William Paul Hunt and ADE-WIFCO Steel Products Inc. ("ADE"), and Others Similarly Situated v. City of Diboll, Texas, John McClain, in His Official Capacity as Mayor of the City of Diboll, Steve Baker, in His Official Capacity as Chief of Police of the City of Diboll, Gerry Boren, in His Official Capacity as City Manager of City of Diboll

ACCEPTED
12-17-00001-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
11/27/2017 4:16 PM
Pam Estes
CLERK

NO. 12-17-00001-CV

IN THE COURT OF APPEALS FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
FOR THE TWELFTH COURT OF 11/27/2017 4:16:03 PM
PAM ESTES
Clerk
APPEALS DISTRICT

AT TYLER, TEXAS
__________________________________________________________________

WILLIAM PAUL HUNT AND ADE-WIFCO STEEL PRODUCTS INC., and
Others Similarly Situated, APPELLANTS

V.

CITY OF DIBOLL, TEXAS, ET. AL. APPELLEES
__________________________________________________________________
On Appeal from the 217TH Judicial District Court
Angelina County, Texas, Cause No. CV-00370-16-06
__________________________________________________________________
APPELLANTS WILLIAM PAUL HUNT, ET. AL.
MOTION FOR REHEARING
__________________________________________________________________
Respectfully submitted,

Russell J. Bowman
Texas State Bar No. 02751550
russelljbowman@sbcglobal.net
Scott A. Stewart
Texas State Bar No. 19218300
800 West Airport Freeway, Suite 860
Irving, Texas 75062
(214) 922-0220
(214) 922-0225 (FAX)
ATTORNEY FOR APPELLEES
ORAL ARGUMENT REQUESTED

APPELLANTS’ MOTION FOR REHEARING - Page 1
 TABLE OF CONTENTS

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

FIRST ERROR - COURT’S FINDING NO ULTRA VIRES ACTS PLED. . . . . . 5

A. Ultra Vires Claims Pled by Hunt Et. Al.. . . . . . . . . . . . . . . . . . . . . . . 5

B. Hunt Et. Al.’s Pleading Sufficient Alleges Ultra Vires Claims. . . . . . 8

C. Rules Re: Construction of a Pleading Shows
Ultra Vires Claims Were Sufficiently Pled.. . . . . . . . . . . . . . . . . . . . . 9

SECOND ERROR - COURT’S ERROR FOR REMEDIES
AVAILABLE FOR ULTRA VIRES ACT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

A. Ultra Vires Claim is in Effect Suit Against the
Government Entity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B. Heinrich Did Bot Create or Expand Immunity
For Ultra Vires Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

THIRD ERROR - FAILURE TO ALLOW OPPORTUNITY
TO REPLEAD. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

FOURTH ERROR - NO JURISDICTION TO DECLARE
ORDINANCE 06-07 UNCONSTITUTIONAL. . . . . . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION AND PRAYER. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDIX. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

APPELLANTS’ MOTION FOR REHEARING - Page 2
 INDEX OF AUTHORITIES

CASES:

Brennan v. City of Willow Park,
376 S.W.3d 910, 922-23 (Tex.App.-Fort Worth 2012, rev. denied). . . . . . . . . . . 14

Camacho v. Samaniego,
954 S.W.2d 811, 822 (Tex.App.-El Paso 1997, pet. denied). . . . . . . . . . . . . . . . . 14

City of Denton v. Van Page,
701 S.W.2d 831, 834 (Tex. 1986). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

City of El Paso v. Heinrich,
284 S.W.3d 366, 371 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-15

Daniels v. Allen,
811 S.W.2d 278, 280 (Tex.App.-Tyler 1991, no writ).. . . . . . . . . . . . . . . . . . . . . 10

Hall v. McRaven,
508 S.W.2d 232, 238 (Tex. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10

Houston Belt & Terminal Ry. Co. v. City of Houston,
487 S.W.3d 154, 158 (Tex. 2016).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 12, 13

Kubosh v. Harris County,
416 S.W.3d 483, 487 (Tex.App.-Houston [1st Dist.] 2013, rev. denied). . . . . . . . 14

McDaniel v. Town of Double Oak,
2012 WL 662367, at *8 (Tex.App.-Fort Worth 2012). . . . . . . . . . . . . . . . . . . . . . 14

Passel v. Fort Worth Indep. Sch. Dist.,
440 S.W.2d 61, 63 (Tex. 1969). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

State v. Morales,
869 S.W.2d 941, 947-48 (Tex. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

APPELLANTS’ MOTION FOR REHEARING - Page 3
Texas A & M Univ. Sys. v. Koseoglu,
233 S.W.3d 835, 839 (Tex. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11, 16, 17

Texas Dep’t of Parks & Wildlife v. Miranda,
133 S.W.3d 217, 226 (Tex. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

CODES:

Texas Civil Practices and Remedies Code §§ 101.001-101.009. . . . . . . . . . . . . . 19

Texas Government Code § 311.016(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Texas Transportation Code Chapter 707. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 7

Texas Transportation Code § 707.003(c) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-10

Texas Transportation Code § 707.003(e). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8

Texas Transportation Code § 707.003(f). . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8-10

CONSTITUTION:

Article I, Section 10, Texas Constitution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

ORDINANCES:

Diboll Ordinance 06-07.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 17-21

RULES:

TRAP 9.4(i)(1).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TRAP 9.4(i)(2)(D). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

TRAP 49. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

APPELLANTS’ MOTION FOR REHEARING - Page 4
 Appellants, William Paul Hunt (Hunt), ADE-WIFCO Steel Products Inc.

(“ADE”) and others similarly situated, file this Motion for Rehearing pursuant to

TRAP 49, and show the following in support of same. In filing this motion, Hunt,

ADE, and others similarly situated, do not waive any previous arguments made to this

Court.

FIRST ERROR -
COURT’S FINDING NO ULTRA VIRES ACTS PLED

This Court holds on page 20 of its opinion that no ultra vires act is alleged by

Hunt, et. al. that the Diboll city officials acted without legal authority. That holding

is incorrect. The ultra vires acts engaged by the Diboll city officials is the imposition

of red light camera penalties in violation of Transportation Code Section 707.003(f).

This Court, in its opinion, only references to the ultra vires discussion in Appellants'

brief, but does not analyze the actual pleadings of Appellants, which clearly show

ultra vires claims have been properly pled.

A. Ultra Vires Claims Pled by Hunt Et. Al.

In this case, the pleadings setting forth the factual allegations supporting an

action against the individual defendants in their official capacity, including setting

forth an ultra vires claim, are found in paragraphs 11, 39, 40, 41, 42, 47, 48, 49, 50,

and 52 of Plaintiffs' Fourth Amended Petition, the pleading relevant to this matter.

(CR3, pp. 179, 192-196, 200-202).
APPELLANTS’ MOTION FOR REHEARING - Page 5
 In paragraph 11, in relation to Ordinance 06-07 (the Ordinance), Appellants

allege that the individual Defendants acting in their official capacities have

implemented, authorized the installation of a red light camera enforcement system

and assessed civil penalties without complying with the requirements of Section

707.003 of the Texas Transportation Code and that the collection of the penalties are

"invalid, unlawful, illegal, void, of no effect and/or unauthorized." (CR3, p. 179).

Appellants further allege "Accordingly, Defendants Baker, McClain and/or Boren,

acting in their official capacities, either singularly or in combination, have been

enforcing a red light ordinance in the City of Diboll which conflicts with Chapter

707, and are therefore in violation of the law, acting ultra vires and/or without

authority, so that the red light penalties assessed by the City of Diboll asserting a

violation of Sections 9-39(6) and/or (7) are unenforceable. (CR3, pp. 179-180).

In Paragraph 50, Appellants alleged:

"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 the City of
Diboll's red light camera enforcement system. These
official acts of theirs, if acting pursuant to Ordinance
No. 01-14, were in violation of law...

CR3, pp. 200-201.

Hunt, et. al. specifically alleged Defendants Baker, McClain and Boren, acting

APPELLANTS’ MOTION FOR REHEARING - Page 6
in their official capacities with the City of Diboll, either singularly or in combination,

authorized and permitted the installation and operation of red light camera systems

in the City of Diboll in violation of Texas law, including Chapter 707 of the Texas

Transportation Code (“Chapter 707”), and in their official capacities caused the

issuance and collection of red light camera penalties which were invalid, unlawful,

illegal, and/or unauthorized, because of the failure of Defendants City of Diboll, or

Defendants Baker, McClain and/or Boren, acting in their official capacities, either

singularly or in combination, to comply with the requirements of Chapter 707 by:

failing to conduct the traffic engineering study or studies required by Section

707.003(c) of the Texas Transportation Code, failing to appoint a citizens advisory

committee required by Transportation Code Section 707.003(e), failing to report the

results of the traffic engineering study required by Section 707.003(c) to a citizens

advisory committee as required by Transportation Code Section 707.003(e), and/or

by providing for a red light camera penalty in an amount greater than that allowed by

Transportation Code Section 707.007. CR3, p. 179.

Hunt et. al. further alleged Diboll failed to conduct the traffic engineering study

required by Transportation Code Section 707.003(c), the effect of which under

Transportation Code Section 707.003(f), prohibits Diboll and/or Defendants Baker,

McClain and Boren, acting in their official capacities with Diboll, either singularly

APPELLANTS’ MOTION FOR REHEARING - Page 7
or in combination, from imposing any red light camera penalty against Plaintiffs.

CR3, pp. 193-194. Hunt et. al. further alleged Diboll failed to appoint a citizens

advisory committee required by Transportation Code Section 707.003(e), and failed

to report the results of the traffic engineering study required by Transportation Code

707.003(c) to the citizens advisory committee as required by Transportation Code

Section 707.003(e), requirements which were mandatory, so that Diboll and/or

Defendants Baker, McClain and Boren, acting in their official capacities with Diboll,

either singularly or in combination, were precluded from assessing any of the red

light camera penalties involved in this lawsuit. CR3, pp. 194-195.

B. Hunt Et. Al.’s Pleading Sufficiently Alleges Ultra Vires Claims

As this Court noted in Hall v. McRaven, 508 S.W.3d 232, 238 (Tex. 2017), in

Houston Belt & Terminal Ry. Co. v. City of Houston, 487 S.W.3d 154, 158 (Tex.

2016) this Court clarified what it means for a government official to act “without

legal authority”. A government official acts “without legal authority”, and thus ultra

vires, if the official exceeds the bounds of his/her granted authority, or if his/her acts

conflict with the law itself. Hall, 508 S.W.3d at 238.

Transportation Code Section 707.003(f) cannot be any clearer. It leaves

nothing to the exercise of discretion or judgment. Under Section 707.003(f), a city

“may not” impose a civil penalty on a vehicle owner if the city has failed to conduct

APPELLANTS’ MOTION FOR REHEARING - Page 8
the traffic engineering study required by Section 707.003(c). The term “may not”

imposes a prohibition and is synonymous with “shall not”. V.T.C.A., Government

Code § 311.016(5). It is clearly alleged Diboll did not perform the required traffic

engineering study. CR3, pp. 179 & 193-195. This Court must accept such

allegations as true. Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217,

226 (Tex. 2004). A clear ultra vires act has been pled by Hunt et. al. That being

Defendants, Baker, McClain and Boren, acting in their official capacities with Diboll,

either singularly or in combination, assessed red light camera penalties when they

were prohibited under Transportation Code Section 707.003(f) from doing so because

of the failure to conduct the engineering study required by Transportation Code

Section 707.003(c).

Hunt et. al.’s allegations that Defendants Baker, McClain and Boren acting in

their official capacities, assessed penalties when no valid ordinance authorizing same

and in violation of Section 707.003(c),(e) and(f) which then prohibited them from

assessing any penalties clearly alleges the officials exceeded the bounds of their

granted authority, or their acts conflict with the law itself, thus it was alleged the acts

were ultra vires.

C. Rules Re: Construction of a Pleading Shows
Ultra Vires Claims Were Adequately Pled

APPELLANTS’ MOTION FOR REHEARING - Page 9
 As this Court noted in Daniels v. Allen, 811 S.W.2d 278, 280 (Tex.App.-Tyler

1991, no writ), the key to determining whether a cause of action has been pled is

whether there are sufficient allegations to give fair notice of the claim, not whether

certain words are used in certain portions of the petition. Here, it is specifically

alleged Diboll failed to conduct the engineering study required by Section 707.003(c),

which prohibited Defendants under Section 707.003(f) from imposing any red light

camera penalty. CR3, pp. 179 & 193-195. Additionally, this Court has found that

Ordinance 01-14 did not provide any legal authority to assess the penalties since it

was not in effect at any time material to this cause, and therefore any alleged penalties

assessed by the officials pursuant to 01-14 were clearly assessed without authority.

By imposing red light camera penalties when expressly prohibited under

Transportation Code Section 707.003(f) from doing so, the Diboll city officials were

acting in direct conflict with Transportation Code Section 707.003(f). This is clearly

pled by Hunt et. al., and clearly constitutes an ultra vires act under Hall and Houston

Belt. This Court’s holding otherwise, in direct contradiction of Hall and Houston

Belt, is error.

