No. 06-2079-CV
|
Ronald F. Avery Vs. Ms. Tavie Murphy, Guadalupe |
* * * * * * * |
In the District Court 25th Judicial District |
Plaintiff’s First Amended Original Petition
TO THE HONORABLE
JUDGE OF SAID COURT:
Now comes, Ronald F. Avery, Plaintiff, with his First Amended
Original Petition complaining of Ms. Tavie Murphy, the Guadalupe County Tax
Assessor and Collector, and the Guadalupe County Tax Office and the
The Plaintiff requests a trial on the merits of his cause before a jury of Plaintiff’s peers and is in agreement to the jurisdiction of the court and courts of appeals all the way through the “Texas Supreme Court” in this cause of action.
That the Defendants have been served with process at the following addresses:
|
Tavie Murphy, and the Guadalupe Ms. Tavie Murphy Guadalupe 307 W. Court St. |
Dr. Irene Garza - Superintendent |
3. State District Court has Jurisdiction
The Supreme Court of Texas has just decided that the Texas Tort Claims Act and its resulting provisions of the Texas Civil Practice and Remedies Code (mainly chapters 101 through 110) do not apply in actions brought by individual taxpayers against the state and its employees, officers, managers, agents and contractors to avoid state property taxes:
“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.”[1]
Clearly the Supreme Court is permitting the school districts to
have the same constitutional rights as an individual to sue the State of
That venue is proper in this State Court in
3. State
District Court has Jurisdiction
6. Plaintiff
is Charged an Unconstitutional Tax
7. Plaintiff
Warns Tavie Murphy and County Tax Office
8. Plaintiff
Pays all “Constitutional” Taxes
9. Defendant
Knowingly Charges Unconstitutional Tax.
10. Defendant
Knowingly Charges Unconstitutional Tax again
12. Plaintiff
sends same check again
13. Plaintiff
receives Tax Receipt for “lawful” Taxes
14. Plaintiff
receives Notice and Demand to pay Unconstitutional Seguin ISD Taxes
15. No
“Discretion” used by Local Taxing Authority for 2005
16. No
Discretion from Notice of Appraised Value for 2005
17. Plaintiff
pays all Ad Valorem Property Tax to obtain Permit to Develop his Property
19. Principles
of Taxation not Sought or Found in Recent Texas Supreme Court Ruling
20. Supreme
Court’s Clue – No Ad Valorem Tax on property in Texas
21. The
New Funding System is the Old Funding System
23. No
Guaranteed Constitutional Solution
25. No
period of time shown to have a constitutional ad valorem property tax since
1992
26. State
Legislature cannot pass their Duty to provide Free Public Schools back to local
areas
28. The
State is Forbidden to Impose an Ad Valorem Tax on any Property in Texas
30. Community
Free to Seize Local Private Property is a false doctrine of Pure Democracy
32. Means
of Taxation Limited as any other Power
33. Consent
of Community cannot Lien the Property of an Individual
34. Education
and Law exist to Protect the Property of Citizens of Texas
35. Property
is the Foundation of Texas and America Education and Law
36. Principles
of Taxation in Texas Constitution need Clarification
37. Clear
Example of Contradiction of Principle.
38. The
Supreme Court makes Uniformity the Violation
39. Uniformity
has nothing to do with Maximum Limits
41. Support
and Maintenance of Government cannot endanger the ownership of Property
43. Seguin
ISD has no Duty or Authority to Teach the present curriculum
44. High
Cost of Unconstitutional Curriculum taught by the Seguin ISD
45. Principles
of Property Limit Lawful Curriculum, Diffusion, and Support
46. Gross
Violations Cause Failure of Society
47. Supreme
Court of Texas cannot authorize crime.
