STATEMENT OF THE
FACTS
All issues in this case were a matter of law as the case did not
go to trial nor was there any dispute of the following facts in Plaintiff’s
Original or First Amended Original Petition or any other document or hearing:
The Appellant has owned a piece of commercial property in Guadalupe County since 1995 where he plans to
build his RV Park (F202), (H36).
The Appellant attempted to obtain a permit to build his RV Park
from the County wherein he was required to pay all “ad valorem property taxes”
for the subject property his Park would be built upon (F184), (H36).
The Appellees charged and received from Appellant approximately $80,897
(F202) in unlawful “State ad valorem
property taxes” to support “public free schools” which the Supreme Court of Texas ruled unconstitutional
in November of 2005 (H37-38).
The Appellant has alleged without rebuttal that his property
consisting of life, liberty and estate has been damaged and remains at risk due
to an unlawful curriculum allegedly administered by the SISD and its excessive
cost allegedly in violation of Article 7 Section 1 and Article 8 Section 1e1 of the Texas Constitution (F222-224).
ARGUMENT
TO THE HONORABLE COURT OF
APPEALS:
Now comes Appellant, Ronald F. Avery, and respectfully submits
Appellant’s Reply Argument to the Appellee’s Brief filed by Ms Tavie Murphy and
Guadalupe County Tax Office. 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 SISD has filed their brief and the Appellant has replied to it
earlier.
The Appellant respectfully replies to new assertions made on
appeal by Ms Tavie Murphy and the Guadalupe County Tax Office (“Murphy &
GCTO”) as follows:
1. The Statement
of the Case by Murphy & GCTO, page 1, is false.
The Appellees state that “this case arises from Appellant’s
attempt to recover ad valorem school
property taxes paid over more than ten years.” The Appellant pled in his
petition and responses and at the hearing that the so-called “ad valorem
property taxes” imposed on him were unconstitutional and pled many facts
illustrating the truth of that allegation and was going to obtain more evidence
to prove same by the time of a trial on the merits. The Appellees did not plead
any facts to the contrary but merely asserted their plea to the jurisdiction.
The trial court granted the Appellees’ pleas to the jurisdiction without hearing
any evidence that raised a fact issue related to the lawfulness of the
so-called “ad valorem property tax in support of free public schools.” Because
the Appellees did not challenge the truthfulness of Appellant’s allegations the
Appellant’s allegations must be accepted as true on this appeal as they are on
summary judgment appeals.
The effect of a Supreme Court ruling finding a so-called “ad
valorem tax” unconstitutional is to place the collector in the possession of
money that does not belong to them with no law to keep it with the understanding
that the means of obtaining and keeping the money was never a law and never
will be a law. See Appellant’s Brief p. 26 Nat’l
Biscuit Co. v. State, 135 S.2.2d 687, 692 (Tex. 1940).
Therefore, the Appellees’ proper statement of the case should
sound thusly, “This case arises from the Appellant’s constitutional right to
obtain his money from those who took it and hold it without a law under the
pretense of lawful taxation.” The Appellees should state the case in the latter
manner because they did not challenge the lawfulness of the tax in trial court
but merely pled to the jurisdiction in light of the Appellant’s allegations being
true.
This same logic and argument applies to Appellees’ whole
“statement” and description of this case, where they say, “* * Appellant sought
a refund of all property taxes previously paid, * * *.” Many claimants seek the
refund of property taxes they paid improperly or over paid. But no one seeks a
refund of property taxes that are not property taxes by law. The finding that
any kind of tax is unconstitutional renders the money obtained a non tax.
Therefore, the Appellees’ statement of the case should sound thusly, “Appellant
sought the return of his money obtained by an unconstitutional law by the
Appellees.”