Construing Appellants’ pleading liberally in the Appellants’ favor and looking

to the pleaders intent, it is apparent that the intent was to state ultra vires claims

against Defendants Baker, McClain and Boren, that there are sufficient factual

APPELLANTS’ MOTION FOR REHEARING - Page 10
allegations to fairly place all parties on notice that Appellants are bringing an ultra

vires claim and that the Court’s holding otherwise is error, which should be corrected

by the Court issuing a new opinion on rehearing and finding that ultra vires acts were

properly pled in this matter against Defendants, Baker, McClain and Boren, in their

official capacities with Diboll.

SECOND ERROR - COURT’S ERROR FOR REMEDIES
AVAILABLE FOR ULTRA VIRES ACT

On page 21 of its opinion, this Court holds the only remedy available for an

ultra vires act claim is prospective relief. That is incorrect.

A. Ultra Vires Claim is in Effect Suit Against the Government Entity

The ultra vires exception to sovereign/governmental/official immunity involves

the situation where the State or political subdivision, through its officials, is acting

without authority or in violation of the law. Under this exception, ultra vires claims

must be brought against the state or government actor in his or her official capacity.

Heinrich, 284 S.W.3d at 372-373 (Tex. 2009).

It is fundamental that a suit against a governmental official is merely another

way of pleading an action against the entity of which the official is an agent. Tex. A

& M Univ. Sys. v. Koseoglu, 233 S.W.3d 835, 844 (Tex. 2007). A suit against an

official in his official capacity is in all respects other than name, a suit against the

entity. Koseoglu, 233 S.W.3d at 844. In an ultra vires claim, although the judgment
APPELLANTS’ MOTION FOR REHEARING - Page 11
that may be rendered against the government official is in his or her official capacity,

such a judgment is ultimately against the entity (in this case the City of Diboll) for

whom the official works, as liability against the city in an ultra vires claim is obtained

by suing the city official in his or her official capacity. Heinrich, at 373 & 377 fn. 10.

B. Heinrich Did Not Create or Expand Immunity for Ultra Vires Claims

Ultra vires claims do not invoke governmental immunity. See Houston Belt &

Terminal Railway Co. v. City of Houston, 487 S.W.3d 154, 158 fn. 1 (Tex. 2016),

where the Court held:

We have often referred to the ultra vires doctrine as an
exception to governmental and sovereign immunity, and
we continue to do so today. However, some clarification
is warranted. Our usage should not be read to imply that
governmental immunity applies and that ultra vires is then
an exception to that application; rather when a
government officer is sued for allegedly ultra vires acts,
governmental immunity does not apply from the
outset....

Houston Belt, 487 S.W.3d at 158 fn. 1. (Emphasis added).

The Court further noted in Houston Belt that Heinrich did not expand

governmental immunity, noting:

Indeed, in the seven years since Heinrich, we have spoken
a number of times on the intersection of the ultra vires
exception and governmental immunity. In doing so, we
have confirmed that Heinrich did not expand
governmental immunity’s reach or diminish the ultra

APPELLANTS’ MOTION FOR REHEARING - Page 12
 vires exception....

Houston Belt, 487 S.W.3d at 162. (Emphasis added).

Thus, any ultra vires act claim against a city official in his or her official

capacity for reimbursement, like what is being asserted in this case for reimbursement

and a takings claim, are not barred by immunity, since those claims (as correctly

recognized by this Court) are ones that are not barred by immunity against the

government unit.

In writing on the issue of prospective versus retrospective relief , the Heinrich

Court in Heinrich stated the rule against retrospective relief "is not absolute".

Heinrich 284 S.W.3d at 376. The Court in Heinrich then noted that a takings claims

based on ultra vires acts are not barred by immunity. Heinrich, 284 S.W.3d at 376.

This alone shows this Court’s holding that ultra vires claims only allow for

prospective relief is not the case.

Are the claims asserted by Plaintiffs barred by immunity? The answer is clearly

no. As this Court noted on pages 17-19 of its opinion, the reimbursement and takings

claims being brought in this matter are not barred by immunity. Such claims having

been brought against the Diboll city officials as ultra vires acts are likewise not

barred by immunity.

Thus, where a claim for reimbursement is being made because of government

APPELLANTS’ MOTION FOR REHEARING - Page 13
officials assessing an unlawful fee or penalty in violation of a statute, such a claim

is brought against the appropriate government official in his or her official capacity,

and is not barred by immunity. This is illustrated by Camacho v. Samaniego, 954

S.W.2d 811, 820-821 (Tex.App.-El Paso 1997, rev. denied), where the Court held that

where the sheriff was assessing a fee in violation of statute, the claim for the refund

of such unlawful fee was against the sheriff in his official capacity.

All Heinrich did was maintain the law that claims for monetary relief which are

barred by immunity continue to be barred by immunity, whether such are brought

against the governmental unit itself, or against the governmental official by an ultra

vires act. A claim for reimbursement of money unlawfully collected by the

governmental unit is not a claim for property belonging to the government, so

immunity does not apply. The cause of action for reimbursement has been recognized

multiple times since Heinrich. See Brennan v. City of Willow Park, 376 S.W.3rd

910 (Tex. App. – Fort Worth 2012, pet. denied); McDaniel v. Town of Double Oak,

No. 02-10-00452-CV, 2012 WL 662367, at *8 (Tex. App.—Fort Worth Mar. 1, 2012,

pet. denied) (mem. op.); Kubosh v. Harris County, 416 S.W.3d 483 (Tx.App.-

Houston [1st Dist.] 2013, pet. denied).

Appellants submit that the rule following Heinrich is best stated as follows:

Ultra vires actions are not barred by immunity, The relief available in an ultra vires

APPELLANTS’ MOTION FOR REHEARING - Page 14
action is limited to prospective relief, unless the claim for retrospective relief,

including the payment of money, is itself not barred by immunity. Therefore, such

a reimbursement claim, or a takings claim, brought as an ultra vires claim against the

city official in his or her official capacity like what is being brought in this case, is

not a claim for retrospective monetary relief prohibited by Heinrich.

In summary, if the claim for reimbursement is not barred by immunity, it is not

barred by immunity if such has to be brought against the city official in his official

capacity. This is clearly the case as to the ultra vires claims alleged by Hunt et. al.,

so that such claims are not barred by immunity. This Court needs to issue a corrected

opinion on rehearing holding Hunt et. al. have properly alleged ultra vires claims

against the Diboll city officials in their official capacity for common law

reimbursement and a takings claim, and that such claims are not barred by immunity.

THIRD ERROR - FAILURE TO ALLOW
OPPORTUNITY TO REPLEAD

Without waiving the point that Appellants adequately plead an ultra vires

action, Appellants would also show the court erred in failing to provide Appellants

an opportunity to replead and cure any perceived deficiency in their ultra vires

pleading

The Texas Supreme Court holds that a plaintiff generally deserves a reasonable

opportunity to amend pleadings to cure a defect in jurisdiction. Texas A & M Univ.
APPELLANTS’ MOTION FOR REHEARING - Page 15
Sys. v. Koseoglu, 233 S.W.3d 835, 839 (Tex. 2007). A plaintiff may stand on his

pleadings in the face of a plea to the jurisdiction unless and until a court determines

that the plea is meritorious. Koseoglu, 233 S.W.3d at 839.

In this regard Hunt et. al. would show the Haddix and Tara Partners cases

relied upon by the Court on page 21 of its opinion are materially different than this

case, such that the general rule to provide an opportunity to amend, as recognized in

by the Court in its opinion, should be afforded Appellants.

Of particular distinction, in Haddix and Tara Partners, a challenge to the

sufficiency of the pleading was actually raised in the trial court and the party did not

make any effort to amend before the Court's ruling. In the present case, Appellants

filed their Fourth Amended Petition on December 2, 2016 setting forth the ultra vires

claims identified above, shortly before the hearing on the plea to the jurisdiction,

which was held on December 6, 2016. CR3 p. 176. No challenge or complaint was

made by Defendants as to the sufficiency of the Appellants' ultra vires pleading in the

trial court or in this court. There was not any indication in the ruling of the trial court

that its decision was based in any part on an alleged deficiency in the pleading of

Appellants as to its allegations of ultra vires.

The only challenge raised with respect to Hunt et. al.’s ultra vires claims was

that they were limited to prospective injunctive relief, and they were moot. CR4, p.

APPELLANTS’ MOTION FOR REHEARING - Page 16
101. In their brief, Defendants merely asserted the ultra vires claims can only be

brought against the government official (which is what was done here) and the only

relief for an ultra vires claim was prospective injunctive relief. Diboll’s Brief, pp. 24-

25. The issue of whether ultra vires claims were sufficiently pled was not raised by

anyone until this Court did so in its opinion. By then, Hunt et. al. could not amend

their pleadings, because the lawsuit had been dismissed.

Under the principles stated in Koseoglu, Appellants were entitled to stand on

the sufficiency of their pleading until a challenge to them was raised and a ruling was

made that they were insufficient. The Court’s ruling that Hunt et. al. waived any right

to amend their pleading is incorrect. Upon rehearing, in the event the Court still finds

Appellants’ pleading as to ultra vires acts insufficient, the Court should correct this

error and remand the case to allow Hunt et. al. the opportunity to amend their

pleadings.

FOURTH ERROR - NO JURISDICTION TO DECLARE
ORDINANCE 06-07 UNCONSTITUTIONAL

On pages 7-8 of its opinion, this Court holds that Hunt et. al. cannot challenge

the constitutionality of Diboll Ordinance 06-07 under the test set forth in State v.

Morales, 869 S.W.2d 941, 947-48 (Tex. 1994). Hunt et. al. meet the test set forth in

Morales for a civil court to declare constitutionally invalid and enjoin enforcement

of Ordinance 06-07.
APPELLANTS’ MOTION FOR REHEARING - Page 17
 As this Court notes on page 6 of its opinion, under Morales, a civil court has

jurisdiction to declare a criminal statute constitutionally invalid and enjoin

enforcement of the statute when there is evidence the statute at issue is being

unconstitutionally applied by a rule, policy or other noncriminal means subject to a

civil court’s equity powers and irreparable injury to property rights is threatened.

Both of these tests are met here.

All of the red light camera tickets involved in this lawsuit, including those

issued to Plaintiffs Hunt and ADE, assert a violation of Ordinance No. 06-07 and

Section 9-39, allegedly occurring prior to November 10, 2016. (CR3, pp. 182 & 215

& CR5, pp. 51-54 ). As this Court notes on page 6 of its opinion, there is no dispute

that Ordinance 06-07 is a criminal ordinance.

The evidence in the record shows Diboll enforces Ordinance No. 06-07 in a

noncriminal manner. Diboll merely provides for a hearing before a hearing officer

(CR4, pp. 136 & 149 & CR5, pp. 51-54), where the vehicle owner gets no right to a

jury trial, no presumption of innocence, no requirement that Diboll prove guilt

beyond a reasonable doubt, or any other protection guaranteed under Article I,

Section 10 of the Texas Constitution for one charged with a crime. Diboll does not

initiate a criminal prosecution where a vehicle owner like Hunt can challenge the

constitutionality of 06-07. Therefore, vehicle owners like Hunt have no forum to

APPELLANTS’ MOTION FOR REHEARING - Page 18
challenge 06-07.

Further, the noncriminal means by which Diboll enforces Ordinance No. 06-07

not just threatens, but results in irreparable injury to property. As this Court notes on

page 3 of its opinion, Diboll placed a hold on the registration of Hunt’s vehicle. This

effectively prohibits Hunt from using the vehicle, since it has no valid registration,

and exposes Hunt to tickets and fines if he uses the vehicle with an expired

registration. Hunt faces irreparable injury for the loss of use of his vehicle if not

allowed this form to challenge Diboll’s action in illegally withholding the registration

on Hunt’s vehicle.

As this Court notes on page 6 of its opinion, the requirement of irreparable

injury is related to the adequacy of the remedy at law. Passel v. Fort Worth Indep.

Sch. Dist., 440 S.W.2d 61, 63 (Tex. 1969). Here, Hunt has no adequate remedy at law

for the loss of use of his vehicle. This is because Hunt could not sue Diboll for

damages for the loss of use of his vehicle, since Diboll would have immunity against

a suit for such damages. A political subdivision like Diboll is immune from suits for

damages except in the limited instances of injury arising out of the use of publicly

owned vehicles, premises defects, and conditions or use of property. City of Denton

v. Van Page, 701 S.W.2d 831, 834 (Tex. 1986); TEX. CIV. PRAC. AND REM.

CODE, Sections 101.001 - 101.009. Thus, Hunt has no remedy at law against Diboll

APPELLANTS’ MOTION FOR REHEARING - Page 19
or its city officials for the loss of use of his vehicle.

The only court in which Hunt can seek relief concerning the unlawful

registration hold placed on his vehicle is through a civil court. This is because Diboll

Ordinance No. 06-07 does not allow Diboll to have the registration on Hunt’s vehicle

to be withheld. Ordinance 06-07 only provides for a fine of $100. Therefore, Hunt

is facing injury (the withholding of the registration on his vehicle and loss of use

resulting from same) that is separate from the enforcement of the criminal ordinance

itself. The only court in which Hunt can obtain an injunction prohibiting Defendants

from placing a hold on the registration on Hunt’s vehicle is a court of equity, i.e., the

district court in which Hunt filed this lawsuit. Therefore, a civil court would have

jurisdiction to declare Ordinance 06-07 constitutionally invalid, and enjoin its

enforcement.