48. Plaintiff
damaged by Seguin ISD abandonment of the Purpose of Free Public Education in
Texas
51. Equitable
Relief - Taxation
52. Equitable
Relief – public school curriculum
53. Abandonment
of Claim regarding no Discretion
54. Retention
of Claims for all Amounts Charged Plaintiff
6. Plaintiff is Charged an Unconstitutional Tax
On or about October 10, 2005, the Plaintiff was sent a “Tax
Statement” (
Exhibit A
) which
included a charge for Seguin ISD (
7. Plaintiff
Warns Tavie Murphy and
On January 19, 2006, Plaintiff sent a “Formal Notice and Demand” (
Exhibit B
) to Defendant, Tavie Murphy,
warning her and the “Guadalupe County Tax Office” of the recent ruling on
11/22/05 by the Supreme Court of Texas finding that the manner of raising
school taxes in Texas are unconstitutional and that any charge of such a tax
would be a violation of the constitution of which she and others in her office
would be liable. By charging these taxes
8. Plaintiff Pays all “Constitutional” Taxes
On February 20, 2006, Plaintiff, Ronald F. Avery, sends his “Tax
Payment & Explanation” letter to Defendant, Tavie Murphy, (
Exhibit C
) with a check for payment of all
taxes that have not been ruled unconstitutional by the recent opinion of the Supreme
Court of Texas on three “Tax Statements.” In this letter Plaintiff, Avery,
explains precisely how he calculated his tax payment and showed that he had
removed the payment of any unconstitutional Seguin ISD tax payments. Avery
again reminded Defendant, Murphy, of the unconstitutional Seguin School Taxes
ruled so by the
9. Defendant Knowingly Charges Unconstitutional Tax
On Friday March 3, 2006, Plaintiff, Avery received a “Delinquent Tax Notice” ( Exhibit D ) on three properties which included the charging of taxes he had paid on February 20, 2006 and the “unconstitutional taxes” in violation of Article 8 Section 1e1. He had warned Defendant, Murphy, not to charge those same unconstitutional taxes back on January 19, 2006. These Delinquent Tax Notices reported taxes owed “as of the close of business on February 10, 2006.” Plaintiff, Avery, had not paid the ‘constitutional taxes’ on his property at that time but had already warned the Defendant, Murphy, not to charge him the “unconstitutional taxes” on January 19, 2006.
10. Defendant Knowingly Charges Unconstitutional Tax again
On March 9, 2006, Plaintiff received a “2005 Supplemental Statement” dated March 3, 2006 (Exhibit E). This supplemental statement contained another unconstitutional tax charge for Seguin ISD in violation of Article 8 Section 1e1.
On March 11, 2006, Defendant, Tavie Murphy, returns the check to the Plaintiff for his ‘constitutional taxes’ ( Exhibit F ). With this returned check was a request to designate where the Plaintiff wanted his “partial” tax payment applied.
12. Plaintiff sends same check again
On March 13, 2006, Plaintiff sends the same check to Defendant, Murphy, for his ‘constitutional taxes’ with specific written instructions to pay the taxing entities according to how the Plaintiff had originally calculated his taxes and showed on his original tax payment. The “Tax Payment, Explanation & Designation” letter ( Exhibit G ) included, as with every letter up to that time, a reminder of the unconstitutional school tax. This payment purposefully omitted all charges made by the Seguin ISD.
13. Plaintiff receives Tax Receipt for “lawful” Taxes
On April 3, 2006, Plaintiff received from Defendant, Murphy, a “Tax Receipt” ( Exhibit H ) for each of the three properties. These Tax Receipts show where the tax payment was applied from the check sent by the Plaintiff. No payment is shown to the Seguin ISD taxing entity which complied with the request made by the Plaintiff.
14. Plaintiff
receives Notice and Demand to pay Unconstitutional
On May 17, 2006 Plaintiff, Avery, received three letters all dated May 16, 2006 from the Defendant, “County of Guadalupe,” ( Exhibit I ) notifying Plaintiff of “unpaid taxes” and demanded that Avery pay those unconstitutional Seguin ISD taxes or prove he had paid them by sending cancelled checks, tax receipts, or other evidence showing payment to the tax office. Obviously this is another charge and collection effort employed by the Tax Office of Guadalupe County to force the Plaintiff into paying unconstitutional taxes which he warned the Tax Office not to impose charge or collect upon the subject property that he owns. This notice also imposes a penalty for not paying the unconstitutional school tax. The letters further state that this penalty is in addition to the “normal accrual of penalty and interest provided by law.” These letters further demand that the Plaintiff pay the unconstitutional Seguin ISD tax directly to the “Tax Assessor Collector of Guadalupe County.” These letters further threaten to initiate “Collection procedures” at “any time” if these “delinquent” unconstitutional taxes are not paid. The Plaintiff has paid all constitutional taxes on these three properties as evidenced by letter ( Exhibit G ).
