IN EL PASO COUNTY TEXAS

IN RE PETITION OF CARL STARR
REQUESTING DEPOSITIONS OF
RICHARD WILES, VINCE PEREZ,
OSCAR LEESER, JOYCE WILSON
EDDIE HOLGUIN JR AND
VERONICA ESCOBAR,

CARL STARR,
Petitioner,
                                                                                                                                                                                                       2013-DCV-
v.

RICHARD WILES, VINCE PEREZ,
OSCAR LEESER, JOYCE WILSON,
EDDIE HOLGUIN JR AND
VERONICA ESCOBAR,
Deponents.
                         PETITIONERS’ ORGINAL VERIFIED PETITION REQUESTING DEPOSITIONS
                                  TO INVESTIGATE A POTENTIAL CLAIM OR SUIT M
                                        TO THIS HONORABLE COURT:
COMES NOW Carl Starr Petitioner and requests authority to take the depositions of RICHARD WILES, VINCE PEREZ, OSCAR LEESER, JOYCE WILSON, EDDIE HOLGUIN JR AND VERONICA ESCOBAR,  in order to investigate a potential claim or suit as authorized by TRCP 202.

1.  Petitioner and Deponents are persons residing in El Paso Texas. This Court has Jurisdiction per TRCP 202. Petitioner seeks to investigate a potential claim or suit by the Petitioner concerning public funds. Petitioner is investigating if current and future public funds are being expended in violation of state and federal law by creating, using or issuing a security for one represented purpose then transferring, using the security funds for another purpose. Specifically the use of Montana Rapid Bus funds for Luther Building Rehab by the city of El Paso and the county of El Paso using previous represented funds for other purposes including sheriff radios and security fences/gates.

2. The substance of the testimony Petitioner expects to elicit form each deponent is: the City and County policy of creating, using or issuing a security for one represented purpose then using the current or future funds from it for another purpose as it relates to any violation of the Certificate of Obligation Act of 1971, Local Government Code, Chapter 271 and Texas Gov’t Code [TGC] 271.050 “The proceeds of Certificates of Obligations [CO] may be used only for the purposes for which the certificates were authorized and issued”.  And any violation of provisions of petition of five percent of voters to force any CO to a vote of approval for any purpose the originally represented CO funds be used for.  Any violation of TGC 271.0461 stating that the only other lawful use of certain represented Certificate of Obligations when the funds are transferred to a unrepresented purpose, is the destruction of dangerous buildings. Any violation of reimbursement including transfers to general fund, sinking fund laws and finally if the actions amount to a unlawful tax.  All the above is re the city and county current and future prospective use of CO public funds.

3. If Petitioner were to file a claim or suit re bus funds for Luther rehab it would be a ultra vires action for exceeding authority, re Petitioners standing via use of Bus system and petitioners mobility disability. Also petitioners standing as a registered voter re any dodging of city charter and its five percent of voters provision re Petitioner being a registered voter.  Petitioner standing re the County and ultra vires action of exceeding authority by transferring prior represented funds to sheriff radios and security fence, is property taxpayer to the County of El Paso.  And the Petitioner being a registered voter re any dodging by the county of  5 percent of voters petitions forcing a vote on a represented CO[if applicable].

4. Discovery is intended to be conducted under Level 1. Petitioner is a registered voter resident of El Paso, whose mailing address is POB 1561 El Paso, TX 79948. The Deponents are Public Officials who can be served at: City Hall, 300 N. Campbell El Paso, Texas 79901 and El Paso County Courthouse, 500 E San Antonio, E Paso, Texas 79901 and Sheriff Wiles at: 3850 Justice, El Paso, TX 79938. The court has jurisdiction over the defendants based upon both specific and general jurisdiction. The court has subject matter jurisdiction because the issue in controversy exceeds the minimum thresholds. Venue is proper in this county per TRCP 202.
                                                                                          FACTS
5. On July, 23rd 2013 the city enacted a ordinance transferring represented certificates of obligation earmarked for the Montana Rapid Bus to the City Hall Luther Building for its rehab.

