INDEX OF AUTHORITIES
Cases
Bowles v. Clipp, 920 S.W.2d 752................................... 10
Citizens for Better Educ. V. Goose Creek Consol.
Indep. Sch. Dist.
719 S.W.2d 350, 354 (Tex. App. – Houston [1st Dist.] 1986,
writ ref’d n.r.e.), cert. denied, 484 U.S. 804 (1987)............. 10
City of Mission v. Cantu 89 S.W.3d 795, 813........................ 7
Johnson Controls, Inc. v. Carrollton-Farmers Branch
Indep. Sch.
Dist., 605
S.W.2d 688, 689........................................ 12
Kissick v. Garland Indep. Sch. Dist., 330 S.W.2d 708, 710 (Tex.
Civ. App.-Dallas 1959, writ ref’d n.r.e.)..................... 10,
11
Nat’l. Biscuit, 135 S.W.2d at 692................................. 13
Neeley v. West Orange-Cove 176 S.W.3d 746 (Tex 2005)............... 5
Nichols v. Aldine Indep. Sch. Dist., 356 S.W.2d 182, 185 (Tex.
Civ. App. – Houston 1962, no writ)............................ 10,
11
Nueces Cty. v. Huff, 105 S.W.3d 208, 211 (Tex App. – Corpus
Christi 2003, n.p.h.).............................................. 9
Steele v. City of Houston 603 S.W.2d 786 (Tex 1980)............. 7, 9
Tex. Nat’l. Bank of Baytown v. Harris County,
765 S.W.2d 823, 825............................................... 12
Texas DOT v. Jones, 8 S.W.3d 636, 637—38 (Tex 1999)................ 9
Texas Constitutional Provisions
Article 1 Section 17........................................ 8,
9, 10
Article 1 Section 19............................................... 8
Article 1 Section 29............................................... 6
Article 3 Section 62............................................... 6
Article 7 Section 1........................................ vi,
1, 12
Article 8 Section 1e............................................... 5
Article 8 Section 1e1.......................................... vi,
1
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.
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 1e1and 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.
APPELLANT’S ISSUES IN REPLY TO SISD
1. The SISD assertion, page 2, that
the hearing of their Amended Plea to the Jurisdiction was evidentiary in nature
is false: 7
2. Appellant admits
herein that he abandoned his Punitive Damage Claims in Trial Court responses
but in haste inadvertently failed to remove them from his First Amended
Petition which explains the lack of argument on the issue at the Trial Court hearing: 7
3. The SISD asserts
falsely, page 4, that the Appellant paid his taxes and then filed his lawsuit: 7
4. The SISD assertion,
page 8, that the SISD is authorized to charge an unconstitutional tax is false: 7
5. The SISD assertion,
page 10, that the Appellant provided no authority to show that no statute of
limitations can impair Article One provisions of the Texas Constitution is
false: 7
6. The SISD assertion,
page 11, that the intentional destruction of property is all that Article 1
Section 17 contemplates is false: 7
7. The SISD assertion,
page 12, that the Appellant claims an Article 1 Section 17 violation for the
first time on appeal is false: 7
8. The SISD, page 12,
abandons sovereign immunity defenses on appeal: 7
9. The SISD assertion,
page 12, that the Appellant has cited no authority to contradict the “no
monetary damage award for violation of the Constitution” is false: 7
10. The SISD assertion, page
13, that the District Trial Court cannot find the SISD in violation of Article
7 Section 1 of the Texas Constitution is false and their citations do not
support their position: 7
11. The SISD assertion that
the “voluntary payment rule” bars the return of Appellant’s money taken from
him without a law is false and their citations do not support their contention: 7
12. Conclusion: 7
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 Seguin Independent
School District. Appellant
would like to reply to the Appellee’s Brief just filed by Ms. Tavie Murphy and
the Guadalupe County Tax Office within the 20 day allowance. 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 replies to new assertions made on
appeal by the Seguin
Independent School
District as follows:
1. The
SISD assertion, page 2, 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. 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 judge at the trial court level as none were
heard nor received. All law must be determined from the pleadings and arguments
construed in favor of the Appellant and his intent.