15. No “Discretion” used by Local Taxing Authority for 2005
The Supreme Court of Texas has ruled that the “free public school funding scheme is unconstitutional” because a sufficient number of the local districts have not been able to use “meaningful discretion” in setting the tax rate sufficiently below the maximum to provide an accredited education resulting in a state wide ad valorem tax which is forbidden under Article 8 Section 1e1:
“Even if each category of evidence would not, by itself, prove a constitutional violation, all of this evidence taken together, along with the extensive record before us, clearly shows that school districts have lost meaningful discretion to tax below maximum rates and still provide an accredited education. In reaching this conclusion, we do not alter any standard we have previously announced, as the dissent charges, or adopt positions the Court has previously rejected, as the dissent suggests. The question, as we stated in Edgewood III, is whether school districts have meaningful discretion to tax below maximum rates, and the answer is that they do not.”[3]
Therefore, every school district in
16. No Discretion from Notice of Appraised Value for 2005
The “2005 Notice of Appraised Value” ( Exhibit J ) shows very little difference between the estimated tax rate on May 2, 2005 and the charged amount that became due and payable on January 31, 2006 ( Exhibit A ). The following chart shows the relationship of the Seguin ISD rates and taxes:
|
Property |
2004 tax rate |
2005 tax rate |
2005 Estimated Tax |
2005
Tax |
|
3.74 Acres |
1.694400 |
1.689000 |
4,855.91 |
4,840.44 |
|
Personal |
1.694400 |
1.689000 |
84.72 |
100.12 |
|
1.6 Acres |
1.694400 |
1.689000 |
585.58 |
583.72 |
The chart shows that the 2005 tax rate was set 0.54 cents per $100.00 evaluation lower (0.0054) than the previous year. The tax was $15.47 less than estimated for the 3.74 acres; $15.40 more for the personal property; and $1.86 less for the 1.6 acres. Therefore the final 2005 charge for the Seguin ISD on these three properties was $1.93 less than “estimated” earlier that year. The tax rate and amount estimated and charged are both unconstitutional as ruled by the Supreme Court of Texas as of 11/22/05. These values were not changed or modified in any way by Guadalupe County or the Seguin ISD or the Guadalupe County Tax Assessor Collector, to reflect a new “meaningful discretion” that was not available to them earlier. Therefore, the Plaintiff has been charged unconstitutional unlawful taxes and has been assessed attorney’s fees, penalties and interests on taxes that are unlawful. The Plaintiff has further been threatened with foreclosure if he does not pay these unconstitutional taxes, penalties, interests and attorney’s fees.
17. Plaintiff pays all Ad Valorem Property Tax to obtain Permit to Develop his Property
One hour after filing this suit the Plaintiff paid all ad valorem property taxes charged to him as of that date, whether lawful or otherwise, in order to obtain permits to develop an RV Park on the subject property in McQueeney, Texas. The County requires that the owner certify that there are no ad valorem property taxes outstanding on the subject property. The Plaintiff has been intending to build said park, on and off, since he owned the property.
The Plaintiff has been paying unconstitutional school taxes on
his property for the entire time that he has owned the property in question
herein. The unconstitutional school taxes have been collected, at least since
1992 as evidenced by a letter from Governor Ann Richards (
Exhibit K
) and Avery has owned the subject property since 1995 and
paid around $40,000 plus about $27,000 in back taxes “owed” before he
acquired it. He paid all ad valorem property taxes charged him for years 2005
and 2006 totaling $13,897 right
after filing this suit. This totals to somewhere around $80,897 in actual damages. The Supreme Court of Texas has unlawfully
made itself an indispensable and constant component of the Texas “public free
schools,” for no other entity or human being can at any time determine if the
“funding scheme for free public schools” is constitutional under the present Supreme
Court ruling and analysis. The Supreme Court has neither determined when the
system became constitutional nor when it became unconstitutional in the last 14
years. The Supreme Court of Texas merely ruled on 11/22/05 that the “funding
scheme” is unconstitutional for that nanosecond in which they determined it so.
And even after the passage into law of the new so called “House Bill 3”
engineered by Governor Rick Perry and John Sharp (Perry/Sharp Plan) no one on
earth can say if the system is corrected without another trip to the Supreme
Court. The Plaintiff maintains herein that the new House Bill 3 scheme funding
the public free schools in
19. Principles of Taxation not Sought or Found in Recent Texas Supreme Court Ruling
The most recent ruling of 11/22/05 made by the Supreme Court was
not based upon a stated fundamental constitutional law or principle but a
ruling on the issues brought by the parties to the suit. But in this instant
suit we seek the real Principles of Taxation limited by the Law of Property by
showing that a law that is fundamental to the constitution created by the
delegated authority of the people cannot be so obscure that only 9 Supreme
Court Justices could determine when it is in violation. Such a law cannot rest
upon an arbitrary, continually changing number of districts, imposing an
arbitrary continually changing tax rate, on a continually changing valuation of
the property owned by the citizens. The fundamental law regarding all ad
valorem property taxes in
20. Supreme
Court’s Clue – No Ad Valorem Tax on property in
The 11/22/05 Opinion of the Supreme Court generating the Special Session of the Texas Legislature to come up with a lawful way to fund “free public schools” in Texas expressed the notion that ad valorem taxation on land and buildings is not a way to support public schools:
“Each case must necessarily turn on its own particulars.
