IN THE COURT OF APPEALS FOR THE
FOURTH COURT OF APPEALS DISTRICT
Ronald F. Avery
Ms Tavie Murphy,
ON APPEAL FROM THE 25TH JUDICIAL DISTRICT COURT
THE HONORABLE PAUL DAVIS, JUDGE PRESIDING
Ronald F. Avery
Phone & Fax: 830/372-5534
ORAL ARGUMENT REQUESTED
Pursuant to Rule 38.1 (a) of the Texas Rules of Appellate Procedure, the Appellant, Ronald F. Avery, certifies to the best of his knowledge, the following is a complete list of all persons or entities with an interest in this appeal:
1. Appellant - Ronald F. Avery - Pro Se.
2. Appellee – Ms. Tavie Murphy.
307 W. Court Street
307 W. Court Street
The Attorney of record for Ms. Murphy and the GCTO is:
Matthew Tepper SBOT# 24029008
McDreary, Veselka, Bragg & Allen, P.C.
Attorneys at Law
Dr. Irene Garza - Superintendent
The Attorney of record for SISD is:
Ricardo Lopez SBOT# 24013059
Feldman & Rogers, L.L.P.
Attorneys at Law
Bland Indep. Sch. Dist., 34 S.W.3d 555............................. 9
Burks v. Yarbraough, 157 S.W.2D 876, 879 (Tex. App. – Houston [14th Dist.] 2005, no pet.)............................................................ 9
City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995)......... 30
National Biscuit Co. v. State, 135 S.W.2d 687, 692 (Tex. 1940) 25, 26, 28
Neeley V. West Orange-Cove 176 S.W. 3d 746 (Tex 2005)797...... 13, 33
Parker v. City of San Antonio, 609 S.W.2d 877, 879 (Tex. Civ. App. – San Antonio 1980, no writ).................................................. 11
Scott v. Harris Methodist HEB, 871 S.W.2d 548, 550 (Tex. App.- Ft. Worth 1994, no writ)........................................................... 10
Sheldon v. Jasper Indep. Sch. Dist., 768 S.W.2d 884, 885 (Tex. App. – Beaumont 1989, writ denied).............................................. 25
State v. Connecticut General Life Insurance. Co., 382 S.W.2d 745, 746-47 (Tex. 1964)........................................................... 28
Steele v. City of Houstion, 608 S.W.2d 786, 791 (Tex. 1980)... 30, 32
Tuck v. Texas Power & Light Co., 543 S.W.2d 214, 215 (Tex. Civ. App. – Austin 1976, writ ref’d. n.r.e.)............................................. 12
University of Texas System v. Courtney, 946 S.W.2d 464, 471 (Tex. App. – Fort Worth 1997, writ denied).............................................. 30
Texas Constitutional Provisions
Article 1 Section 13.............................................. 20
Article 1 Section 17............... 8, 12, 13, 16, 18, 20, 30, 31, 32
Article 1 Section 29.............................................. 21
Article 16 Section 48............................................. 21
Article 17........................................................ 19
Article 17 Section 2g............................................. 21
Article 3 Section 62....................................... 4, 19, 21
Article 7 Section 1........................ 8, 14, 15, 16, 17, 18, 31
Article 8 Section 1e1.......................... 8, 12, 13, 16, 18, 31
1. The note (F12-14) refers to page 12 through page 14 of the clerk’s Files;
2. The note (H12 L16 – H14 L22) refers to page 12 line 16 through page 14 line 22 of the Hearing transcript;
3. The note (Ad-e) refers to page d through e of the Appendix herein.
The Appellant, Ronald F. Avery, sued Tavie Murphy and the GCTO for the charge and collection of unconstitutional property taxes in violation of Article 8 Section 1e1 and Article 7 Section 1 (F17), (F21-22). Avery sued the SISD for the same with an additional claim of teaching an unconstitutional curriculum in violation of Article 7 Section 1 (F28-30). Avery sought the return of his money taken under the pretense of a lawful constitutional tax in violation of Article 1 Section 17 (H31 Line 8-10) from all Defendants and equitable relief to stop future unlawful takings of money under the pretense of lawful taxes and for the SISD to stop teaching an unauthorized unconstitutional curriculum harming the property of the Appellant.
