2019-CI-20587
called "Plaintiff", who files this Original Petition against BEXAR COUNTY, BEXAR COUNTY
seeking a declaration and ancillary injunctive relief in her claim to try title to the Office of Bexar
County Constable, Precinct 2, and would respectfully show the Court as follows:
1. Discovery in this case should be conducted in this case under Level 2 pursuant to
Texas Rule of Civil Procedure 190.3. Plaintiff CONSTABLE MICHELLE BARIENTES VELA
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was elected in 2016 and serves as Constable in Bexar County. Her four-year term ends
2. On September 25, 2019, Defendants with the Bexar County Commissioner’s Court—
without making any recorded fact-finding that a vacancy existed in the Office of Constable of
Precinct 2—announced that they would be seeking applications for the position of Constable for
Precinct 2 starting Wednesday, September 25, 2019 and would appoint in a special session a new
Constable on October 2, 2019. The Commissioner’s Court decision to declare the position
vacant and post the Constable position occurred without them complying with the Texas Open
automatically resigned from the Office of Constable Precinct 2, pursuant to Texas Constitution
XVI, Section 65(b), when she made an announcement for county sheriff.
BARIENTES VELA did not “announce” her candidacy nor “in fact a candidate” for sheriff
before the end of her term. On Monday September 23, 2019, she learned to her shock that Texas
Rangers, FBI, and Deputies from the Sherriff's Office were attempting to execute a search
warrant at the office she was elected to serve by her constituents. On Monday, September 23,
2019, while this was going on, she was in a state of shock as to the raid while watching what was
occurring when she made the statement about sheriff. At this time, with what was going on
Plaintiff’s office, she made an “excited utterance” rather than a “formal political declaration” to
seek the sheriff's seat in 2020, in the heat of the moment without having time to reflect upon it.
4. Plaintiff CONSTABLE VELA did not request financial support, votes, or any other
kind of support for sheriff. She did not complete a primary ballot application, submit any filing
fees or filings, nor did she designate a campaign treasurer for sheriff.
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5. Prior to taking action or any fact-finding to appoint a Constable for Precinct 2, the
Bexar County Commissioner’s declared that a vacancy existed in the Office of Constable for
Precinct 2. Furthermore, Defendants did not seek a declaration from a district court of that
essential fact. Based on the evidence, any finding that CONSTABLE VELA had automatically
resigned would be erroneous and prejudicial. No vacancy existed in the Office of Constable
6. Plaintiff CONSTABLE VELA asks this Court to declare that she never resigned from
the office of Constable, that the Commissioner’s appointment should be enjoined, that
CONSTABLE VELA is entitled to remain the constable, and she is to receive full pay, benefits,
PARTIES
County Constable of Precinct 2 and may be served in this case through her attorney of record.
8. Defendant BEXAR COUNTY is sued and can be served by serving County Judge
Nelson W. Wolff who may be served at 101 W. Nueva, San Antonio, Texas, 78205.
9. Defendant NELSON W. WOLFF is sued in his official capacity as County Judge and
a member of the Bexar County Commissioner’s Court and may be served at 101 W. Nueva, San
RODRIGUEZ is sued in his official capacity as County Commissioner and member of the Bexar
County Commissioner’s Court and may be served at 101 W. Nueva, San Antonio, Texas, 78205.
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11. Defendant PRECINCT 2 COUNTY COMMISSIONER JUSTIN RODRIGUEZ is
sued in his official capacity as Precinct 2 County Commissioner and member of the Bexar
County Commissioner’s Court and may be served at 101 W. Nueva, San Antonio, Texas, 78205.
his official capacity as Precinct 3 County Commissioner and member of the Bexar County
Commissioner’s Court and may be served at 101 W. Nueva, San Antonio, Texas, 78205.
sued in his official capacity as Precinct 4 County Commissioner and member of the Bexar
County Commissioner’s Court and may be served at 101 W. Nueva, San Antonio, Texas, 78205.
JURISDICTION
14. This District Court has appellate jurisdiction and general supervisory control over the
Bexar County Commissioner's Court, with such exceptions and under such regulations as may be
prescribed by law. TEXAS CONSTITUTION, Article 5, Section 8. The legislation enabling the
district court jurisdiction over the Commissoner's Court repeats the word of article 5, section 8 of
the Constitution. TEX. GOV’T CODE, 24.020. If the Commissioner’s Court acts illegally,
unreasonably, or arbitrarily, a district court may so adjudge. Comm’rs Court of Titus County v.
