.App.-Houston [14th Dist.] 2010, no
pet.) (holding that governmental immunity does not defeat a claim for declaratory or injunctive relief
seeking the refund of illegally collected taxes or fees if the plaintiff alleges that the payments were
108
made as a result of fraud, mutual mistake of fact, or duress, whether express or implied) (quoting);
Saturn Capital Corp. v. City of Houston, 246 S.W.3d 242, 245 (Tex.App.-Houston [14th Dist.] 2007,
pet. denied) (explaining that “Texas has long recognized ... that sovereign immunity does not prevent
a party who paid illegal government taxes and fees under duress from filing a lawsuit to seek their
repayment”); Appraisal Review Bd. of El Paso County Central Appraisal Dist. v. Fisher, 88 S.W.3d
807, 811-13 (Tex.App.-El Paso 2002, pet. denied) (holding that “courts have historically asserted
jurisdiction over suits where a taxpayer alleges violations of his/her constitutional rights”).
See also Tara Partners, Ltd. v. City of S. Houston, 282 S.W.3d 564, 576-577 (Tex.App.
Houston [14th Dist.] 2009, pet. denied) (recognizing claim against city for reimbursement of fees is
not barred by sovereign immunity, but holding the plaintiffs in that case did not adequately plead the
facts necessary to invoke jurisdiction under this doctrine).
47.
The claim of Plaintiffs are not barred by sovereign or governmental immunity. This is
because where a claim for declaratory or injunctive relief is brought seeking the refund of illegally
collected payments by the government, such as is being brought in this case, sovereign or
governmental immunity does not apply if the plaintiff alleges that the payments were made as a
result of fraud, mutual mistake of fact, or duress, whether express or implied. See Dallas County
Cmty. College Dist. v. Bolton, 185 S.W.3d 868, 876-79 (Tex. 2005) (holding that a taxpayer cannot
bring a suit for the return of illegally collected taxes if the payments were made voluntarily); see also
Camacho v. Samaniego, 954 S.W.2d 811, 822 (Tex.App.-El Paso 1997, pet. denied). The reason
such a suit is not barred by immunity is such revenue collected from a tax, fee or penalty determined
to be illegal or unlawful is not treated as property of the State or municipality to which the principles
109
of sovereign or governmental immunity apply, so that an illegally collected fee should be refunded
if paid as a result of fraud, mutual mistake of fact, or duress, like what exists in this case. Austin
Nat’l Bank of Austin v. Sheppard, 123 Tex. 272, 71 S.W.2d 242, 246 (1934). No legislative consent
to sue is needed under these circumstances.
48.
Further illustrating that Plaintiffs have direct claims against Defendant City of Willis for
reimbursement of the illegally assessed red light camera penalty is Lowenberg v. City of Dallas, 261
S.W.3d 54, 59 (Tex. 2008). There, the trial court in that case awarded judgment to a plaintiff class
against the City of Dallas ordering the refund of an unlawful registration fee assessed by the City.
The trial court judgment in that case for the plaintiff class totaled $1,847,454.36, which included
refunds of the fees totaling $1,009,751.25, attorney’s fees of $289,894.00 and prejudgement interest.
The trial court judgment was appealed to the Dallas Court of Appeals, who reversed the trial court’s
judgment on the basis that all the claims were barred by limitations. On appeal to the Texas
Supreme Court, the Court reversed the Court of Appeals and rendered judgment in accordance with
the judgment of the trial court. Thus, in Lowenberg, the Texas Supreme Court specifically held, and
entered judgment, that a municipality is directly liable, and has no immunity, when a claim is
brought against it for reimbursement of a fee or penalty which is unlawful or illegal. Lowenberg
clearly demonstrates that Plaintiffs have a direct claim for reimbursement against Defendant City of
Willis.
NO AUTHORITY FOR WILLS TO COLLECT ANY RED LIGHT CAMERA PENALTY
49.
Alternatively, even if Chapter 707 and the Ordinance are found constitutional, Plaintiffs are
110
still entitled to be reimbursed for the red light camera penalties paid, because of the failure of Willis
to comply with the conditions that must be met before Willis could install a red light camera
enforcement system set forth in Chapter 707 and assess and collect red light camera penalties. This
would make the Ordinance invalid.
50.
Chapter 707, specifically Section 707.003(c), requires that before a municipality can install
any red light camera system at an intersection, the city is required to conduct a traffic engineering
study of the intersection to determine whether, in addition to, or as an alternative to the red light
camera system, a design change to the approach or a change in the signalization of the intersection
is likely to reduce the number of red light violations at the intersection. The Ordinance, Section
70.03(A) includes the same engineering study requirement before any red light camera system can
be installed by Willis at an intersection. Under Transportation Code Section 707.003(f), a
municipality cannot impose any penalty for a red light camera violation, if the city fails to perform
the required traffic engineering study.
51.
Plaintiffs would show that Willis failed to conduct the engineering study required by Chapter
707 and the Ordinance. As such, Willis could not assess any penalty for any red light camera
violation. The Ordinance would therefore conflict with Transportation Code Section 707.003(c),
and would therefore be invalid. This would make Willis liable to reimburse Plaintiffs for the
unlawful red light camera penalties assessed by Willis that are involved in this lawsuit.
52.
Plaintiffs would further show that the individual Defendants, Nowak, Reed and Forestier,
111
charged with the knowledge of the requirements of Chapter 707 and the Ordinance, in their official
capacities, proceeded to authorize, implement and collect penalties from red light camera systems
operated within the City of Willis, when such penalties could not be assessed by law because of the
failure to conduct the traffic engineering study required by Transportation Code Section 707.003(c).
53.
Defendants Reed, Nowak and Forestier, sued in their official capacity as the officials with
the City of Willis who, either singularly or in combination, implemented, enforced, and directed the
assessment and collection of the illegal red light camera penalties. Their official acts were
committed in violation of Chapter 707, since they were acting beyond the statutory authority granted
by Chapter 707 in installing, implementing and enforcing Willis’ red light camera enforcement
system. As such, in the unlikely event Chapter 707 and the Ordinance are found constitutional,
Defendants Reed, Nowak and Forestier, in their official capacities, either singularly or in
combination, would be liable for the unlawful red light camera penalties involved in this lawsuit,
since such unlawful red light camera penalties were issued, assessed and collected by them, either
singularly or in combination, in violation of Transportation Code Section 707.003(c) and (f) and/or
Willis ordinance Section 70/03(A). Such claims would not be barred by governmental or official
immunity, since these acts by Defendants Reed, Nowak and Forestier in their official capacities,
either singularly or combination, would be ultra vires acts not barred by immunity.
54.
Plaintiffs paid the illegal red light camera penalties to Wills under duress, as alleged above
in this First Amended Petition. That being the case, Plaintiffs are entitled to be refunded and/or
reimbursed for the unlawful red light camera penalties paid by them. As alleged in Paragraphs 46-48
112
above, such claim for refund/reimbursement is not barred by sovereign, governmental or official
immunity. Further, by assessing and collecting red light camera penalties in violation of Section
707.003(c) and (e) of the Transportation Code, and/or Wills ordinance Section 70.03(A), the actions
of Defendants Nowak, Reed and Forestier in their official capacities with the City of Willis were not
lawfully authorized. As such, claims against Defendants Nowak, Reed and Forestier in their official
capacities with the City of Willis would not be barred by sovereign, governmental or official
immunity. This is because acts against city officials in their official capacities based on acts which
are not lawfully authorized are ultra vires acts which are not are barred by sovereign, governmental
or official immunity.
55.
Therefore, Plaintiffs are entitled to a refund from either Defendant Willis and/or Defendants
Nowak, Reed and Forestier in their official capacities with the City of Willis for the unlawful red
light camera penalties paid that are involved in this lawsuit. Plaintiffs would show that if Defendants
Nowak, Reed and Forestier in their official capacities with the City of Willis are held liable for
reimbursement of the unlawful red light camera penalties involved in the lawsuit, under Texas law,