All Appellees answered with identical Pleas to the Jurisdiction for want of standing, limitations, “voluntary payment rule,” and no monetary damages for violating constitution. A hearing was held and the Honorable Judge Paul Davis granted the Pleas to the Jurisdiction.
APPELLANT’S ONLY POINT OF ERROR:
The Trial Court, erred by granting the Appellees’ Plea to the Jurisdiction resulting in the improper judgment of dismissing Appellant’s lawsuit.
All issues in this case were a matter of law as the case did not go to trial nor was there any dispute of the following facts in Plaintiff’s Original or First Amended Original Petition or any other document or hearing:
The Appellant has owned a piece of commercial property in
The Appellant attempted to obtain a permit to build his RV Park from the County wherein he was required to pay all “ad valorem property taxes” for the subject property his Park would be built upon (F184), (H36).
The Appellees charged and received from Appellant approximately $80,897
(F202) in unlawful “State ad valorem
property taxes” to support “public free schools” which the Supreme Court of
The Appellant has alleged without rebuttal that his property consisting of life, liberty and estate has been damaged and remains at risk due to an unlawful curriculum allegedly administered by the SISD and its excessive cost allegedly in violation of Article 7 Section 1 and Article 8 Section 1e1 of the Texas Constitution (F222-224).
The Honorable Paul Davis granted the identical Pleas to the Jurisdiction of all Appellees based upon the following theories argued by the Appellees:
First, the Appellees argued that the Appellant lacked standing
related to decision making of public officials absent some special damage
distinct from the public (F130-132).
However, the facts in this case show that the Appellant was not complaining of
an error made by the taxing authority wherein the community or all Texans
suffered the same error made by the taxing authority. Rather, the Appellant
complains of the collection of money by the tax office without a law to support
it. Therefore, that which was collected from him was not a tax but merely the
taking of property (money) for public use without a law in violation of Article
1 Section 17. The Appellant is not a “tax
payer” of “unconstitutional taxes.” It is irrelevant how many other people in
Second, the Appellees argued that the Appellant’s claims are
“partially barred” by the two year Statute of Limitations for the taking of
property (money). Obviously, this argument could not obtain a complete
dismissal of the case without a trial to determine what part was not barred by
the Statute of Limitations. However, Appellant has shown that no “Statute of
Limitations” can apply to a taking of property in violation of Article 1
Section 17 as no Section of Article One or the
Third, the Appellees’ argued that the “voluntary payment rule” precedent exempting the return of money taken under the pretense of a lawful tax applies to the Appellant. Again the cases cited in support of their argument permits an exception to this rule where it is shown that the money paid under the pretense of a lawful tax was paid under duress. The facts in this case show that the Guadalupe County Health Department requires a certification by the Appellant that all taxes are paid prior to obtaining a permit to build his RV Park on the subject land. The Appellant could not develop his land or operate his business without giving money to the County Tax Office under the pretense of a lawful tax. The Appellees argued that the threat must be a “unique threat” to constitute “duress” rather than a common threat suffered by all citizens such as the threat of foreclosure of tax lien and sale of property for non-payment of taxes. However, the facts in this case show that the Appellant suffered both common and “unique duress” by a threaten “loss of the right to do business.” The Guadalupe County Tax Office is not the same as the Guadalupe County Health Department. The Appellant’s duress was not in common with all other citizens and his right to build and conduct his business was threatened.
Fourth, the Appellees’ argued that the precedent barring an award
of monetary damages for many violations of the Texas Constitution applies to
the Appellant in this case. While it is true, and for good reason, that a
violation of a constitutional right does not automatically give rise to a
monetary award from the State of
Fifth, the Appellees argue that the doctrine of “sovereign immunity” deprives the Court of Jurisdiction for all Constitutional torts. While this “rule” is followed in most cases the exception to it is the Appellant’s assertion that money was taken from him for public use without a law in violation of Article 1 Section 17 which waives sovereign immunity and authorizes a suit as shown by the citations of the Appellees in this case.
