No. ______________________
IN THE
SUPREME
COURT
OF
___________________________
RONALD F AVERY
Petitioner,
V.
Ms. TAVIE MURPHY,
Respondent.
|
PETITION FOR
REVIEW |
Ronald F. Avery
Pro Se
1955
Phone & Fax: 830/372-5534
E-Mail: Taphouse@sbcglobal.net
IN THE
SUPREME COURT
OF
___________________________
RONALD F
AVERY
Petitioner,
V.
Ms. TAVIE
MURPHY,
Respondent.
|
|
Pursuant to Rule 53.2(a) of the Texas Rules of Appellate Procedure, the Petitioner, Ronald F. Avery, certifies to the best of his knowledge, that the following is a complete list of all persons or entities with an interest in this Petition:
1. Petitioner - Ronald F. Avery - Pro Se.
1955
2. Respondent – Ms. Tavie Murphy, Guadalupe Co. Tax Assessor Collector.
307
W. Court Street
3. Respondent
– Guadalupe
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
Round
Ph: 512/323-3200
Fax: 512/323-3294
Email: MTEPPER@MVBALAW.COM
4. Respondent
–
Dr.
Irene Garza - Superintendent
The Attorney of record for SISD is:
Ricardo
Lopez SBOT# 24013059
Feldman
& Rogers, L.L.P.
Attorneys
at Law
Ph: 210/406-4100
Fax: 210/406-4114
IDENTITY
OF PARTIES AND COUNSEL
Bland Indep. School Dist., 34 S.W.3d at 553-54.................... 12
Burks v. Yarbraough, 157 S.W.2d 876, 879 (Tex. App. – Houston [14th
Dist.] 2005, no pet.)............................................................ 7
Cramer v. Sheppard, 167 S.W.2d 147 (Tex 1942)..................... 13
Koy v. Schneider, 110 Tex. 369, 218 S.W. 479, 221 S.W. 880........ 14
Neeley V. West Orange-Cove 176 S.W. 3d 746 (Tex 2005)797.......... 13
Oakley v. State, 830 S.W.2d 107................................... 14
Osborne v. Keith.................................................. 12
Parker v. City of San Antonio, 609 S.W.2d 877, 879 (Tex. Civ. App. – San Antonio
1980, no writ)................................................... 8
Scott v. Harris Methodist HEB, 871 S.W.2d 548, 550 (Tex. App. – Ft. Worth 1994, no
writ)............................................................ 7
Texas National Guard Armory Board v. McCraw, 132 Tex. 613, 126 S.W.2d 627, 634 (1939).......................................................... 14
Tuck
v. Texas Power & Light Co., 543 S.W.2d 214, 215 (Tex. Civ. App. – Austin 1976, writ
ref’d. n.r.e.).............................................. 8
Wilkinson v. Dallas/Fort Worth
International Airport Board, 54
S.W.3d 1 10
The notation (CR 12-14) refers to pages 12 through 14 of the Clerk’s Record.
The notation (RR 12-14) refers to pages 12 through 14 of the Reporter’s Record.
No. __________________
RONALD F AVERY
Petitioner,
V.
GUADALUPE-BLANCO RIVER AUTHORITY
MR. WILLIAM E. WEST JR.; MR. DAVID WELSCH,
Respondent.
|
Petition for Review |
Petitioner, Ronald F. Avery, submits his petition for review.
Petitioner will be referred to as Petitioner, and/or Avery. Petitioner was the
Plaintiff in Trial Court and Appellant on appeal. The Respondents, Ms. Tavie
Murphy, Guadalupe County Tax Assessor Collector, The Guadalupe County Tax
Office, and the
Nature of the case: The
Petitioner, a citizen of the state of
Proceedings in the Trial Court: The Petitioner sued the Respondents in the 25th District Court, Guadalupe County, Texas, where the Honorable Paul Davis visiting judge was presiding.
The judgment of the Trial Court: Judge Davis signed an Order granting identical Pleas to the Jurisdiction for all Respondents on March 6, 2007.