CONCLUSION AND PRAYER

For all of the above reasons, Appellants request this motion be granted, and the

Court issue a new opinion: (1) withdrawing those portions of its rulings regarding

that Appellants have not adequately pled ultra vires claims and finds such claims

have been properly pled; (2) alternatively, withdrawing their ruling regarding that

Appellants waived the right to amend their pleadings and allow Appellants the

opportunity to amend their pleadings regarding the ultra vires claims asserted by

APPELLANTS’ MOTION FOR REHEARING - Page 20
them; (3) withdrawing their ruling that ultra vires relief is limited to prospective

injunctive relief only, and holding that retrospective relief for ultra vires acts in the

form of constitutional takings claims and/or reimbursement claims for unlawful fines

and penalties are permitted; (4) withdrawing their holding the trial court lacks

jurisdiction to declare Ordinance 06-07 unconstitutional and holding the trial court

does have jurisdiction to declare Ordinance 06-07 unconstitutional and issue

injunctive relief precluding enforcement of same; and (5) in all other respects

maintaining the opinion issued by the Court.

Respectfully submitted,

/S/Russell J. Bowman
Russell J. Bowman
Texas State Bar No. 02751550
russelljbowman@sbcglobal.net
Scott A. Stewart
Texas State Bar No. 19218300
800 West Airport Freeway, Suite 860
Irving, Texas 75062
(214) 922-0220
(214) 922-0225 (FAX)
ATTORNEYS FOR APPELLEES

CERTIFICATE OF COMPLIANCE

This is to certify, in compliance with Rule 9.4(i)(2)(D) of the Texas Rules of
Appellate Procedure, that Appellees’ Amended Motion for Rehearing, not counting
those items excluded under TRAP 9.4(i)(1), consists of a total of 3,873 words. This
count was determined based on the word count of the computer program,
WordPerfect X5, used to prepare Appellees’ Amended Motion for Rehearing.
APPELLANTS’ MOTION FOR REHEARING - Page 21
 /S/Russell J. Bowman
Russell J. Bowman

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing document was sent
to all counsel of record indicated below, on this 27th day of November, 2017, as
indicated below:

Ms. Erika L. Neill VIA E-MAIL: eneill@acn.com
ALDERMAN CAIN & NEILL PLLC
122 East Lufkin Avenue
Lufkin, Texas 75901-2805

Mr. Thomas J. Williams VIA E-MAIL: thomas.williams@haynesboone.com
Haynes and Boone, LLP
301 Commerce Street, Suite 2600
Fort Worth, Texas 76102-4140

/S/Russell J. Bowman
Russell J. Bowman

APPELLANTS’ MOTION FOR REHEARING - Page 22
 APPENDIX

1. Plaintiffs’ Fourth Amended Petition (CR3, pp. 176-236)

APPELLANTS’ MOTION FOR REHEARING - Page 23
 TAB NO. 1

APPELLANTS’ MOTION FOR REHEARING - Page 24
 CAUSE NO. CV-00370-16-06

WILLIAM PAUL HUNT, and § IN THE DISTRICT COURT
OTHERS SIMILARLY SITUATED, §
Plaintiffs, §
§
v. § OF ANGELINA COUNTY, TEXAS
§
CITY OF DIBOLL, JOHN MCCLAIN, in his §
Official Capacity as Mayor of the City of §
Diboll, STEVE BAKER, in his Official §
Capacity as Chief of Police of the City of §
Diboll, GERRY BOREN, in his Official §
Capacity as City Manager of the City of §
Diboll, AMERICAN TRAFFIC SOLUTIONS, §
INC., AND AMERICAN TRAFFIC §
SOLUTIONS, LLC, §
Defendants. § 217TH JUDICIAL DISTRICT

PLAINTIFF’S FOURTH AMENDED PETITION

Plaintiffs, William Paul Hunt and ADE-WIFCO Steel Products Inc. (“ADE”), on behalf of

themselves and all others similarly situated (all collectively hereinafter referred to as “Plaintiffs”

where appropriate), file this Fourth Amended Petition, bringing this class action against all of the

Defendants named in this suit, seeking declaratory and injunctive relief against Defendants,

reimbursement from Defendants City of Diboll, or alternatively, John McClain, in his official

capacity as Mayor of the City of Diboll, Steve Baker, in his official capacity as Chief of Police of

the City of Diboll, and Gerry Boren, in his official capacity as City Manager of the City of Diboll,

of the unconstitutional, illegal and/or unlawful red light camera penalties assessed against Plaintiffs

involved in this lawsuit, and as to Defendants American Traffic Solutions, Inc. and American Traffic

Solutions, LLC (hereinafter collectively referred to as “ATS”), damages. In support of this Petition,

Plaintiffs would show the following:

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 1
 DISCOVERY CONTROL PLAN

1.

Plaintiffs designate 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.

Plaintiffs plead 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.

PARTIES

3.

Plaintiff, William Paul Hunt, is a citizen of the State of Texas, residing in Cass County,

Texas.

4.

Plaintiff ADE is a corporation formed and organized under the laws of the State of Kansas.

5.

Defendant City of Diboll is a Texas citizen, being a Texas municipality located in Angelina

County, Texas and incorporated under the laws of the State of Texas, who has appeared in this

lawsuit, and who may be served with this pleading by service on its attorney of record, Mr. Robert

Alderman, Jr., Alderman Cain & Neill, PLLC, 122 East Lufkin Avenue, Lufkin, Texas 75901-2805.

6.

Defendant John McClain, in his official capacity as Mayor of the City of Diboll, is a citizen

of the State of Texas, residing in Diboll, Angelina County, Texas, who has appeared in this lawsuit,

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 2
and who may be served with this pleading by service on its attorney of record, Mr. Robert Alderman,

Jr., Alderman Cain & Neill, PLLC, 122 East Lufkin Avenue, Lufkin, Texas 75901-2805.

7.

Defendant Steve Baker, in his official capacity as Chief of Police of the Diboll Police

Department, is a citizen of the State of Texas residing in Diboll, Angelina County, Texas, who has

appeared in this lawsuit, and who may be served with this pleading by service on its attorney of

record, Mr. Robert Alderman, Jr., Alderman Cain & Neill, PLLC, 122 East Lufkin Avenue, Lufkin,

Texas 75901-2805.

8.

Defendant Gerry Boren in his official capacity as City Manager of the City of Diboll, is a

citizen of the State of Texas residing in Diboll, Angelina County, Texas, who has appeared in this

lawsuit, and who may be served with this pleading by service on its attorney of record, Mr. Robert

Alderman, Jr., Alderman Cain & Neill, PLLC, 122 East Lufkin Avenue, Lufkin, Texas 75901-2805.

9.

Defendant, American Traffic Solutions, Inc. is a foreign corporation doing business in the

State of Texas, who has appeared in this lawsuit, and who may be served with this pleading by

service on its attorney of record, Mr. Thomas J. Williams, Haynes and Boone, LLP, 301 Commerce

Street, Suite 2600, Fort Worth, Texas 76102-4140.

10.

Defendant, American Traffic Solutions, LLC is a foreign corporation doing business in the

State of Texas, who has appeared in this lawsuit, and who may be served with this pleading by

service on its attorney of record, Mr. Thomas J. Williams, Haynes and Boone, LLP, 301 Commerce

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 3
Street, Suite 2600, Fort Worth, Texas 76102-4140.

NATURE OF SUIT

11.

This is an action under the Uniform Declaratory Judgment Act (Chapter 37.001 et. seq. of

the Civil Practice and Remedies Code) to declare Diboll Ordinance Sections 9-39(6) and (7) of

Chapter 9 of the Diboll Code of Ordinances (hereinafter “the Ordinance”), unconstitutional under

the Texas Constitution, and therefore void and of no effect. In the alternative, this action further

seeks declaratory judgment that Defendants Baker, McClain and Boren, acting in their official

capacities with the City of Diboll, either singularly or in combination, have authorized and permitted

the installation and operation of red light camera systems in the City of Diboll in violation of Texas

law, including Chapter 707 of the Texas Transportation Code (“Chapter 707”), and in their official

capacities, have caused the issuance of Notices of Infraction of the Ordinance, and the collection of

penalties therefrom which are invalid, unlawful, illegal, void, of no effect and/or unauthorized,

because of the failure of Defendants City of Diboll, or Defendants Baker, McClain and/or Boren,

acting in their official capacities, either singularly or in combination, to comply with the

requirements of Chapter 707 by: failing to conduct the traffic engineering study or studies required

by Section 707.003(c) of the Texas Transportation Code, failing to appoint a citizens advisory

committee Transportation Code Section 707.003(e), failing to report the results of the traffic

engineering study required by Section 707.003(c) to a citizens advisory committee as required by

Transportation Code Section 707.003(e), and/or by providing for a red light camera penalty in an

amount greater than that allowed by Transportation Code Section 707.007. Accordingly, Defendants

Baker, McClain, and/or Boren, acting in their official capacities, either singularly or in combination,

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 4
have been enforcing a red light camera ordinance in the City of Diboll which conflicts with Chapter

707, and are therefore acting in violation of the law, acting ultra vires, and/or without authority, so

that any red light camera penalties assessed by the City asserting a violation of Sections 9-39(6)

and/or (7) are void and unenforceable.

12.

This suit also seeks an injunction against all Defendants to enjoin them from operating any

red light camera systems and from attempting to enforce any alleged red light camera violations

pursuant to the Ordinance, because of the unconstitutionality of 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 pursuant to the Ordinance

unless and until they have complied with the requirements and all prerequisites necessary under

Chapter 707 to allow the assessment and collection of a red light camera penalty, including

conducting all traffic engineering studies required by Transportation Code Section 707.003(c), and

appointing a citizen advisory committee as required by Transportation Code Section 707.003(e), and

reporting the results of the traffic engineering study or studies to the citizens advisory committee as

required by Transportation Code Section 707.003(e).

13.

Additionally, Plaintiffs, who have paid any such unlawful red light camera penalties/fines

assessed by the City of Diboll and/or Defendants Baker, McClain and Boren, acting in their official

capacities with the City of Diboll, either singularly or in combination, pursuant to the City of

Diboll’s illegal red light camera enforcement system, assert a common law claim for reimbursement

against those Defendants, for all of the unlawful red light camera fines illegally assessed and

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 5
appropriated by those Defendants that are involved in this lawsuit. Alternatively, Plaintiffs, who

have paid any such unlawful red light camera penalties/fines assessed by the City of Diboll and/or

Defendants Baker, McClain and Boren, acting in their official capacities with the City of Diboll,

either singularly or in combination, pursuant to the City of Diboll’s illegal red light camera

enforcement system, seek against those Defendants, as the remedy afforded Plaintiffs 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 these Defendants that are involved in this lawsuit.

14.

Finally, Plaintiffs bring various claims for damages against the ATS Defendants, as will be

further set forth below.

FACTUAL BACKGROUND

15.

Plaintiff Hunt has been charged in Notice of Infraction No. 2201500071271 (a copy of which

is attached as Exhibit “A”) by the Defendant City of Diboll with a violation the Ordinance. The

Ordinance is part of Ordinance No. 06-07 enacted by Defendant City of Diboll on December 11,

2006. The Ordinance is entitled “Traffic infractions detected through the use of an automated traffic

safety camera” and is part of Chapter 9 (which is entitled “MOTOR VEHICLES AND TRAFFIC”)

of the Diboll Code of Ordinances. The fact that Diboll ordinance Section 9-39(6) providing for red

light camera violations is part of Chapter 9 of the Diboll Code of Ordinances is important, because

Diboll Ordinance Section 9-3(a) makes it a misdemeanor for any person to do any act forbidden by

Chapter 9 or to fail to perform any act required in Chapter 9. Section 9-39(7) imposes a fine of

$100.00 on the owner of a motor vehicle, regardless of whether the owner was driving the vehicle

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 6
or even in the car at the time, when the owner’s vehicle is photographed by a traffic camera running

a red light.

16.

On or about August 24, 2015, Plaintiff Hunt was sent Notice of Infraction No.

2202500071271 by Defendant ATS, who was acting pursuant to its contract with the City of Diboll,

alleging a violation of the Ordinance, and affirmatively stating that the amount due was $75.00. A

true and correct copy of this notice is attached as Exhibit “A" to this Third Amended Petition.

17.

On or about August 24, 2015, Plaintiff ADE was sent Notice of Infraction No.

2202500071271 by Defendant ATS, who was acting pursuant to its contract with the City of Diboll,

alleging a violation of the Ordinance, and affirmatively stating that the amount due was $75.00. A

true and correct copy of the Notice is attached as Exhibit “B” to this Petition.

18.

Every member of the class to be certified in this matter received the same type of Notice of

Infraction as Plaintiffs Hunt and ADE. Specifically, each notice asserted a violation of the

Ordinance, and, without a hearing or judicial process of any kind, assessed a penalty of $75.00

against the registered owner of the vehicle involved in the Notice of Infraction.

19.

The Notice of Infraction sent to Plaintiffs Hunt and ADE contain a representation by the

Diboll Police Department that the alleged offense is punishable by a civil penalty of $75.00. Each

notice represents that “Pursuant to City of Diboll Automated Red Light Enforcement Ordinance, the

owner of a motor vehicle is liable for payment of a civil penalty of $75.00.” Each notice continues

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 7
and in bold type threatens, “Failure to pay the civil penalty or contest liability by the Due Date

is an admission of liability in the full amount of the civil penalty assessed on this notice of

infraction and constitutes waiver of the right to appeal under City’s Ordinance.” Each notice

also threatens that the failure to pay or contest liability within the time allowed “may result in the

County Tax Assessor-Collector refusing to register the vehicle alleged to have been in violation

of this ordinance”, which language is likewise in bold print. All of these representations are false,

as none of these items are provided for or allowed in the Ordinance.

