Ronald F. Avery
Ms. Tavie Murphy,
In the District Court
25th Judicial District
Plaintiff’s Response to Original Answers of Defendants Tavie Murphy, Guadalupe County Tax Office and Original Answers & Special Exceptions of Seguin Independent School District
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes, Ronald F. Avery, Plaintiff, with his response to the
Original Answer of Ms. Tavie Murphy, Guadalupe County Tax Assessor and
Collector, and the Guadalupe County Tax Office and the Original Answers and
Special Exceptions of the
1. General Denials and Abandonment of District’s First Original Answer and Request for Disclosures
The Defendants have answered the Plaintiff with general denials, numerous affirmative defenses and prayers for costs upon a dismissal of this suit. The Seguin ISD answered twice with an Original Answer by a second law firm thus under TRCP # 65 they have abandoned their first Original Answer along with their “Request for Disclosures.” The Plaintiff therefore, will not be complying with said request or TRCP # 194. The Seguin ISD claimed more affirmative defenses than did Tavie Murphy and the Guadalupe County Tax Office (GCTO). However, all three Defendants answered with two common affirmative defenses which the Plaintiff will respond to last.
2. Deprivation of Constitutional Rights and Violation of Constitution to Plaintiff’s Injury distinguished
The Seguin ISD (or District) independently answered affirmatively, in light of the Plaintiff’s pleadings being true, that “it did not deprive Plaintiff of any constitutionally protected rights.” The Plaintiff did not claim that the District had “deprived” Plaintiff of any constitutionally protected rights. Instead, the Plaintiff claimed in his petition that the District had violated Article 7 Section 1 and Article 8 Section 1e1 of the present Texas Constitution of 1876 which caused the Plaintiff injury. There is a vast difference. The present effort of the District to have the Plaintiff’s instant lawsuit dismissed is an effort to deprive the Plaintiff of his constitutional rights to bring a suit against the Seguin ISD under Article 1 Section 2, 13, 17, 19, 29; Article 7 Section 1 and Article 8 Section 1e1. A court that would grant the Defendants’ request for a “take nothing” dismissal would deny Plaintiff’s constitutionally protected rights.
3. Admission by District of Ignorance of Constitutional Theory and Fundamental Principles of Property Precedent to Constitutions
The Seguin ISD independently answered affirmatively, in light of
the Plaintiff’s pleadings being true, that “Plaintiff has failed to state a claim
which relief can be granted under the Constitution or any statute,
constitutional theory or legal authority.” This is an astonishing statement
from a significant lawfirm and a sad commentary on the condition of the
practice of law in
4. Defendants’ Prayer for Costs are without Merit
Because the Plaintiff has based his causes of action upon the
most fundamental principles of law in
5. No Limitations for Violation of Constitution
The Seguin ISD independently answered affirmatively, in light of
the Plaintiff’s pleadings being true, that the “District also asserts the
defense of limitations as a bar to the claims and causes of action asserted by
Plaintiff.” A Plaintiff is not barred from suit by a “statute of limitations”
any more than he is barred from suit by a ‘statute of sovereign immunity’ i.e.,
the Texas Tort Claims Act. No Statute or Act of the Legislature can set aside
the provisions of the Constitution of Texas. Since there is no Constitutional
Provision or Amendment for Limitations barring a suit for violation of the
Constitution, the Plaintiff is not barred. The Legislature cannot destroy or
limit the Constitution of Texas except by Amendment to the Constitution. Only
the makers of the constitution of
6. No Remedy to Exhaust & No Immunity to avoid a State Property Tax Forbidden under Article 8 Section 1e1
All the Defendants claimed two affirmative defenses; first, all Defendants claim that Plaintiff has not exhausted his “administrative remedies” prerequisite to filing suit against the Defendants contained completely within the Texas Property Tax Code (TPTC). And second, a “plea to the jurisdiction,” that outside those administrative remedies provided by the TPTC, all the Defendants are protected by the Texas Tort Claims Act (TTCA) as codified mainly in Chapters 101 – 110 of the Texas Civil Practice and Remedies Code (CPRC) and referenced as merely the TTCA. The Defendants’ assertions make the Supreme Court of Texas look like a bunch of morons when quoted from its most recent ruling on public school funding finding the free public school financing scheme to be unlawful and unconstitutional on 11/22/05:
“Prior cases challenging public school finance have involved individual claimants as well as school districts. The State defendants do not contest that individuals would have standing to raise the claims in this case. The interests of individual taxpayers in suitable, adequate, efficient public education and in avoiding a state property tax might well diverge from those of their school districts. But individuals’ standing to assert these constitutional claims does not deprive school districts of standing to assert the same claims.” (Bolding added)
The Plaintiff has pleaded that he is a Citizen of Texas and has been an individual taxpayer with Constitutional protections that have been violated by the local County Tax Assessor Collector and the Guadalupe County Tax Office (GCTO) by collecting a State ad valorem property tax on Plaintiff’s property that violates Article 8 Section 1e1. How did the other “individual claimants” get into court “challenging public school finance?” Surely the individual claimants did not allege that they were run over with a tractor (CPRC 101.021.1) driven by the County Tax Assessor Collector or that the claimant slipped and fell on freshly mopped floors at the high school (CPRC 101.021.2 & 101.022) or that the County pen they used to sign their check blew up in their face (CPRC 101.021.2). How would any of that apply to the lawfulness and constitutionality of State ad valorem property taxes? Surely the Defendants do not believe that individual citizens do not have constitutional rights but rather only fictions like school districts and tax offices have constitutional rights. If school districts have constitutional rights, where did they get them as they are not entities possessing life and liberty? The high court merely conferred the constitutional rights of individual citizens under the constitution to school districts with the notion that the benefit obtained by the school district, viewed as an individual in court, would trickle down to the actual individuals. This has proved to be a fruitless notion. Under the Defendants’ theory the Plaintiff could only bring an action that complained of improper action by the County Appraisal District in the calculation of his lawful taxes by first exhausting the administrative remedies of the TPTC then continue in State District Court.