There being no further arguments offered by the Appellees and no other questions asked by the Trial Court, it is clear that the above arguments cannot result in a lawful complete dismissal of the Appellant’s case. Therefore, the ruling by the Trial Court must be reversed and remanded for further proceedings.
TO THE HONORABLE COURT OF APPEALS:
Now comes Appellant, Ronald F. Avery, and respectfully submits Appellant’s Argument. This is an appeal from the 25th Judicial District Court, with visiting judge, the Honorable Paul Davis, Presiding, in Cause No. 06-2079-CV, in which Ronald F. Avery was the Plaintiff and Ms. Tavie Murphy, Guadalupe County Tax Assessor Collector, the Guadalupe County Tax Office (GCTO) and the Seguin Independent School District (SISD) were the Defendants.
The Appellant respectfully shows below how the following arguments made by the Appellees in the Trial Court cannot deprive the Trial Court of Jurisdiction:
1. Appellees failed to prove Appellant’s “Lack of Standing” absent a “Unique Injury” because Appellant is not using his case to exercise the lawful authority belonging to another:
The Appellees argued that “as a general rule, an individual taxpayer does not have the right to bring a suit to contest government decision making” (F130). The Appellees continued to assert that “a citizen has no standing as a taxpayer unless he alleges an injury that is distinct and separate from that which he may have incurred as a member of the general public” (F131). The Appellees cite five cases to support their argument. But the Appellees fail to mention the element of all five cases absent in Avery’s pleadings that create this general rule. In all five cases the complainants are attempting to exercise the lawful authority that belongs to another by and through their lawsuits. The Appellant is not using his lawsuit to have a contract voided, or force the reassessment of someone else’s property, or revoke someone else’s tax exemption, or how to properly spend returned insurance money, or revoke a city ordinance, etc.
The Appellant alleged that a specific money was taken from him for public use (Article 1 Section 17) without a law (H31 L11-24) in violation of the Constitution (Article 8 Section 1e1 & Article 7 Section 1) (F208-212) under threat of denial of a building permit (F184-185) and that his property is at continual risk because of a public school curriculum in violation of Article 7 Section 1 (F225-226). The Appellant is not interfering with any particular decision or contract with any other public or private party and none are so named in his lawsuit.
The “unique injury” rule applies not only to “taxpayers” but everyone else in any suit where a complainant seeks to redirect specific decisions for a government official that lawfully has that authority. A “unique injury” is not required for a complainant who merely wants those without authority to stop violating the constitution as long as he can identify the injury in terms that can be remedied. The Appellees do not now have and have never had authority to collect a “state ad valorem property tax” for the support of “free public education” in violation of the constitution.
In every case cited by
the Appellees requiring a “unique injury” the Plaintiff’s were attempting to exercise
authority that belonged to government officials. The Appellees cited Burks v. Yarbraough, 157 S.W.2D 876,
However, upon inspection
of the Burks case we find that a private citizen, Burks, once a
None of the authorities cited by the Appellees at the Trial Court were applicable to this case as the Appellant is not seeking a public right. In the Scott v. Harris Methodist HEB, 871 S.W.2d 548, 550 (Tex. App.- Ft. Worth 1994, no writ) case cited by the Defendants, Scott had attempted to exercise the right of the public County Appraisal District to revoke a tax exemption granted to a Hospital. Only the CAD can review and revoke the tax exemption of another party, not a private individual, unless they were harmed independently of the public by the action complained of. The Appellant agrees with these cases that bar private persons from getting into the administrative role of public officials via a private civil action. But the Appellant is not doing that in his lawsuit.
In Parker v. City of San Antonio, 609 S.W.2d 877, 879 (Tex. Civ. App. – San Antonio 1980, no writ) cited by the Defendants, a “taxpayer” brought suit against the city, city manager and director of finance seeking to enjoin defendants from expending public funds in order to acquire certain parcels of land for the purpose of leasing them to a partnership for construction of a hotel. Again a private individual was attempting to re-direct or exercise a public right to contract merely because he perceived an injury in common with all other “taxpayers.” Also in the Parker case the defendants had already purchased the land and entered into the contract, therefore, the relief could not be granted. Parker did not specify any individual amount of personal damages as a result of the alleged unconstitutional contract. The Appellant, Avery, is not seeking to exercise authority of any Appellee or change a particular act of any government official, but seeks, instead, a return of his specified property and a cessation of unconstitutional acts in the future. The Appellant is not using the Trial Court to exercise the authority belonging to another by filing suit for the return of his property and a cessation of injury to his property. It matters not to the Appellant how his monetary damages and equitable relief are provided.