Although parsing the differences may be likened to dancing on the head of a
pin, it is the Legislature which has created the pin, summoned the dancers, and
called the tune. The Legislature can avoid these constitutional conundra by
choosing another path altogether.”[4]
The Supreme Court spoke plainly on how to avoid these constant trips to the court, namely, avoid all ad valorem property taxes. Other than that statement the Supreme Court did not give a particular solution to the “conundrum” generated by the present system of ad valorem property taxation unlawfully imposed by local districts. It is only presumed by the Legislature that the new House Bill 3 just passed on 5/17/06 is a constitutional solution to the Supreme Court’s ruling. However, even if House Bill 3 did meet constitutional means of funding the free public school it is not known by anyone until a case goes to the Supreme Court again testing its provisions and results. Therefore, the Seguin ISD taxes charged to Plaintiff for 2005 remain unconstitutional as the Supreme Court has ruled on 11/22/05. The Supreme Court of Texas did astutely suggest that this conundrum could be avoided altogether by a system of funding that did not use ad valorem property taxation at all. And certainly the Supreme Court did not suggest supplementing the present “conundrum” with another type of tax. The “new system,” just passed, did not take a new and different approach but merely raised other taxes, namely franchise taxes, to supposedly permit the local districts to charge a lesser ad valorem property tax rate and presumably continually do so.
21. The New Funding System is the Old Funding System
The new system is a continuation of the old system that charges
ad valorem property taxes which are unlawful under the Laws of Property that
create government, limit government’s authority, and limit the means of lawfully
funding the operation of government. We all know that when the annual property
evaluations go up there will be no savings to the “taxpayer” in contradiction
to the implied intent of the recent Supreme Court ruling and explicit intent of
Perry/Sharp Plan. Governor Perry has now nearly completed his “Property Tax
Evaluation Task Force” public hearings under Tom Pauken’s leadership to again fool
the people into thinking the State is going to really lower ad valorem property
taxes and to cool the public disappointment with the result of the just pasted
House Bill 3 (the fruit of the Perry/Sharp Task Force on Tax Reform) that had
little effect on the high property taxes. The only real solution to this
conundrum is to declare all ad valorem property taxes in
The Plaintiff continues to be charged unconstitutional ad valorem
property taxes because it is assumed by the Legislature and public servants at
the tax offices across
23. No Guaranteed Constitutional Solution
Further, the Supreme Court gave no solution for the Legislature to follow and said no solution would necessarily be constitutional:
“We have stressed this repeatedly. In Edgewood I, we wrote: Although we have ruled the school financing system to be unconstitutional, we do not now instruct the legislature as to the specifics of the legislation it should enact; nor do we order it to raise taxes.[5] In Edgewood II, we said: We do not prescribe the means which the Legislature must employ in fulfilling its duty.[6] In Edgewood III, we reiterated: As before, we do not prescribe the structure for an efficient system of public free schools . . . We have not, and we do not now, suggest that one way of school funding is better than another, or that any way is past challenge, or that any member of this Court prefers a particular course of action . . . , or that one measure or another is clearly constitutional.”[7]
Therefore, there is no way for any human being or lower court to reasonably determine the merits of this suit short of another trip to the Supreme Court of Texas. This fact alone suggests that the “funding scheme” is not based upon fundamental constitutional principles. Merely raising another tax to temporarily, if at all, reduce property taxes is no, fundamental or otherwise, solution to unconstitutional doctrines of ad valorem taxation that are unlawful by their very nature and should not have survived the 17th century.
It is strangely presumed by Governor Perry and John Sharp and many others that the passage of House Bill 3 is constitutional or in harmony with the latest Opinion of the Supreme Court. The said opinion implied no such conclusion, and in fact, the Court was very direct and explicit in saying that the solution was in the hands of the Legislature and that any system similar to the one they had was if not immediately unconstitutional would be unconstitutional very soon again:
“The Constitution does not require a particular solution. We leave such matters to the discretion of the Legislature. To end the constitutional violation, we agree with the district court that the use of the current system must be enjoined.”[8]
Therefore, House Bill 3 is merely a slight of hand trick to say
look over here where all this money is just sitting around in the form of untapped
franchise taxes which will let us give the poor real property owners a little ad
valorem tax break for a while. But we all know that ad valorem property taxes
are not controlled merely by the Legislative ceiling on the percentage of each
$100 evaluation but by the local CADs or County Appraisal Districts who set the
value of property in the area. Most real property owners will not feel much if
anything at all as a result of this so called “tax break.” And further, it will
not be long until the local districts will again be back up to the tax rate
ceiling. Therefore, the citizens of
25. No period of time shown to have a constitutional ad valorem property tax since 1992
No case or set of cases have established a period of time in
which ad valorem taxes on property in
26. State Legislature cannot pass their Duty to provide Free Public Schools back to local areas
Article 7 Section 1 grants to the state legislature the “duty” and responsibility to “establish and make suitable provision for the support and maintenance of an efficient system of public free schools:”
“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.”