The Appellees in their Statement of the Case say, “Appellant
also sought an order from the trial court seeking “the conformance of the 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…” This is false. No such order was drafted and submitted to the trial
court for their signature. This language was merely from the Appellant’s First
Amended Original Petition and could be taken with many other pleadings on file
to distill out in a trial on the merits to a possible judgment finding the
curriculum harmful to Appellant and unconstitutional with a possible injunction
to go into effect at some future time to provide a period to correct the
curriculum preventing future harm to Appellant.
2. The
Murphy & GCTO assertion, page 3, that “Appellant subsequently remitted the
payment of these taxes and later filed this lawsuit * * *” is false and correctly
contradicted in their own brief at page 1.
The Statement of the Case on page 1 of the Murphy & GCTO correctly
states the sequence of events:
“Specifically, Appellant who at the time of the filing of his
lawsuit still owed unpaid school property taxes, claimed that such taxes
assessed by the Guadalupe County Tax Office on behalf of the SISD violated
Article VII, Section 1, and Article VIII, Section 1-e of the Texas
Constitution. (C.R. Vol.I,pp.4-8).”
Certainly, The Appellant did not owe those taxes but he paid
them anyway after filing the suit in order to be able to obtain a building
permit (F202) and for fear of losing
his property to the filing of an unlawfully obtained tax lien (F214) and the foreclosure and forced
sale of his property threatened by the GCTO (F254-256).
3. The Murphy
& GCTO assertion, page 1, that the hearing of their Amended Plea to the
Jurisdiction was evidentiary in nature is false:
The Appellant’s motions
for default and sanctions in trial court were evidentiary in nature (H3 L1 – H18 L9), But no evidence was
submitted to the trial court in the Appellees’ Pleas to the Jurisdiction or
hearing. And for the same reason the Appellant’s motion for Findings of Fact
and Conclusions of Law (F273-276) were
denied by the Honorable Judge Davis (F277-281).
Therefore, the appeal herein of the Appellees’ Plea to the Jurisdiction cannot
be made into one that reviews facts found by the trial court as none were requested,
heard or received. No facts may be construed to have been found by the trial
court and all law must be determined from the pleadings and arguments construed
in favor of the Appellant and his intent and all his allegations of fact must
be taken as true. The Court may look beyond the pleadings to establish
jurisdiction but they may not find matters of fact related to any allegation when
none are requested, proffered or received.
4. Appellant
abandons Punitive Damages at trial court and on Appeal:
Appellant
admits herein that he abandoned his Punitive Damage Claims in trial court
responses but in haste to correct other matters inadvertently failed to remove
them from his First Amended Petition which explains the lack of argument on the
issue at the trial court hearing.
5. Murphy
& GCTO admit duress of Appellant’s property in their Statement of Facts on
appeal:
On page 3 Murphy &
GCTO say that they “forwarded a delinquent tax notice to him” and that they
“sent him notices reflecting the delinquent tax amounts along with penalties
for continued failure to pay.” The Appellees did not challenge the lawfulness
of the said tax before or after the filing of the lawsuit but merely continued
to threaten the Appellant with the foreclosure of an unlawful lien and forced
sale of his property unless he paid the tax declared to be unconstitutional in
2005 by the Supreme Court of Texas.
6. The
misapplication of the “unique injury requirement” by Murphy & GCTO prevents
citizens from challenging the constitutionality of any entire tax scheme:
Under the Appellees
misunderstanding and misapplication of the “unique injury” requirement it is
simply impossible for any citizen to bring a lawsuit challenging the
constitutionality of an entire ad valorem property tax scheme that the Supreme
Court has already ruled unconstitutional. The only type of tax complaint that
the Appellees justify in their misapplication of the “unique injury”
requirement is a complaint that only can reach certain aspects of the tax but
can never reach the entire tax system, i.e., a citizen can challenge the
evaluation, size, quality, ownership, etc., of his property but he cannot
challenge the constitutionality of the whole system because he is injured in
the same fashion as all his fellow citizens. This is simply an unjust and
ridiculous notion that acts to close the courts in violation of Article 1
Section 13 and is contrary to the
real “unique injury” requirement. The real purpose of the “unique injury”
requirement is to prevent those who do not have authority from interfering or
usurping that authority by the filing of lawsuits where the party is not
damaged by the act they are complaining of. The mere status of a complainant as
a “taxpayer” is not sufficient unless they are pleading an illegal expenditure
of the tax funds collected. But, rightly so, the claimant cannot challenge the lawful
decisions of lawful authority by merely claiming they are injured as a taxpayer
by paying too much or some like annoyance.