such is in essence a judgment against the City of Willis, since liability for ultra vires acts is imposed
on a city by a judgment against the city officials in their official capacities.
TAKINGS CLAIM
56.
Another basis that would entitle Plaintiffs to be reimbursed from Defendants is Article I,
Section 17 of the Texas Constitution. Here, Plaintiffs’ property (the red light camera penalty paid
by Plaintiffs), being $75 or $100 depending on whether the penalty was paid timely or not, was
113
unlawfully taken, for all of the reasons set forth above, since Plaintiffs’ property was taken for public
use by virtue of laws (Transportation Code Chapter 707 and the Ordinance) that are unconstitutional
and therefore unlawful, or alternatively, because red light camera penalties were assessed without
the required traffic engineering study having been performed. Those laws take the monies
unlawfully received from the payments of such unlawful civil penalties for public use. In the case
of municipalities like Defendant Willis, the public use of the monies is for traffic safety programs,
including pedestrian safety programs, public safety programs, intersection improvements, and traffic
enforcement. Alternatively, the property of Plaintiffs was wrongfully taken from them for public
use, since Willis and Defendants Nowak, Reed and Forestier in their official capacities with the City
of Willis were not lawfully authorized to assess any red light camera penalty because of the failure
to conduct the required traffic engineering study.
57.
In short, Plaintiffs’ property has clearly been unlawfully taken from them for public use in
violation of Article I, Section 17 of the Texas Constitution, so that Plaintiffs would be entitled, under
that provision of the Constitution, to be reimbursed by Defendant Willis either directly or by
judgment against Defendants Noweak, Reed and/or Forestier in their official capacities with the City
of Willis, for the monies from the red light camera penalties unlawfully taken from Plaintiffs. This
claim would not be barred by sovereign or governmental immunity. See for example, W.D. Haden
Co. v. Dodgen, 158 Tex. 74, 308 S.W.2d 838, 841 (1958) (suits for property alleged to be unlawfully
or wrongfully withheld from the rightful owner by the state are not suits against the sovereign itself
and may be maintained without permission of the sovereign); Gen. Servs. Comm’n v. Little-Tex
Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001) (noting that governmental immunity does not shield
114
the State from an action for compensation under the takings clause of the Texas Constitution); and
City of Round Rock v. Whiteaker, 241 S.W.3d 609, 634-35 (Tex.App.-Austin 2007, pet. denied)
(suits to recover money or other property wrongfully taken or withheld by state officials from their
rightful owners do not implicate sovereign immunity because being wrongfully taken, the property
never belongs to the state).
58.
Likewise, the claim of Plaintiffs to be reimbursed for the unlawful penalty extracted from
them would not be subject to the defense of failure to exhaust administrative remedies, as Texas law
is clear that where a party is challenging a statute on constitutional grounds or actions exceeding
statutory authority, actions without authority, or actions in violation of a statute, one is not required
to exhaust administrative remedies before seeking judicial review. Further, there is no administrative
remedy, statute or ordinance provision of any kind, that would allow the claims being asserted in this
lawsuit to be decided or ruled upon by the “administration adjudication hearing” or the municipal
court. Further, there is nothing in Chapter 707 or the Ordinance that gives the administrative hearing
officer or the municipal court primary or exclusive jurisdiction over any of the claims made in this
lawsuit. As such, this Court clearly has jurisdiction to hear all of the claims being asserted in this
lawsuit, and there is no administrative remedy that Plaintiffs must exhaust or had to exhaust before
filing this lawsuit.
INJUNCTION
59.
Plaintiffs seek an injunction against Defendants prohibiting them from using and enforcing
their red light camera enforcement system. In this regard, Plaintiffs would show that upon a finding
115
that Defendants are operating a red light camera enforcement system which is unlawful, either
because Chapter 707 and the Ordinance are unconstitutional, or because Defendants are operating
Willis’ red light camera system in violation of Transportation Code Sections 707.003(c) and (f),
injunctive relief should be issued precluding Defendants from operating any red light camera system
within the city limits of Willis.
CLASS ACTION ALLEGATIONS
60.
Pursuant to Rule 42 of the Texas Rules of Civil Procedure, Plaintiff Luis Garcia brings this
action on behalf of himself and all others similarly situated, as representative of the following class:
all registered owners of vehicles who at any time during the period from January 8, 2014 to the date
this class action is certified, paid the civil penalty of either $75.00 or $100.00 to the City of Willis
in response to a notice mailed to them for a violation of the Ordinance.
61.
Plaintiffs would show that greater than two-thirds of the members of the class described
above are citizens of the State of Texas, where this lawsuit is being filed.
62.
Plaintiffs would show, that all of the Defendants who have been sued in this lawsuit from
whom significant relief is sought by members of the plaintiff class and whose conduct forms a
significant basis for the claims asserted by the proposed plaintiff class, are citizens of the State of
Texas where this lawsuit is being filed.
63.
Demonstrating the significant relief being sought against the Defendants sued in this matter,
116
is the revenue generated by the City of Willis from its receipt of the illegal red light camera penalties
which, based upon information and belief, exceeds $1,000,000 for the years 2014 and 2015. This
allegation will be amended once information regarding revenue received by the City of Willis from
the operation of its red light cameras during the years 2014, 2015 and 2016 is received, which
information will show the total value of the unlawful red light camera penalties involved in this
lawsuit for which reimbursement is sought. The amount in controversy in this matter, including
attorney’s fees, but exclusive of interest and costs, is over $1,000,000, but less than $5,000,000.
64.
Plaintiffs would further show that the principal injuries resulting from the alleged conduct
or any related conduct of Defendants were incurred in the State of Texas where this action was filed,
as the unlawful and illegal red light camera penalties unlawfully collected from the plaintiff class
were pursuant to laws enacted in the State of Texas, and by the City of Willis, stemming from
alleged red light camera violations issued by the City of Willis for alleged violations occurring
within the City of Willis, and for the payment of penalties made to the City of Willis and which
penalties were not owed, for all of the reasons set forth above.
65.
The persons in the class are so numerous that joinder of all members is impracticable. Based
on revenues collected by the City of Willis in the fiscal years ended September 30, 2013 and 2014,
Defendant Willis has issued and received payment for approximately one hundred thousand red light
camera violations, which illustrates that joinder of all members of the class is impracticable.
66.
Although the exact number of class members is unknown to Plaintiffs at this time, it is
117
ascertainable by appropriate discovery, including interrogatories asking for each penalty of a red light
camera ordinance paid to the City of Willis from January 8, 2014 to when this action is certified, to
state the Notice of Violation number, the name and address of the person to whom such notice was
directed, the amount paid by each person, and the date such payment was made by each person. The
identity and location of class members may also be identified from the records maintained and
possessed by Willis, their representatives and/or the company who administers Willis’ red light
camera program.
67.
There are common questions of law and fact affecting the class. The common issues to be
litigated include the constitutional, statutory and ultra vires issues set forth herein which are common
to every putative class member.
68.
These issues are all common, because every transaction involving any member of the class
is essentially the same. For every class member, the registered owner of a vehicle like Plaintiffs are
the registered owner of a car which is photographed allegedly committing a red light violation. For
each class member, the registered owner of the vehicle like Plaintiffs receives a notice, like that
attached as Exhibit “A”, requiring, under duress, payment of the penalty ($75 or $100 if paid late)
assessed under the Ordinance. Therefore, the refund due to each class member are either one or two