Agtan, 940 S.W. 2d 77, 80 (Tex. 1997). In this case to try title to the Office of Constable, it is
appropriate to use the procedural mechanism of the Uniform Declaratory Judgments Act,
Chapter 37 of Tex. Civ. Prac. & Rem. Code. This Court also has jurisdiction under the Texas
VENUE
15. In a suit against members of the Bexar County Commissioner’s Court, venue is
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DECLARATORY JUDGMENT
paragraphs set forth above, as if set out fully, herein, in support of her request for Declaratory
Judgment. Constable Vela seeks a declaration under the Uniform Declaratory Judgment Act that
she did not automatically resign her office as Constable by the action, but more so by the actions
shed did not take, in becoming a candidate for county sheriff because she did not in fact
announce or in fact become a candidate for sheriff at a time when there was more than one year
17. Plaintiff CONSTABLE VELA seeks declaration that prior to and following
September 23, 2019, she is the lawful holder of the Office of Constable and, as such, is entitled
to all salary, benefits, retirement credits, and standing to which the holder of that office has been
entitled. The Bexar County Commissioner’s Court should be ordered to take all action necessary
to make CONSTABLE VELA whole for any loss of income, benefits, retirement credits and
other emoluments to which she is entitled as the Bexar County Commissioner’s Court
18. Plaintiff CONSTABLE VELA seeks a declaration that any appointment by the
Commissioner’s Court would be unlawful and an abuse of discretion in light of the facts.
to prevent the Defendants from appointing a replacement Constable for Precinct 2. The Bexar
County Commissioners have set a special session for Wednesday, October 2, 2019 to make the
appointment.
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20. Plaintiff has alleged a cause of action against Defendants, and as indicated in this
incorporated by reference. Plaintiff has shown a probable right of recovery and likelihood of
success on the merits, Plaintiff will suffer imminent and irreparable harm without Court
21. As a direct and proximate result of Defendants’ wrongful actions as alleged in this
Petition, Plaintiff has suffered and will continue to suffer imminent injury that will be irreparable
and for which no remedy at law exists without the protections of a temporary restraining order
and injunctive relief. Plaintiff is willing to post the necessary reasonable bond to facilitate the
22. The only adequate, effective, and complete relief to Plaintiff is to restrain the
Defendants from further engaging in certain proscribed activities, as set forth below. Pursuant
to Tex. R. Civ. P. 680 et seq. and Tex. Civ. Prac. & Rem. Code § 65.001 et seq., and in order to
preserve the status quo during the pendency of this action, Plaintiff seeks a temporary restraining
order, and on hearing, a temporary and permanent injunction, ordering and immediately
a. Enjoining Defendants from appointing a new Constable for Precinct 2 until this
lawsuit is resolved.
23. Should the above declarations be granted by the Court and Defendants not act
promptly in accordance with such declarations, Plaintiff CONSTABLE VELA seeks ancillary
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OPEN MEETINGS VIOLATION
BARRIENTES VELA’s job and accepting applications without first holding a public meeting or
complying with the Government Code section 551.101 to post a meeting, Defendant
CONDITIONS PRECEDENT
25. All conditions precedent have been performed or have occurred. Pursuant to Local
filed a claim with the County Judge. Plaintiff CONSTABLE VELA does not waive her right,
pursuant to Local Government Code Section 89.004(c) and other law, to proceed with this
lawsuit, including claim for declaratory and injunctive relief, without further presenting this
ATTORNEY FEES
26. Plaintiff CONSTABLE MICHELLE BARIENTES VELA has retained the firm of
Les Law Group, PLLC to represent her in this action and has agreed to pay reasonable attorney
and necessary attorney’s fees. An award of reasonable and necessary attorney fees to Plaintiff
would be equitable and just and therefore authorized by section 37.0009 of the Civil Practice and
Remedies Code. Plaintiff CONSTABLE VELA also seeks reasonable and necessary attorney
fees associated with her Open Meetings Act claim pursuant to Government Code Section
551.142(b).
JURY DEMAND
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PRAYER
requests that Defendants be cited to appear and answer and that the Court: issue declaratory
judgment requested herein; grant ancillary injunctive relief as requested; award reasonable
attorney fees and taxable costs of this lawsuit; and grant to Plaintiff such other and further relief,
Respectfully Submitted:
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