In Tuck v. Texas Power & Light Co., 543 S.W.2d 214, 215 (Tex. Civ. App. – Austin 1976, writ ref’d. n.r.e.), cited by the Defendants, a city resident brought an action against the city and electric company seeking to annul an ordinance providing for an electric rate increase. Here again a private individual was seeking to manipulate or exercise a public right delegated to others, constituting a usurpation of authority, by filing a lawsuit without a private unique injury distinct from the rest of the citizens.
The Appellant is not
attempting to make any public institution or public official do any thing other
than stop violating the Constitution and return his private property taken from
him without a law. This is the Appellant’s right under his contract with the
The Appellant is not attempting to exercise authority belonging to a public institution but rather attempting to get his money back and stop Appellees from unlawfully taking his own private property, and to stop putting his property at risk by their unconstitutional curriculum. Therefore all these cases cited by the Defendants in Trial Court are and were clearly inapplicable to this case and the ruling granting the Plea to the Jurisdiction on these grounds must be reversed and remanded.
The Appellees argued in the hearing that Appellant’s lawsuit did attempt to direct the decisions of the SISD regarding property taxes:
“Mr. Avery is trying to
The Supreme Court of Texas is doing that, not the Appellant. The Supreme Court of Texas has declared the scheme to fund free public schools in Texas to be unconstitutional in violation of Article 8 Section 1e1 in Neeley V. West Orange-Cove 176 S.W. 3d 746 (Tex 2005)797:
“***, we conclude that the public school finance system violates article VIII, section 1-e of the Texas Constitution.”
The Appellant merely wants his money back that was taken from him without a law in violation of Article 1 Section 17 and he wants the Appellees to stop taking any more in the future without a law and he wants them to stop putting his life, liberty and possessions (property) at risk by restricting their curriculum to that only which can be delegated to the State by the People under Article 7 Section 1 of Constitution of Texas, namely, the principles of property.
3. Appellees failed to prove the Trial Court lacked Subject Matter Jurisdiction and Appellant lacked standing to bring suit for Pecuniary and Equitable Relief regarding Unlawful Curriculum in violation of Article 7 Section 1 of the Constitution:
The Appellees argued that the Appellant does not have standing and that the Trial Court lacked Subject Matter Jurisdiction to find that the SISD has put the Appellant’s property at risk by failing to teach the principles of property required under Article 7 Section 1 because the principles of property are a “nebulous standard:”
“Moreover, he mentioned the inculcation of the principles of property. Well, Your Honor, I venture to say that if you went to a lot of different people and had a roomful of 25 different property owners and you asked them what the principles of property are, they are all going to be different, so I’m not sure that this nebulous standard that Mr. Avery is asking you to engage in is really proper.” (H46 L8-L15)
The Appellees suggest
that knowledge of the principles of property cannot be taught, or ordered
taught, in public schools by the court because said principles are different to
every property owner. The Appellees statement above is proof that the public
education system in
All people are property
owners. The principles of property, (written in 1689 by the renowned
philosopher, John Locke, son of a Calvinist attorney) are at the foundation of
every constitution in the
The only authority an individual has to delegate to his representative in the formation and exercise of government is their God Given Right to protect their own life, liberty and possessions, with force if necessary. The only authority an individual has to delegate to a teacher paid by all citizens through taxation is the authority to teach the principles of property so that the life, liberty and possessions (property) of that individual are understood and protected. This is one means a person has to protect his property – the “general diffusion of knowledge” essential to the “preservation of the liberties and rights of the people.” (F222–F224)
The Appellant has claimed that he has been continually injured by constant violations of Article 7 Section 1, costing him over $80,000 and that graduates of the free public school system do not respect his life, liberties or possessions, resulting in violations of Article 8 Section 1e1 and Article 1 Section 17 (F215-F217). The Appellant provided evidence that the Seguin High School did not even have a copy of the Texas Constitution in the library for student use until he gave them one on April 28, 1997 (F261).