Proceedings
in the Court of Appeals: The Petitioner appealed to the Fourth Court of
Appeals in
The Opinion of the Panel: The panel that decided the case was composed of Justices Catherine Stone, Karen Angelini, and Rebecca Simmons. The Court of Appeals rendered its judgment and issued a Memorandum Opinion on September 5, 2007. Justice Catherine Stone authored the Memorandum Opinion for the panel.
The Judgment of the Court of Appeals: The Court of Appeals affirmed the Judgment of the Trial Court granting the identical Plea to the Jurisdiction for all Respondents finding that (1) Avery lacked “standing” as he was a “taxpayer of unconstitutional taxes” rather than a citizen with unalienable rights under his social contract with state officials and his fellow citizens contained in the Texas Constitution, (2) Avery had not plead a “statute” from the legislature permitting him to sue the criminal violators of the constitution for stealing his property as if Avery’s rights were derived from acts and statutes of the legislature or that the legislature could alter, modify or suspend the Bill of Rights of the Texas Constitution in violation of Article 3 Section 62, and (3) Avery did not plead an “injury peculiar to himself” when he was prevented from getting a building permit without paying the unconstitutional taxes as if all citizens were prevented from doing business in Texas if they did not pay their unconstitutional taxes.
The Supreme Court of Texas has jurisdiction over this case because the Fourth Court of Appeals has ruled in contradiction to established case law regarding “decision making of government officials.”
The Supreme Court has further jurisdiction over this case because the Fourth Court of Appeals has ruled in contradiction to established case law regarding the “voluntary payment rule.”
The Supreme Court has further jurisdiction over this case because the Fourth Court of Appeals has ruled in contradiction to Article 1 Section 13 related to a claim under Article 1 Section 17 “taking of property for public use without a law.”
The Supreme Court of Texas has further jurisdiction over this case because of the constitutional question raised by the Petitioner regarding the closing of courts in violation of Article 1 Section 13.
The Supreme Court has jurisdiction over this case because of the ruling of the Fourth Court of Appeals in contradiction to Article 3 Section 62 regarding their erroneously supposed necessity to plead a statute that would in effect limit, alter, abolish or suspend any Article 1 provision.
ISSUES PRESENTED FOR REVIEW
Issue 1: The use of the “unique injury” rule to close the courts to a claim under Article 1 Section 17 is misapplied, unjust, and unconstitutional under Article 1 Section 13.
Issue 2: The application of the “unique injury” rule to inverse condemnation cases cannot be applied to this case alleging direct taking without compensation and without a law.
Issue 3: The pleading of a statute or showing of unique injury should not be used to bar cases of taking of money without law for public use.
Issue 4: The effect of closing the courts to citizens injured by government with erroneous unconstitutional judicial rules of precedent is to prevent the advance of good social policy, government reform and to incite civil unrest and lawful resistance.
The opinion of the Fourth Court of Appeals incorrectly states the “background” facts and the nature of the case. The “Background” states in relevant part:
“Following Avery's
partial payment of his taxes,
Actually, Avery responded to the county’s continued threats of foreclosure if he did not pay the unconstitutional tax was to first file suit against Respondents and then pay the unconstitutional taxes (CR 202) in fear he could not keep or develop his real estate. Even though both were done on the same day, Avery sued first and then paid those unlawful taxes.
Further, the Petitioner dropped all his claims against “the county” regarding the “assessment” and retained only his claims that the county and district held his “statewide ad valorem property taxes for the support of free schools,” which this Supreme Court ruled unconstitutional and that Petitioner’s life, liberty and property were placed in continual risk by the district’s unconstitutional curriculum.
The Fourth Court of Appeals affirmed the Trial Court granting of the identical pleas to the jurisdiction based upon the following only (Tab B):
“Unless a particular statute conveys standing, a plaintiff who sues to challenge governmental decision-making must demonstrate that he has an interest in a conflict separate from that of the general public, and that the defendants' actions have caused the plaintiff some particular injury.”
