INDEX OF AUTHORITIES
Cases
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
REFERENCE CONVENTIONS:
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.
STATEMENT OF THE CASE
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.
ISSUES PRESENTED
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.
SUBSIDIARY ISSUES in ARGUMENT:
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: 7
2. Appellees failed to
prove that Appellant was attempting to exercise the authority lawfully
belonging to another by filing his lawsuit: 13
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: 14
4. The Appellees failed
to prove their Exclusive Domain theory they hoped would have denied the Trial
Court jurisdiction to find the SISD in violation of Article 7 Section 1 of the
Constitution: 17
5. The Appellees failed
to show that the “Statute of Limitations” can limit claims under any Article
One provision of the Texas Constitution: 18
6. The Appellees failed
to show that the Appellant’s claims did not come under the “duress” exception
to the “Voluntary Payment Rule:” 21
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:” 30
8. The Appellees failed
to show that the Appellees had sovereign immunity that would deny Jurisdiction
to the Trial Court: 32
9. Conclusion: 33
ARGUMENT
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,
879 (Tex.
App. – Houston [14th Dist.] 2005, no pet.), which further cited Bland Indep. Sch. Dist.,
34 S.W.3d 555, in
support of their contention that Appellant was required to show a “unique
injury” distinct from other “taxpayers” to maintain his suit. First, the
Appellant is not a “taxpayer” of unconstitutional “state ad valorem property
taxes” in the support of “free public education.” The Appellant would need to
be a “taxpayer” with a “unique injury” if he had complained of a lawful tax
that was improperly managed in some way.
However, upon inspection
of the Burks case we find that a private citizen, Burks, once a County Treasurer,
in his suit against several County Commissioners and the County Auditor
attempts to redirect how funds were
spent that were returned from an insurance contract. His only damage was
that he was injured to some unspecified degree as a “taxpayer” by misdirection
of tax funds. All of Burks’ causes were to redirect the decisions of government
officials rather than correct his injury. In the Burks case it would be
necessary that Burks show injury in a unique way by the misdirection of public
funds or by the insurance contract to maintain his suit to obtain relief. Burks
did not ask for the return of specified property as a result of a violation of
the Constitution but attempted to exercise authority properly belonging to
government officials.
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
people of Texas,
the Constitution. The Appellant is not asking any Appellees to pursue a
particular course of action or direct their decisions or activities or to make
or void contracts or annul ordinances, revoke a tax exemption or how to spend
money. None of these cases cited by Appellees sought a specific amount of
monetary damages as the result of violation of Article 1 Section 17 & Article
8 Section 1e1 of the
Constitution.
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.
2. Appellees
failed to prove that Appellant was attempting to exercise the authority
lawfully belonging to another by filing his lawsuit:
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
direct the Seguin
Independent School
District from being able to collect property
taxes from any property owner.” (H47 L24
– H48 L1).
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 Texas
is a complete and total failure in violation of Article 7 Section 1. It is the sole duty granted to the Legislature
of Texas by the local people under Article 7 Section 1 to make the hard
learned and once unknown principles of property that form the great State of
Texas known to all for the protection of the property of all. There is no other
purpose of free public education and to not perceive its necessity and absence
or not order its inculcation is to breach the Appellant’s contract with the
people of Texas
(the Constitution) to his injury and doom his property to continual risk and
destroy the Appellant’s sense of safety in society.
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 united
States of America. The principles of
property are the basis of the “Glorious Revolution” in England and the
“American Revolution” and regulate every relationship between all levels of
society. These principles were restated over and over again and used to explain
the U.S.
constitution in the Federalist Letters. And, most importantly, they are the
root of the eternal and immutable “Bill of Rights” (Article 1) of the Texas
Constitution.
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.
4. The
Appellees failed to prove their Exclusive Domain theory they hoped would have
denied the Trial Court jurisdiction to find the SISD in violation of Article 7
Section 1 of the Constitution:
The Appellees further
argued in the hearing that all matters of curriculum are the exclusive domain
of the Legislature and the Local
School District (H46 L16-L23):
“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 Texas or for the SISD.
The Appellant was asking the Trial Court to find that the current curriculum of
the SISD which damaged him and places his property at continual risk is in
violation of Article 7 Section 1 and
that this violation contributed, at least, to a violation of Article 8
Section 1e1.