The Appellees cited no authorities for their perceived want of jurisdiction of the Trial Court to address such “nebulous standards” like the principles of property that would deny the Trial Court’s authority to order a school district to conform to Article 7 Section 1 by finding a violation of same. The Appellant is not asking to design a curriculum but to find the existing one entirely insufficient and extraneous.
The Appellees further
argued in the hearing that all matters of curriculum are the exclusive domain
of the Legislature and the
“And, moreover, Your Honor, like I said before, I think the Legislature really sets through its administrative agencies and statutes, the Education Code being a primary example, what the curriculum is that is supposed to be taught in the public schools and seise a lot of that local control to the districts and so ultimately, Your Honor, that is not something I think that the Court has jurisdiction over.”
This is ridiculous on its
face. The Judiciary has no authority over any government office or department.
But the Judiciary has authority to determine if any government subdivision is
in breach of the Constitution or other law when a party damaged thereby
complains thereof in a suit. The Appellant was not asking the Trial Court to
permit him to design a public school curriculum for the State of
5. The Appellees failed to show that the “Statute of Limitations” can limit claims under any Article One provision of the Texas Constitution:
The Appellees argued that the Appellant’s claims were “partially barred” by the “Statute of Limitations” for a cause of action related to the unlawful taking or destroying of property in violation of Article 1 Section 17 of the Texas Constitution. The Appellees argued (F132-133), (H21 L5–L12) that any claim the Appellant had reaching back more than two years is barred by the “Statute of Limitations.” This statute may limit some common law claims between citizens involving property but it cannot by constitutional law limit a claim under Article One of the Texas Constitution.
A Constitutional Amendment, requiring a statewide election held for all citizens, is mandatory to alter or limit any Article One provision as shown by Appellant in his pleadings (F179-F181) and hearing (H31 L6–H33 L2). It is basic and fundamental that the Legislature cannot make statutes that alter the Constitution. Therefore, constitutional provisions are superior to acts of the Legislature. This principle is restated in Article 3 Section 62 limiting the Legislature:
“(a) The Legislature, in order to insure continuity of state and
local governmental operations in periods of emergency resulting from disasters
caused by enemy attack, shall have the power and the immediate duty to provide
for prompt and temporary succession to the powers and duties of public offices,
of whatever nature and whether filled by election or appointment, the
incumbents of which may become unavailable for carrying on the powers and
duties of such offices. Provided,
however, that Article 1 of the Constitution of
The purpose of the above constitutional provision is to grant the Legislature more power under an enemy attack than what it had been restricted to by the constitution in peace time. But it preserved the constitutional restrictions against government under Article One even in a time of war.
As it is important to maintain the Bill of Rights even while
These points showing the Appellees’ misapplication of the “Statute of Limitations” were made by the Appellant at the hearing (H31 L6-H33 L2) and in his pleadings (F179-181). Therefore, the “statute of limitations” cannot impair Article 1 Section 17 of the Bill of Rights or Article 1 Section 13 which mandates that all courts must remain open for all citizens for all claims related to injuries to their life, liberty and estates:
“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”
That “due course of law” is not dismissal for want of jurisdiction resulting from statutes and acts passed by the Legislature without an amendment to the Constitution permitting such a dismissal. No act or statute, code or case law can overturn a constitutional provision, especially an Article One “Bill of Rights” provision. The Appellees did not cite any case law in their support and Appellant need not show any case in support of such a fundamental principle of how constitutional law must be changed, altered, modified or suspended or limited by amendment only.
Further, the Judiciary may not overturn a provision of the Constitution by adoption of common or case law for that would violate Article 16 Section 48:
“All laws and parts of laws now in force in the State of Texas, which are not repugnant to the Constitution of the United States, or to this Constitution, shall continue and remain in force as the laws of this State, until they expire by their own limitation or shall be amended or repealed by the Legislature.”