alternative sums, being either $75 or $100, depending on whether the penalty was paid timely. Thus,
the issues involved are whether Chapter 707 and the Ordinance are constitutional or not, whether
Willis failed to comply with the conditions required by Chapter 707 and the Ordinance to be able
to assess a red light camera penalty, and whether the individual Defendants acted ultra vires, without
118
any lawful authority, all of which issues are entirely legal. Thus, this action would present issues
of fact and law common to all members of the class.
69.
The claims of Plaintiffs are typical of the claims of the proposed class, because every
transaction involving any member of the class is essentially the same as described above. Each
putative plaintiff seeks refund of either $75 or $100. Thus, this action would present issues of fact
and law common to all members of the class.
70.
Plaintiffs will fairly and adequately represent the interests of the class. In support of this,
Plaintiffs would show they: (1) are members of the proposed class; (2) want to represent the class;
(3) are willing to pay the costs of notice and litigation; (4) have no interests adverse to other
members of the class; and (5) have suffered the same harm as the class, namely payment of the
unconstitutional and unlawful red light camera penalty assessed by the City of Willis.
71.
Attorneys Russell J. Bowman and Scott A. Stewart request appointment as class counsel.
In support of this, they would show: (1) these attorneys have extensive experience in litigating
complex matters such as this case, including extensive trial and appellate experience; (2) attorney
Russell J. Bowman had several clients who were part of the phen fen class action litigation, which
litigation is far more complex than what is involved in this case, since this case requires no experts,
and damages are set, based on the amount paid (either $75 or $100) by the registered vehicle owner;
(3) attorneys Russell J. Bowman and Scott A. Stewart have spent several months researching the
issues involved in this case and already involved in several ongoing lawsuits involving the same
119
issues involved in this lawsuit; (4) attorneys Russell J. Bowman and Scott A. Stewart have already
prepared the written discovery needed to be able to identify all class members and subclass members,
and which after obtaining this information, attorneys Russell J. Bowman and Scott A. Stewart have
the resources in place to get the appropriate notice out to all potential members of the class and
subclass to opt in or opt out of the class; (5) attorneys Russell J. Bowman and Scott A. Stewart are
currently working a declaratory judgment case in the 134th Judicial District Court, Dallas County,
Texas, and in the United States District Court for the Northern District of Texas, involving the exact
constitutional issues raised by this case, namely whether Transportation Code Chapter 707 and
Ordinances enacted pursuant to same, along with Section 29.003(g) of the Texas Government Code,
are constitutional or not, so that they are both thoroughly knowledgeable with the issues involved
in this case; (6) attorneys Russell J. Bowman and Scott A. Stewart will be able to devote all the time
needed to this case; (7) attorneys Russell J. Bowman and Scott A. Stewart each have support staff
able to devote at least half their time to this case; and (8) attorneys Russell J. Bowman and Scott A.
Stewart have the data base and file management systems and software in place to handle a case such
as this.
72.
If the class is not certified, this will create the risk that none of the registered vehicle owners
will be able to obtain restitution for the penalties unlawfully extracted from them. This is because
without a class action, no individual registered vehicle owner would seek recovery of the penalty
paid, because the costs of such would far exceed the $75 or $100 for which the registered vehicle
owner would be seeking reimbursement. In short, the attorney’s fees that any individual registered
vehicle owner would incur would far exceed the penalty being sought, so that no registered vehicle
120
owner would, on his or her own, seek recovery for the unlawful penalty paid by him or her. Further,
if separate suits were prosecuted by or against individual members of the class, this would create a
risk of inconsistent adjudications with respect to individual members of the class, as the issues being
raised in this action may not be raised in such separate suits. Further, the prosecution of separate
suits by or against individual members of the class could create a risk of adjudications unfavorable
to individual members of the class.
73.
Common questions of law and fact predominate over any questions affecting only individual
members of the class. These issues are legal issues, and are common to the class. The damages of
the class members fall into one of two categories, those that paid the $75 penalty, and those that paid
$100 because the penalty was paid late, so that a $25 late fee was added. In addition, a class action
in this case is superior to the other available methods for the fair and efficient adjudication of this
controversy, because individual class members lack the resources to bring the action for themselves.
74.
As authorized by Rule 42(h) and (I) of the Texas Rules of Civil Procedure, Plaintiffs seek(s)
attorney’s fees as authorized by those provisions, for reasonable and necessary attorney’s fees
through trial and entry of judgment in this Court, as well as for any appeal to any court of appeals
or appeal to the Texas Supreme Court. Alternatively, Plaintiffs seek attorney’s fees under Chapter
37.001 et. seq. of the Civil Practice and Remedies Code, which is known as the Uniform Declaratory
Judgments Act, including Section 37.009.
75.
Named Plaintiff Luis Garcia previously demanded a jury trial in this matter, and has paid the
121
appropriate jury fee required by the court.
WHEREFORE, Plaintiff, Luis Garcia, on behalf of himself and others similarly situated,
including those specifically named in Paragraph 3 herein, prays that after all due proceedings be had
in this matter:
A. That the Court certify the class and subclasses as described in this petition;
B. That the Court appoint attorneys, Russell J. Bowman and Scott A. Stewart as class
counsel;
C. That the Court award Plaintiff and the class a refund or reimbursement of the red
light camera penalties involved in this lawsuit against Defendant City of Willis for
the reasons set forth above, or alternatively against Defendants Reed, Nowak and
Forestier in their official capacities with the City of Willis for the reasons set forth
above;
D. That the Court enter declaratory judgment that Transportation Code Chapter 707, the
Ordinance, the Ordinance, and Section 29.003(g) of the Texas Government Code, are
unconstitutional and therefore void;
E. Alternatively, that the Court enter declaratory judgment that Defendants failed to
comply with the conditions precedent set forth in Chapter 707, specifically
Transportation Code Section 707.003(c), and the Ordinance, specifically Section
70.03(A), (being conducting the required traffic engineering study) so that the
Ordinance is invalid, or alternatively for declaratory judgment the conduct of
Defendants Reed, Nowak and Forestier in their official capacities with the City of
Willis, either singularly or in combination, in assessing and collecting red light
122
camera penalties in violation of Transportation Code Section 707.003(c) and (f) is
ultra vires, and renders them liable in their official capacities with the City of Willis
to reimburse Plaintiffs for the unlawful red light camera penalties involved in this
lawsuit;
F. That the Court award Plaintiff and the class prejudgment and post judgment interest
at the maximum rates allowed by law, and in the maximum amounts allowed by law,
and all costs of court;
G. That the Court award Plaintiff and the class reasonable and necessary attorney’s fees
through the trial of this matter and any appeal to any court of appeals or the Texas
Supreme Court;
H. That the Court issue a temporary and permanent injunction enjoining the Defendants
from continuing to enforce their red light camera ordinance as described in this First
Amended Petition; and
I. For such other relief, at law or equity, to which Plaintiff and the class may be justly
entitled.
S/Russell J. Bowman
Russell J. Bowman
Texas State Bar No. 02751550
800 West Airport Freeway
Suite 860
Irving, Texas 75062
(214) 922-0220
(214) 922-0225 (FAX)
E-Mail: russelljbowman@sbcglobal.net
/S/Scott A. Stewart
123
Scott A. Stewart
Texas State Bar No. 19218300
101 ½ West Main Street
Suite 200
Grand Prairie, Texas 75050
(214) 350-5551
(866) 850-7666 (FAX)
E-Mail: sastewartlawoffice@gmail.com
I hereby certify that a copy of the above document has been served on all parties as indicated
below, through their attorney of record, on February 15, 2016:
Ms. Patricia L. Hayden VIA E-MAIL - phayden@OlsonLLP.com

