2 IN THE 25TH JUDICIAL DISTRICT COURT
GUADALUPE COUNTY, TEXAS
RONALD F. AVERY )
4 -vs- ) CAUSE NO. 06-2079-CV
MS. TAVIE MURPHY, )
5 GUADALUPE COUNTY TAX OFFICE,)
SEGUIN INDEPENDENT SCHOOL )
6 DISTRICT. )
8 TRANSCRIPT OF PROCEEDINGS
9 MARCH 6, 2007
12 Mr. Ronald F. Avery
13 Plaintiff Pro Se;
14 Mr. Matthew Tepper
Mr. Ricardo R. Lopez .
Attorneys for the Defendants.
19 Reported by:
20 Bonnie C. Minatra
Certified Court Reporter
1 BE IT REMEMBERED that on the 6th day of
2 March, 2007, the foregoing cause came on for hearing
3 before the Honorable Paul R. Davis, Jr., Judge, sitting
4 at Seguin, Guadalupe County, Texas, and the following
5 proceedings were had, commencing at 10:00 a.m.
6 * * * * *
7 THE COURT: The first thing I would like
8 to do is figure out what it is we are here for. Let's
9 make a list of the matters that we are going to hear.
11 And I know we did that once before, but
12 let's just confirm that and, Mr. Avery, why don't you
13 give it a first shot.
14 MR. AVERY: Yes, sir.
15 THE COURT: Tell me what you think you
16 are having a hearing on today.
17 MR. AVERY: Yes. I have a motion for
18 sanctions against Attorney Lopez and I have dropped the
19 default judgment part of the motion against the School
21 And I also believe they have a motion
22 for plea to the jurisdiction. And, as far as I know,
23 that is all that is pending for today.
24 THE COURT: All right.
25 And, Mr. Tepper, what do you think is
1 set for today?
2 MR. TEPPER: Your Honor, I think that
3 Defendants Murphy and Guadalupe County Tax Office plea
4 to the jurisdiction and I also understand that Seguin
5 ISD has a plea to the jurisdiction as well and I don't
6 dispute that the sanctions were set for today also.
7 THE COURT: Okay.
8 And, I'm sorry, I don't know your name?
9 MR. LOPEZ: That's all right. Your
10 Honor, Rick Lopez on behalf of Seguin ISD.
11 I am in agreement with everyone else.
12 We have a plea to the jurisdiction today as well as, I
13 believe, Mr. Avery's motion for sanctions.
14 THE COURT: When we start with you,
15 Mr. Lopez, and work backwards, what order do you think
16 we go in?
17 MR. LOPEZ: Well, I think probably the
18 appropriate thing to do would be to resolve the
19 sanctions issue. I think that is probably the simplest
20 thing, because I know both sides are probably going to
21 have a considerable amount of oral argument on the plea
22 to the jurisdiction and Your Honor may have probably
23 questions related to that more than necessarily the
24 sanctions motion. So, if we resolve that, we probably
25 get to the plea to jurisdiction next.
1 THE COURT: Mr. Tepper, is that
2 agreeable to you?
3 MR. TEPPER: Yes, Your Honor.
4 THE COURT: All right.
5 I know, Mr. Avery, that is your request
6 so I will not ask you that and then we will proceed
7 with that.
8 Mr. Avery, you may then proceed on the
9 motion for sanctions and you may either jump straight
10 into it or you may make an opening statement if you
12 MR. AVERY: Yes, sir. I think I would
13 like to make an opening statement.
14 THE COURT: That's fair enough.
15 MR. AVERY: A summary of what the
16 sanction motion is about.
17 THE COURT: You may.
18 MR. AVERY: I filed the suit on December
19 7th and it was answered initially by Attorney Lopez and
20 I believe that the last day that the Defendants could
21 have filed an answer to the suit was on January 2nd, I
22 believe. And, prior to January 2nd, the second
23 attorney, and he is not here today, Attorney Santos,
24 representing another firm but on behalf of Seguin
25 Independent School District, he had also answered. And
1 both of them have the title of "Answers" and both
2 attorneys asked for different things in that document.
