NO.

2019-CI-20587

MICHELLE BARIENTES VELA § IN THE DISTRICT COURT

Plaintiff, §
§
VS. §
§
BEXAR COUNTY AND BEXAR §
COUNTY JUDGE NELSON W. §
WOLFF, PRECINCT 1 § 73rd JUDICIAL DISTRICT
COMMISSIONER SERGIO "CHICO" §
RODRIGUEZ, PRECINCT 2 §
COMMISSIONER JUSTIN §
RODRIGUEZ, PRECINCT 3 §
COMMISIONER KEVIN WOLFF, §
AND PRECINCT 4 COMMISSIONER §
TOMMY CALVERT §
Defendants. § OF BEXAR COUNTY, TEXAS

PLAINTIFF’S FIRST AMENDED ORIGINAL PETITION FOR INJUNCTION

COMES NOW, Plaintiff CONSTABLE MICHELLE BARIENTES VELA, hereinafter

called "Plaintiff", who files this Original Petition against BEXAR COUNTY, BEXAR COUNTY

JUDGE NELSON W. WOLFF, PRECINCT 1 COUNTY COMMISSIONER SERGIO “CHICO”

RODRIGUEZ, PRECINCT 2 COUNTY COMMISSIONER JUSTIN RODRIGUEZ,

PRECINCT 3 COUNTY COMMISSIONER KEVIN WOLFF, AND PRECINCT 4 COUNTY

COMMISSIONER TOMMY CALVERT, herein after called “Defendants”, for injunction

seeking a declaration and ancillary injunctive relief in her claim to try title to the Office of Bexar

County Constable, Precinct 2, and would respectfully show the Court as follows:

BACKGROUND AND NATURE OF THE CASE

1. Discovery in this case should be conducted in this case under Level 2 pursuant to

Texas Rule of Civil Procedure 190.3. Plaintiff CONSTABLE MICHELLE BARIENTES VELA

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was elected in 2016 and serves as Constable in Bexar County. Her four-year term ends

December 31, 2020.

2. On September 25, 2019, Defendants with the Bexar County Commissioner’s Court—

without making any recorded fact-finding that a vacancy existed in the Office of Constable of

Precinct 2—announced that they would be seeking applications for the position of Constable for

Precinct 2 starting Wednesday, September 25, 2019 and would appoint in a special session a new

Constable on October 2, 2019. The Commissioner’s Court decision to declare the position

vacant and post the Constable position occurred without them complying with the Texas Open

Meetings Act section 551.101(2). Apparently, Defendants claim CONSTABLE VELA

automatically resigned from the Office of Constable Precinct 2, pursuant to Texas Constitution

XVI, Section 65(b), when she made an announcement for county sheriff.

3. Contrary to Defendants’ incorrect claim, Plaintiff CONSTABLE MICHELLE

BARIENTES VELA did not “announce” her candidacy nor “in fact a candidate” for sheriff

before the end of her term. On Monday September 23, 2019, she learned to her shock that Texas

Rangers, FBI, and Deputies from the Sherriff's Office were attempting to execute a search

warrant at the office she was elected to serve by her constituents. On Monday, September 23,

2019, while this was going on, she was in a state of shock as to the raid while watching what was

occurring when she made the statement about sheriff. At this time, with what was going on

Plaintiff’s office, she made an “excited utterance” rather than a “formal political declaration” to

seek the sheriff's seat in 2020, in the heat of the moment without having time to reflect upon it.

4. Plaintiff CONSTABLE VELA did not request financial support, votes, or any other

kind of support for sheriff. She did not complete a primary ballot application, submit any filing

fees or filings, nor did she designate a campaign treasurer for sheriff.

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 5. Prior to taking action or any fact-finding to appoint a Constable for Precinct 2, the

Bexar County Commissioner’s declared that a vacancy existed in the Office of Constable for

Precinct 2. Furthermore, Defendants did not seek a declaration from a district court of that

essential fact. Based on the evidence, any finding that CONSTABLE VELA had automatically

resigned would be erroneous and prejudicial. No vacancy existed in the Office of Constable

Precinct 2 on September 23, 24, 25, 2019, or today.

6. Plaintiff CONSTABLE VELA asks this Court to declare that she never resigned from

the office of Constable, that the Commissioner’s appointment should be enjoined, that

CONSTABLE VELA is entitled to remain the constable, and she is to receive full pay, benefits,

and standing as Constable.