2727 Allen Parkway
Suite 600
/S/Russell J. Bowman
Russell J. Bowman
124
EXHIBIT A
125
FEB-1-2016 METHOD I 9368902396
02:12P FROM:FIRST UNITED METHOD! TO: 12149220225 P.2/3
Tempo, AZ 85285·2091
85285-2091
i:, NOTICE#:
NOTICE #: 1631500091377 ""
lllllllllllllllllllllllllllllllll!lllllllllllllllll
1l1li11l1li111l1li11l1li11l1lil1lil1li111111111111 li'IN:
jl'IN: 4705 1~
II
~ Pay with yout
YOUt Visa or Maalerc8.rd a1 ~
................violaUonlnro.coru
................ Violat!onln(o,coru ~~
~ •<::.z~-..J
'<:;2~-..J ~.:: •:': ·i:.-X;;!..X
-i:.-X;,!..X ·(;~·~
-(l~'! li1:.:iHtil;<;
·c~=-·- ·~--=~-~-~--c<~---~="•••~="~'- ·=
'c~=_-_ .=.c=~-~_~_-c_~_--~="_'.~="~_-
li1:.:iHti,;':-':,
r :- t
,=
Amol!nt
Amollnt Ol!e: OIlO: $75.00
Due
DueOatB:Date: 01/28/2016
OO.ATP5CR50.1
011631 AT 0.413 T 10 OO·ATPSCR50·1
ALI5ADAVIE
ALISADAVIE
1515
151 5 COCHRAN ST5T
WILLIS TX 17378-8313
•ll•ullhh•ln·lllll•lhh•l•t"I•IIIJIIIun(llnllll•fl•lml
'11'lIllhh'III,IIIII'lhh'I'I"I'IIIII'III"III"IIII'II'I"'1
ONl(1lolo)
ON/ (Dolo) ATTlME AT lOCATION I'QUNTY
FM.10071
12109/2015 05:13 PM EB FM-1007/ W
05:13PM Montgomery
Montgomory
-~--
-~--
HMiE (FIRST,
-
(FIRST', MIOOl6,LAST)
MlOOle.lAST)
MONTGOMERY liT @ 1-45
1045 S
- - ------ SERVICE RB-/WESTSIPE-
RB-IWESTSIPE- --·--
-->-- --"" -
NM!E
AU!A DAYlE
.
STR!'Irr
STRl''''' AOORESS
at
1It S COCHRAN ST
1St
CITY
WlW.
WILUS
I STATE
STAre
tx
I ZIP COOE
CODE
77l7H3t3
DID OWN
YEAATMAl<E
~ YEAA1MAI<E
.... UNO
UHO
MODEl.
EXe
EXC
l!ome
I!oME ICOLOR
COlOR
I~
L NUMBER STAT<
E I CHpt,l43
CHP8143 TX
E 0C
APPROKSPEEO
"
DID THEN AND lltERE CON
., .
AMllEll
AMSER
&ItT THE FOl,I.,OWI)IO VlOLATlOH.