3 But the way I perceived it, when I
4 attempted to answer, and I did answer or I responded to
5 their answer, the second answer filed by Santos under
6 Rule TRCP 65 had abandoned Mr. Lopez's answer. That is
7 at least the way I perceived it. And so I answered or
8 I responded to the answer of Mr. Santos, but later on I
9 got a letter from Mr. Santos saying that he had
10 forwarded it to Attorney Lopez at another law firm and
11 he was the attorney of record because he was the first
12 one to answer on behalf of the School District.
13 And then the next day I got a letter
14 from Mr. Lopez here and in that letter he told me that
15 the only thing on file as of January 9th -- He said he
16 had talked to them that afternoon in the letter and
17 that the first answer -- the second answer filed by
18 Mr. Santos was not on file.
19 Well, that really put me in a problem of
20 how I deal with the lawsuit and who I was to answer. I
21 really didn't know now at this point what to really do
22 with it and the only thing I could think of was to file
23 a motion for default because the way I looked at it was
24 by the time they had the answer, the only live pleading
25 on file according to the rules was an answer filed by
1 an attorney who was not the attorney of record, so in
2 my mind the District was really at that point in
4 So I filed a motion for default and
5 sanctions for contempt for telling me that Santos had
6 not really filed anything when in fact he did and I
7 have provided in my motion for sanctions here those
8 documents that are certified by the Court that indeed
9 Santos had filed his answer.
10 So really that is what my -- Since then
11 though, as you are aware, Mr. Lopez has filed another
12 document and he is the attorney of record. He has
13 filed asking that Mr. Santos be dismissed as the
14 attorney and also filed further documents meaning that
15 by the time we have a hearing on the default judgment
16 that the District has indeed answered and has answered
17 with a live pleading from the attorney of record so
18 that is why I have dropped the motion for default
20 But in regard to the idea of -- And,
21 after I filed the motion for sanctions, Mr. Santos then
22 answered that. -- I mean, I'm sorry, Mr. Lopez answered
23 that and he answered it again by saying that he had
24 received -- that he had talked to the Court Clerk on
25 December 22nd and that is when they said that Attorney
1 Santos had not filed anything.
2 But that is not really what he said in
3 the letter to me on January 9th where he again said
4 that he had talked to the Clerk that afternoon and the
5 Santos material had not been filed.
6 So the way I perceived this is that
7 Mr. Lopez was trying to force me to answer dead
8 pleadings that had been substituted by later pleadings
9 and I think that was -- I think he knew better than
10 that and just did that hoping I would respond to those
11 documents and I believe that that is just not the way
12 that should have been done. I think that was a
13 misrepresentation bearing false witness to the Court
14 and had signed documents to that effect.
15 So I am asking that all this that I had
16 to go through to get this straightened out be
17 reimbursed to me in the sum of $2400, so that is what
18 the sanctions is about. That is my sanction motion and
19 I believe that I provided in my motion enough evidence
20 that is certified by the Court already to prove that
21 that is true without putting Mr. Lopez on the stand and
22 doing any of that.
23 So I think I can conclude that except
24 for one other thing. I do want to put this in. I
25 would like to add this to evidence.
1 THE COURT: Hold on a minute. This is
2 your opening statement.
3 MR. AVERY: Okay. Thank you, sir. I
4 believe I am finished with my opening statement.
5 THE COURT: All right. Thank you.
6 What is the name of the motion which you
7 are presenting as your motion for sanctions?
8 MR. AVERY: It is called "Plaintiff's
9 Amended Motion For Default Judgment Against Seguin ISD
10 And Contempt And Sanctions Against Attorneys Lopez and
12 THE COURT: Your filings tend to be
13 thick so they are hard to find in the file. (Pause.)
14 When was it filed?
15 MR. AVERY: That was filed on February
16 26th, 2007.
17 THE COURT: And the title again, please.
18 MR. AVERY: "Plaintiff's Amended Motion
19 For Default Judgment Against Seguin ISD..."
20 THE COURT: I have a copy here. Thank
21 you very much.
22 MR. AVERY: Okay.
23 THE COURT: All right. Thank you very
25 All right. And, let's see, Mr. Lopez,
1 you may make an opening statement if you wish.