The Petitioner made the compelling argument at the Trial Court and on appeal that he was not challenging any particular decision made by the Respondents. All the cases that the Respondents offered and that the Fourth Court of Appeals used relate to a complainant attempting to change, redirect or alter or void some decision made by a government official. The Petitioner has consistently asserted that he is not challenging a contract, an assessment, a use of funds, or any other decision that their citations concerned. Rather, the Petitioner is asking the government to give his property back that they took from him without a law. This has nothing to do with their decisions of how to take it from him or how to keep it or use it.
The unlawfulness of the “tax” the Respondents coerced from the Petitioner was not challenged as this Supreme Court had already established. The Petitioner was merely asking for that money back that was taken from him without law under Article 1 Section 17 which is a waiver of all immunity and requires no “pleading of a statute” to pursue and receive the return of one’s property.
Justice Stone confused the issue of “duress” related to the “voluntary payment rule” with the required pleading of a “statute” waiving sovereign immunity in regard to “decision making” of government officials (Tab B):
“Avery does not allege a
particular statute conveys standing. Rather, Avery asserts he has standing as a
citizen with a peculiar interest adversely affected by the actions of
Avery was indeed threatened in a way that falls within the exception to the “voluntary payment rule.” The threat of denying Petitioner’s RV Park construction permit if the unlawful tax was not paid constitutes an exception to said rule.
However, this threat, contrary to the Stone Opinion, has nothing to do with the element of “a particularized injury” required when challenging “decision making” of officials. The Petitioner dropped all questions related to decision making of all Respondents. It was not disputed at Trial Court or on Appeal that the actions of Respondents were unlawful. This had been established by this Supreme Court. The Petitioner simply asked for his property back under Article 1 Section 17.
A complainant is not required to plead a “statute” or a “unique injury” if they are not challenging a particular decision made by an official with delegated authority to make those decisions. But if government takes property for public use without a law from a citizen, that citizen should not need to do anything other than sue under Article 1 Section 17 to have that same property returned.
Justice Stone attempts to apply the “threat or duress” applicable to the exception to the “voluntary payment rule” to the “unique or particularized injury” required in challenging the “decision making” of government officials:
“There is nothing in the
record, however, to indicate that Avery was treated any differently than any
other property owner or suffered an injury peculiar to himself. It is evident
from Avery's pleadings that the purportedly unlawful school property taxes were
assessed against all property owners within the SISD, not just Avery. Moreover,
it is clear that the county regulation that prevented Avery from obtaining a
building permit until he paid his delinquent taxes applied not only to Avery,
but to all property owners alike. Because Avery's pleadings fail to demonstrate
his standing as a taxpayer, we hold the trial court properly granted
It is incorrect that the
threat of permit denial applied to all property owners in
The Petitioner abandoned all challenge to “decision making” and simply asked for his property back and the issue of threat of denial of a permit defeated the attempt of the Respondents to use the “voluntary payment rule” to refuse to return the Petitioner’s property. The Petitioner also sought equitable relief to have the District stop violating Article 7 Section 1 harming the Petitioner’s property and that the County cease from violating Article 8 Section 1e.
The Fourth Court of Appeals affirmed the Trial Court grant of identical Pleas to the Jurisdiction for all Respondents based upon the notion that a “taxpayer” must either plead a “unique injury” separate from that of the community or plead a “statute” allowing the suit. The judiciary and the legislature have combined in violation of Article 2 Section 1 to create a special class of persons without constitutional protection called “taxpayers” in order to plunder the wealth of citizens unabated.
Avery is not a “taxpayer”
of unconstitutional taxes (RR 31) and should not be placed in such a category
just in order to deny him protections guaranteed by the clear reading of
Sections 13 and 17 of the Texas Constitution and to continue the looting of
The “unique injury” rule is to prevent those without authority from using the courts to interfere with “decision making” of those government officials who do have delegated authority rather than to merely close the courts to injured citizens in violation of Article 1 Section 13.
The courts have
misapplied the true and legitimate use of the “unique injury” rule. This rule
is justly applied to a case where the plaintiff complains of an unlawful or
illegal action taken or decision made by a government official but where the
plaintiff has not been injured by the defendant. Burks v. Yarbraough, 157 S.W.2d 876, 879 (
In the Scott v. Harris Methodist HEB, 871 S.W.2d 548, 550 (Tex. App. – Ft. Worth 1994, no writ) case, Scott had attempted to exercise the right of the public County Appraisal District to revoke a tax exemption granted to a Hospital. How Scott was injured here is hard to find.