CONIItT VlOLATlON. THE FACT8 SUPPORTlNQ
POSTED SPEED
aUPPORTlNQ THIS
spEED
.
B$i.n!F ARE AS FOLLOW.: Failure 10
B$i.n!FAREASFOLLOWS: to stop at.
at a Rod Light
IN VIOlATION OF:
Ordll!llnce O~721A
Ordl""n.o 0~721A
Poi'co~
R.9ASEKE
R. BASEKE 11 422
Unlt 1J
Unit
ON INFORMATION.
INFORMATION, THE W1WS
WIWS POliCE PEPARlMENT CERTIFIES tHAT
THE ABOVE FACTS ARE 1RUE
lRUE AND PUNISHABlE BY A: 1WJ&(h1a
IWJ&O.!a
PENALTY
CML PENAL TV OF $75.00 12129/2015
1212912015
"
----------~------------.---------~----.
on
Pay wI1h YOIJr Visa or MastorCerd at www. VI oIaII on Inf o.com or rna
ma II your checl< Or sr wI1h thl8
or money 0ord er coupon to the address below
v~ -, NAME: ALISADAVIE DUE: 0112812016
01/2812016
--
:: .·. NOnCE
NOTICE II:
,', #: 1631500091377 VERSION: 1 ISSUED: 12129/2015
1212912015
.- PLATE: CHP9143 STATE: TX ..
" TYPE: PASS
No points will b. be aassouod P•Ymont of this Nolle.
......d for p.yment Notice of VIQIJtion nor wHt It
VIQIJIIon ho,wlll
V Sl neeoallal
SI neeoallaa a)'lJd/i
a)'!Jdii 01'
on1 £$1>31\01, t-866-190-4111. tlffo-ot
Eopal\ol, fuvot do lamar aJ 1-866-190-4111. :tffo·ot vohlclo
Vohlclo InsuranGe
lnsuran® ratlHs.
r.itiHs, .·
-I.J Moko yout check Of
Mak. payable to 1M City of Willi
Ot money order payableto Wllllo.•.
"-.J DO NOT MAIL CASH.
00 City of Willis
..J Writ~:J the Notice Bon the frOiltoryourpaymenL
Writ@theNotice8onthefrOlltoryourpaymenl Automated Red LIght
Light Enforc:ement
V lns.ert this tut-off
Ins-srt coupof\ In the enclosed envelope with
tur-off t:OUpOf\ wll.h tho PO Box 742503
add,... (.Ith.
(at lho rlghl) .howlng
showing through !he window.
lhrough the
Cincinnati, OH 45274·2503
-I.J payment
Payment Ia odmiSSlon of or ,abro1y.
nabroly.
'ro avoid late fan, you mull respolld
..J Yo
"" respond to thr_ N~_l.ct (payment
this NI)Hc, (paymant IJ•I•IIIh•lflhloiiiJII'IIIIIflollllollllmhlloiii•I•I•UIIII'
11'1'1"1I'11Ih1'111I11,11II1I,1111'IIII"'hllolll'I'I'III,II'
received or a non-judlclal a.dmlnlaJratlve hearing) before. th~
non-judicial a.dll1lnla,ratlve
due data Indicated above.
AMOUNT DUE: 575.110