20.

Each notice also represents that the vehicle owner may request an administrative hearing to

contest the claimed civil penalty and that the recorded image is evidence in a proceeding for the

imposition of a civil penalty. These representations are false, as none of these items are provided

for or allowed in the Ordinance.

21.

Finally, each notice advises that the vehicle owner may submit an Affidavit of Non-Liability

under one of the affirmative defenses outlined in the City of Diboll ordinance. Each notice states

the Declaration of Non-Liability form can be obtained from the website at www.ViolationInfo.com.

This website is owned and operated by Defendant ATS. A true and correct copy of the form and

instructions for the alleged Declaration of Non-Liability from the website are attached as Exhibit “C”

to this Third Amended Petition. These items are false representations, as the Declaration of Non-

Liability completely fails to disclose that the Ordinance provides that it is a defense if the vehicle

owner provides a mere written statement under oath that he/she did not have care, custody or control

of the vehicle at the time of the alleged violation.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 8
 22.

On or about September 23, 2015, Plaintiff Hunt sent a letter by mail to the City of Diboll,

advising he did not consent to any non-judicial decision wherein he was to be assessed any fine.

This letter was timely, and a proper response to the red light camera ticket, as the only procedure

allowed by the Ordinance to respond to such a red light camera ticket is 9-39(6)(b), which provides

that the person receiving the red light camera ticket can respond by mail, but said provision provides

no time limit for when such response must be mailed. Plaintiff Hunt demanded proper notice from

Diboll. Plaintiff Hunt demanded a jury trial. Plaintiff Hunt demanded his right to be presumed

innocent, to confront and cross-examine witnesses, and that the government be required to meet its

burden of proof, all of which are required by Article I, Section 10 of the Texas Constitution, and

would be required under the Ordinance, since the Diboll Code of Ordinances, specifically Section

9-3(a), makes the violation of Diboll Ordinance Section 9-39 a crime, a misdemeanor.

23.

The City of Diboll responded to Plaintiff Hunt by letter on September 30, 2015, stating that

Plaintiff Hunt’s response was too late, which was false, since the Ordinance contains no time limit

for responding the notice. Diboll’s September 30, 2015 letter further stated that the violation against

Plaintiff Hunt was still pending in his name, and again falsely represented that Hunt could request

an administrative hearing, when the Ordinance does not allow or provide for such. Thereafter, on

January 26, 2016, the City of Diboll, by and through an attorney, represented and made a written

demand that Plaintiff Hunt pay a “civil penalty” that had been imposed by the City of Diboll in the

amount of $125.00. A true and correct copy of this demand letter is attached as Exhibit “D”.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 9
 24.

Plaintiff ADE, who could not face the risk of damage to its business by having the

registration on of its vehicle withheld, paid Notice of Infraction No. 221600092896 under duress,

fraud (based on the false representations outlined in Paragraphs 19-21 above), and/or without

knowledge that the City of Diboll had failed to conduct the necessary traffic engineering study

required by Transportation Code Section 707.003(c).

CREATION OF RED LIGHT CAMERA LAWS

25.

On February 8, 2002, the Texas Attorney General, in Opinion No. JC-0460, determined that

under existing state law at the time, cities could not use automated enforcement equipment (red light

cameras) to impose a civil penalty for the running of a red light. The Attorney General noted Texas

cities were prohibited from doing this, because making the running of a red light a civil penalty

would conflict with state law that makes the running of a red light a crime (a misdemeanor) under

Transportation Code §§ 542.301, 542.401, & 544.007(d).

26.

The Texas Attorney General specifically recognized in Opinion No. JC-0460 that

Transportation Code title 7, subtitle C, the “Rules of the Road” regulating traffic in the State of

Texas placed limitations on a city’s power to enact laws with respect to roadways under the city’s

jurisdiction. One such limitation is Transportation Code § 542.302, which provides the owner of

a vehicle commits a traffic offense (which again under the Transportation Code is a crime,

Transportation Code §§ 542.302, 542.401, and 544.007(d)) if the owner requires or knowingly

permits the operator of the vehicle to operate the vehicle in a manner which violates the law.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 10
 27.

Following the Texas Attorney General’s Opinion No. JC-0460, the Texas Legislature

amended Section 542.202 of the Transportation Code. The amended Section 542.202 provided a

city was not prevented from regulating roads and traffic in accordance with state law. Section

542.202 as amended still did not authorize cities to make the running of a red light a civil penalty,

since state law still made the running of a red light a crime, as Transportation Code §§ 542.301,

542.401, & 544.007(d) remained unchanged. Therefore, Section 542.202 of the Transportation Code

would not give cities in Texas authority to make the running of a red light a civil penalty. Further,

if cities in Texas attempted to make the running of a red light a civil penalty, this would violate

Transportation Code § 542.302, which as noted above, provides the owner of a vehicle commits a

traffic offense if the owner requires or knowingly permits the operator of the vehicle to operate the

vehicle in a manner which violates the law. Thus, Section 542.202 of the Transportation Code

would not provide authority for cities in Texas to adopt ordinance(s) making the running of a red

light a civil penalty,

28.

Subsequently, 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 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

still a crime in Texas, being a violation of Section 544.007(d) of the Texas Transportation Code.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 11
 29.

Several cities in the State of Texas enacted red light camera ordinances pursuant to Chapter

707 to provide for a civil penalty to the registered owner of a vehicle, regardless of whether the

owner is operating the car at the time, if the owner’s car is photographed running a red light. The

City of Diboll, as described above, did not enact such an ordinance. Instead, Diboll enacted the

Ordinance, which authorizes red light camera tickets, but which still makes such a crime, a

misdemeanor, under Diboll ordinance Section 9-3(a). The fact that a violation of the Ordinance is

a crime makes the Ordinance unconstitutional under the Texas Constitution, for the reasons set forth

below.

DIBOLL ORDINANCE UNCONSTITUTIONAL UNDER TEXAS CONSTITUTION

30.

The fact that a violation of the Ordinance is a crime is important, because one accused of a

crime by a Texas City, like the City of Diboll, is guaranteed certain rights by the Texas Constitution

when accused of a crime. Specifically, Article 1, Section 10 gives one accused of a crime by the

State or its local subdivisions, which would include the City of Diboll, several rights, including the

right to trial by an impartial jury, the right against self incrimination, the right to confront (i.e., cross-

examine) the witnesses against him, the right to compulsory process for obtaining witnesses in his

or her favor.

31.

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

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 12
the presumption of innocence is a basic component of the right to a fair trial); and Ex Parte Guerra,

383 S.W.3d 229, 232 (Tex.App.-San Antonio 2012) (noting that presumption of innocence is a right

protected by Article I, Section 13 of the Texas Constitution). Being a crime, the Ordinance would

violate Texas law, as under the Ordinance (specifically Section 9-39(6)(e)), the owner is presumed

to be the driver of the vehicle, such that the Ordinance deprives the owner of a vehicle like Plaintiffs

Hunt, ADE and others similarly situated of the presumption of innocence guaranteed under Article

I, Section 19 of the Texas Constitution, and the right to have the government, here the City of Diboll,

prove the crime beyond a reasonable doubt, as required by Article I Section 19 of the Texas

Constitution, the Texas Code of Criminal Procedure, and the Texas Penal Code, when one like

Plaintiffs Hunt, ADE or others similarly situated are accused of a crime like the Ordinance.

Therefore, the Ordinance, on its face and as applied to persons like Plaintiffs, deprives them of the

rights guaranteed under Article I, Section 10 of the Texas Constitution, and deprives them of the

right to substantive due process under Article I, Section 19 of the Texas Constitution.

32.

The Diboll Ordinance completely denies these rights to the owner of a motor vehicle like

Plaintiffs Hunt, ADE and others similarly situated charged with a violation of the Ordinance. This

is because as to red light camera tickets, the City of Diboll does not allow for any hearing or judicial

review whatsoever, so that the Ordinance, on its face, or as applied to Plaintiffs, would violate the

right to procedural due process guaranteed under Article I, Section 19 of the Texas Constitution.

This is despite the fact that under Diboll ordinance Section 10-3, the Diboll municipal court is given

jurisdiction in all criminal cases arising under ordinances of the City of Diboll. Under Diboll

ordinance Section 9-39(6)(b), a person receiving a red light camera ticket cannot fight same in Diboll

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 13
municipal court. Rather, all the Ordinance provides is that the person receiving the red light camera

ticket can respond to such by mail. Nowhere in the Ordinance is the person receiving the red light

camera ticket given the right to a jury trial, the right to compulsory process, or the right of

confrontation. Any person accused of a red light camera violation under the Ordinance, like

Plaintiffs Hunt, ADE, and others similarly situated, are deprived, in violation of Article I, Section

19 of the Texas Constitution, Section 2.01 of the Texas Penal Code and article 38.03 of the Texas

Code of Criminal Procedure, of the presumption of innocence and the right to have the City of Diboll

required to prove its case beyond a reasonable doubt.

33.

Further, under the Ordinance, the only way a vehicle owner can rebut the presumption created

by the Ordinance is to waive their constitutional right not to testify. This unconstitutionally shifts

the burden of proof with regard to a criminal offense to the defendant/accused, which further violates

Article I, Sections 10, 13 and 19 of the Texas Constitution. Such mandatory presumption created by

the Ordinance in a criminal case is a violation of due process guaranteed by the laws and constitution

of the State of Texas (Article I, Sections 10 and 19). As such, the Ordinance is void and of no effect.

The presumption violates these due process rights by allowing a misdemeanor conviction on proof

less than beyond a reasonable doubt as required by the Texas Constitution and Texas law. This also

violates the presumption of innocence one has under the Texas Constitution and Texas law. The

Ordinance is facially unconstitutional, and unconstitutional as applied to Plaintiffs.

34.

In short, for all of the reasons noted above, the Ordinance, either on its face or as applied to

Plaintiffs, is unconstitutional under Article I, Sections 10, 13 and 19 of the Texas Constitution.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 14
Texas law is clear as to the effect of a law being unconstitutional. An unconstitutional law is void

from its inception, and cannot provide a basis for any right or relief. Jefferson v. State, 751 S.W.2d

502, 502-503 (Tex.Cr.App. 1988); Colden v. Alexander, 141 Tex. 134, 171 S.W.2d 328, 335 (1943);

Miller v. Davis, 136 Tex. 299, 150 S.W.2d 973, 978 (1941). An unconstitutional statute amounts

to nothing, accomplishes nothing, and is no law. In re Johnson, 554 S.W.2d 775, 787 (Tex.App.-

Corpus Christi 1977), writ ref. n.r.e., 569 S.W.2d 882 (Tex.1978). A void law is no law and confers

no rights, bestows no power on anyone, and justifies no act performed under it. Newsom v. Starkey,

572 S.W.2d 29, 30 (Tex.Civ.App.-Dallas 1978, no writ), citing Sharber v. Florence, 131 Tex. 341,

115 S.W.2d 604 (1938). See also Lowry v. State, 671 S.W.2d 601, 604 fn. 1 (Tex.App.-Dallas

1984), aff’d in part, rev’d in part, 692 S.W.2d 86 (an unconstitutional statute is void from its

inception); Fite v. King, 718 S.W.2d 345, 347 (Tex.App.-Dallas 1986, writ ref’d n.r.e.)

(unconstitutional act confers no right, imposes no duty, and affords no protection). Plaintiffs are

therefore entitled to declaratory judgment that they have no liability for the red light camera penalty

assessed against them by Defendants City of Diboll, or alternatively, Defendants McClain, Baker,

and Boren, in their official capacities with the City of Diboll either singularly or jointly and

severally, under the Ordinance.

35.

Article XI, Section 5 of the Texas Constitution provides that no ordinance passed by a

municipality shall contain any provision inconsistent with the state constitution, or with the general

laws enacted by state legislature. A municipal ordinance in conflict with the Texas Constitution or

a state statute is thus unconstitutional, and, therefore, void. City of Wichita Falls v. Abell, 566

S.W.2d 336, 339 (Tex.Civ.App.-Fort Worth 1978, writ ref’d n.r.e.).

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 15
 36.

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

Diboll’s 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. The Ordinance conflicts with subtitle C of Title 7 of the Texas Transportation Code, so that

it would be unconstitutional under Article XI, Section 5 of the Texas Constitution.

37.

One of the provisions contained in subtitle C of Title 7 of the Transportation Code is

Transportation Code § 542.302. This statute provides the owner of a vehicle commits a traffic

offense if the owner requires or knowingly permits the operator of the vehicle to operate the vehicle

in a manner which violates the law. The Ordinance conflicts with this statute, because it makes the

owner of the vehicle liable for a red light violation, regardless of whether Defendant City of Diboll

presents any proof that the vehicle owner required or knowingly permitted the vehicle to be operated

in a manner which violates the law. The Ordinance therefore conflicts with Transportation Code §

542.302, so that the Ordinance violates Article XI, Section 5 of the Texas Constitution, making the

Ordinance unconstitutional, and therefore void and of no effect.

38.