2. Appellant
admits herein that he abandoned his Punitive Damage Claims in Trial Court
responses but in haste inadvertently failed to remove them from his First
Amended Petition which explains the lack of argument on the issue at the Trial
Court hearing:
The Appellant had expressed
his full intentions of dropping his punitive damage claim from his First
Amended Petition somewhere in the trial court proceedings but in haste to
update and clarify other matters critical to the case he forgot to remove them.
3. The
SISD asserts falsely, page 4, that the Appellant paid his taxes and then filed
his lawsuit:
The Appellant filed his
lawsuit and then paid the unlawful taxes to avoid foreclosure proceedings which
were implied and explicit in the Appellant’s Petitions (F60-62), (F254-256), and to obtain a permit (F192) from the County to build an RV Park on his property (F202). These are the facts as plead
and argued at the hearing (H35 L22- H36
L4). The Appellees even plead in their Amended Plea to the Jurisdiction
that Appellant had not paid his taxes before filing his lawsuit and owed them
during the trial court proceedings (F129).
4. The
SISD assertion, page 8, that the SISD is authorized to charge an
unconstitutional tax is false:
The SISD says on page 8
that, “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.” On November 22, 2005, The Supreme Court of
Texas ruled that this activity at least for the year 2005 was a violation of
Article 8 Section 1e of the Texas Constitution and
the Appellant was going to show that all the other years were of the identical
type. Therefore, at least for the year 2005, the Appellees do not have
authority to assess and collect property taxes in violation of the constitution,
see Neeley v. West Orange-Cove 176 S.W.3d 746 (Tex 2005).
5. The
SISD assertion, page 10, that the Appellant provided no authority to show that
no statute of limitations can impair Article One provisions of the Texas
Constitution is false:
The Appellant has cited
the most superior law in the State of Texas
as authority to show that no statute of limitations can impair or limit any
Article One provision of the Texas Constitution. The SISD has listed their
citations of Constitutional provisions in their Index of Authorities under the
heading of “Statutes” on page iii right along with the Texas Civil Practice and
Remedy Code and Texas Education Code provisions. Constitutional law is superior
to case law and codes and rules. The later must follow and be in harmony with
the Constitution or they are void.
Statutes are made by the
legislature whereas; the Constitution is made by the people. The Constitution made
the legislature and limits its powers as it does so make and limit the
judiciary and the executive branches. When the Appellant cited Article 3
Section 62 of the Constitution as an
authority against which the legislature cannot impair any Article One provision
of the Constitution he is citing superior authority and need not cite any inferior
case law to support it. A clear reading of the said article shows that Article
One provisions of the constitution cannot be altered or limited without a
statewide election held in accordance with Article 17 of the Texas
Constitution. Therefore, it matters not what the legislature does with its
statutes, it does not impair any Article One provision. Article 3 Section 62 and Article 1 Section
29 also apply as well to the
Texas Tort Claims Act rendering it null and void.
6. The
SISD assertion, page 11, that the intentional destruction of property is all
that Article 1 Section 17 contemplates is false:
SISD attempts to spread
the findings pertinent to the Steele case to all other cases under Article 1 Section
17. On appeal the Court in Steele had to determine if the City was
liable for the intentional acts of the police officers in the burning down of a
citizen’s home to catch criminals hiding there or if the home was burned for
public use. The Appellant herein need not show all those elements concerning
damage, destruction or intentions or discretion of government officials to
prove that money was taken from him for public use without a law (or in
violation of Article 8 Section 1e) to support the unlawful taking in violation
of a clear reading of Article 1 Section 17. The SISD ignores all its other citations but Steele to make this assertion.