$75.(10
000032760237 075006
1 1631500091377 000D3276D237
126
FEB-1-2016 02: 12P FROM: FIRST UNITED ~IETHODI 9368902396 TO: 12149220225
Pursuant to City of Walis

Walls Automaled
Automated Red Light Enforcement Ordinance, the owoor owOOt of a motor vehicle Is liable for payment of a civil. penalty of $75.00 If the owners vehlC!e vohle!e
prOceeds Cnto
fn!o an inte(f;ection
lntemection qqulpped with a photographic intersactionintersection monitoring tiY5Iern
tiY5tern when the slgniJi for that vehiCle's direction ot
tha traffic control slgn<JI t111vel I&
of tl1lvel l& emitting a
steady rad
red ${jnal.
${1nal. II has been determIned
determined thai
\hal your vehIcle
vehlcl& has proooedad Inlo Into an intorsection
inlarsecUon as defined by SecUon 541.303 541.303of of the Texas TranspOrtation Code when the
traffic control signal, tor
for th'it
th.;t direction
direc:tlon In whIch
which yOllr
yovr vehicle was traveling.
traveling, was emitting a steady red signal. Failure to pay tho cIvil clvll penalty or contellt
contest liability by the Due
D~te Ia
O~te f& an admisslt'ln of lIablUty
llabllfty In the full amount of tt}ott'le eMI
civil penalty assessed on this notlce notice of violation and constitutoa
constltutoa a waiver of the right to appeal under
City's Ordinance. Failure to pay Ihe penalty or to contest
tho civil penatly «mlasl liability
Jlability within tho limo
timo aHowed
aUowad wlH result in a $25.00 late
lale payment penally relult In the Co~nty T$ix
pana!ty and may result
ASIllSilor.(oUGctor rMuslng
Asunor.CoUGctor rGfuclng to rGgiatet
regrater the vehicle alleged to have ha.ve bGen In vlolallon
violation of this ordlnanCii.
ofthle ordlnanCil.
You h~ve the righllo contest tho Imposition of the