The Ordinance likewise conflicts with Section 2.01 of the Texas Penal Code and article 38.03

of the Texas Code of Criminal Procedure, as the Ordinance denies the vehicle owner the

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 16
presumption of innocence to which the person is entitled, and the Ordinance relieves the City of

Diboll of the requirement imposed on it to prove all elements of the crime beyond a reasonable

doubt. For these additional reasons, the Ordinance would be unconstitutional under Article XI,

Section 5 of the Texas Constitution, and therefore void and of no effect.

39.

In the further alternative, Plaintiffs show the Ordinance conflicts with Chapter 707, so that

the Ordinance would be unconstitutional under Article XI, Section 5 of the Texas Constitution. The

Ordinance conflicts with Chapter 707 for the following reasons: (1) the Ordinance provides for a

penalty of $100, which is greater than the $75 allowed by Transportation Code Section 707.007(1);

(2) the Ordinance fails to comply with Transportation Code Section 707.009, which requires the

ordinance state the person against whom the ticket is being sought is entitled to a hearing, provide

the period in which the hearing must be held, provide for the appointment of a hearing officer, and

designate the department, agency, or office of the City of Diboll responsible for the enforcement and

administration of the ordinance, or provide that the entity with which Diboll contracts with is

responsible for the enforcement and administration of the ordinance; (3) the Ordinance fails to

provide for an administrative adjudication hearing and the other requirements of Transportation

Code Section 707.014; and (4) the Ordinance fails to provide for an appeal by trial de novo in

accordance with Transportation Code Section 707.016.

40.

Pleading further in the alternative, Plaintiffs would show that Defendant City of Diboll,

and/or its city officials sued herein, knew of the problem created by the Ordinance, that being that

violation of the Ordinance would be a crime, but anyone charged with such would not receive the

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 17
constitutional protections allowed under the Texas Constitution, including Article I, Sections 10, 15

and 19. The City of Diboll, and/or its city officials sued herein, through the Diboll City Council,

passed Ordinance No. 01-14 on January 13, 2014. This ordinance tracks the provisions of Chapter

707 of the Texas Transportation Code. The problem with this ordinance is that the City of Diboll

did not publish the ordinance, as required by Section 3.15(d) of the Diboll City Charter and/or

Section 52.013 of the Texas Local Government Code, until November 10, 2016. The failure to

publish Ordinance No. 01-14 makes that ordinance void and of no effect as to all of the red light

camera penalties involved in this lawsuit. Therefore, Ordinance No. 01-14 would not provide any

basis for the assessment and/or collection by Defendants of any of the red light camera penalties

involved in this lawsuit. Since Defendant City of Diboll and its city officials sued in this matter

contend all of the red light camera penalties involved in this lawsuit were assessed under Ordinance

No. 01-14, this would make all such penalties assessed by the City of Diboll and/or paid to the City

of Diboll that are involved in this lawsuit null and void. As such, Defendant City of Diboll, or

alternatively Defendants Baker, McClain and Boren, in their official capacities with the City of

Diboll, either singularly or in combination, are liable for reimbursement of all of the unlawful red

light camera penalties involved in this lawsuit which were paid to the City of Diboll. Further, that

for all of these same reasons, any red light camera penalties assessed by the City of Diboll involved

in this lawsuit which were not paid would be void and unenforceable.

41.

Pleading in the further alternative, and in the unlikely event that the Ordinance, or Ordinance

No. 01-14 are somehow found constitutional or lawful, no red light camera penalty could be assessed

against Plaintiffs, so Plaintiffs would still be entitled to declaratory judgment that they are not liable

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 18
for the civil penalty assessed against them by Defendant, City of Diboll, and/or Defendants Baker,

McClain and Boren, acting in their official capacities with the City of Diboll, either singularly or in

combination. This is because the City of Diboll failed to conduct the traffic engineering study

required by Transportation Code Section 707.003(c). The effect of the failure to conduct the traffic

engineering study required by Section 707.003(c) is that such precludes Defendants City of Diboll

and/or Defendants Baker, McClain and Boren, acting in their official capacities with the City of

Diboll, either singularly or in combination, from assessing any red light camera penalty against

Plaintiffs. Specifically, under Transportation Code Section 707.003(f), Defendant City of Diboll

cannot impose a civil penalty under Chapter 707 due to its failure to conduct the traffic engineering

study required by Section 707.003(c). Thus, either way, Plaintiffs prevail in this matter. Either the

Ordinance is unconstitutional, or Ordinance No. 01-14 is void for lack of same being published prior

to the red light camera penalties being issued that are involved in this lawsuit, so that Plaintiffs

cannot be assessed a red light camera penalty, or even if the Ordinance or Ordinance No. 01-14 is/are

somehow found constitutional or lawful, Plaintiffs still cannot be assessed a penalty, because

Defendant City of Diboll failed to conduct the traffic engineering study required by Transportation

Code Section 707.003(c).

42.

Further in the alternative, and in the unlikely event that the Ordinance or Ordinance No. 01-

14 is/are somehow found constitutional or lawful, Plaintiffs are still entitled to declaratory judgment

that they are not liable for the red light camera penalty assessed against them by Defendants City of

Diboll and/or Defendants Baker, McClain and Boren, acting in their official capacities with the City

of Diboll, either singularly or in combination. This is because the City of Diboll failed to appoint

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 19
a citizens advisory committee required by Transportation Code Section 707.003(e), and failed to

report the results of the traffic engineering study required by Transportation Code 707.003(c) to the

citizens advisory committee as required by Transportation Code Section 707.003(e). As the red light

camera penalty allowed by Chapter 707 of the Transportation Code is created by statute, and not by

common law, all of the provisions of the statute (Chapter 707) are mandatory as to the City of Diboll,

and would require strict compliance by the City of Diboll for Diboll to have the right to assess a civil

penalty against Plaintiffs. Diboll failed to comply with the requirements of Chapter 707 by: failing

to conduct the traffic engineering study required by Transportation Code Section 707.003(c), failing

to appoint a citizens advisory committee as required by Transportation Code Section 707.003(e),

and/or failing to report the results of the traffic engineering study required by Transportation Code

707.003(c) to the citizens advisory committee as required by Transportation Code Section

707.003(e). Any of these failures by the City of Diboll to comply with these requirements of Chapter

707 of the Transportation Code precludes Defendant City of Diboll from assessing any red light

camera penalty against Plaintiffs. Thus, either way, Plaintiffs prevail in this matter. As to the red

light camera tickets involved in this lawsuit, either the Ordinance is unconstitutional, or Ordinance

No. 01-14 is void for lack of publication, so that Plaintiffs cannot be assessed any red light camera

penalty, or even if the Ordinance and/or Ordinance No. 01-14 is/are somehow constitutional or

lawful, Plaintiffs still cannot be assessed any red light camera penalty, because Defendant City of

Diboll failed to conduct the required traffic engineering study, failed to appoint a citizens advisory

committee, and/or failed to report the results of the traffic engineering study required by

Transportation 707.003(c) to the citizens advisory committee as required by Transportation Code

Section 707.003(e) for the committee’s advise on the installation and operation of any red light

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 20
camera system.

CAUSE OF ACTION - REIMBURSEMENT/REFUND OF FUNDS PAID

43.

For all of the reasons set forth above, the red light camera penalties paid by Plaintiffs to

Defendant City of Diboll was under a law (the Ordinance) which is unconstitutional or alternatively,

under a law, Ordinance No. 01-14, which is void for lack of being published. 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 the City of Diboll pursuant to the

Ordinance which is unconstitutional and therefore unlawful, or Ordinance No. 01-14 as Defendants

claim, which ordinance is void for lack of publication, Plaintiffs would have the right to be refunded

or reimbursed by Defendant City of Diboll, or Defendants Baker, McClain and Boren, acting in their

official capacities with the City of Diboll, either singularly or in combination, for the unlawful red

light camera penalties paid by Plaintiffs and received by the City of Diboll. 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

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 21
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 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).

44.

The red light camera penalties paid to the City of Diboll for which reimbursement is sought

in this lawsuit were paid under duress, due to fraud, and/or without full knowledge of the facts, so

that the payments were not voluntary. The duress requirement is established by the notice which the

City of Diboll sends out to vehicle owners. It states that if the fine is not paid, such may result,

without the City of Diboll having to obtain any ruling from a court, in the vehicle owner losing the

right to renew the registration of his or her vehicle, thereby effectively confiscating the vehicle, since

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 22
one driving a vehicle without a valid registration would be exposed to constant tickets, causing the

payment of substantial fines, and possible confiscation of the vehicle. Further, as demonstrated by

Plaintiff Hunt, one faces a possible lawsuit by the City of Diboll, as illustrated by the fact that the

City of Diboll hired attorneys, who sent a demand letter to Plaintiff Hunt demanding payment of the

red light camera penalty assessed by the City of Diboll. The fraud under which payment of the red

light camera penalties involved in this lawsuit were induced is more fully described below in the

fraud and misrepresentation causes of action asserted against ATS set forth below, all of which

allegations are incorporated herein as part of this paragraph. Finally, no disclosure was ever made

to Plaintiffs by any of the Defendants that the City of Diboll had: failed to conduct the engineering

study or studies required by Section 707.003(c), failed to appoint the citizens advisory committee

required by Section 707.003(e), and/or failed to report the results of the traffic engineering study

required by Transportation 707.003(c) to the citizens advisory committee as required by

Transportation Code Section 707.003(e), so that the payment of the red light camera penalties

involved in this lawsuit were paid without full knowledge of all of the facts.

45.

The common law reimbursement claim of Plaintiffs is 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, 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);

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 23
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 of sovereign or governmental immunity apply, so that an illegally collected fee should

be refunded if paid as a result of fraud, 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.

46.

Further illustrating that Plaintiffs have direct claims against Defendant City of Diboll for

reimbursement of the illegally assessed red light camera penalties 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

Diboll for the red light camera penalties involved in this lawsuit.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 24
 NO AUTHORITY FOR DIBOLL TO COLLECT
ANY RED LIGHT CAMERA PENALTY

47.

Alternatively, even if the Ordinance and/or Ordinance No. 01-14 is/are somehow found

constitutional or valid, Plaintiffs are still entitled to be reimbursed for the red light camera penalties

paid that are involved in this lawsuit, because of the failure of the City of Diboll to comply with the

conditions that must be met before Diboll could install a red light camera enforcement system, and

assess and collect red light camera penalties.

48.

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. 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 traffic engineering study required by Section 707.003(c).

49.

Plaintiffs would show that the City of Diboll, for all of the red light camera tickets involved

in this lawsuit, failed to conduct the traffic engineering study required by Chapter 707003(c) for each

intersection at which the City of Diboll operated red light camera systems. As such, the City of

Diboll could not assess any penalty for any violation of the Ordinance, or Ordinance No. 01-14.

50.

Plaintiffs would further show that the individual Defendants, Baker, McClain and Boren,

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 25
and who are charged with the knowledge of the requirements of Chapter 707, acting in their official

capacities with the City of Diboll, either singularly or in combination, proceeded to authorize,

implement and collect penalties for violation of the Ordinance, or alternatively Ordinance No. 01-14

as Defendants claim, when such penalties could not be assessed by law because of Diboll’s failure

to conduct the traffic engineering study required by Transportation Code Section 707.003(c), as well

as the failure to appoint a citizens advisory committee as required by Transportation Code Section

707.003(e), and/or the failure to report the results of the traffic engineering study required by

Transportation 707.003(c) to the citizens advisory committee as required by Transportation Code

Section 707.003(e).

51.

Defendants Baker, McClain and Boren, in their official capacities as the officials with the

City of Diboll who, either singularly or in combination, implemented, enforced, and directed the

assessment and collection under the Ordinance, or alternatively Ordinance No. 01-14 as Defendants

claim, of the illegal red light camera penalties involved in this lawsuit. 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 the City of Diboll’s red light camera

enforcement system without having complied with the requirements of Chapter 707 to allow the

assessment of any red light camera penalty. These official acts of theirs, even if they were acting

pursuant to Ordinance No. 01-14 as Defendants claim, were in violation of law, since Ordinance No.

01-14 was not published as required by law until November 10, 2016. As such, in the unlikely event

the Ordinance or Ordinance No. 01-14 is/are somehow found constitutional or lawful, Defendants

Baker, McClain and/or Boren, in their official capacities, either singularly or in combination, would

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 26
still be liable to reimburse Plaintiffs for the unlawful red light camera penalties involved in this

lawsuit, since the red light camera penalties involved in this lawsuit were issued, assessed and

collected by them, either singularly or in combination, in violation of Transportation Code Section

707.003(c), (e) and/or (f), and/or in violation of the publication required for Ordinance No. 01-14

to be enforceable. Such claims would not be barred by governmental or official immunity, since

these acts by Defendants Baker, McClain and Boren in their official capacities, either singularly or

combination, would be ultra vires acts not barred by immunity.

52.

As demonstrated above, Plaintiffs paid the illegal red light camera penalties to the City of

Diboll under duress, fraud, and/or without knowledge of all material facts. That being the case,

Plaintiffs are entitled to be refunded and/or reimbursed for the unlawful red light camera penalties

paid by them that are involved in this lawsuit. As alleged in Paragraphs 43-46 and 51 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),

(e), and/or (f) of the Transportation Code, and/or in violation of the publication required to make

Ordinance No. 01-14 valid, Defendants Baker, McClain and Boren acting in their official capacities

with the City of Diboll, were not lawfully authorized to assess any red light camera penalty. As such,

claims against Defendants Baker, McClain and Boren in their official capacities with the City of

Diboll 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.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 27
 53.