In Parker v. City of San Antonio, 609 S.W.2d 877, 879 (Tex. Civ. App. – San Antonio 1980, no writ) 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 wherein his injury is imperceptible.
In Tuck v. Texas Power & Light Co., 543 S.W.2d 214, 215 (Tex.
Civ. App. – Austin 1976, writ ref’d. n.r.e.), 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 “unique injury” rule
is properly applied where the citizen without authority is attempting to
exercise the authority delegated to the government official by filing a lawsuit
without a unique injury separate from the public. However, that “unique injury”
rule should only apply where the plaintiff is attempting to exercise authority
that does not belong to him. The Petitioner herein is not attempting to
exercise the authority of any of the Respondents as he said in his Appellant’s Brief
page 12:
“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
people of
The “unique injury” rule should not be applied to a case wherein the Plaintiff is not attempting to exercise the authority of the government official but merely protecting his own property under the law by exercising the authority he does have to bring a lawsuit under article 1 Section 13 and 17. The Constitution is the Petitioner’s contract with his fellow citizens, and government officials to protect his property against government officials and his fellow citizens and foreigners. The Petitioner has retained authority under this social contract to bring suit against those who violate the law and take his property without a law where he is not attempting to usurp lawful authority of one who rightfully holds it.
Even though this case is an Article 1 Section 17 claim it is not an Article 1 Section 17 “inverse condemnation” case and he application of the “unique injury” rule should not apply here. It is also proper in “inverse condemnation” cases to require a showing that the Plaintiff had a “unique injury” outside the community damage. These cases involve pleadings of damage caused by the construction of new roads or airports or water and zoning boards etc. It is difficult in these cases to show the extent of damage one party suffers in relation to other parties. But more importantly these cases challenge the decision making of those with authority. And if the authority has been granted and exercised the community should be willing to bear the consequences.
In the Wilkinson v. Dallas/Fort Worth International Airport Board, 54 S.W.3d 1 case the appellate court affirmed a summary judgment dismissing the suit for reasons stated at page 12:
“(1) all injuries alleged by appellants were noncompensable community damages; (2) appellants' pleadings failed to state a cause of action under article one, section seventeen of the Texas Constitution; and (3) there was no evidence that appellants' properties were damaged in some unique way, not common to the entire area, as a result of any of the actions or conduct attributed to D/FW.”
In Wilkinson hundreds of current and former homeowners in Irving, Texas sued Dallas/Fort Worth International Airport Board, the City of Dallas, and the City of Fort Worth for damages alleging their homes were "taken" and "damaged" by governmental actions in connection with a runway expansion project at Dallas/Fort Worth International Airport in violation of the Texas and United States Constitutions.
Had any of these homeowners been able to show an exact diminution in value as a result of the airport expansion or a specific damage to any one of their properties separate from the community they could have recovered. But the element that must be remembered here is that the airport expansion was lawful and within the authority of the Airport Board whereas the taking of money from a citizen without a law is not lawful as is the case herein and there should be no need to show that the victim was the only victim in order to recover. The application of that rule would mean that government should be careful about stealing from one individual but may steal with impunity from the whole of the citizens because none of them have a right to sue the government.
The Fourth Court of Appeals cited Bland Indep. School Dist., 34 S.W.3d at 553-54 as grounds for affirming the Trial Court grant of Pleas to the Jurisdiction dismissing Petitioner’s suit. Quoted in relevant part:
“In general, taxpayers do not have a right to bring suit to contest government decision-making because, as we observed more than half a century ago in Osborne v. Keith, "[g]overnments cannot operate if every citizen who concludes that a public official has abused his discretion is granted the right to come into court and bring such official's public acts under judicial review."(fn51) Unless standing is conferred by statute,(fn52) taxpayers must show as a rule that they have suffered a particularized injury distinct from that suffered by the general public in order to have standing to challenge a government action or assert a public right.(fn53) But in Texas law there is a long-established exception to this general rule: a taxpayer has standing to sue in equity to enjoin the illegal expenditure of public funds, even without showing a distinct injury.”