A limitation of any Article One provision is repugnant to the Texas Constitution under Article 1 Section 29 and Article 3 Section 62. This was also repeated in Article 17 Section 2g:
“The Bill of Rights of the present Texas Constitution shall be retained in full.”
The Appellees cannot show any authority to apply the statute of limitations to the Appellant’s Article 1 Section 17 claim.
The Appellees argued that none of the money paid by the Appellant
to the GCTO under their charge for unconstitutional “State ad valorem property
tax” in support of “free public education” can be returned as it was paid
“voluntarily.” Sadly for the citizens of
Where it can be shown that money was paid in the form of unlawful taxes under “duress,” it is the duty of the government to return the money. Generally “duress” in these cases must be beyond that of the ordinary harm shared with all other citizens. All citizens suffer the same duress under the threat of selling their property on the courthouse steps. Amazingly, in these cases the court seems to perceive the “loss of a right to do business” as producing more “duress” than the loss of the entire taxed property on the courthouse steps.
The citations provided by the Defendants at Trial Court recognize duress if the taxing authority threatens to deprive the party of a right to do business unless those taxes are paid. The Appellant suffered unique duress from another government authority, besides the taxing authority, requiring the payment of those unlawful taxes to continue doing business.
The Appellees argued that “duress” must be unique from the rest of the citizens. But that is not what their own citations support. This “duress” does not need to be exclusive of all other citizens in the same class, e.g., providers of insurance. The Appellees argue that this duress cannot be shared by all other citizens. Their citations, however, support the notion that it is not the uniqueness that determines duress but the threat of deprivation of the right to do business rather than the loss of the property itself. What a judicious distinction!
Regardless of all these distortions of the principles of
property, the Appellant did suffer the kind of “duress” case law recognizes as
an exception to the “voluntary payment rule.”
First, the Appellant’s duress was unique in that all citizens are not developing property and therefore are not threatened with denial of a permit if an unlawful tax is not paid. Secondly, the Appellant’s duress was a threat to deprive his right to do business by denial of a building permit to develop his property to conduct his RV Park business. Thirdly, Appellant suffered with all other citizens the duress of an implied threat of the sale of his property to another if the taxes were not paid. The second type of duress above is recognized in case law as the exception to the “voluntary payment rule.”
The Appellant plead that he could not develop his planned Recreational Vehicle (RV) Park on his commercial property unless he certified that all taxes (past due or current, and lawful or otherwise) had been paid (F202), (H35 L6-H36 L20). Therefore, all money paid by Appellant in the form of unconstitutional school taxes can and should be returned to him. The Appellees argument would suggest that those who have paid unlawful school taxes on their homes cannot have their money returned because all homeowners have no additional unique duress of loss of business rights if they don’t pay. The argument of Appellees would hold that homeowners cannot meet this “uncommon duress exemption” standard under the “voluntary payment rule.” The case law brought by Appellees and adopted by Appellant supports the notion that “duress” does not have to be unique from all citizens or class of citizens but must threaten the right of the complainant to do business.
The argument of Appellees suggests that mere owners of land or
land developers in
The Appellant showed evidence (F192) for and stated in the hearing (H35 L22 – H36 L20) and in his pleadings (F185), (F202) that the Guadalupe County Health Department required that he certify that all taxes, pending on his property, were paid prior to obtaining a building permit. The Appellant paid them in fear of the denial of a permit and in fear of losing his property. The Appellant then meets and qualifies for three kinds of duress, common, and uncommon, and the “threatened right to do business,” the last of which is the recognized exception to the “voluntary payment rule.”
In the Sheldon v. Jasper Indep. Sch. Dist., 768 S.W.2d 884, 885 (Tex. App. – Beaumont 1989, writ denied) case, a “taxpayer” brought suit to recover penalties, interest and collection fees on delinquent taxes. Sheldon claimed that the Jasper County Appraisal District failed to notify the school district of his correct address resulting in his failure to receive a delinquent tax notice. It was held that voluntary payment of an illegal tax will not support a claim for repayment. However, this case cites State v. Connecticut Gen. Life Ins. Co., where an exception to the rule exists when the payment is the result of either express or implied duress from a threat to deprive the right to do business.