It is the citizens of the local areas and counties that delegated
their authority to the State of
27. Duty to
Establish, Support and
The State of Texas therefore cannot pass all or any portion of that
“duty” back to the local areas, which by their very nature cannot provide a “general
diffusion” of the knowledge of the principles of property developed over 5000
years of recorded history. Why is it presumed by the Supreme Court of Texas that
a uniform, efficient and suitable education in
28. The State
is Forbidden to Impose an Ad Valorem Tax on any Property in
As previously quoted, Article 8 Section 1e1 forbids the state
legislature from imposing an ad valorem tax on any property in
The Legislature is powerless to abrogate their duty to provide, support and maintain a general diffusion of knowledge of the principles of property by passing that duty back to the local areas. The citizens of the local areas delegated that duty to the State alone. That “duty” does not include the legislative power to pass that same “duty” back to the local areas, which the local areas knew they could not perform because of the natural and normal differences in wealth from one area to another, giving rise to Article 7 Section 1 in the first place. Likewise, the Legislature is powerless to delegate to those local areas what itself is forbidden to do, namely, impose an ad valorem property tax. Therefore the local areas do not acquire the power to impose an ad valorem tax on property from the Legislature which is forbidden to impose the same. It is obvious that the passage of unlawful constitutional provisions in Articles 7 and 8 attempting to confer powers on local areas to impose and collect ad valorem property taxes is an unlawful action by the State of Texas to shift its duty and provide for public free schools by a means that is forbidden to it, namely, the imposition of ad valorem property tax. Article 8 Section 1e1 is rendered useless and void by Art 7 Sect 3; Art 8 Sect 1(b); Art 8 Sect 1-a, and a few others which unlawfully “permit” or “authorize” local areas to impose an ad valorem property tax which is forbidden to the State to provide a State function.
30. Community Free to Seize Local Private Property is a false doctrine of Pure Democracy
Presumably, the State allows local areas to vote to lien their
neighbors property based upon a mistaken notion that local areas have a right
to determine whether to place an ad valorem tax secured by a lien placed upon
all the property of their citizens to pursue their own local interests. This is
a false notion under the false doctrines of pure democracy. The only one who
can determine if a lien can be placed upon their own property for failure to
perform some act or pay some money is that individual not the greater
community. No one in
There are indeed principles of taxation or lawful ways to fund,
support and maintain government in
“To understand Political Power right, and derive it from its Original, we must consider what State all men are naturally in, and that is, a State of perfect Freedom to order their Actions, and dispose of their Possessions, and Persons as they think fit, within the bounds of the Law of Nature, without asking leave, or depending upon the Will of any other Man.[9]
The Citizens merely delegate their natural, lawful moral right to protect their properties to the State they create. Tax upon the life, liberties or possessions of citizens is a misconstruction of government for it presumes to have or obtain what it cannot obtain by any means.
32. Means of Taxation Limited as any other Power
Voting is only a means of determining what all voters have a right to do alone. Voters cannot pass to anyone else a power they do not have in each individually.
Frederic Bastiat expressed accurately the limited powers of government even to tax in his definition of all law:
“What, then, is law? It is the collective organization of the individual right to lawful defense.
Each of us has a natural right – from God – to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of any one of them is completely dependent upon the preservation of the other two. For what are our faculties but the extension of our individuality? And what is property but the extension of our faculties?
If every person has the right to defend – even by force – his person, his liberty, and his property, then it follows that a group of men have the right to organize and support a common force to protect these rights constantly. Thus the principle of collective right – its reason for existing, its lawfulness – is based on individual right. And the common force that protects this collective right cannot have any other purpose or any other mission than that which it acts as a substitute. Thus, since an individual cannot lawfully use force against the person, liberty, or property of another individual, then the common force – for the same reason – cannot lawfully be used to destroy the person, liberty, or property of individuals or groups.
Such a perversion of force would be, in both cases, contrary to our purpose. Force has been given to us to defend our own individual rights. Who will dare say that force has been given to us to destroy the equal right of our brothers? Since no individual acting separately can lawfully use force to destroy the rights of others, does it not logically follow that the same principle also applies to the common force that is nothing more than the organized combination of the individual forces?
If this is true, then nothing can be more evident than this: The law is the organization of the natural right of lawful defense. It is the substitution of a common force for individual forces. And this common force is to do only what the individual forces have a natural and lawful right to do: to protect persons, liberties, and properties; to maintain the right of each, and to cause justice to reign over us all.”[10]
Bastiat, the French economist, has shown conclusively that all powers created by voters are limited to the powers each has individually. Many think that once a government is delegated to protect property that this new government by its voters or representatives can impose any kind of tax upon the citizens for its support. This is a false notion generated by the false doctrines of pure democracy because the power to lien property for the payment of taxes cannot be acquired by a majority of voters upon any other single individual. Therefore, ad valorem property taxes cannot be secured by a lien imposed by a collective group of voters because no single voter among them can lawfully lien the property of any other individual.