2 MR. LOPEZ: Thank you, Your Honor.
3 In response to Mr. Avery's motion, I
4 believe what we have here is just some confusion as to
5 how the case was initially answered by the School
6 District. There was never any attempt to mislead or
7 bear false witness as Mr. Avery has alleged.
8 The case, I believe, was filed and
9 served on the District or at least it was served on the
10 District on December 7th of 2006, Your Honor. The
11 District at that time, as I understand it, referred the
12 matter to its own internal general counsel which was
13 Mr. Joe De Los Santos at the Law Firm of Walsh-Anderson
14 which is based in Austin. Also they sent the lawsuit
15 at that time to their general liability insurance
16 carrier which is the Texas Association Of School
18 At that time, no action as I understand
19 it was taken with respect to the lawsuit; however,
20 around December 20th or so, which is actually the date
21 that the School District went out for holiday break,
22 the lawsuit was then referred to me for handling. I
23 was to provide special defense in this particular
24 matter on behalf of the School District through TASB.
25 Out of an abundance of caution and to
1 insure that I wasn't going to duplicate any work, I had
2 my associate call the District Clerk here in Guadalupe
3 County to insure that there hadn't been an answer that
4 had already been filed.
5 We knew the answer was due on January
6 2nd of 2007 which coincidentally was the day that the
7 Seguin School District came back to work. I didn't
8 want to run into any situation where the District would
9 be caught with its pants down so to speak and not have
10 an answer on file.
11 So what I did is after learning that
12 after December 22nd the Clerk's record reflected that
13 no answer had been filed, I went ahead and prepared
14 one. In connection with the answer, I prepared some
15 affirmative defenses that we were going to assert
16 throughout the course of the lawsuit.
17 As Your Honor is aware, that is not a
18 document per se that Mr. Avery was due to respond to.
19 I mean obviously once the lawsuit had commenced, we
20 were going to get the opportunity to engage in the
21 discovery process and, if my affirmative defenses bore
22 out, then they would work and, if not, then, you know,
23 it was just like any other pleading.
24 However, when we returned on January
25 2nd, I then learned that Joe De Los Santos had also
1 worked on preparing an answer on behalf of the
2 District. I informed Mr. De Los Santos that I had
3 already filed one. He told me that he didn't know that
4 and that he had already Fed Exed another answer to the
6 Ultimately that resulted, I guess, in a
7 file stamped copy of an answer by Mr. De Los Santos
8 which I can see where there would be some confusion;
9 however, I would note to the Court that I had my
10 assistant call the District Clerk yesterday and ask
11 whether there were any answers on file in this lawsuit
12 on behalf of the District and who in fact had filed an
13 answer. Their records reflected that the only answer
14 on file for the School District was filed by me as the
15 attorney of record. They had no record of any other
16 answer being filed.
17 I am not disputing that Mr. De La Santos
18 apparently did file something with the Clerk, but I
19 don't know if the Clerk recognized that this was just a
20 confusion and knew that I was going to be the attorney
21 of record and so therefore did not include it in the
22 Court's record, but the bottom line is, Your Honor,
23 this was just -- This was merely two lawyers that
24 didn't know that they were each representing the School
25 District at the time because of the holiday break and
1 they just wanted to make sure that the District had an
2 answer on file by January 2nd to insure that there was
3 no default judgment. Again, it was no attempt or
4 effort on my part to mislead Mr. Avery. I recognize
5 Mr. Avery had a right to file whatever lawsuit he
6 wanted to file at that point and obviously we would get
7 to the merits or any legal issues at a later point.
8 Thank you.
9 THE COURT: Thank you, Mr. Lopez.
10 And, Mr. Tepper, do you wish to get in
11 on this with an opening statement?
12 MR. TEPPER: No, Your Honor. I have
13 nothing to add to it.
14 THE COURT: Thank you very much.
15 And so, Mr. Avery, you may present your
16 evidence on the motion for sanctions.