The Appellant herein is
not trying to exercise the authority belonging to another by challenging any
particular decision made by the Appellees but seeks to have them return what
belongs to him which they took and keep without a law and to have them stop
taking what they do not have authority to get. The Appellant cares not how the
Appellees got his property or how they will return it. All the citations of
authority made by Murphy & GCTO illustrate attempts of claimants without
authority to exercise authority belonging to another by filing lawsuits to
change their decisions claiming their only injury was being a taxpayer. The
Appellant herein, claims not to be a taxpayer of unconstitutional taxes.
7. Murphy
& GCTO assert falsely that they have the authority to assess and collect
unconstitutional property taxes:
The Appellees
misconstrue the intent of the Appellant on page 7 and cannot discern an action
to interfere with the lawful decisions of government officials and an action to
get government to stop injuring him by their unconstitutional actions and get government
to return his property that was taken from him and kept without a law:
“Appellant’s
characterization of his action makes no sense given that the primary relief
sought in his lawsuit is for the Appellees not to continue performing an act
for which they are authorized by law – namely, the assessment and collection of
property taxes.”
The Appellees think
that the Appellant’s lawsuit to stop the Appellees from robbing him and keeping
his property is the same as a lawsuit to force the Appellees to make or break a
particular contract or to assess or reassess somebody’s property, etc.
8. Murphy
& GCTO assert falsely, page 8, that the Appellant has not cited any
authority as none exists to show that an ad valorem taxpayer has any direct
standing to challenge the taxing authority of a government entity.
The Appellant has no
burden to cite authority that says he can bring and maintain his suit as long
as he pleads facts that confers jurisdiction upon the trial court. The
Appellees did not cite any authority that establishes the “unique injury”
requirement upon the Appellant for his set of facts and the Appellant adopts
the same cases cited by Appellees to prove the Appellees have not shown
authority that denies standing to the Appellant. Further, the Appellant cited
constitutional provisions that are superior to all case law that stands in the
way of the intent of the framers to secure a just government that protects the
property of the citizen against the encroachments of his neighbor and all
branches of government.
9. Murphy
& GCTO falsely generalize the claims of the Appellant regarding the
“statute of limitations” and falsely stated that his claim was unsupported in
law:
On page 9 Murphy &
GCTO generalize a very specific point made by the Appellant with citation of
authority:
“In his Brief,
Appellant’s sole argument in response to the limitations issue consisted of an
assertion that there should be no limitations on constitutional claims.
Appellant suggests, based solely on his own unsupported interpretation, that a
statute of limitations would be “repugnant” to all constitutional claims,
including his own.”
The appellant knows
that Article One of the Texas Constitution cannot be limited by the legislature
by passing a “statute of limitations” which is forbidden by Article 1 Section
13, 17, and 29 and by Article 3 Section 62 and Article 17. However, this point
does not extend necessarily to every other portion of the constitution as they
may have some provisions inside them that cite the statute of limitations. But
none of Article One cites any statute of limitations and Article 3 Section
62 forbids any limitations,
impairment or modification of Article One specifically. The citation of Article
3 Section 62 and other constitutional
provisions by Appellant does not make his position, “solely his own” or an
“unsupported interpretation.”
10.