Therefore, Plaintiffs are entitled to a refund from either Defendant City of Diboll, or

Defendants Baker, McClain and Boren in their official capacities with the City of Diboll, either

singularly or jointly and severally, for the unlawful red light camera penalties paid to the City of

Diboll that are involved in this lawsuit. Plaintiffs would show that if Defendants Baker, McClain

and Boren are held liable in their official capacities with the City of Diboll, either singularly or

jointly and severally, for reimbursement of the unlawful red light camera penalties involved in this

lawsuit, under Texas law, such is in essence a judgment against the City of Diboll, since liability for

ultra vires acts is imposed on a city by a judgment against the city official(s) in his or her official

capacity.

TAKINGS CLAIM

54.

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, $100, or $125, depending on when the penalty is paid, was unlawfully

taken, for all of the reasons set forth above, since Plaintiffs’ property was taken for public use by

virtue of a law (the Ordinance) which is unconstitutional and therefore unlawful, or alternatively,

because red light camera penalties were assessed without the required traffic engineering study

having been performed, or the necessary citizens advisory committee being appointed, or

alternatively, if such penalties were assessed pursuant to Ordinance No. 01-14 as Defendants claim,

because Ordinance No. 01-14 was void for lack of publication. The City of Diboll took the monies

unlawfully received from the payments for violation of the Ordinance, or alternatively Ordinance No.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 28
01-14 as Defendants contend, for public use. In the case of municipalities like Defendant City of

Diboll, 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 the

City of Diboll, and Defendants Baker, McClain and Boren in their official capacities with the City

of Diboll, were not lawfully authorized to assess any red light camera penalty because of the failure

to conduct the required traffic engineering study, failure to appoint the required citizens advisory

committee, and/or failure to report the results of the traffic engineering study to the citizens advisory

committee, or alternatively, if the penalties were assessed pursuant to Ordinance No. 01-14, because

of the failure to have that ordinance published as required by law, and because such funds were

unlawfully taken for the same public use described above.

55.

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 City of Diboll, either by judgment

directly against the City of Diboll, or by judgment against Defendants Baker, McClain and Boren

in their official capacities with the City of Diboll, either singularly or jointly and severally, for the

monies from the red light camera penalties unlawfully taken from Plaintiffs that are involved in this

lawsuit. 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

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 29
v. Little-Tex Insulation Co., 39 S.W.3d 591, 598 (Tex. 2001) (noting that governmental immunity

does not shield 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).

56.

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 or ordinance 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 contained in the Ordinance whatsoever, much less one that would allow the

claims being asserted in this lawsuit to be decided or ruled upon by any “administration adjudication

hearing” or municipal court. Further, there is nothing in the Ordinance that gives any administrative

hearing officer or municipal court primary or exclusive jurisdiction over any of the claims made in

this lawsuit. Further, any so called administrative remedies contained in Ordinance No. 01-14 did

not have to be complied with, because as concerns the penalties involved in this lawsuit, Ordinance

No. 01-14 was void for lack of publication. 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.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 30
 INJUNCTION

57.

Plaintiffs seek an injunction against Defendants prohibiting them from using and enforcing

any red light camera enforcement system under the Ordinance or Ordinance No. 01-14. In this

regard, Plaintiffs would show that upon a finding that Defendants are operating a red light camera

enforcement system which is unlawful, either because the Ordinance is unconstitutional, Ordinance

No. 01-14 is void for lack of publication, or because Defendants are operating Diboll’s red light

camera system in violation of Transportation Code Sections 707.003(c), (e) and/or (f), injunctive

relief should be issued precluding Defendants from enforcing the Ordinance or Ordinance No. 01-14

and assessing any penalties pursuant to same.

CAUSE OF ACTION AGAINST ATS - DTPA CLAIM

58.

Plaintiffs would show that the City of Diboll contracted with ATS to assist it in administering

and/or enforcing the Ordinance, or alternatively Ordinance No. 01-14 as Defendants claim. Plaintiffs

would show that in acting to administer and/or enforce the Ordinance, or alternatively Ordinance No.

01-14 as Defendants claim, ATS acts as an “investigations company” as that term is defined in

Sections 1702.002(10) and 1702.104 of the Texas Occupations Code, which laws are part of Chapter

1702.001 et. seq. of the Texas Occupations Code, known as the “Private Security Act”. ATS is

acting as an “investigations company” for purposes of Section 1702.004 of the Texas Occupations

Code, as ATS engages in the business of securing, or accepting employment to secure, evidence

(being the red light camera photographic and video evidence) for use before a court, board, officer,

or investigating committee (here being at the very least officer or officers with the Diboll Police

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 31
Department, the Diboll municipal court, which under Diboll ordinance Section 10-3 has jurisdiction

in all criminal cases arising under Diboll ordinances, of which the Ordinance is one such criminal

ordinance, or for use before the so called hearing officer of the administrative hearing provided in

the Notice of Violation ATS sends out). This is important, because under the Private Security Act,

specifically Occupations Code Section 1702.101, one acting as an “investigations company” cannot

act as an investigations company, offer to perform the services of an investigations company, or

engage in business activity for which a license is required under Chapter 1702 of the Occupations

Code. ATS does not have, nor ever has had, the license required by Chapter 1702 of the

Occupations Code, so that the actions taken by ATS in securing evidence (photographs and video)

and getting out notices of red light camera violations under the Ordinance which have been paid by

Plaintiffs, are in violation of the Private Security Act. This is significant, as Occupations Code §

1702.388 makes one acting in violation of the Private Security Act, here Occupations Code Section

1702.101, guilty of a crime (a Class A misdemeanor, the most serious of misdemeanor offenses) for

each such violation. Under Section 12.51 of the Texas Penal Code, this would subject ATS to a fine

of $10,000 for each offense. ATS has easily committed over 100,000 such violations in enforcing

the Ordinance.

59.

Further, each such violation by ATS constitutes a false, misleading, or deceptive act or

practice within the meaning of Section 17.46 of the Business & Commerce Code, for which a private

remedy is expressly made available under Occupations Code § 1702.3835. This statute, Occupations

Code § 1702.3835, would create the basis to give Plaintiffs the right to bring a claim against ATS

under Section 17.46 and/or 17.50(h) of the Business & Commerce Code. Specifically, Section

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 32
17.50(h) of the Business and Commerce Code provides a claimant the right to bring a cause of action

under the DTPA if the claimant is granted the right to do so by another law. Such other law allowing

this in this case is Occupations Code § 1702.3835, so that Plaintiffs are clearly entitled to bring a

DTPA cause of action against ATS. Further, Plaintiffs would qualify as a consumer for purposes

of the DTPA, since they were the direct target of the misleading Notices of Infraction sent out

by ATS that are involved in this lawsuit, as part of the transaction for goods and services

between ATS and Diboll, which would be sufficient to give Plaintiffs consumer status under

the DTPA. Finally, the Private Security Act creates a private remedy for Plaintiffs, so that Plaintiffs

at a minimum would be entitled to declaratory judgment that ATS’ actions are in violation of

Sections 1702.004, 1702.101 and 1702.388 of the Occupations Code, and entitle Plaintiffs to

injunctive relief enjoining ATS from engaging in any activity prohibited by the Texas Private

Security Act, until such time as ATS obtains the necessary license required that Act.

60.

Plaintiffs would show they have been damaged by ATS’ acts in not being licensed as required

by the Private Security Act, as such was a producing cause of damages to Plaintiffs, particularly

Plaintiff ADE and others of the putative class similarly situated to it, paying a red light camera

penalty to the City of Diboll that was not owed by them. Without the photographic and video

evidence unlawfully gathered and secured by ATS, no basis would exist to bring any red light camera

violation against Plaintiffs, so that the acts of ATS in violation of the Private Security Act caused

Plaintiffs to pay a red light camera penalty which was unlawful, for all of the reasons noted above.

This is particularly the case, since the only evidence forming the basis for the City of Diboll to assess

any red light camera penalty is the photographic and video evidence gathered and secured by ATS

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 33
in violation of the Private Security Act.

61.

Thus, each time a notice of a red light camera violation was assessed by the City of Diboll

asserting a violation of the Ordinance and which was paid by Plaintiffs because of the unlawful and

criminal actions of ATS described, this was a producing cause of damages to Plaintiffs of $75 for

each such payment made by Plaintiffs, or $100 or $125, depending on when such was paid, in

response to the written notices mailed by ATS. Plaintiffs seek from ATS, under Sections 17.46

and/or 17.50 of the Deceptive Trade Practices Act, damages consisting of each red light camera

penalty paid by Plaintiffs to the City of Diboll for two years prior to the date this action was filed,

and up to the date the class in this lawsuit becomes certified, plus reasonable and necessary

attorney’s fees through the trial of this case and entry of judgment, and for any subsequent appeal

of same to any court of appeals or higher court.

62.

All of the actions of ATS described in all of the paragraphs set forth above, were done

“knowingly” by ATS, for purposes of the Deceptive Trade Practices Act, so as to render ATS liable

for such additional damages under Section 17.50(b) of the Deceptive Trade Practices Act, as may

be found by the trier of fact. ATS’ actions in violation of the Private Security Act also constitute

negligence per se, authorizing Plaintiffs to the private remedy allowed by the Private Security Act.

63.

All of the representations made to Plaintiffs by ATS in the notices sent by ATS concerning

the City of Diboll stating the penalty being assessed by the City of Diboll was a civil penalty, and

that it was necessary for Plaintiffs to pay the penalty or request an administrative hearing, were

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 34
blatantly false and misleading, and were made with knowledge of their falsity. The Ordinance,

which was what ATS asserted in its notices was violated, does not make the assessment a civil

penalty. Rather, under the Diboll Code of Ordinances, the Ordinance is part of Chapter 9 of the

Diboll Code of Ordinances, for which any violation of any ordinance in that chapter is a crime, a

misdemeanor, as set forth in the Diboll ordinance Section 9-3(a). The Ordinance does not set up an

alleged administrative procedure for the alleged violation of the Ordinance. The Ordinance does not

set a $75.00 penalty as represented by ATS. Rather, the Ordinance sets a penalty of $100.00. The

Diboll Code of Ordinances makes a violation of the Ordinance a misdemeanor, not a civil matter as

is misrepresented by ATS in the Notice of Infraction which ATS sent out to Plaintiffs to enforce the

Ordinance.

64.

The representations by ATS in the notices it sent out that are involved in this lawsuit

concerning the Ordinance that the failure of Plaintiffs to pay the penalty or contest liability by the

due date is an admission of liability and constitutes a waiver of the right to appeal, and that the

failure to pay the penalty may result in a hold being placed on the registration of the owner’s vehicle

are all blatantly false. Since a violation of the Ordinance is a crime, the only way the City of Diboll,

under its Code of Ordinances, may initiate a prosecution for a red light violation is to file a complaint

in the municipal court. (Section 10-18, City of Diboll Code of Ordinances). The City of Diboll

never did this in connection with any red light camera penalties assessed by it under the Ordinance.

Therefore, the representation by ATS that the City of Diboll has assessed a red light camera penalty

is false, as no action was ever initiated against Plaintiffs in the Diboll municipal court to initiate a

prosecution for such penalty. Further, if the City of Diboll had assessed any red light camera penalty

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 35
against Plaintiffs, such would be void, for all of the reasons set forth above.

65.

Plaintiffs would show that the giving of sixty days written notice under the DTPA before

filing suit is not required in this case. This is because by having to give sixty days written notice in

advance before filing this lawsuit, such would result in limitations running as to class members

whose claims for reimbursement, misrepresentation and under the DTPA would be barred by

limitations that would be accruing during the sixty day notice period. The statute of limitations as

to such claims is two years, such that limitations on these claims would be accruing during the sixty

day notice period. As such, under Section 17.505(b) of the Business and Commerce Code, the

giving of sixty days written notice is not required.

CAUSE OF ACTION AGAINST ATS - FRAUD

66.

Plaintiffs would show that ATS knew or should have known that the City of Diboll did not

pass any ordinance that complied with Chapter 707. Plaintiffs would further show that ATS knew

or should have known that the City of Diboll did not have a valid ordinance establishing a civil

penalty for the running of a red light. Plaintiffs would show that ATS knew or should have known

that the City of Diboll made a violation of the Ordinance a criminal offense, a misdemeanor.

Plaintiffs would show that ATS knew or should have known that there was not any valid City of

Diboll ordinance enacted setting up an administrative procedure for red light camera enforcement

as ATS knowingly misrepresented in the Notice of Infraction it would send out concerning the

Ordinance. Plaintiffs would show that ATS knew or should have known that the Affidavit of Non-

Liability that ATS publishes on its website and purported to relate to the City of Diboll did not

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 36
truthfully set forth the rights and defenses an accused in the City of Diboll has with respect to a

charge for a violation of the Ordinance. ATS knew or should have known that it did not obtain the

necessary license required by the State of Texas before embarking upon a business to obtain

photographic and video evidence for use in legal proceedings, thereby committing well over 100,000

crimes in the State of Texas. ATS knew or should have known that the City of Diboll did not, prior

to any of the red light camera tickets involved in this lawsuit, publish Ordinance No. 01-14 which

would be required before that ordinance could even become effective. Despite such knowledge,

ATS still implemented and/or assisted in enforcing the unlawful Ordinance or Ordinance No. 01-14

as Defendants claim, illegally collected photographic and video evidence, represented that such

evidence could be used in prosecuting an offense for running a red light in the City of Diboll, and/or

which representations were false, and illegally and unlawfully collected money for the red light

camera penalties from Plaintiffs involved in this lawsuit, when such were illegal and not owed by

Plaintiffs.