Would it not also be just to allow a citizen to come into court complaining of money that was taken from them and the entire community by government without a law to support it? A tax collected that is unconstitutional is not a tax at all but a taking of money without a law to support its taking. Who cares how thieves spend the booty if the thieves can not be stopped from plundering the citizens to start with?
Needed social reform resulting
from citizens seeking justice in state courts is prevented by barring
constitutional rights with erroneous rules of precedent while state bureaucrats
and government subdivisions are magically bestowed with the constitutional
rights of living citizens by the judicial wand to sue different branches of
government to obtain more booty from the “taxpayers.” This very issue was
argued in Neeley V.
These rules of precedent
cannot lawfully close the courts in violation of Article 1 Section 13 as the
citizens did not intend for government to be immune from harming them. If the
intent of Bill of Rights was to guard against citizens only it would have said
so. But Article 1 retains rights for citizens to protect themselves from
government abuse of life, liberty, and possessions however it occurs. Cramer v. Sheppard, 167 S.W.2d 147 (
“By the adoption of the foregoing amendments to the Constitution the people of this State clearly expressed their will on this question, and those who are called upon to construe the Constitution are not authorized to thwart the will of the people by reading into the Constitution language not contained therein, or by construing it differently from its plain meaning. The people have the sole power to change or modify the plain language adopted by them. Until that is done, it remains the supreme law of the land, and should be obeyed.”
“If the people had intended the amendments to have such limitation, it would have been easy to express such intention therein. But to give these amendments such meaning, we would have to write into the Constitution language not contained therein.”
“If the meaning of the
language of a constitutional provision is plain, the courts must give full
effect thereto, without regard to consequences. Koy v. Schneider, 110
Therefore, Article 1 Section 13 and Article 1 Section 17 cannot be limited by the Texas Tort Claims Act or some judicially required statute before one is permitted to seek recovery for their damages caused by government or government officials or fellow citizens as statues and acts of the legislature and case law decisions are inferior law to the clear language of the constitution. Oakley v. State, 830 S.W.2d 107:
“The Constitution of
Texas is the fundamental
law of the
State, i.e., the supreme law of the land.
Therefore, until the
people of
THEREFORE, all premises considered, Ronald F. Avery asks the Supreme Court to grant this petition for review, request briefs from the parties, request the record from the Fourth Court of Appeals, set this case for oral argument, and, after argument, sustain Avery’s issues presented for review, reverse the judgment of both the Trial Court and Court of Appeals and remand this case for a trial on the merits.
Further, the Petitioner prays for any other relief to which he may be entitled.
Respectfully
Submitted, Ronald
F. Avery Pro
Se __________________________ 1955
830/372-5534
I hereby certify that on the 22nd day of October, 2007, a true and correct copy of the foregoing Petition for Review and Petitioner’s Appendix was forwarded by certified mail to Counsel for Respondents by certified mail return receipt requested as identified below:
|
Respondent
Murphy & GCTO: 7007
0710 0004 8478 4221 McCleary, Veselka, Bragg & Allen, P.C. Round
Attn: Matthew Tepper Kirk Swinney Phone 512/323-3200 Fax 512/323-3294 |
Respondent
SISD: 7007
0710 0004 8478 4238 Feldman & Rogers, L.L.P. Attn: Ricardo
R. Lopez Phone 210/406-4100 Fax 210/406-4114 |
|
|
_______________________________ Ronald F. Avery Plaintiff Pro Se |
No. ______________________
RONALD F AVERY
Petitioner,
V.
Ms. TAVIE MURPHY,
Respondent.
|
APPENDIX TO
THE PETITION FOR REVIEW |
LIST OF DOCUMENTS
1. Trial Court’s Order granting both Pleas to Jurisdiction Tab A
2. Fourth Court of Appeals Affirmative Memorandum Opinion Tab B
3. Fourth Court of Appeals Judgment Tab C
4. Constitutional Provisions relied upon Tab D