Ordinance Electronic Exhibit 1 http://www.elpasotexas.gov/muni_clerk/agenda/07-23-13/07231310.pdf

Texas law requires CO’s only be used for the intended purpose they were originally represented, for one, in order to allow time for any protest petition forcing a vote.

Texas AG OP GA-0481 Electronic Exhibit 2 https://www.oag.state.tx.us/opinions/opinions/50abbott/op/2006/htm/ga0481.htm

The AG OP contains explanation of a ‘apples and apples’ usage with prior represented CO funds versus ‘apples and oranges’ and the dodging of 5 percent of voters petitions.

The city has stated it does not know where replacement funds will come from for the Montana Rapid Bus and may even have placed the matching federal funds in jeopardy with its action re the city representations to the federal government.

Petitioner does not own a car and uses the El Paso city bus system. Plaintiff has a mobility disability for which he receives SSDI. Plaintiff uses a cane. The Rapid Buses will include elevated platforms thus making it easier for plaintiff to enter bus. Not only may defendant’s action be in violation of TGC 271, TGC 271.050 and 271.0461 but also may be discrimination against the disabled Petitioner in violation of Texas law ie Texas Human Resources Code, Section 121.003 - 121.006  and the recreational and economic enjoyment of the bus system by the Petitioner.

Texas Comptroller:
http://www.texastransparency.org/yourmoney/pdf/TexasItsYourMoney-LocalDebt.pdf



 “Local governments that wish to issue a CO must
post a notice of intent to issue certificates in a local
newspaper once a week for two weeks; the first
notice must be at least 30 days before the date the
council, court or board is scheduled to vote on the
proposal. According to the Texas Local Government
Code, Chapter 271, the notice must identify the time
and place for the vote; the maximum amount and
purpose of the project; and the source of repayments
(tax- or revenue-backed). If 5 percent of voters in the
city or county submit a petition protesting the issue
before the CO is authorized by the council, court or
board, an election must be conducted to get voter
approval for the proposed debt.”

On or about August 6th, 2013 the county commissioners passed a law that made up shortfall for new sheriff radios with current and future prospective funds from CO funds prior represented for another purpose. In 2013 the sheriff used CO funds represented for another purpose for security fence[s].  On 10-8-13 the county finalized the county budget.

Re the county, Petitioner is a property taxpayer to the county of El Paso and protests the county ultra vires action re CO prospective funds in violation of any federal or state law, specifically TGC 271, TGC 271.050 and TGC 271.0461 by exceeding county authority.

http://www.leagle.com/decision/In%20TXCO%2020121213701 Santos v. City of Robstown- RIDC, Court of Appeals of Texas, Thirteenth District, Corpus Christi, Edinburg.

        “ Delivered and filed December 13, 2012. “The ordinance secured the payment of the certificates “by and payable from a limited pledge of the net revenues of the [C]ity’s waterworks and sewer system.” The City Council is violating the [CO] Act by using bond proceeds to demolish the present city hall when section 271.0461 of the Act provides that such bond proceeds may only be used when demolishing dangerous structures; • The City has failed to comply with the statutory requirements for reimbursement; • Any payment of the certificates from sanitary sewer system fees is an illegal tax; and • The City cannot bind the RIDC to pay on the certificates for forty years without the creation of an interest and sinking fund. Appellants complain that the City’s allegedly illegal actions, through Mayor Ramon, pledged revenues from the sewer systems to issue the certificates of obligation for the construction of a new city hall and not for a sewer treatment or collection project. Appellants assert that they also made ultra vires allegations against Mayor Ramon related to the City’s financial condition, such as the transfer of bond funds to the City’s general account without complying with statutory requirements for reimbursement. In addition, appellants assert that the RIDC, through its president, performed nondiscretionary acts unauthorized by law. They claim that through Gonzalez’s actions long-term debt was created without establishing an interest and sinking fund, funds were encumbered and public funds were transferred without authority to the City’s general fund to pay for the construction of a new city hall. Based on the above, we conclude that Mayor Rodriguez and RIDC President Gonzalez are not immune from appellants’ lawsuit, which includes claims intended to bring future acts into compliance with the statute and the constitution and to restrain prospective governmental expenditures. REVERSE AND REMAND”