PARTIES

7. Plaintiff CONSTABLE MICHELLE BARIENTES VELA is the dually elected Bexar

County Constable of Precinct 2 and may be served in this case through her attorney of record.

8. Defendant BEXAR COUNTY is sued and can be served by serving County Judge

Nelson W. Wolff who may be served at 101 W. Nueva, San Antonio, Texas, 78205.

9. Defendant NELSON W. WOLFF is sued in his official capacity as County Judge and

a member of the Bexar County Commissioner’s Court and may be served at 101 W. Nueva, San

Antonio, Texas, 78205.

10. Defendant PRECINCT 1 COUNTY COMMISSIONER SERGIO “CHICO”

RODRIGUEZ is sued in his official capacity as County Commissioner and member of the Bexar

County Commissioner’s Court and may be served at 101 W. Nueva, San Antonio, Texas, 78205.

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 11. Defendant PRECINCT 2 COUNTY COMMISSIONER JUSTIN RODRIGUEZ is

sued in his official capacity as Precinct 2 County Commissioner and member of the Bexar

County Commissioner’s Court and may be served at 101 W. Nueva, San Antonio, Texas, 78205.

12. Defendant PRECINCT 3 COUNTY COMMISSIONER KEVIN WOLFF is sued in

his official capacity as Precinct 3 County Commissioner and member of the Bexar County

Commissioner’s Court and may be served at 101 W. Nueva, San Antonio, Texas, 78205.

13. Defendant PRECINCT 4 COUNTY COMMISSIONER TOMMY CALVERT is

sued in his official capacity as Precinct 4 County Commissioner and member of the Bexar

County Commissioner’s Court and may be served at 101 W. Nueva, San Antonio, Texas, 78205.

JURISDICTION

14. This District Court has appellate jurisdiction and general supervisory control over the

Bexar County Commissioner's Court, with such exceptions and under such regulations as may be

prescribed by law. TEXAS CONSTITUTION, Article 5, Section 8. The legislation enabling the

district court jurisdiction over the Commissoner's Court repeats the word of article 5, section 8 of

the Constitution. TEX. GOV’T CODE, 24.020. If the Commissioner’s Court acts illegally,

unreasonably, or arbitrarily, a district court may so adjudge. Comm’rs Court of Titus County v.

Agtan, 940 S.W. 2d 77, 80 (Tex. 1997). In this case to try title to the Office of Constable, it is

appropriate to use the procedural mechanism of the Uniform Declaratory Judgments Act,

Chapter 37 of Tex. Civ. Prac. & Rem. Code. This Court also has jurisdiction under the Texas

Open Meetings Act, Government Code Section 551.142.

VENUE

15. In a suit against members of the Bexar County Commissioner’s Court, venue is

mandatory in District Court in Bexar County.

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 DECLARATORY JUDGMENT

16. Plaintiff CONSTABLE MICHELLE BARIENTES VELA adopts the preceding

paragraphs set forth above, as if set out fully, herein, in support of her request for Declaratory

Judgment. Constable Vela seeks a declaration under the Uniform Declaratory Judgment Act that

she did not automatically resign her office as Constable by the action, but more so by the actions

shed did not take, in becoming a candidate for county sheriff because she did not in fact

announce or in fact become a candidate for sheriff at a time when there was more than one year

left in her tem as Constable.

17. Plaintiff CONSTABLE VELA seeks declaration that prior to and following

September 23, 2019, she is the lawful holder of the Office of Constable and, as such, is entitled

to all salary, benefits, retirement credits, and standing to which the holder of that office has been

entitled. The Bexar County Commissioner’s Court should be ordered to take all action necessary

to make CONSTABLE VELA whole for any loss of income, benefits, retirement credits and

other emoluments to which she is entitled as the Bexar County Commissioner’s Court

recognized that she did not resign to run.

18. Plaintiff CONSTABLE VELA seeks a declaration that any appointment by the

Commissioner’s Court would be unlawful and an abuse of discretion in light of the facts.

PRELIMINARY AND INJUNCTIVE RELIEF

19. Plaintiff CONSTABLE MICHELLE BARIENTES VELA requires injunctive relief

to prevent the Defendants from appointing a replacement Constable for Precinct 2. The Bexar

County Commissioners have set a special session for Wednesday, October 2, 2019 to make the

appointment.