67.

ATS conspired and actively participated in representing to Plaintiffs Hunt, ADE and others

similarly situated, that the City of Diboll had established an ordinance authorizing the assessment

of a civil penalty for the running of a red light based upon a presumption that the owner was the

driver, that to contest same required the accused to request an administrative hearing, that failure to

pay the assessed penalty was an admission of liability, and intentionally omitted material defenses

provided in the Ordinance. These affirmative representations were all false, and ATS had actual

knowledge they were false. The affirmative misrepresentations set forth herein, along with the

misrepresentation of material facts by way of knowing omission from the representations made, all

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 37
were made by ATS with the intent that Plaintiffs rely on same, and in order to coerce payment of a

penalty that was not owed, was unlawful, and which representations made by ATS Plaintiffs relied

on to their detriment, by paying the red light camera penalties involved in this lawsuit pursuant to

the Ordinance, or Ordinance No. 01-14 as Defendants contend, when such penalties were not owed.

Such conduct by ATS constitutes common law fraud, and Plaintiffs bring this action to recover their

damages sustained as a result of the fraud perpetrated upon them by ATS. Such damages are in

excess of the minimum jurisdictional limits of this Court.

68.

Plaintiffs would show that the conduct of ATS in perpetrating this fraud on such a large class

of victims, through its criminal and deceptive conduct, is such that exemplary damages are

authorized by the laws of the State of Texas (Section 41.001 et. seq. of the Civil Practice and

Remedies Code) and should be awarded against ATS. Plaintiffs seek to recover the maximum

amount of exemplary damages from ATS as is allowed by law.

DECLARATORY JUDGMENT

69.

Plaintiffs Hunt and ADE, on behalf of themselves and others similarly situated, are entitled

to a declaratory judgment that they, and others similarly situated, are not liable for any of the red

light camera penalties assessed or claimed by Defendant City of Diboll that are involved in this

lawsuit. This is because: (1) the Ordinance is unconstitutional for all of the reasons set forth above;

or alternatively, because: (2) the City of Diboll: (a) failed to conduct the traffic engineering study

required by Transportation Code Section 707.003(c) of any intersection approach involved in any

notice of violation issued to Plaintiff Hunt, or others similarly situated, which under Section

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 38
707.003(f) precludes Defendant City of Diboll from assessing and collecting any red light camera

penalty from Plaintiffs, (b) failed to appoint a citizens advisory committee, as required by Section

707.003(e) of the Texas Transportation Code, and/or (c) failed to report the results of the required

traffic engineering studies to the committee, as required by Section 707.003(e); and/or (3) Ordinance

No. 01-14 relied on by Defendants City of Diboll and Defendants Baker, McClain and Boren, acting

in their official capacities with the City of Diboll, either singularly or in combination, was void, and

not effective at the time of any of the red light camera penalties involved in this lawsuit, for lack of

publication of that ordinance as required by law.

70.

Thus, Plaintiffs are entitled to declaratory judgment that: (1) the Ordinance is

unconstitutional, so that Plaintiffs could not be assessed any red light camera penalty, or even if the

Ordinance is somehow found constitutional, Plaintiffs still could not be assessed any red light

camera penalty, because Defendant City of Diboll: failed to conduct the required traffic engineering

study, failed to appoint the required citizens advisory committee, and/or failed to report the results

of the required traffic engineering studies to such committee; and (2) that Ordinance No. 01-14 is

void for lack of publication, and such did not become effective until that ordinance was published

on November 10, 2016. Plaintiffs Hunt, ADE and others similarly situated, would seek reasonable

attorney’s fees from Defendants, and request that the Court award Plaintiffs Hunt, ADE and others

similarly situated, reasonable and necessary attorney’s fees in this action, pursuant to Section 37.009

of the Civil Practice and Remedies Code, through the trial of this case and entry of judgment, and

for any subsequent appeal of same to any court of appeals or the Texas Supreme Court.

71.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 39
 For all of the above reasons, Plaintiffs Hunt, ADE and others similarly situated, sue for a

declaratory judgment to declare the Ordinance, being Section 9-39(6) and 9-39(7) of the City of

Diboll Code of Ordinances void and of no effect, either because it is unconstitutional, or

alternatively, because of Diboll’s violation of Transportation Code Sections 707.003(c), (e) and/or

(f), and that Diboll Ordinance No. 01-14 be declared void, unenforceable and without effect for the

failure of same to be published as required by Section 3.15(d) of the Diboll City Charter and/or

Section 52.013 of the Texas Local Government Code, and that such ordinance did not even become

effective until it was published on November 10, 2016.

CLASS ACTION ALLEGATIONS

72.

Pursuant to Rule 42 of the Texas Rules of Civil Procedure, Plaintiffs Hunt and ADE bring

this action on behalf of themselves and all others similarly situated, as representative of the following

class: all registered owners of vehicles who have been issued a Notice of Infraction by or at the

direction of the City of Diboll for a red light camera penalty, said notice asserting on its face any

violation occurring prior to November 10, 2016 of Section 9-39 of the City of Diboll Code of

Ordinances and/or Diboll Ordinance No. 06-07, or any other ordinance of the City of Diboll, said

class to consist of the following subclasses seeking the following relief:

(1) for those class members that have not paid such red light camera penalty, declaratory
relief that such penalties are void and unenforceable;

(2) for those class members that have not paid such red light camera penalty, injunctive
relief permanently enjoining all Defendants from attempting to enforce or collect
such penalties;

(3) for those class members that have paid such red light camera penalty at any time from
June 3, 2014 to the date the class is certified, reimbursement of such penalties paid,
either from the City of Diboll, or if applicable, reimbursement, either singularly or

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 40
 jointly and severally, from the following: John McClain, in his official capacity as
Mayor of the City of Diboll, Steve Baker, in his official capacity as Chief of Police
of the City of Diboll, and Gerry Boren, in his official capacity as City Manager of the
City of Diboll;

(4) for those class members that have paid such red light camera penalty at any time
between June 3, 2014 to the date the class is certified, damages, and additional
damages under the DTPA against the ATS Defendants, or damages against the ATS
Defendants under the class’ claim for misrepresentation against the ATS Defendants;
and

(5) for those class members that have paid such red light camera penalty at any time
between June 3, 2014 to the date the class is certified, damages and exemplary
damages against the ATS Defendants under the class’ fraud claim against the ATS
Defendants.

73.

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. More than two-thirds of

the members of the class described above are Texas citizens, who are domiciled in the State of

Texas, and having vehicles in the State of Texas for which they received a notice of violation of the

Ordinance, for the alleged running of a red light within the city limits of Diboll, Texas.

74.

Plaintiffs would show, that as illustrated by Watson v. City of Allen, 2016 WL 2610169 at

*4-5 (5th Cir. 2016) (designated for publication), for purposes of the home state exception to the

Class Action Fairness Act, being Section 1332(d)(4)(B) of Title 28 of the United States Code, all of

the primary Defendants for purposes of that exception are Defendants City of Diboll, and Defendants

McClain, Baker and Boren in their official capacities with the City of Diboll, all of whom are

citizens of the State of Texas where this lawsuit is being filed. It is their conduct that forms a

significant basis for the claims asserted by the proposed plaintiff class, as without Diboll enacting

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 41
the Ordinance, none of the red light camera penalties involved in this lawsuit would have been

assessed and/or collected by the City of Diboll.

75.

Plaintiffs point this out because if any of the Defendants try to remove this lawsuit to federal

court, such would be baseless, so that Plaintiffs would be entitled to attorney’s fees to have this

matter remanded back to state court.

76.

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 the Ordinance, which was enacted by the City of Diboll, and which stem from

alleged red light camera violations issued by the City of Diboll for alleged violations of the

Ordinance occurring within the City of Diboll, and for the payment of penalties made to the City of

Diboll and which penalties were not owed, for all of the reasons set forth above.

77.

The persons in the class are so numerous that joinder of all members is impracticable. Based

on revenues collected by the City of Diboll in the fiscal years ended September 30, 2014 and 2015,

the latest years available, Defendant Diboll 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.

78.

Although the exact number of class members is unknown to Plaintiffs at this time, it is

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 42
ascertainable by appropriate discovery, including interrogatories asking the following for each red

light camera penalty paid to the City of Diboll from June 3, 2014, being two years from when this

lawsuit was filed, to when this action is certified as a class action: (a) the Notice of Violation

number concerning each penalty paid; (b) the name and address of the person to whom such notice

was directed; (c) the amount paid by each such person; and (d) the date such payment was made by

each such person. The identity and location of class members may also be identified from the

records maintained and possessed by Diboll, their representatives and/or ATS, who administers

Diboll’s red light camera program.

79.

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 above, which are

common to every putative class member.

80.

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 receives a notice,

like those attached as Exhibits “A” or “B”, requiring, under duress, fraud and/or without knowledge

of all material facts, payment of the penalty assessed under the Ordinance, or Ordinance No. 01-14

as Defendants claim. Therefore, the refund due to each class member is one of three alternative

sums, being either $75, $100, or $125, depending on when the penalty was paid. Thus, the issues

involved are whether the Ordinance is constitutional or not, whether Diboll failed to comply with

the conditions required by Chapter 707 to be able to assess a red light camera penalty, whether as

to the red light camera penalties involved in this lawsuit, Diboll Ordinance No. 01-14 is void for lack

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 43
of publication, and/or whether Defendants, McClain, Baker and/or Boren, in their official capacities,

acting singularly or in combination, acted ultra vires, without any lawful authority, for all the reasons

set forth above, in assessing red light penalties under the Ordinance, or Ordinance No. 01-14 as

Defendants claim, in violation of law, all of which issues are entirely legal. Thus, this action would

present issues of fact and law common to all members of the class.

81.

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

member of the putative class seeks declaratory relief that the red light camera penalty assessed them

by the City of Diboll is unlawful, and for those class members that paid same, a refund of either $75,

$100, or $125, depending on the amount paid by them, or for those class members like Plaintiff

Hunt, declaratory relief that the penalty is unenforceable, and injunctive relief permanently enjoining

all Defendants from attempting to enforce or collect such red light camera penalties assessed against

them. Thus, this action would present issues of fact and law common to all members of the class.

82.

Plaintiffs Hunt and/or ADE, will fairly and adequately represent the interests of the class.

In support of this, Plaintiffs Hunt and ADE 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 having the unconstitutional and unlawful red light camera penalty assessed against them by

the City of Diboll and/or Defendants McLain, Baker and/or Boren, acting in their official capacities

with the City of Diboll.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 44
 83.

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, $100, 0r $125) 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

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 to opt

in or opt out of the class; (5) attorneys Russell J. Bowman and Scott A. Stewart are currently

working cases in the 134th Judicial District Court, Dallas County, Texas; the 153rd Judicial District

Court of Tarrant County, Texas; the 410th Judicial District Court of Montgomery County, Texas; the

417th Judicial District Court of Collin County, Texas; the 348th Judicial District Court of Tarrant

County, and the 284th Judicial District Court of Montgomery County, all of which involve issues

similar to this case, including whether or not red light camera ordinances enacted by cities in Texas

violate the Texas Constitution and/or are not enforceable because of the city’s violation of Section

707.003(c), (e) and/or (f) of the Texas Transportation Code, so that they are both thoroughly

knowledgeable with the issues involved in this case; (6) attorneys Russell J. Bowman and Scott A.

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 45
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.

84.

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, $100, or $125 for which the registered

vehicle owner would be seeking reimbursement. In short, the attorney’s fees that any individual

registered vehicle owner would incur, if they sought recovery on their own, would far exceed

reimbursement of the penalty being sought, so that no registered vehicle 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.

85.

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 three categories, those that paid the $75 penalty, and those that

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 46
paid either $100 or $125. In addition, the claims of every member of the class rest on the same

thing: a determination that the Ordinance and Ordinance No. 01-14 are void and unenforceable as

concerns the red light camera penalties involved in this lawsuit. 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.

86.

As authorized by Rule 42(h) and (i) of the Texas Rules of Civil Procedure, Plaintiffs seek

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 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, through the trial of this case and entry of judgment, and

for any subsequent appeal of same to any court of appeals or the Texas Supreme Court.

JURY TRIAL

87.

Plaintiffs Hunt and ADE, and others similarly situated, have previously requested, by

Plaintiff Hunt, a jury trial in accordance with the Texas Rules of Civil Procedure, and have paid the

jury fee required by the Court.