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 Texas, known as the “Bill of Rights” shall
not be in any manner affected, amended, impaired, suspended, repealed or
suspended hereby.” (Emphasis added.)
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 Texas is under attack,
it would certainly be most important to protect Article One from careless misapplications
of statutes created by Acts of the Legislature or misapplications of resulting statutes
and codes during peace time. Since a
modification of Article One cannot be permitted short of a constitutional
amendment provided for under Article 17 in peace time or under attack, the Legislature
certainly cannot pass an Act to limit Article 1 Section 17 to two years to prevent the Appellant from having
remedy under Article 1 Section 13
for an unlawful taking of money without a law over any time period. Therefore,
a two year statute of limitations has no impact on an Article 1 Section 17
claim.
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.
6. The
Appellees failed to show that the Appellant’s claims did not come under the “duress”
exception to the “Voluntary Payment Rule:”
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 Texas,
case law in Texas
erroneously supports this general view. But there is an exception in these erroneous
general rulings.
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 Texas
cannot meet their presumed “uncommon duress exemption” either without showing
some additional threat or duress exacted by some government authority beyond
that of the tax assessor collector and their office and those that they
control. But here again, the Appellant can even meet the requirements of the
erroneously presumed assertions of the Appellees. The Guadalupe County Health
Department with authority to grant or deny building permits is not the County
Tax Office nor are their requirements applicable to any property outside the
County.
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 (Tex. 1940), it was ruled that a foreign company could
recover 10 years of payments of permit fees and franchise taxes, made under
unconstitutional statutes where refusal to pay them would result in forfeiture
of right to do business in Texas. The Supreme Court found that latches was not
applicable to 10 years of payments even where neither protest was made nor
suits were filed to determine validity of payments. Additionally, the National
Biscuit case is a clear example of how the “statute of limitations” does not
apply to unconstitutional takings of money.
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
of Texas to
foreclose upon if payment of an ad valorem tax is not paid (F214-F215).
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 Texas
(the Constitution) is to protect his property from other citizens with
provisions that prevent pure democracy from transferring everything he has to
the state.
In State v. Connecticut
General Life Insurance. Co., 382 S.W.2d 745, 746-47 (Tex. 1964), the overpayments of a lawful “occupation” tax were refundable
where it is shown that the failure to pay would result in loss of a right to do
business. Connecticut General Life Insurance Company was required to pay
occupation taxes in order to obtain a permit to do business in Texas. The Insurance
Commissioner miscalculated the tax due and the Insurance Co. paid it and
finally contested it in court.
In the Connecticut
case a penalty was imposed not by some other authority to pay some other tax
but by the taxing authority itself. This tax was common to all in that class. This
was not a case of “Unique duress,” uncommon with other taxpayers of occupation
taxes. But the Supreme Court held that the company paid under duress.
If any insurance company did not pay their occupation tax they
cannot get a permit to do business in Texas.
This case supports both positions of the Appellant herein that first, a penalty
for non-performance need not be uncommon, and second, that any threat of denial
of a permit to conduct or develop a business is “duress.” It is certainly
duress for one authority to threaten to deny a permit to develop property if
the applicant does not pay some other authority’s tax, as in Avery’s case.
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 Texas
law there is no private cause of action for monetary relief under the Texas
Constitution, whether sought from a state agency or an individual official.” The
Appellees cited City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995) in support of their argument.
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 (Tex.
1980) where the Supreme Court held that:
“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 University
of Texas for violation of
his due process rights before being terminated as a lecturer. But this was an
effort by a claimant to convert a violation of a constitutional right into
monetary damages. But the Appellant is not trying to “convert a violation of a
constitutional right” or convert a “punishment for exercising one of his
constitutional rights into monetary damages” as he so stated in his pleadings (F186). The Appellant is merely asking
that his money be returned that was taken without a law and that his property
be no longer placed at risk by a public free school curriculum that violates Article
7 Section 1 of the Texas Constitution.
8. The
Appellees failed to show that the Appellees had sovereign immunity that would deny
Jurisdiction to the Trial Court:
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.
PRAYER
9.
Conclusion:
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.
Relief Sought:
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.
Respectfully
Submitted,
Ronald
F. Avery
Pro
Se
__________________________
1955
Mt. Vernon
Seguin, Texas
78155
830/372-5534
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Further, the Appellant prays for any other relief that he may
be entitled to.