In National Biscuit Co.
v. State, 135 S.W.2d 687, 692 (
The National Biscuit case at page 693 also supports the Appellant’s perception and argument that any penalty, whether imposed upon one or all, for non-performance cannot be considered “voluntary:”
“It is settled as the law of this State that where a legislative act by its terms visits upon a taxpayer the penalties and punishments prescribed by these Acts for failure to pay an illegal tax, such taxpayer need not take the risk of incurring such penalties and punishments, while the invalidity of such taxes are being judicially ascertained, in order to preserve his rights as a taxpayer under duress.”
The National Biscuit case at page 692 also supports the argument of Appellant that where the payment of a non-voluntary unconstitutional tax is made it is clear a return of money is the duty of the receiver to return as it was money taken without a law under duress:
“An unconstitutional statute is a void statute. In other words, it is not a law at all.”
“That duress in the payment of an illegal tax may be either express or implied, and the legal liability to repay or refund is the same in both instances.”
Appellant can perceive of instances where a tax can be later made
unlawful but payment of same was never made under duress and therefore carries
no duty to return. Some kind of sales tax or use tax may be ruled unlawful, but
the non-payment of those taxes exacted no penalty. But Non-payment of ad
valorem property taxes on land exacts a penalty more severe than denial of a
right to do business – the right to own and possess land is denied. How the
courts can find that this is not duress is a proof of the Appellant’s claim
that his property is placed at risk by a curriculum in violation of Article 7
Section 1. Further, no taxing authority in this State can lawfully derive a
power to lien the private land or property owned by Appellant or any other citizen
It is clear that the Appellant’s claims for a return of $80,897 come under the exception to the “voluntary payment rule” which permits recovery of unlawful taxes and penalties, interest and collection fees when they are collected under duress of losing a right to do business if not paid. This is true if the duress is implied or expressed or common or uncommon or weather or not the tax was protested in any way.
The National Biscuit case further found liability against the State of Texas for 10 years of unconstitutional state taxes demonstrating that an unconstitutional claim is not barred by a two year statute of limitations which may lawfully limit some statutory and common law claims.
Further, the Appellant argued that any tax paid with a penalty for non-payment cannot be considered voluntary by definition regardless of erroneous case law. Want of penalty is the essence of voluntary action. Duress is the threat to take unlawful action against a party. Voluntary performance cannot have an attached penalty even if the penalty is considered lawful at the time (F184) (F214-F215) (H35 L6-L24).
The Appellant also argued that no one can place a lawful lien on
his property by merely entering a voting booth. This is the great error of pure
democracy wherein those without authority vote to take what does not belong to
them and give it to someone else. The purpose of the Appellant’s contract with
the people of
In State v. Connecticut
General Life Insurance. Co., 382 S.W.2d 745, 746-47 (
If any insurance company did not pay their occupation tax they
cannot get a permit to do business in
7. Appellees failed to prove that Appellant’s claims under the “self enacting” provisions of Article 1 Section 17 were not an exception to the general rule of “No Monetary Damages for Violations of Constitution:”
The Appellees argued (F136)
(H24 L4-L13) that “under
However, there is an exception to this “general rule,” where the
complainant pleads an unlawful taking of money for public use without a law in
violation of Article 1 Section 17.
The Appellant responded to the Appellees assertions in his pleadings (F186-187) and at the hearing (H43 L17-H44 L15) that the “self
enacting” quality of Article 1 Section 17 “is a waiver of governmental immunity for the
taking” of money for public use without a law. The Bouillion case cites Steele v. City of Houstion, 608
S.W.2d 786, 791 (
“where we stated: “The Constitution itself is the authorization for compensation for the destruction of property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.” However, this language cannot be interpreted beyond its context.”
The Appellant properly pleaded an Article 1 Section 17 violation that waives governmental and official immunity for the taking of money for public use without a law. The Supreme Court of Texas ruled that the Appellees charged and collected a “State ad valorem property tax for the support of public free schools” which has been ruled a violation of Article 8 Section 1e1 by the Supreme Court of Texas. Therefore this money was collected without a law and needs to be returned to the Appellant under Article 1 Section 17.