7. Supreme Court says Individual tax payers have standing and rights and interest to avoid a State Property Tax
The Supreme Court of Texas has opined above that “individual tax payers” have standing and rights and “interests” in “suitable, adequate, efficient public education” (Article 7 Section 1) to assert constitutional claims (Article 1 Section 13, Article 7 Section 1 and Article 8 Section 1e1) against county tax offices and the local school districts to “avoid a state property tax,” forbidden under Article 8 Section 1e1, and given that fundamental notion, the same was thought fair to be conferred upon a school district. But the Defendants herein maintain the ludicrous notion that the rights conferred upon school districts from individuals cannot be maintained by an individual claimant alone. Any immunity afforded the Defendants from the claims of the Plaintiff as an individual tax payer is waived here by the Supreme Court of Texas.
8. No Administrative Remedy to Exhaust
It is falsely presumed by Defendants that the individual tax
paying claimants referred to above by the Supreme Court must have penetrated
the mythological absolute prerogative and sovereign and governmental immunity vale
of all the King’s men under King Texas via the “administrative remedy” provided
for by the Texas Property Tax Code (TPTC) made prerequisite to filing suit in
State District Court. Upon application of this theory we find that no
individual tax payer has a remedy for his complaint that the entire ad valorem
property tax scheme to support free public education in
Sec. 41.41. Right of Protest.
(a) A property owner is entitled to protest before the appraisal review board the following actions:
(1) determination of the appraised value of the owner's property or, in the case of land appraised as provided by Subchapter C, D, E, or H, Chapter 23, determination of its appraised or market value;
(2) unequal appraisal of the owner's property;
(3) inclusion of the owner's property on the appraisal records;
(4) denial to the property owner in whole or in part of a partial exemption;
(5) determination that the owner's land does not qualify for appraisal as provided by Subchapter C, D, E, or H, Chapter 23;
(6) identification of the taxing units in which the owner's property is taxable in the case of appraisal district's appraisal roll;
(7) determination that the property owner is the owner of the property;
(8) a determination that a change in use of land appraised under Subchapter C, D, E, or H, Chapter 23, has occurred; or
(9) any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner.
It is clear from the Section 41.41 that
the administrative remedies do not address the bulk of the Plaintiff’s
complaints. Plaintiff will admit one of his complaints could have been
addressed but that this complaint was made only as an example of the futility
of lowering the tax rate as a solution to the violation of Article 8 Section
1e1. The monetary damage resulting from just one claim of Plaintiff related
to the lack of discretion applied to
the tax rate in 2005. This lack of discretion claim is moot as it was an
unknown amount of a total that was inclusively claimed as unlawful as all the
assessments over the years asserted by Plaintiff. The Plaintiff’s real
complaint is that all ad valorem property taxes for the support of the free
public school system in
9. No Remedy - No Compulsion
Where there is no remedy provided one cannot be compelled to seek it. And where there is no other remedy outside the courts, the courts must be open in Texas for any harm done to a citizen in his lands, goods, person and reputation as clearly and explicitly declared in Article 1 Section 13 of the Texas Constitution of 1876 represented to all by the courts of Texas as the law of the land. This constitutional provision contemplates harm done by government as it is clearly and explicitly declared in Article 1 Section 29:
“Sec. 29. PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE. To guard against the 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.
The above Article 1 Section 29 coupled with Article 1 Section 13 alone is enough to defeat the entire TTCA yet the Defendants would have this Court believe that he does not have the protection of the Constitution but that the Legislature can vote his Constitutional protections and rights away without one explanation by the Courts as to why they no longer apply to him in the face of clear explicit declaration of fundamental law to the contrary.