33. Consent of Community cannot Lien the Property of an Individual
When John Locke said that the majority of voters or their representatives have a right to act and conclude the rest it was limited to that which each individual voter has a right to determine for even the power of consent is limited to what each holds individually:
“When any number of Men have so consented to make one community or government, they are thereby presently incorporated, and make one Body Politick, wherein the Majority have a right to act and conclude the rest.
For when any number of Men have, by the consent of every individual, made a Community, they have thereby made that Community one Body, with a Power to Act as one Body, which is only by the will and determination of the majority. For that which acts any Community, being only the consent of the individuals of it, and it being necessary to that which is one body to move one way; it is necessary the Body should move that way whither the greater force carries it, which is the consent of the majority: or else it is impossible it should act or continue one Body, one Community, which the consent of every individual that united into it, agreed that it should; and so every one is bound by that consent to be concluded by the majority. And therefore we see that in Assemblies impowered to act by positive Laws where no number is set by that positive Law which impowers them, the act of the Majority passes for the act of the whole, and of course determines, as having by the Law of Nature and Reason, the power of the whole.”[11]
Locke’s statement above cannot be applied to legalize a majority of voters seizing the lands and homes and businesses of the minority by voting to impose an ad valorem tax upon the property of all secured by a lien on property to be sold to the highest bidder for the payment of past due taxes for any purpose. It matters not how good the purpose of the tax. A lawful tax cannot be imposed by an attack upon the life, liberty or possessions or property of the citizen. A lawful tax may not be levied upon the person, the liberties of a person, or the possessions of a person or else the citizen is no longer a citizen but has become a slave without deed to his own soul, and without liberty to pursue their desires, and without possessions to provide for their sustenance as John Locke has so well said:
“Though the Legislative, whether placed in one or more, whether it be always in being, or only by intervals, tho’ it be the Supream Power in every Common-wealth; yet,
First, It is not, nor can possibly be absolutely Arbitrary over the Lives and Fortunes of the People. For it being but the joint power of every Member of the Society given up to that Person, or Assembly, which is Legislator, it can be no more than those persons had in a State of Nature before they enter’d into Society, and gave up to the Community. For no Body can transfer to another more power than he has in himself; and no Body has an absolute Arbitrary Power over himself, or over any other, to destroy his own life, or take away the Life or Property of another….Their Power (Legislative) in the utmost Bounds of it, is limited to the publick good of the Society. It is a Power, that hath no other end but the preservation, and therefore can never have a right to destroy, enslave, or designedly to impoverish the Subjects.[12]
We all know education is important but the
property of each individual is more important than education or law. The need
to meet government mandates and the high cost of education cannot be shown to
be a social good over that of the protection of the property of each individual
in
34. Education
and Law exist to Protect the Property of Citizens of
For free education in Texas exists not for its own sake but to protect the property of the citizens as stated by Article 7 Section 1, just as the law does not exist for itself but for the protection of property as Bastiat has said:
“Life, liberty, and property do not exist because men have made laws. On the contrary, it was the fact that life, liberty, and property existed beforehand that caused men to make laws in the first place.”[13]
So we see that the thing that is to be
protected is superior to that which protects it, just as Reverend Samuel Rutherford
in his 1644 book Lex Rex proved the
King inferior to the People whom he was created to protect. Both education and
law are inferior to property and both are designed to secure the property of
the citizen. But our legal system and our education system across
35. Property
is the Foundation of
No private property belonging to citizens may have a lien placed upon it to secure the payment of taxes by the state or federal government or any other governmental jurisdiction or subdivision:
“We know that kings – even English kings – have lost their crowns and their heads for assuming such a right (taxation). ‘Tis true this strange claim has occasioned much contention, and it always will as long as the people understand the great charter of nature upon which Magna Charta itself is founded, - No man can take another’s property from him without his consent. This is the law of nature; and a violation of it is the same thing, whether it be done by one man who is called a king, or by five hundred of another denomination…”[14]
The quote from Samuel Adams above proves
that the founders of
“In the
It is not the percent of valuation that
is egregious here but the tax itself of any amount upon real property owned by
citizens because it constitutes a shift in the ownership of property from the
individual Citizen to the State. There was in
36. Principles
of Taxation in
It is clear from Art 8 Sec 17 of the Texas Constitution that there should be principles that guide taxation and that these principles should be adhered to by all three branches of government.