ri9hllo contesllhe tho civil
clvil panatty
pt1natty by sending a request for a
8 hearing 80
so that It Is r~alved by 1M
tM Due Dale printed on tho fronl
front of Ihls
!his Notlco of
Violation. The eM! penalty may no! be record~ on the owner's driving tet:ord and an armsi
Violallon. arrsst warranl may not bo Issued,
Issued.
81
Sl usted naeeaita 8yuda
ayuda en et;:paiiol, ontrtl en contacto con porfavor
er;:paiiol, onlre por(avot ol
01 S6fVlcio
servlclo do cllonto
ellonto en 1.866.790.4111.
INSTRUCTIONS
ONLINE PAYMENT: The fastest and easiest way to pay your Notice Nollce Is to pay online. Go to WYfW.Yiolatlonlnfo.com
www.vlolatlonlnfo.90m and logon wlth your Notice#
Notice # and
PIN shown In the red box on tho front of this notica.
notiCQ. Click
Cl!ck the Pay button. A $4.00 convenience fee will ba assessed to process an online payment
PAYMENT BY PHONE: Call toll free 1-866·790-4111

1-866-790-4111 belween 8:00
8:00AM
AM 105:00
lo 5:00PM
PM Cenlrallima. A $4.00 ",nvenlanca
oonvenlanoo fee will be added 10
lo process a
phon.
phone paymont
payment
PAYMENT BY MAIL: Mall envelope with tha coupon printed

MaU your check or money order (payable to tha City of Willis) in the oncfosed envelopa prfilted at the bottom of
Notfce # (see reverse) on lhe
the reverse side of this notice. Be sure to put the Notice# the race
face of your payment.
PAYMENT IN PERSON: You may NOT pay In parson. Vou

You may payon·llna,
payon-llna, by mall or by calling 1·866·790-4111.
1-866-790-4111.
VICW
VieW YOUR IMAGES AND Vioeo·:ViDEO'; The recordatllmages and video wlll be submitted
sUbmitted as
aS Bvldence
evldence In the Pollee
Police Oepartment proceeding for disposition of
the-Violatfon. "You
- ihe-Violatfon. may View
"YOUfnay Vi&W yom
yOUi Images, \lldah online a~ WWW,VID(,t(onlnfo
ImageS· end \lldAO m>m. You wlll
www.V!o(ot(onlnfo pom. wl!l need your Notice # and PIN printed on the front of this
notice.
REQUEST AN ADMINISTRAflVE
ADMINISTRAfiVE HEAFtING:
HEAFtiNG: You may contasllho Imposition of the civil penalty by requesllng
requesting an administrative hearing. You must sign
coupon below and mall ItII In the enclosed envelope so that it is received by the due date slated
the COLJpon statod on the front of the Notice.
NotIce. When the administrative
admInistrative
haaring is scheduled, you will be notified of the location, date and time of your hearing. If you request a hearing and fall to appear at the tlme and place
hearing
of the hearing, lila considered en admission of llab!tlty
/labUlty and a waiver
walvar of your right to appeal the ImposlUon
lmpos1Uon of the civil penally. The recorded
rocorded image Is
evidence in a proceeding for the imposition of a civil
cMI penalty.
QUESTIONS: !fyou have any que~Uons, please contact Customer Service Toll Froo at 1·8-66·790-4111.
If you hava 1-8-66-790-4111.
If you are D..9.J!.rJ12 and mall the Declaration of Non·Liablllty
a(a a Rental Car or Leasing company, D..9.l!.rJ12 Wlllls. Vlo!allon
Non.Llablllty form and documentation to City of WIllis,
ProCllssing Center, PO Box 22091, Tampe,
ProCll"ing Tempe, AZ 85285·2091.
Dotach
Detach here and raturn
return bottom portion as a request for an adminIstrative
a:dmlnlstrative hearing.
1631500091377
I submit this form as a request for a hearing regarding thIs
this Notice of Violation and acknowledge
that it must be received by the due date of this notice to be a valid raquast.
requost. I understand that I
ln·person. I also understand that I will be notified of the date, tIme
must attend this hearing in,person. time and
location of the hearing. Please sign and print name uslnq blue or black Ink only.
Signature
Printed Name
15!
75!
127