7. The
SISD assertion, page 12, that the Appellant claims an Article 1 Section 17
violation for the first time on appeal is false:
The SISD assumes that
because a party claiming a cause of action with multiple elements must name the
cause and then plead facts that provide for each of the elements to maintain
the cause, that those who give fair notice of single element causes must do the
same. The SISD cites City of Mission v. Cantu 89 S.W.3d 795, 813 as authority for the need
to cite the law in a Petition to maintain it. The Mission
case involved a Texas Tort Claims Act cause involving waivers and exceptions to
waivers which must be plead and supported with facts for each element. This is
not the standard of pleading for all other cases involving simple causes of
action. All in the law profession should hear the sound of a pleading of an
Article 1 Section 17 claim from the pleading of facts showing the government
taking property for public use without a law.
The Appellant gave “fair
notice” of all these claims and argued them in his Petitions and gave explicit
citations of them in other trial court pleadings and the hearing. Fair notice
is all that is required under constitutional claims such as Article 1 Section
17 as shown in Bowles wherein
the Appellate court recognized the “fair notice” pleadings of an Article 1
Section 17 claim affirming a trial
court award of a return of over $3,000,000 collected as bail bond fees which
were unconstitutional. The Appellate court noted that the pleadings referring
to Article 1 Section 19 throughout really should
be and will be affirmed under Article 1 Section 17. Fair notice is recognized in regard to causes of action that do
not contain multiple elements such as waivers and exceptions to waivers under
various Texas Tort Claims Act suits which the SISD agrees this case is not.
Further, the Appellant cited
Article 1 Section 17 in several pleadings in
response to the Appellees’ Plea to the Jurisdiction (F84-85), (F172-173),
(F178-180), (F186) and at the hearing (H31
L6-H33 L2).
8. The
SISD, page 12, abandons sovereign immunity defenses on appeal:
The fictitious erroneous
doctrine of “Sovereign Immunity” can be waived on behalf of a school district: The
Appellees state the following on page 12, “SISD has never asserted any
governmental or sovereign immunity defense from Appellant’s claims.” Immunity
from liability is an affirmative defense that the governmental entity has the
burden of pleading and proving Texas
DOT v. Jones, 8 S.W.3d 636, 637—38 (Tex
1999). Because the SISD has never asserted governmental of sovereign
immunity and because said immunities do not apply where there is a clear
unambiguous waiver by a self-enacting constitutional provision of Article 1
Section 17, said immunities cannot be an issue on this appeal, see Nueces Cty. v. Huff, 105 S.W.3d 208, 211
(Tex App. – Corpus Christi 2003, n.p.h.); Steele v. City of Houston 603 S.W.2d 786 (Tex 1980).
9. The
SISD assertion, page 12, that the Appellant has cited no authority to
contradict the “no monetary damage award for violation of the Constitution” is
false:
The Appellant has cited Article
1 Section 17 at the hearing in trial
court and in several of his pleadings in trial court in response to the
Appellees’ Pleas to the Jurisdiction. The Constitution is the superior law and
it was written by the people of Texas
or their representatives in convention prior to the construction of the State
and the legislature and other branches of government. Article 1 Section 17 has been held to be a waiver
of all immunity and self-executing with the provision for payment of money for
actual loss or damage as shown in the Steele case. Also see Bowles v. Clipp,
920 S.W.2d 752. Clipp et al where there was an Article 1 Section 17 award of over
$3,000,000 for the taking of money in the form of a bail bond approval fee
found to be unconstitutional. Appellant agrees that there is no award for
punitive damages under this provision and he has agreed to drop those at the
trial court and upon appeal.
10.
The SISD assertion, page 13, that the District
Trial Court cannot find the SISD in violation of Article 7 Section 1 of the
Texas Constitution is false and their citations do not support their position:
In support of their
assertion the SISD cites Citizens for Better Educ. V. Goose Creek Consol. Indep. Sch. Dist. 719
S.W.2d 350, 354 (Tex. App. – Houston [1st
Dist.] 1986, writ ref’d n.r.e.), cert. denied, 484 U.S. 804 (1987) (citing Nichols v.
Aldine Indep. Sch. Dist., 356 S.W.2d 182, 185 (Tex.