“The specification of the objects and subjects of taxation shall not deprive the Legislature of the power to require other subjects or objects to be taxed in such manner as may be consistent with the principles of taxation fixed in this Constitution.”[16] (Bolding added)
It is obvious that the purpose of this constitutional provision is to permit the Legislature to review all things in terms of what could be lawfully taxed. But this constitutional provision also acknowledges the just and reasonable precept that there are principles of lawful taxation that the legislature, judiciary and executive branches should adhere to, namely, that all things cannot be lawfully taxed. Upon a quick review of Articles 7 and 8 it is apparent that such principles are not “fixed” in this Constitution and have become contradictory over the years in an unlawful effort to transform the Republic of Texas (as described in Article 1 Sections 1-29 of the present Constitution) into a pure democracy where there is nothing that the legislature cannot do if a majority of the representatives vote for it. Our forefathers warned us of the tyranny of pure democracy and here it is.
37. Clear Example of Contradiction of Principle
The November 22, 2005 Supreme Court decision found that the free public education funding scheme was unconstitutional because essentially all the independent districts across Texas were imposing an ad valorem property tax at or sufficiently near the maximum rate allowed. The Supreme Court held that the districts therefore could not use discretion to determine the amount to tax but merely taxed at the maximum rate. The Supreme Court concluded that such maximum non-discretionary ad valorem taxation was really a statewide uniform ad valorem tax. Yet, Article 8 Section 1(a) says; “Taxation shall be equal and uniform.” So if there is a statewide tax it should most certainly be uniform.
38. The Supreme Court makes Uniformity the Violation
The Supreme Court was trying to make the case that each school
district must use discretion at setting the local tax rate and that it should
be well below the maximum allowed set by the legislature or else the taxation
becomes a uniform statewide ad
valorem tax forbidden under Article 8 Section 1e1. But any tax that is
statewide must be uniform and equal under Article 8 Section 1(a). So
we see that it is not the uniformity that is forbidden by the Constitution in
regard to taxation but the actual ad valorem tax on any property in
39. Uniformity has nothing to do with Maximum Limits
The maximum tax rate limit of $1.50 per $100 evaluation for
maintenance and operations (M&O) has nothing to do with uniformity. If all
the districts are now charging a lesser tax rate to bring all the local
property tax yields to the 32% less, as reported by Governor Perry as the
biggest tax break in years, then we still have a uniform tax rate all across
A legislature is limited by the power delegated to it and therefore it cannot pass a statute with powers in which the legislative body does not possess the authority to establish. No person has a right to lien the property of another person without their permission. Therefore that power cannot be delegated to the Texas Legislature or any of its subdivisions or local areas. A majority of the voters in an election favoring the imposition of an ad valorem property tax secured by a lien to be placed on all real property for non-payment is not the permission of each individual property owner. If only one person in the election did not want a lien placed upon their property for the failure to pay ad valorem property taxes the State or local areas cannot lawfully place a lien on that person’s property or foreclose on same for non payment of ad valorem taxes. Any person can volunteer to pay an ad valorem property tax and place a lien on their own property for failure to do so, but no person can vote to place a lien on the property of another person. Therefore, the Texas Legislature cannot pass lawful legislation empowering the State or local areas to attach liens on property to secure the payment of ad valorem property taxes. The State simply cannot acquire that authority nor grant it to others.
41. Support and Maintenance of Government cannot endanger the ownership of Property
The sole purpose of legitimate government is the protection of the property of each citizen consisting of their life, liberty and possessions. The method of its support cannot endanger the purpose for which it was created. To admit that once lawful government is created it can lawfully be supported by a method which eventually must destroy its purpose is contradictory, futile and faithless rejection of God’s will for mankind. God has ordained that people protect their property by the creation of lawful governments and in doing so God does not saddle his creation with the futility of its support that naturally and ultimately must lead to its destruction. Therefore, no legislature may devise a method for the support of the government and its functions by a method that is destructive of its purpose. A lien placed upon property to secure the payment of taxes is the assumption of ownership over the same property. A state and its subdivisions may try to avoid the appearance of ownership by selling the property to another private citizen for payment of ad valorem taxes but it is the power to lien that the state and its subdivisions lack prior to its sale. The State does not own the property of citizens and cannot place a lien upon it or acquire an interest in it by any method outside the written permission of the individual owner. The State and its subdivisions cannot obtain a lien upon the property of a particular person by the permission of the greater community in which that particular person resides. The purpose, power, and means of support of lawful governments are limited by the laws of nature precedent to constitutions and legislations. Further, it is critical that the government stay within its lawful purpose to avoid expenses that it cannot pay without violation of the lawful means of its support.
It was originally perceived by the founders that the citizens of
Texas would be in danger of having their property, consisting of life, liberty
and possessions, abused or taken if there were enclaves or regions in Texas where
the people did not understand the principles of property and how they impact
the formation and maintenance of lawful governments for the sole purpose of
protecting the property of the citizens. But this “general diffusion of
knowledge” has been taken out of context to mean a diffusion of all knowledge
being taught to all children in
43.