Murphy & GCTO, to avoid all monetary
liability, has confused an Article 1 Section 17 self-enacting cause of action
with the claim for equitable relief against SISD for violating Article 7
Section 1:
The Appellant
acknowledges the well observed principle that a mere violation of a
constitutional right or the prevention of the exercise of a constitutional
right does not necessarily establish a right for monetary damages against
private entities or the government. However, it is well established in constitutional
and common law that a claim under Article 1 Section 17 is self-enacting and
confers liability and duty upon the government to correct the harm done to
claimant.
But Murphy & GCTO
combine the “no monetary relief” policy applicable to many other constitutional
violations to the Article 1 Section 17 provision to avoid all
liability and duty to return the Appellant’s property. The Appellant has
pleaded for equitable relief to stop the SISD from violating Article 7
Section 1 that harms the
Appellant’s property and places it at constant risk. The Appellees combine and
confuse these claims to avoid their liability and duty under Article 1
Section 17.
11.
Murphy & GCTO falsely assert, page 11-12,
that Article 1 Section 17 only contemplates property destroyed by government:
The constriction of Article
1 Section 17 to destruction of
property is now pled for the first time by all Appellees on appeal. This absurd
notion is contradicted by a simple reading of the Article itself:
No person’s property
shall be taken, damaged or destroyed
for or applied to public use without adequate compensation being made, unless by
the consent of such person; and, when taken, except for the use of the State,
such compensation shall be first made, or secured by a deposit of money; and no
irrevocable or uncontrollable grant of special privileges or immunities shall
be made; but all privileges and franchises granted by the Legislature, or
created under its authority shall be subject to the control thereof. (Bolding
added)
The Appellant reasserts
all his reply to SISD, page 15, regarding the restriction of Article 1
Section 17 to destruction only.
Further, the Appellant reasserts his reply to SISD at page 16 using Appellees’
cite of the Bowles case where an award was affirmed returning over $3,000,000
collected unlawfully from citizens under the guise of what turned out to be
unconstitutional bail bond fees. Not only did the court affirm the award but
affirmed it under Article 1 Section 17 rather than Article 1
Section 19 pled by claimants. See Bowles v. Clipp, 920 S.W.2d 752.
12.
The statement by Murphy & GCTO that the
Appellant asserts an Article 1 Section 17 claim for the first time on appeal is
false:
Appellant adopts his
reply to SISD at page 15 -17 in reply to the false assertion of Murphy &
GCTO showing references to the record of clerk and reporter (F84-85), (F172-173), (F178-180), (F186), (H31 L6-H33 L2) that Appellant pled and argued an Article 1
Section 17 claim at the trial court.
13.
The Murphy & GCTO resurrection of “sovereign
immunity” as a possible finding by the trial court to grant their plea to the
jurisdiction does not defeat an Article 1 Section 17 claim:
On page 13 Murphy &
GCTO resurrect their original answer that they have “sovereign immunity” to bar
the claims of the Appellant. However, these defenses were not asserted in their
pleas to the jurisdiction nor were they argued at the hearing and SISD states emphatically
in their Brief that they never asserted them at trial court and that they do
not assert them on appeal. Murphy & GCTO adopt the same brief material on
page 12, bullet #2. However, it is irrelevant what Murphy & GCTO did with
the bogus “doctrine of sovereign immunity” because Article 1 Section 17 is
recognized as a waiver of any so-called “sovereign immunity” for government and
its officials. 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.” (Bolding added)
Further, the Appellant
knows that neither government nor any official has any so-called “sovereign
immunity” over the citizens of Texas
to waive as he has proved that on appeal before. All the “doctrine of sovereign
immunity” rests on Hosner v. DeYoung, which cites no constitutional provision, statute, common law,
case law, rule, code, or any principal whatsoever. The “doctrine of sovereign
immunity” is a violation of all the major precepts of the Constitution of Texas
and the intent of the framers. The Texas Tort Claims Act falsely presumes the
existence of the “doctrine of sovereign immunity” founded upon Hosner v.