Civ. App. – Houston 1962, no writ) and Kissick v. Garland Indep. Sch. Dist.,
330 S.W.2d 708, 710 (Tex.
Civ. App.-Dallas 1959, writ ref’d n.r.e.)). In the Goose Creek case the Hispanic population did not
want to change high schools to spread out the growing Hispanic population and
claimed it was racially motivated and in violation of the constitution. The
Appellate court found that the “Citizens” did not exhaust their administrative
remedies available to them at the local level. The Nichols case involved a mandamus
to force the school district to hold an election mandated by receipt of a
lawfully constructed petition. The court held in favor of the district not
because the district did not have to comply with the law but because there was
no evidence supplied in the case showing the lawfully constructed petition – it
was only alluded to. The Appellate court found that the District used proper
discretion in finding the petition unsatisfactory to force the bond election
mandated by law. In the Kissick case, a student and his father sue the
District for not passing a rule against letting married students play football
which met the physical education requirement of the school. Kissick thought that the district
could not make rules that would deny him the right to play football because he
was married. The Appellate court found the district had the right to discourage
teenage marriage as the whole state of Texas
does in other laws.
However, none of these
cases show that the local trial court could not find by law that the SISD did not
comply with a constitutional provision under Article 7 Section 1. There is further no way to determine the constitutionality of
district’s actions or non-action nor is there any local means to correct the
system as the provision for Article 7 Section 1 protects the Appellant in all
of Texas not just in Seguin. But the SISD is still liable for their part. The
District trial court is the court of origination for this harm done to the
Appellant and the said court had jurisdiction to rule on the matter.
11.
The SISD assertion that the “voluntary payment
rule” bars the return of Appellant’s money taken from him without a law is
false and their citations do not support their contention:
The SISD cites Tex. Nat’l.
Bank of Baytown v. Harris County,
765 S.W.2d 823, 825 and Johnson Controls,
Inc. v. Carrollton-Farmers Branch Indep. Sch. Dist., 605 S.W.2d 688, 689 as authority. Appellant
and Appellees agree that duress provides an exception to the “voluntary payment
rule.” But in the Texas National Bank case the Appellant could only
plead that their bond rating would be clouded if not paid. This has little or
nothing to do with duress involving the loss of property if not paid. In the Johnson
Controls case, involves the facts plead and evidence that the district
submitted showing that taxes had been paid in full and voluntarily before the
threat of foreclosure of any tax lien. Johnson Controls provided an affidavit
that said they paid the tax under duress but did not state facts that supported
their mere statement of their motive in paying it. Therefore, with no evidence
of facts of when they received the threat to foreclose and when they paid the
tax the appellate court found no duress. The court however, did entertain the
idea that a threat to take property if an unlawful tax is not paid is duress.
The Appellant herein has pled duress and the facts to support it in his
petition, pleadings and hearing in trial court.
The further assertion by
SISD, page 16, that a threat to prevent one from doing business requires its
extent to include all of the State of Texas is false. It is
recognized in all the cases cited by Appellees that any threat to prevent the
operation of a business if an unlawful tax is not paid meets the duress
exception to the “voluntary payment rule.” The SISD cites Nat’l. Biscuit,
135 S.W.2d at 692 is support of its assertion. The National
Biscuit Company was a foreign company that would be denied a permit to operate
in Texas if
they did not pay a state franchise tax that was unconstitutional. The threshold
of duress is the threatened loss of property or property right unless the
unconstitutional tax is paid.
Duress of goods lies “where the act consists of a tortuous
seizure of detention of property from the person entitled to it, and requires
some act as a condition for its surrender.” If
the tax was unconstitutional, the associated penalty for not paying it was also
unconstitutional. And “any unlawful threat or coercion used by a person to
induce another to act (or refrain from acting) in a manner he or she otherwise
would not (or would)” is
duress by legal definition. Therefore any unconstitutional penalty or threat,
especially to take property or property rights, to collect an unconstitutional
tax is duress by legal definition. The Appellant has pled at least two kinds of
duress and the facts to support it.
PRAYER
12.
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. 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
|
|
Further, the Appellant prays for any other relief that he may
be entitled to.