17 MR. AVERY: Yes, sir.
18 Well, first of all, I believe that the
19 evidence attached I would like to enter that as
20 evidence in this case and I have attached the pleadings
21 that were actually filed by both attorneys. They are
22 stamped by the Court Clerk showing that both attorneys
23 have filed material by January 2nd and under TRCP 65--
24 THE COURT: Don't argue. If you want to
25 offer a document, hand the document to the Court
1 Reporter and ask her to mark it as an exhibit.
2 MR. AVERY: Okay.
3 THE REPORTER: Your Honor, would it be
4 well to mark them as Plaintiff's exhibits?
5 THE COURT: Yes.
6 THE REPORTER: All right.
7 THE COURT: Thank you very much.
8 (Plaintiff's Exhibit Nos. 1 through 5
9 marked for identification.)
10 THE COURT: Mr. Avery, would you now
11 show them to Mr. Lopez.
12 MR. AVERY: Yes.
13 THE COURT: Hand them all to Mr. Lopez,
15 MR. AVERY: Okay.
16 (Exhibits handed to Counsel.)
17 MR. LOPEZ: Thank you, Your Honor.
18 Thank you, Mr. Avery.
19 MR. AVERY: Yes, sir.
20 THE COURT: Do you offer 1 through 5?
21 MR. AVERY: I do offer 1 through 5.
22 THE COURT: Is there objection?
23 MR. LOPEZ: No, Your Honor.
24 THE COURT: 1 through 5 are admitted.
25 (Plaintiff's Exhibit Nos. 1 through 5
1 admitted in evidence.)
2 THE COURT: May I have them, please.
3 MR. AVERY: Yes, sir.
4 THE COURT: Any other evidence you wish
5 to offer?
6 MR. AVERY: Yes, sir. I would like to
7 enter one more.
8 THE COURT: Exhibit?
9 MR. AVERY: One more exhibit.
10 THE COURT: All right. If you will,
11 hand it to the Court Reporter, please.
12 (Plaintiff's Exhibit No. 6 marked for
14 THE COURT: Hand it to Mr. Lopez.
15 (Exhibit handed to Mr. Lopez.)
16 MR. LOPEZ: Thank you, Your Honor.
17 THE COURT: And do you offer 6?
18 MR. AVERY: Yes, sir, I do.
19 THE COURT: Any objection to 6?
20 MR. LOPEZ: I would object to the
21 relevance in terms of the sanctions motion, Your
22 Honor. I realize that may be relevant to Mr. Avery's
23 plea to jurisdiction. That would be the only
24 objection, Your Honor.
25 THE COURT: Let me see it.
1 (Exhibit handed to the Court.)
2 THE COURT: Okay. What is the relevance
3 of 6 to the sanctions motion?
4 MR. AVERY: Yes, sir. This involves
5 another element of the sanctions motion. The attorney,
6 in fact both of these attorneys sitting here,
7 Mr. Tepper included, have stated in their pleadings,
8 "The Plaintiff that currently owes and has refused to
9 pay pending school property taxes alleges that such tax
10 is..." and it goes on what I allege, but they say I
11 currently owe and refuse to pay pending school property
12 taxes and that is evidence right there, Your Honor,
13 that I did indeed pay all of the school property taxes
14 whether they were lawful or unlawful and I paid them
15 within the hour after filing the suit and they could
16 have determined that at any time prior to their last
17 pleading. This pleading is on February 28th, '07.
18 I think they should have -- I mean they
19 have signed these pleadings and they have said this is
20 a fact in here and they didn't bother to check to see
21 if I had paid my taxes.
22 THE COURT: Where do you --
23 MR. AVERY: And they are --
24 THE COURT: One moment.
25 MR. AVERY: Yes, sir.
1 THE COURT: Here is the rule. When I
2 talk, you don't.
3 Where do you address this in the request
4 for sanctions?
5 MR. AVERY: Well, that came up
6 afterwards because this was filed on February 28th and
7 that was -- I didn't have enough time to include that.
8 THE COURT: Okay. The objection is
10 (Plaintiff's Exhibit No. 6 is refused in
12 THE COURT: Any other evidence you wish
13 to offer on the motion for sanctions?
14 MR. AVERY: No, sir.
15 THE COURT: Okay. So you rest on the
17 MR. AVERY: I do, sir.
18 THE COURT: Any other evidence on the
19 motion for sanctions?