Case Red Light State Supreme Court

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Case Red Light State Supreme Court

Uploaded by

Copyright:

Available Formats

FILED

IN THE SUPREME COURT OF TEXAS

LUIS GARCIA, ET AL.,

CITY OF WILLIS, LEONARD REED, IN HIS OFFICIAL CAPACITY AS

From the Ninth Court of Appeals, Cause No. 09-16-00164-CV, and

RESPONSE TO PETITION FOR REVIEW

Patricia L. Hayden OLSON & OLSON, L.L.P.

ATTORNEYS FOR RESPONDENTS,

THE CITY OF WILLIS, LEONARD REED IN HIS OFFICIAL CAPACITY AS

Table of Contents ...................................................................................................... ii

Index of Authorities ..................................................................................................iv

Statement of the Case.............................................................................................. vii

Respondents’ Issues ..................................................................................................ix

Respondents’ Reply to Issues Not Addressed in the Petition for Review

Objections to Petitioners’ Supplement to Appendix to Petition for Review ............. 1

Statement of Facts ...................................................................................................... 2

Summary of the Argument......................................................................................... 2

Argument and Authorities.......................................................................................... 5

I. Reply to Issue No. 1: Argument Made by Petitioners—that the Lack of

A. Petitioners’ Article V, Section 19 Constitutional Challenge to the

B. Subject Matter Jurisdiction for the Administrative Remedies of

A. Constitutional Claims Can Be Barred by the Failure to Exhaust

B. No Error in Dismissing Reimbursement Claim .................................. 13

IV. Reply to Issue No. 4: Court of Appeals Correctly Concluded

Certificate of Compliance ........................................................................................ 18

Certificate of Service ............................................................................................... 18

Respondents’ Appendix ........................................................................................... 19

Berkman v. City of Keene,

Blue Cross Blue Shield of Tex., Inc. v. Duenez,

City of Dallas v. Stewart,

City of El Paso v. Heinrich,

City of Willis v. Garcia,

Clint Indep. Sch. Dist. v. Marquez,

Dallas County Community College Dist. v. Bolton,

Harris County Hosp. Dist. v. Tomball Reg’l Hosp.,

Kubosh v. Harris County,

Lowenberg v. City of Dallas,

Subaru of Am., Inc. v. David McDavid Nissan, Inc.,

Tex. A & M Univ. Sys. v. Koseoglu,

Waco Indep. Sch. Dist. v. Gibson,

Young Chevrolet, Inc. v. Texas Motor Vehicle Bd.,

STATUTES AND RULES

Tex. Gov’t Code

§ 29.003(g) .............................................................................................. vii, 10

§§ 707.001 — .019 or Chapter 707 or Red Light Camera Statute .........passim

Willis, Tex., Code of Ordinances Title VII

§§ 70.01 — .99 or “Ordinance No. 09-0721A” or “Red Light Camera

Nature of the Case: This case originated in the court of appeals as an

The suit is a putative class action against the City2 and

Specifically, the suit seeks (i) a declaration that

The City and City Officials filed a plea to the jurisdiction

Court of Appeals: Ninth Court of Appeals, Beaumont

Appellees: Luis Garcia, Shelby D. Glazier, Alisa Davie,

Disposition: Justice Johnson authored the court’s opinion, joined by

Reply to Issue 1: The argument made by Petitioners—that the lack of jurisdiction

RESPONDENTS’ REPLY TO ISSUES NOT ADDRESSED IN THE

Reply to Issue 6: The Texas Legislature, in accordance with the authority

rendering judgment granting the Respondents’ plea to the jurisdiction is correctly

OBJECTIONS TO PETITIONERS’ SUPPLEMENT TO APPENDIX TO

Respondents object to the Petitioners’ Supplement to Appendix to Petition

conclusory and argumentative statements to a reporter by Petitioners’ attorney and

by Petitioners. Respondents ask that the Court strike Petitioners’ Supplement to

Appendix and not consider it for any purpose.

Respondents maintain that the evidence offered by Petitioners, and