WHEREFORE, Plaintiffs, Hunt and ADE, on behalf of themselves and all others similarly

situated, pray upon final hearing the Court enter judgment on behalf of Plaintiffs, Hunt, ADE and

all others similarly situated, for the following relief:

A. That the Court certify the class as described in this petition;

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 47
 B. That the Court appoint attorneys, Russell J. Bowman and Scott A. Stewart as class

counsel;

C. That as against ATS, the Court award Plaintiff ADE and those class members who

paid a red light camera penalty involved in this lawsuit, money damages, additional

damages under the DTPA, or alternatively exemplary damages, and attorney’s fees,

as may be found by the trier of fact;

D. That the Court enter declaratory judgment as to all Plaintiffs that the Ordinance is

unconstitutional for the grounds set forth above and is therefore void, or alternatively,

that Defendants City of Diboll, or Defendants McClain, Baker and/or Boren acting

in their official capacities, are acting in violation of Section 707.003 of the

Transportation Code as set forth above, so that the red light camera penalties assessed

pursuant to the Ordinance are illegal, unlawful, and/or ultra vires;

E. That the Court enter declaratory judgment as to all Plaintiffs that as concerns the red

light camera penalties involved in this lawsuit, Diboll Ordinance No. 01-14 was void

for the lack of such ordinance being published at the time of the red light camera

penalties involved in this lawsuit, so that such penalties are not owed, and that to the

extent Defendants claim the red light camera penalties involved in this lawsuit were

assessed by the City of Diboll, or alternatively, Defendants McClain, Baker, and

Boren, in their official capacities with the City of Diboll either singularly or jointly,

pursuant to Ordinance No. 01-14, that any such penalties are illegal, unlawful and/or

ultra vires, since Ordinance No. 01-14 was void and not effective due to the lack of

same being published as required by law at the time of the red light camera penalties

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 48
 involved in this lawsuit;

F. That the Court order the City of Diboll, or alternatively, Defendants McClain, Baker,

and Boren, in their official capacities with the City of Diboll either singularly or

jointly and severally, to reimburse Plaintiff ADE and those class members for the red

light camera penalties collected from them by the City of Diboll that are involved in

this lawsuit;

G. That the Court award the class prejudgment and post judgment interest at the

maximum rates allowed by law, and all costs of court;

H. That the court award Plaintiffs Hunt, ADE and the class, reasonable and necessary

attorney’s fees through the trial of this matter and any appeal to any court of appeals

or any higher court, such as the Supreme Court of Texas;

I. That the Court issue a temporary and permanent injunction enjoining all Defendants

from taking any action to enforce the Ordinance;

J. That the Court issue a temporary and permanent injunction enjoining all Defendants

from enforcing Ordinance No. 01-14 for any alleged red light camera violation

occurring prior to November 10, 2016; and

K. For such other relief, at law or equity, to which Plaintiffs Hunt, ADE and the class

may be justly entitled.

Respectfully submitted,

/S/Russell J. Bowman
Russell J. Bowman
Texas State Bar No. 02751550
800 West Airport Freeway
Suite 860

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 49
 Irving, Texas 75062
(214) 922-0220
(214) 922-0225 (FAX)
E-Mail: russelljbowman@sbcglobal.net

/S/Scott A. Stewart
Scott A. Stewart
Texas State Bar No. 19218300
800 West Airport Freeway
Suite 860
Irving, Texas 75062
(214) 350-5551
(866) 850-7666 (FAX)
E-Mail: sastewartlawoffice@gmail.com
ATTORNEYS FOR PLAINTIFFS

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above pleading has been sent to all counsel
of record, as indicated below, on this 4th day of December, 2016:

Mr. Robert Alderman, Jr. VIA E-MAIL: balderman@acnlaw.com
ALDERMAN CAIN & NEILL PLLC
122 East Lufkin Avenue
Lufkin, Texas 75901-2805

Mr. Thomas J. Williams VIA E-MAIL: thomas.williams@haynesboone.com
Haynes and Boone, LLP
301 Commerce Street
Suite 2600
Fort Worth, Texas 76102-4140

/S/Russell J. Bowman
Russell J. Bowman

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 50
 EXHIBIT A

PLAINTIFFS’ FOURTH AMENDED PETITION - PAGE 51
 City ofDiuoll
Automalod Rod Lluht ~nlorcilmsht NOTICE OF INFRACTION
' PO Box 2.2001
Tnmpo, AZ 86286-2091 NOTICE:#: 2201600071271
PIN: 2920
P~y \V.t~ yovr Vl!ll or 1.1~'te1C~rd Jl
\'1\~W.VIolatlo~Jnl.Mlllll

Amount Duo: $76.00
Oue Date: O~/W2016

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WILLIAM PAUL HUNT
211 COUNTY ROAD 1246
UNDl!N, TX 75563·2763

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08'1111211/l 11:081\rrl liB US H'tiY 5~@ JUDO ST ltnuollnt~

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W1U.!A\I PAUJ.. lfi)IH
SfflGET ,I,JOO~SS
211 COUNTY ROJ\01245
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!.IN DEll TX 155~3·2763
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llfil TJIWJIIP n-IE.flij 001.\!Jir Tile fGLlOIW{O Oft WSr. llf~ FACfS$UPI'ORni(CJ THIS I!W£P i.Ri.! AS
~oLllli'IS: I'IIIJUTQ lo Stop at a Rod LIUhl

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ordlnlln~o 0$·\!7 Socllcm 9·~9
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f'\'f,t;M'C~ OE?JilW UH C~ll'le~ ll1A!lllol 111110 llil'•
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~ MukoyourcllJpon In U1n cncbsfld o~'f~IOpl) w:th
1110 ad~r~ss (at tM tlglll} show:ng t~ro~gh lh& I'Jnd~w. PO Box 14250~
o/ PayrnMI I~ ~dml~$!00 or ll~blfty. ClnQIIinotl, OU 4GZ7•t·21i03
,, ro ovoid lalo foa9,lfOll must rospt.~nd tolhls l.lulth lwltllwl.lnl••l•l•l rl11111111lld ltuul I••I 1I1/
tlollco [paymonl tocolvod or n non-Judicial
odmlnlstt"llvo ~~~~tin g) b~loro tho du~ d~to
llllllcbtoll ~IJ~. lhv <•'.l'ni}J of o m'tor vnh'do b H~h!R lor paymonl or a c;,;J peMl:y of SJ~.QO 11
th~ Ol'•fter's vcllcle pro~eds lnlo 80 lnlmecllon equ·ppod "llh n photographic lntonect:on ffi)rlilcrlr~~ 6Y41~m \\hen ~~~ \ril/f,c (~o·raf $19·1~1 tor thal
vclllc:o·s dit~ctl ~~~nal, cor tho llllo(UQn In "n!,h )"VUr vahlefa wa~ fr~•rel)lg, was em':lilo a
slnedt r~ll 6!9n~r. Fal!uro to ii~Y tho cMI ponatly or contost llab:llly by tho llllo Palo I$ on ~tlmls,fon o/!13blllty In the Ml nmount ol th~
tiYII ~~~~Tty as~o~sorl on thfa noHeo ot rnrr~ttlon ~nrl touslltul~s o w~tvor Ill tho tlnht to nppo~l unrlor cut, Ordfoln,a. fa'(~~e to pay
!h! ti\11 porWty or to ~~~~l~st llabfr;IJ' Y.ltWt\ tho lin~ el!ow~:l •till resu!t In 11 $Z6.00 lalo J:t1YII1C01 pcno'ly ond m~y rosult In lha County rax
AssQ5SQI•QoiJottor ro(U,hiN (c) roots tor th~ Whltlo 6lleiJod to h:IYO be on In violation olthls orrltn~n~<>.

YQU hnvn the ri!Jhl l\1 con{cst 11\o Jmpo~!Jon or thl con porlavor ol sorvlclo t/1) cllaniQ on 1.866.7q0,4f1f.
This Ylolot!on Is 11 nan•movlng lnflllDIIon and no points will ba esso:;sod,

INSTflU!!,'riONS
Olll!IIE PAYMI!IIT: TM rnloll ~lid CPSIC~t way lo p~y yol11 Nolle<) I$ to pny on~no. Go lo \Wtw.Vfof~llontnfo.~om and fog on 1\!th your Hollcu II and
PIN $M•,•.n lot~& red bo~ C!llO(I (ronl orws nolko. Click tho l'ey butlon. Thcro mny boa ~onven'cncc (Sel\ko ICC lorlhh srnllled as o~1~'CI In th& Po~co DepMrttMI J>rc.ceooM tr>r clspMfl13n of
lhc vro~nllorr. You may vJu·11 your ur1aga$ and video orliM ot vNNI,VIotollcmloro.com. you wJI ncell your Nofco 11 end PIN prkllctl on \M lrcnl or this
nDlke. II you do nol have lolernel ael!ess, you may conla(llha O:boll Polite> Ocp~ti!Mnl ol 030·320·6-:iSQ, S:0\1 N.l· ~:00 PM Mow.t~~'f1:0ay, [<) makG en
appolnlmen! lov~wyaurlnl.~gc$ ar.o V. rronl or tha UolkCI. 'liMn lh& adm'!lhltali'N
h~Mino I$ scheduled, ~·ou 1•lll bo nollliad of lho loca~lon, d31o and tlnl~ ol ywr h~nr1ng.llyou roquost 11/i~~r\n~ and 1~11 to ~ppear at t113 tim~ anti p1aN
ol to~ hcorlng, II 13 comldcJcd Pn adm~5fnn or nublfly und u w;~lwc or yout ti!JI:l to o~at tM 1n1poslt~n ol tho Civil ~OMI()', Tlte ret.)ttJen·Uablllty rwn ana doeumonlaVOil lo Cfly ol llibol, Vlo~lfon
P/OCOMfng Cllnlor, PO OOX 22091, To~.M 65285·2v9f.
II you feel Ural you received thts ~lotalfon In otcor ur..Osr
onu ol the afrtmal!vo tJell!060J ou!tnetl lo U;<~ City ol Diboll ordlnanro you ma;r $Ubffil a
Dccl~rnllon or Non·LIJbl~l)' by rnnt or you m~y ~ubm'llh$ Oa~lara\ion ol Non·LfabJiily alan MM'nhuo~\'e lleatlnQ.
lfla Oaclmtlon ol NOfloUb~Uily form e~o be oblelMd fron1 tho Y,'Qb~flo ol w.~w.VIolollonlnfo.cam. You 1\iO nMd your /follCtl fl atKJ PIN pr1nlerl ontllo
front of !Ills oolfct~.

Oo lath he co and tiiiU<'n boilom pOcll'ln 8& a /equasl tor en oo'll~nl$trPll'l~ atflu:JJcallon he;~II~g.
1 submit UJ$ faml as a 1cquost fe-r a M~1hg ~~~tdfng thl$ Nolfca of fnfi(ICt!on ond
acl of lhl$ nolle& ID I» o Y~fl!lt~lj\le{;t, I
lrno ur\derslond !h~llv.at bo noUilad of
the 4nlo, 1111\0 ~nd IOC-'tl<>n of l~ hcadfl!l. l'loa$D olon 11n!l pllnl nam11 JJstno bfiiO o1
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CITY-0124
EXHIBITB
 City of Diboll
Automated Red Llgllt Enforcement NOTICE OF INFRACTION
PO Box 22091
Tempe, AZ U5265·2091 NOTICE fl: 2201600092896
lillfflllllll fflfi~HJINII'IIrJK!/IIIIIHIJilllllllll PIN: 1065
Pay with your Visa or MasterCard at
'VJ.fVI,VIola!lonlnfo.com
..
~~----·-=----~--

Amount Due: $76.00
Due Dale: 10/24/2016

01{1121 MB 0.416 T 13 OO·ATPSCR50·1
ADE·WIFCO STEEL PRODUCTS INC
8003 MEDORA RD
HUTCHINSON J{S 67602·3618
1•/ u Jlnr rlluljlrllljriiiiiJirljllrl rlri/IJII/nl• •mllrrllrr/

Oil/ABOUT 1\Tll~'E Ill lOCATIO~!
- COUNTY
(Oalo)
08/2G/2010 02:26PM SB US IIWY 69/ N TEMPLE OR@ N Angelina
HINES SY/ JUDD ST
IW.fl;
AOE-WIFCO STEEL PRODUCTS INC
Snl6H liD DRESS
BOOJ MEDORA RD
CITY _I_ STfiT£ 21PCOOE
HUTCIIINSON I{S 67502·8610
Dlll0\'111
v YEAR I!Alay the ~;lvll penalty or contest IJabJJity by ths Duo Dale Is an admission of liability In lhtJ full amount of tho
civil p()n~lty assessud on thl3 noUce of lnlracHoll nnd constllules n waiver of the rluht to appeal under CJty's Ordinance. Failure to pay
tho tiYll penafty or to conies! linbllily wi1hfn the time nllowed wifl result ln n $25.00 late payment penally 205·2091.
If you roo! that you received tills vlolatlon In orror under one of lhe affirmative defenses ou!llned In the C!ly of Diboll ordJnance you may submit a
Declaration of Non·llablllty by mall, or you may submit the Declaration of Non·lfabflity at an Admlnlslrafive Hearing,
Tho Declaralfon of Non·lfablllty form o;:an IJa obtorned frum !he website a[ ~i!Jio.!Jinfo.ooiJl. You wiJJ need your Notice# and PIN printed on lhe
rronl of this noUoo.

Detach here and re(vm bo«om portion as a request For an admlnls!rotivo adJudication h$arlng,
J submit this form as a request for a hemlng regarding lhls No11cc of lnlracUon and 2201b0009289b
acknowledgo fhnt It must be received by tho due dale or this notice !o ba a valid reque~l. f
underslancl Umt f must alfend this haarfng /n person. I also undorsland that I wilf be noUIIeon oata ~ ~ A.r(IC yaur fl~ ~(s)P!r~payrr£8'it.: M&ke ymuch,eck ormofi(J'JORi.fK·tnrfabfrJ to: Cfly 6fDibt>!l.
ihis matter your immediate attention. Yo~ may di$regard this nptic$ if yoil h?.Ve. afreao'y made full
It is very impo.'iant- that you::give
payment · · . . ·
Sincer~ly.

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