No person has a right or authority, much less a duty, to teach
the child of another person drama or drafting or auto mechanics or football or
baseball or millions of such other things. But all citizens have a right and
authority to protect their property by establishing a school system that will
generally diffuse across
44. High Cost of Unconstitutional Curriculum taught by the Seguin ISD
The Plaintiff, Avery, has suffered the loss of $80,897 as the high cost of teaching all things to all children in the free public school system which is unconstitutional under Article 7 Section 1. Had the Seguin ISD taught the fundamental Principles of Property alone and tested the students on them prior to graduation, the local area would not be imposing unlawful ad valorem taxes on private property and the local government would have protected the Plaintiff from unlawful attacks upon his property. The local government, had they been instructed in the Principles of Property, would protect the Plaintiff and his neighbors from seizures of their private property and conversions of it from one citizen to another by the unauthorized and unlawful placement of liens, enforced by the State, upon private property unlawfully obtained by voters who have no authority over the property of another individual.
45. Principles of Property Limit Lawful Curriculum, Diffusion, and Support
The natural laws of property limit lawful curriculum to the
teaching of the fundamentals of property to protect life, liberty and
possessions. The natural laws of property fix the “general diffusion” of
knowledge of the fundamentals of property in the State of
46. Gross Violations Cause Failure of Society
Modern graduates of the free public schools in
47. Supreme
Court of
The Supreme Court did not have power to authorize a violation of
the Constitution in 1992 nor did they have it in 2005 or any other time. The
Supreme Court has power to determine the constitutionality of a matter but the
Supreme Court is in want of power to permit crimes against the constitution by
stays or delays of injunctions to prevent those crimes. It is fundamental that
injunctions are issued to prevent crime and injustice and a stay of injunction obtained
unlawfully or deceptively would operate to also stop another injustice. But the
stay of an injunction, which was lawfully obtained to enjoin a crime, acts to
continue a proven crime. This use of a stay of injunction is unlawful fundamental
error and misuse of the purpose of such instruments. The unconstitutional method
of raising money for unconstitutional education in
48. Plaintiff damaged by Seguin ISD abandonment of the Purpose of Free Public Education in Texas
Article 7 Section 1 of the Texas Constitution establishes the sole purpose of free public school:
“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.”
Had the Seguin ISD taught a lawful curriculum
based upon property, our local taxing authorities would not be imposing
unlawful taxes upon the plaintiff. The
Due to the excessive violations of the fundamentals of the Constitution of the State of Texas placing the property of the Plaintiff at risk by the want of the Principles of Property and how they limit taxation, treble damages are due the plaintiff.
The Plaintiff, Avery, has suffered actual damages in the amount of $80,897.
51. Equitable Relief - Taxation
The Plaintiff, Avery, requests that he no longer have his property, identified in this suit, taxed with an ad valorem property tax for the purpose of free public education.
52. Equitable Relief – public school curriculum
The Plaintiff, Avery, seeks herein the conformance of free public education curriculum to the requirements of Article 7 Section 1 wherein the primary goal of education is to protect the life, liberty and possessions of the citizens by inculcation of the Principles of Property our nation and state was founded upon.
53. Abandonment of Claim regarding no Discretion
Plaintiff retains herein paragraphs numbered 1 through 16 as
facts necessary for this suit and as argument showing the futility of
manipulating tax rates to avoid an unlawful State ad valorem tax to fund free
public education in
54. Retention of Claims for all Amounts Charged Plaintiff
The amount referred to in Paragraph 53 as non-discretionary is
irrelevant to this suit as the Plaintiff claims also herein that all ad valorem
tax on property in
WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Plaintiff have judgment from DEFENDANTS, jointly and severally, in the amounts above prayed and for such other relief to which he may be entitled at law or in equity.
Certificate of Service
I, hereby certify that on the ____ day of ____________, 2007, the foregoing Plaintiff’s First Amended Original Petition was sent to Defendants counsel by certified mail return receipt requested as identified below:
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Defendant Murphy & GCTO: 7006 0810 0004 3827 2026 McCleary, Veselka, Bragg & Allen, P.C. Round Attn: Kirk Swinney Matthew Tepper Phone 512/323-3200 Fax 512/323-3294 |
Defendant SISD: 7006 0810 0004 3827 2033 Feldman & Rogers, L.L.P. Attn: Ricardo R. Lopez Phone 210/406-4100 Fax 210/406-4114 7006 0810 0004 3827 2040 Walsh, Anderson, Brown, Schulze & Aldridge, P.C. 100 N.E. Attn: Joe A. De Los George E. Grimes Phone 210/979-6633 Fax 210/979-7024 |
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___________________________________ Ronald F. Avery Plaintiff Pro Se |
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