10. Dilemma - immunity is admission by Murphy & GCTO that Tax was a State Tax forbidden under Article 8 Section 1e1
Without waiving the Plaintiff’s assertion that the government of Texas
and its employees and officers do not have sovereign or governmental immunity
over a Citizen of the State of Texas to harm him without judicial recourse
unless waived by statute or congressional resolution, the Plaintiff asserts
that no State sovereign or governmental immunity, if it existed, is due the
Defendants as they were not sued in their State capacity. Rather, the Plaintiff
sued the Defendants for their unauthorized act of collecting a state ad valorem
property tax forbidden under Article 8 Section 1e1 while acting as mere
Local ad valorem property tax assessors and collectors. If Defendants admit
that they are due sovereign and governmental immunity afforded the State of
11. Plaintiff does not seek liability, pecuniary damages or control of State action against Defendant Murphy & GCTO
No Sovereign or governmental immunity applies when Plaintiff does not seek liability or monetary damage from the State or does not seek to control the State. The Plaintiff in this instant suit is not seeking to impose liability on the State, nor seeking to control a lawful function of the State nor seeking monetary damages against the State for which it has a lawful constitutional authority. The Plaintiff in his instant suit is seeking the return of his property, money, with exemplary damages for the collection of an unlawful ad valorem state tax supporting the school district forbidden under Article 8 Section 1e1.
12. No Immunity for Murphy & GCTO for Ultra Vires Claim
The Defendant, Murphy, provided verified evidence that: 1) Plaintiff did not exhaust his administrative remedy; 2) she individually is due sovereign or governmental immunity in her official capacity as Local County Tax Assessor and Collector; 3) she and the Guadalupe County Tax Office are due sovereign or governmental immunity in their official capacity. This verified evidence speaks to personal knowledge of the law rather than fact which can be ascertained without the evidence provided and does not benefit the Defendant. However, Plaintiff has attached his Affidavit hereto to contest that evidence as Exhibit A. The Plaintiff has alleged that the Guadalupe County Tax Office and Tavie Murphy charged him and collected money from him without authority as the tax was an ad valorem State Tax forbidden under Article 8 Section 1e1 as ruled by the Supreme Court of Texas and therefore the harm done to the Plaintiff represented an ultra vires claim outside the authority of the County Tax Assessor Collector and the Guadalupe County Tax Office to collect as collectors of presently deemed lawful Local District ad valorem taxes. Had Plaintiff complained that the tax collected by Defendants was a lawful local tax but improperly calculated, assessed or collected under their authority to collect local district property taxes the Defendants would be afforded the modern fictitious doctrine of sovereign and governmental immunity. But the Plaintiff claimed the Defendants collected a tax they had no authority to collect, an act which is ultra vires.
No Immunity for
The Plaintiff has made it clear that the actions of the Seguin ISD complained of were not made in the execution of their lawful duties. The Plaintiff did not claim that he was harmed by the District by the teaching a false idea under a lawful curriculum or harmed him with information which is part of a lawful curriculum or hurt him while in the performance of their duties. Rather, the Plaintiff’s Petition claims the District had no duty or authority to build football stadiums, gymnasiums, instruct people on how to repair automobiles, cook meals, act on stage, climb ropes, draw pictures, exercise, etc., etc. The Plaintiff did not claim that the District harmed him while in the pursuit and exercise of their lawful authority but rather have damaged the Plaintiff by continual concealment of the principles of property, that protect him and his fellow citizens, with a mountain of propaganda and irrelevant material not authorized by the Texas Constitution under Article 7 Section 1.
14. District’s Special Exceptions
The Seguin ISD also filed Special Exceptions requesting the Court to order the Plaintiff to re-plead and cure the defects asserted by the Seguin ISD. The Plaintiff will be most happy to defend his pleadings at a hearing on that request and attempt to comply with any court orders.
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants Tavie Murphy and the Guadalupe County Tax Office and the Seguin Independent School District defend themselves from the claims for damages by the Plaintiff before a jury of Plaintiff’s peers in all issues and all damages except those involving want of discretion in the calculations made in assessments, charges and collections made by the GCTO in 2005, an unknown and moot amount.
Certificate of Service
I hereby certify that a true and correct copy of the
foregoing Plaintiff’s Response to Original Answers of Defendants Tavie
# 7004 2890 0002 0325 8035 to:
Attorney of Record for Defendants Tavie Murphy and the
Kirk Swinney / Matthew Tepper
McCreary, Veselka, Bragg & Allen, P.C.
# 7004 2890 0002 0325 8042 to:
Attorney of Record for
Joe A. De Los
Walsh, Anderson, Brown, Schulze & Aldridge, P.C.
100 N.E. Loop 410 Suite 1000
Ronald F. Avery
04-1144 Shirley Neeley, Texas Commissioner of Education, et al, APPELLANTS, v.