                                       6.  CASE LAW

 Coastal Habitat Alliance v. PUC of Tex. 294 S.W.3d 276 July 8, 2009, Filed. “This Court has held that "[a]n injury need not affect 'vested' property rights to confer standing" and, thus, "the harm [for purposes of standing] may be economic, recreational, or environmental."  Texas Rivers Prot. Ass'n v. Texas Natural Res. Conservation Comm'n, 910 S.W.2d 147 “Declaratory judgment actions may be maintained against the government to have an ultra vires act declared void.” Texas Highway Com'n, 372 S.W.2d 525 Cobb 190 S.W.2d 709 (Declaratory judgment action is not a suit against the State because it does not seek damages).  Director,600 S.W.2d 264  A plaintiff may seek injunctive relief when the government acts in a way that exceeds its authority. Heinrich 284 S.W. 3d at 376 “Like taxpayer standing, immunity for an ultra vires act is only a waiver with respect to use of government funds”

7. Re the City- The name,  address and phone number of the persons petitioner seeks to depose and who’s testimony is or may be adverse in investigation of a potential claim or suit:  Oscar Leeser, Joyce Wilson and Eddie Holguin Jr who’s shared address is: City Hall, 300 N. Campbell, El Paso Texas 79901 and shared phone:  541-4000.

Re the County- The name, address and phone number of the persons petitioner seeks to depose and who's testimony is or may be adverse in investigation of a potential claim or suit: Richard Wiles, Vince Perez and Veronica Escobar is: El Paso County Courthouse 500 E San Antonio, 3rd Fl, El Paso, Texas 79901. Shared  Phone : 546-2000.

NOTE:  Sheriff Wiles however address and phone number is:  Sheriff Richard Wiles 3850 Justice, El Paso, TX 79938. Phone 538-2217

8.  Petitioner’s reason for desiring to obtain the depositions is to determine if a claim or suit can or should be pursued. The benefit of allowing the depositions outweighs the burden or expense of the procedure because written questions depositions versus oral depositions can be completed in a reasonable time and manner at little cost. Petitioner notes under TRCP 202 anyone with relevant information can be deposed. The path Petitioner is choosing under TRCP 202 is TRCP 202.02, and thus a lawsuit is not anticipated at this time. Petitioner attempted to obtain information via the TPIA but was unable to obtain enough information to file a regular lawsuit. Deponents  are public officials and Petitioner seeks to question the deponents about official actions they took re above facts.

9.  WHEREFORE, PREMISES CONSIDERED, Petitioner requests that:

The Court set a date for hearing on this Petition;

The Court, after hearing arguments, find that allowing Petitioner to take the requested depositions via written questions to investigate a potential claim or suit outweighs the burden or expense of the procedure;

The Court issue an order authorizing Petitioner to take the depositions of the deponents via written questions and that Deponents return answers to the written questions to the Petitioner within 30 days of service of the written questions;

Any other relief or right the Petitioner may be justly entitled.


Respectfully Submitted,                           Carl Starr, PO Box 1561, El Paso, TX, 79948 carlstarr@hotmail.com

                                                                                                                                                                           VERIFICATION
COUNTY OF EL PASO
STATE OF TEXAS
Before me, a notary public, on this day personally appeared Carl Starr, known to me to be the person whose name is subscribed to the foregoing document and, being by me first duly sworn, declared that the statements therein contained are true and correct.