The Appellees also cited University
of Texas System v. Courtney, 946 S.W.2d 464, 471 (Tex. App. – Fort Worth
1997, writ denied) in support of their argument. Courtney sought monetary
damages from the
The Appellees did not argue this at the hearing but mentioned it in their pleadings (F69), (F79-F80). No citations were included but the Appellees argued that “only the Texas Legislature can waive sovereign immunity, and the Plaintiff has not identified and cannot identify any consent by the Legislature to his suit for damages under the Texas Constitution as set out in his pleadings.”
To the contrary, the Appellant has claimed from the very beginning (F84-F85), (F171-F173), (F179) an unlawful taking of money without a law in violation of Article 1 Section 17 in which the citations of the Appellees at Trial Court (Steele v. City of Houston) recognize as a waiver of all immunity on behalf of government and its officers.
Therefore, the Trial Court erred in granting the Plea to the Jurisdiction on the grounds that the Appellees had sovereign immunity.
The Appellant in his First Amended Original Petition abandoned any claim he had in which the Appellees provided a good basis for dismissal, namely, the Appellant’s claim that the Appellees did not use “discretion” in the calculation of the tax rate in 2005 (F226-227) (H33 L3-L5). This claim should have been pursued under the “exclusive administrative remedies” provided under the Texas Property Tax Code. However, this is and was a moot issue and not something that needed to be proved as it was determined by the Supreme Court of Texas in Neeley v. Orange Grove.
None of the cases cited or any argument made by the Appellees prove a lack of standing for the Appellant or a want of jurisdiction for the Trial Court. For this reason the Appellant adopts all the cases used by the Appellees as authority for a reversal of the Trial Court’s Order (F271-272), (Ae-f) dismissing the Appellant’s lawsuit. The Appellees provided no authorities for support of their argument that the Appellant’s suit should be dismissed.
The Appellant prays that the Court of Appeals reverse the Order of the Trial Court granting a dismissal of the Appellant’s law suit based upon Appellees’ Plea to the Jurisdiction by signing said Order March 6, 2007, and that this cause be remanded to the Trial Court for further proceedings.
F. Avery Pro
Se __________________________ 1955
Ronald F. Avery
I, hereby certify that on the ____ day of ____________, 2007, the foregoing Appellant’s Brief was sent to Counsel for Appellees by certified mail return receipt requested as identified below:
Defendant Murphy & GCTO:
7006 2760 0005 3028 3128
McCleary, Veselka, Bragg
& Allen, P.C.
Attn: Matthew Tepper
7006 2768 0005 3028 3135
Feldman & Rogers, L.L.P.
Attn: Ricardo R. Lopez
Ronald F. Avery
1. Article 1 Section 13
2. Article 1 Section 17
3. Article 1 Section 29
4. Article 3 Section 62
5. Article 7 Section 1
6. Article 8 Section 1e1
7. Article 16 Section 48
8. Trial Court’s Order Dismissing the Case
9. Guadalupe County Health Department Infrastructure Development Plan requiring a tax certificate showing all taxes have been paid.
10. Article 17 Section 1
11. Article 17 Section 2
Article 1 Section 13
Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted. All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.
Article 1 Section 17
No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.
Article 1 Section 29
To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.
Article 3 Section 62
(a) The Legislature, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices. Provided, however, that Article 1 of the Constitution of Texas, known as the “Bill of Rights” shall not be in any manner affected, amended, impaired, suspended, repealed or suspended hereby.
Article 7 Section 1
A general diffusion of knowledge being essential to the preservation of the liberties and rights of the people, it shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.
Article 8 Section 1e1
No State ad valorem taxes shall be levied upon any property within this State.
Article 16 Section 48
All laws and parts of laws now in force in the State of Texas, which are not repugnant to the Constitution of the United States, or to this Constitution, shall continue and remain in force as the laws of this State, until they expire by their own limitation or shall be amended or repealed by the Legislature.