20 MR. LOPEZ: No, Your Honor, and I would
21 rest on my opening statement for the explanation for
22 the Court.
23 THE COURT: Thank you very much.
24 Then, Mr. Avery, your argument on the
25 motion for sanctions if you wish to make any that
1 hasn't been made on the opening statements.
2 MR. AVERY: I don't believe I have
3 anything further.
4 THE COURT: Fair enough.
5 Mr. Lopez?
6 MR. LOPEZ: No, Your Honor. Nothing
8 THE COURT: Thank you very much.
9 Motion is denied.
10 (Motion for sanctions denied.)
11 We will take a 10 minute break until 25
12 'til 11:00.
14 THE COURT: Okay. We have the plea to
15 the jurisdiction of Seguin ISD as well as the Guadalupe
16 County Tax Office, I believe. Correct?
17 MR. LOPEZ: (Indicates by nodding head
18 up and down.).
19 MR. TEPPER: (Indicates by nodding head
20 up and down.)
21 THE COURT: And who will be presenting
23 MR. LOPEZ: Your Honor, Seguin ISD is
24 willing to go first.
25 THE COURT: All right, sir.
1 MR. LOPEZ: On the plea to the
2 jurisdiction, I will offer oral argument on that.
3 THE COURT: You may.
4 MR. LOPEZ: Thank you, Your Honor.
5 I have a few brief points that have been
6 raised in our plea to the jurisdiction. We have a
7 number of grounds for dismissal of Mr. Avery's claims.
8 This case involves, Your Honor, Mr.
9 Avery's challenge to the property taxes that are
10 assessed by the School District and I have a number of
11 defenses to present.
12 The first is we would argue, Your Honor,
13 that Mr. Avery lacks standing as an individual taxpayer
14 to bring this claim.
15 The law in Texas provides, Your Honor,
16 and the case law is well settled on this point, that an
17 individual citizen or taxpayer has no standing unless
18 he alleges an injury that is separate and distinct from
19 one suffered by the general public.
20 In this case, Your Honor, I think when
21 you look at Mr. Avery's pleadings, he ultimately is
22 doing just that. He is really asserting some sort of
23 harm that has been brought to him as a property
24 taxpayer. In that regard, Your Honor, that is no
25 different than any other property taxpayer here in
1 Guadalupe County. So in that regard he really makes no
2 attempt or presents no argument to distinguish his
3 particular injury separate and apart from that which is
4 incurred by the general public.
5 In fact, when you look at some of his
6 pleadings, Your Honor, -- And, at the time I filed this
7 plea to the jurisdiction, I was going under Plaintiff's
8 Original Petition. I understand that Mr. Avery has
9 since filed an Amended Petition, but ultimately he
10 makes allegations such as "Texas Governor Rick Perry's
11 recent task for setting property taxes was meant to
12 fool the people into thinking that school property
13 taxes would be lowered and to the public
14 disappointment..." Obviously he is lumping himself in
15 with that, Your Honor, as a member of the public, so in
16 that regard we would argue and submit that Mr. Avery
17 lacks standing to challenge the governmental
18 authorities to collect these taxes.
19 Second, Your Honor, we would argue that
20 Mr. Avery is complaining of property taxes that have
21 been imposed and presumably he has paid; in fact, he
22 has demonstrated that with his earlier attempt to show
23 he has paid property taxes going back to 1992.
24 Now, the argument here is ultimately
25 since Mr. Avery is challenging an injury that he
1 purports to have suffered in that his personal
2 property, money, has been taken by the Government
3 unconstitutionally or improperly; that ultimately that
4 falls under a taking of personal property claim.
5 Now, taking of personal property claims
6 in Texas, whatever the kinds, they are subject to a two
7 year statute of limitations. So we would argue, Your
8 Honor, that Mr. Avery's attempt to go back to 1992 goes
9 well beyond the statute of limitations and so to the
10 extent he would even have a valid claim that his only
11 claim would run back from the time he filed his lawsuit
12 on December 7th, 2006, to December 7th of 2004.
