No. 4-07-00244-CV

IN THE COURT OF APPEALS FOR THE

FOURTH COURT OF APPEALS DISTRICT

SAN ANTONIO, TEXAS

_____________________________________

Ronald F. Avery

APPELLANT

VS.

Ms Tavie Murphy, GUADALUPE COUNTY TAX OFFICE and

SEGUIN INDEPENDENT SCHOOL DISTRICT

APPELLEES

____________________________________

ON APPEAL FROM THE 25TH JUDICIAL DISTRICT COURT

GUADALUPE COUNTY, TEXAS

THE HONORABLE PAUL DAVIS, JUDGE PRESIDING

_____________________________________

APPELLANT’S REPLY BRIEF TO SEGUIN ISD

_____________________________________

Ronald F. Avery

Pro Se

1955 Mt. Vernon

Seguin, Texas 78155

Phone & Fax:  830/372-5534

E-Mail:   Taphouse@sbcglobal.net

 

ORAL ARGUMENT REQUESTED



IDENTITY OF PARTIES AND COUNCEL

Pursuant to Rule 38.1 (a) of the Texas Rules of Appellate Procedure, the Appellant, Ronald F. Avery, certifies to the best of his knowledge, the following is a complete list of all persons or entities with an interest in this appeal:

1.  Appellant - Ronald F. Avery - Pro Se.

1955 Mt. Vernon

Seguin, Texas 78155

 

2.  Appellee – Ms. Tavie Murphy.

307 W. Court Street

Seguin, Texas 78155

 

3.  Appellee – GUADALUPE COUNTY TAX OFFICE (GCTO).

307 W. Court Street

Seguin, Texas 78155

 

The Attorney of record for Ms. Murphy and the GCTO is:

Matthew Tepper SBOT# 24029008

McDreary, Veselka, Bragg & Allen, P.C.

Attorneys at Law

700 Jeffery Way, Suite 100

Round Rock, Texas 78664

Ph:      512/323-3200

Fax:     512/323-3294

Email:    MTEPPER@MVBALAW.COM

 


4.  Appellee – SEGUIN INDEPENDENT SCHOOL DISTRICT (SISD).

Dr. Irene Garza - Superintendent

1221 E. Kingsbury Street

Seguin, Texas 78155

 

The Attorney of record for SISD is:

Ricardo Lopez SBOT# 24013059

Feldman & Rogers, L.L.P.

Attorneys at Law

517 Soledad Street

San Antonio, Texas 78205-1508

Ph:       210/406-4100

Fax:      210/406-4114

 

 

REQUEST FOR ORAL ARGUMENT

Pursuant to Rule 9.4 (g) and 39.1 of the Texas Rules of Appellate Procedure, Appellant requests oral argument.


TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNCEL i

REQUEST FOR ORAL ARGUMENT ii

TABLE OF CONTENTS iii

INDEX OF AUTHORITIES v

REFERENCE CONVENTIONS: vi

STATEMENT OF THE CASE vi

APPELLANT’S ISSUES IN REPLY TO SISD vii

STATEMENT OF THE FACTS 7

ARGUMENT 7

PRAYER 7

CERTIFICATE OF SERVICE g

 



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.”[1] 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)”[2] 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.

 

 

 

 

 

 

 


CERTIFICATE OF SERVICE

I, hereby certify that on the ____ day of ____________, 2007, the foregoing Appellant’s Reply Brief to Seguin ISD was sent to Counsel for Appellees by certified mail return receipt requested as identified below:

 

 

Defendant Murphy & GCTO:

7006 2760 0005 3028 3128

McCleary, Veselka, Bragg

& Allen, P.C.

700 Jeffrey Way (Suite 100)

Round Rock, Texas 78664-2425

Attn:  Matthew Tepper

Kirk Swinney

mtepper@mvbalaw.com

kswinney@mvbalaw.com

www.mvbalaw.com

Phone  512/323-3200

Fax    512/323-3294

 

Defendant SISD:

7006 2768 0005 3028 3135

Feldman & Rogers, L.L.P.

517 Soledad Street

San Antonio, Texas 78205-1508

Attn:  Ricardo R. Lopez

rlopez@feldmanrogers.com

www.feldmanrogers.com

Phone  210/406-4100

Fax    210/406-4114

 

 

 

 

_______________________________

Ronald F. Avery

Plaintiff

Pro Se

 

 

 

 



[1] Black’s Law Dictionary 7th ed. p. 504.

[2] Black’s Law Dictionary 7th ed. p. 504.