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 20. Plaintiff has alleged a cause of action against Defendants, and as indicated in this

Petition and in the attached Exhibit 1, “Verification” of CONSTABLE VELA which is

incorporated by reference. Plaintiff has shown a probable right of recovery and likelihood of

success on the merits, Plaintiff will suffer imminent and irreparable harm without Court

intervention, and there is no adequate remedy at law.

21. As a direct and proximate result of Defendants’ wrongful actions as alleged in this

Petition, Plaintiff has suffered and will continue to suffer imminent injury that will be irreparable

and for which no remedy at law exists without the protections of a temporary restraining order

and injunctive relief. Plaintiff is willing to post the necessary reasonable bond to facilitate the

injunctive relief requested.

22. The only adequate, effective, and complete relief to Plaintiff is to restrain the

Defendants from further engaging in certain proscribed activities, as set forth below. Pursuant

to Tex. R. Civ. P. 680 et seq. and Tex. Civ. Prac. & Rem. Code §  65.001 et seq., and in order to

preserve the status quo during the pendency of this action, Plaintiff seeks a temporary restraining

order, and on hearing, a temporary and permanent injunction, ordering and immediately

restraining Defendants, including Defendants’ agents, servants, employees, independent

contractors, attorneys, representatives, and those persons or entities in active concert or

participation with them (collectively, the “Restrained Parties”) as follows:

a. Enjoining Defendants from appointing a new Constable for Precinct 2 until this
lawsuit is resolved.

23. Should the above declarations be granted by the Court and Defendants not act

promptly in accordance with such declarations, Plaintiff CONSTABLE VELA seeks ancillary

injunctive relief to enforce those declarations as requested above.

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 OPEN MEETINGS VIOLATION

24. By publicly posting the position for Plaintiff CONSTABLE MICHELLE

BARRIENTES VELA’s job and accepting applications without first holding a public meeting or

complying with the Government Code section 551.101 to post a meeting, Defendant

Commissioners violated the Open Meetings Act.

CONDITIONS PRECEDENT

25. All conditions precedent have been performed or have occurred. Pursuant to Local

Government Code Section 89.004(a), Plaintiff CONSTABLE MICHELLE BARIENTES VELA

filed a claim with the County Judge. Plaintiff CONSTABLE VELA does not waive her right,

pursuant to Local Government Code Section 89.004(c) and other law, to proceed with this

lawsuit, including claim for declaratory and injunctive relief, without further presenting this

matter to the Bexar County Commissioner’s Court.

ATTORNEY FEES

26. Plaintiff CONSTABLE MICHELLE BARIENTES VELA has retained the firm of

Les Law Group, PLLC to represent her in this action and has agreed to pay reasonable attorney

and necessary attorney’s fees. An award of reasonable and necessary attorney fees to Plaintiff

would be equitable and just and therefore authorized by section 37.0009 of the Civil Practice and

Remedies Code. Plaintiff CONSTABLE VELA also seeks reasonable and necessary attorney

fees associated with her Open Meetings Act claim pursuant to Government Code Section

551.142(b).

JURY DEMAND

27. Plaintiff CONSTABLE MICHELLE BARIENTES VELA hereby demands trial by

jury in this action.

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 PRAYER

WHEREFORE, Plaintiff CONSTABLE MICHELLE BARIENTES VELA respectfully

prays for the following relief:

1. A temporary restraining order, and upon hearing, a preliminary injunction for

the relief requested above;
2. Upon final trial, judgment against Defendants for full permanent injunctive
relief, and for the full amount of Plaintiff’s actual damages including, but not
limited to, lost profits as found by the trier of fact as a consequence of
Defendants’ conduct;
3. Pre-judgment interest as provided by law;
4. Post-judgment interest as provided by law;
5. Plaintiff’s reasonable and necessary attorneys’ fees in prosecuting her claim(s)
through trial and, if necessary, through appeal;
6. All costs of suit; and
7. Such other and further relief, at law or in equity, to which Plaintiff may show
herself justly entitled.

For these reasons, Plaintiff CONSTABLE MICHELLE BARIENTES VELA also

requests that Defendants be cited to appear and answer and that the Court: issue declaratory

judgment requested herein; grant ancillary injunctive relief as requested; award reasonable

attorney fees and taxable costs of this lawsuit; and grant to Plaintiff such other and further relief,

at law and in equity, to which she shows herself to be justly entitled.

Respectfully Submitted:

//S// LESLIE SACHANOWICZ

LESLIE SACHANOWICZ
Les Law Group, PLLC
State Bar No. 17503200
101 Stumberg
San Antonio, TX, 78204
les.law@hotmail.com

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