13 Your Honor, we had also raised in our
14 plea to the jurisdiction a failure to exhaust his
15 administrative remedies argument that dealt with Mr.
16 Avery's complaints specifically about the actual tax
17 rates that were imposed by the Guadalupe County Tax
18 Office. It is my understanding --
19 THE COURT: One moment. (Pause.)
20 Go ahead.
21 MR. LOPEZ: Thank you, Your Honor.
22 Ultimately Mr. Avery I believe in his
23 Amended Petition has dropped his complaint related to
24 the actual imposition of the taxes themselves. Those
25 things would fall under challenges under Chapter 41 and
1 42 which I think the parties are in agreement that he
2 would not pursue. So at that point, Your Honor, we
3 won't be going any further into that particular issue.
4 Finally, Your Honor, we have the --
5 well, two more arguments to present. The first is,
6 Your Honor, that Plaintiff has stipulated in his
7 Original Petition and in his Amended Petition that he
8 has in fact paid his property taxes and the rule in
9 Texas is that when someone pays their taxes it falls
10 under the voluntary payment rule which means that when
11 those taxes are paid that that taxpayer no longer has a
12 cause of action to recover those taxes even if it is
13 found that those taxes are ultimately illegal.
14 And that is a longstanding proposition
15 of law, Your Honor, that is intended to make sure that
16 we minimize interference with a government entity's
17 ability to accomplish its functions.
18 Now, ultimately, Your Honor, I believe
19 Mr. Avery has raised in his response to our plea to the
20 jurisdiction that he was under duress at the time that
21 he paid his most recent property taxes. Obviously that
22 is one of the exceptions to the voluntary payment rule,
23 but really the duress that Mr. Avery is complaining of
24 essentially stems from statutory penalties that would
25 result from his failure to pay those taxes.
1 In the case of Texas National Bank of
2 Baytown versus Harris County, Your Honor, which is
3 located at 765 SW2d, 823, the Court of Appeals in
4 Houston, the Fourteenth District, held that, when you
5 are talking about statutory penalties for failure to
6 pay your taxes, that is not duress as was intended by
7 the law because -- And the upshot of that argument,
8 Your Honor, would be that ultimately individuals could
9 simply refuse to pay their taxes and then, when faced
10 with the possibility of liens or other penalties that
11 result from the non-payment of those taxes, they could
12 simply avoid it altogether by claiming that that in and
13 of itself constitutes duress.
14 So the fact, Your Honor, that Mr. Avery
15 was prevented from getting a permit that he needed
16 because there was an encumbrance of unpaid property
17 taxes at the time he applied for it, that is not the
18 duress that really excepts him from the voluntary
19 payment rule.
20 Finally, Your Honor, the ultimate relief
21 -- At least in the Original Petition, the ultimate
22 relief that Mr. Avery was seeking, Your Honor, was
23 repayment of those taxes or a refund of those taxes.
24 Now, the vehicle by which he has
25 brought this lawsuit today, Your Honor, are two
1 sections of the Texas Constitution. He contends that
2 these property taxes violate Article 1, Section 7, and
3 Article 1, Section 8, 1(e), of the Constitution.
4 Now, it is well settled, Your Honor, and
5 the last case on that point is The City of Beaumont
6 versus Bullion which is cited in our brief that says
7 that there are no claims for monetary damages for
8 violation of the Texas Constitution and given the fact
9 that Mr. Avery is looking for $80,000 or $67,000 in
10 monetary damages, whatever the amount may be, he is not
11 entitled to that relief, Your Honor, because he is
12 merely alleging violation of the Texas Constitution and
13 I think those points are well settled.
14 So as a result, Your Honor, based on all
15 of these arguments, we would assert that Mr. Avery's
16 claims for monetary damages and claims as far as
17 unconstitutionality of these property taxes should be
18 denied by the Court.