DeYoung. The “doctrine of sovereign immunity” is a demolition of the most sacred
principles of American liberty and the provisions of the Texas Constitution
including Art 1 Sec 2, 13, 17, 19 and 29; Art 2 Sec 1; Art 16 Sec 48; and Art
17. The erroneous “doctrine of sovereign immunity” in Texas continues to exist in violation of the
common law rules for the reversal of precedent. The “doctrine of sovereign
immunity” should be overturned because it was flawed from the outset, because
it no longer needs to protect young empty tax coffers, and because it consistently
creates unjust results. Surely the doctrine stops the “unnecessary burden” of
trying cases but only at the expense of necessary justice. See Jordan v. State, 54 S.W.3d 783. “Sovereign immunity” is a judicial disgrace which the courts
should abolish straight way to stop tyranny from consuming everything the
people have.
14.
The assertion by Murphy & GCTO that
Appellant has only one exception to the “voluntary payment rule” preventing a
return of his property and that the taxes paid by Appellant were lawful at the
time of payment is false:
As discussed earlier
Murphy & GCTO cannot on appeal of a plea to the jurisdiction, where no
evidence was heard, assert at page 14 that taxes were lawful during the time
they were paid contradicting the allegations of the Appellant:
“Thus, even if it is
determined that the District’s previous levy of taxes in this case is somehow
illegal – which it was not at the time of assessment and payment – the
Appellant’s claim is still barred by the voluntary payment rule.”
Murphy & GCTO cite
several cases to prove their point but none of these cases involve the facts of
the Appellant’s case. The Johnson Controls court even entertained the notion
that duress is present when the property is threatened with foreclosure of a
tax lien. The evidence did not show however that the claimant paid the tax
after he was threatened with the foreclosure.
Murphy & GCTO
assert at page 15 that the Appellant only has one exception to the “voluntary
payment rule:”
“The sole exception
that Appellant has attempted to avail himself is was duress, as he contended
that he was forced to pay his current property taxes or else he would not be
permitted to develop his property as an RV Park.”
The Appellant has pled
that not only was he subjected to the threat of the denial of a permit but also
that he was threatened with the foreclosure of an unlawfully obtained lien (F212), (F214), (F220-221), (F254-256).
Because all the allegations of the Appellant must be taken as true with no
evidence to the contrary, the Appellant has pled another manner in which he was
duressed into paying unlawful taxes by the Appellees. This allegation falls
under the duress exception to the voluntary payment rule. See Edwards v. Williams 93 S.W.2d 452:
"Where, in an
emergency which arises through no fault of his own, a person is compelled,
through the necessity of protecting his business interests, to pay an unlawful
demand, the payment is compulsory and may be recovered back, such as a payment
made to avoid a great financial loss, or under a business necessity to free property of some duress or
lien."
15.
Murphy & GCTO have waived all their “failure
to exhaust Administrative Remedy” defenses at trial court and cannot now
reassert them on appeal:
The Appellant dropped
all his claims regarding “no use of discretion” by Murphy or the GCTO in
assessing the “taxes” which Appellant claimed in his Original Petition ¶¶
1-16 (F226). These claims once made
by Appellant were dropped because the issues can be at least discussed under
the administrative remedies provided under Chapter 41 of the Texas Property
Code. As a result of the Appellant dropping these claims the SISD expressly dropped
any defense they had under the administrative remedies provided under the chapter
41 of the Texas Property Code (H21
L13-H22 L3); (H33 L3-H34 L3). Then Murphy & GCTO adopted the arguments
made on every point by the SISD at the hearing (H49 L1-3) with no alteration made to the issue of administrative
remedy in their own argument. Therefore, Murphy & GCTO cannot now assert on
appeal that the trial court found something in their favor which they abandoned
at the trial court.
PRAYER
16.
Conclusion:
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. There is no authority to sustain 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
|
|
Further, the Appellant prays for any other relief that he may
be entitled to.