19 One final point, Your Honor, as I
20 understand that Mr. Avery has filed an Amended Petition
21 in which he has requested equitable relief, that
22 equitable relief, and if the Court would bear with me
23 one second, I will look that up specifically, he is
24 seeking the conformance of free public education
25 curriculum to the requirements of Article 1, Section 7,
1 wherein the primary goal of education is to protect the
2 life, liberty and possessions of the citizens by
3 inculcation of the principles of property. That is
4 located on Page 33, Your Honor, Paragraph 52, of
5 Mr. Avery's most recent Petition.
6 Although, we have not briefed this
7 particular matter given the fact that Mr. Avery filed
8 it after the plea to the jurisdiction, we would simply
9 argue, Your Honor, that that is not something that you
10 are going to have jurisdiction over anyway because the
11 actual decisions related to what curriculum are taught
12 in the public schools is the province of the
13 Legislature which seise local control of those issues
14 through individual school districts.
15 Now, the State -- As you may be familiar
16 with, Your Honor, the State does provide certain
17 requirements with the standardized testing that all
18 students are required to pass before graduating and so
19 to a large extent their curriculums have to go to that,
20 but ultimately that is a matter that the Legislature
21 and the local school districts have control over; not
22 something you would have jurisdiction over, Your Honor,
23 and given the fact that when you go from community to
24 community in this State you may have a lot different
25 standards than what people want their school kids
1 taught. I am not sure that that is something that the
2 Court would want to get involved in.
3 Finally, Your Honor, in terms of the
4 additional equitable relief, Mr. Avery has cited or
5 raised an issue regarding abandonment of claims
6 regarding no discretion.
7 Pardon me, Your Honor; bear with me.
8 Paragraph 51 on Page 33 of Mr. Avery's new Petition
9 deals with a request that he no longer have his
10 property taxed with Ad valorem property tax. Really,
11 Your Honor, that claim is subsumed with what he is
12 already asking for, so we would ask that the Court
13 grant the plea to the jurisdiction on all claims and
14 dismiss this lawsuit with prejudice. Thank you.
15 THE COURT: Thank you very much.
16 Mr. Tepper.
17 MR. TEPPER: Thank you, Your Honor.
18 Mr. Avery's lawsuit here today -- Well,
19 let me start off by saying I would adopt and agree and
20 incorporate all of the arguments that Mr. Lopez just
21 made to the Court on behalf of Tavie Murphy and the
22 Guadalupe County Tax Office.
23 What Mr. Avery's lawsuit is about is
24 that, as the Court is well aware, last year or two
25 years ago the Texas Supreme Court found that the
1 mechanism that the Legislature enacted for school
2 finance was unconstitutional and commanded the
3 Legislature to fix it and come up with a constitutional
4 scheme and Mr. Avery's argument in this Court here
5 today is that because the Texas Supreme Court found
6 that the old system of school finance was
7 unconstitutional that therefore he is entitled to a
8 refund of the taxes that he paid under that
9 unconstitutional school finance scheme and the
10 flip-side of that is, if Mr. Avery's argument is
11 correct and if he is allowed to prevail in this
12 lawsuit, not only would Mr. Avery be entitled to a
13 refund of the school property taxes that he paid during
14 the time that that scheme was in place, but every
15 single citizen within the State of Texas would be
16 entitled to a refund of their school property taxes and
17 obviously that is not the way that it works.
18 Because the school is a governmental
19 entity and because the School District was following
20 the Legislature's command on how they were to tax
21 property, the only relief that a citizen or a school
22 district or anybody else that has a complaint about the
23 way that the school tax is implemented can bring is one
24 going forward or a sort of prospective injunctive
25 relief. That injunctive relief, whether or not that
1 old school finance system was unconstitutional or not,
2 that has already been determined. The Texas Supreme
3 Court found that it was unconstitutional and the
4 Lesislature has gone on and they have fixed it.
5 There is no allegation that the new
6 scheme that the Legislature has put on is also
8 The claim about whether or not he can
9 get his back taxes refunded, he is not allowed to do.
10 That is a claim for money damages which Mr. Lopez
11 talked about in the Beaumont versus Bullion. You don't
12 get to come in and ask for your damages or for your
13 back taxes to be repaid again.
14 That is also the rule why there is a
15 standard for voluntary payment. All the time there are
16 taxes that are implemented in a way that is ultimately
17 found to be illegal in the State of Texas and the laws
18 that govern the State of Texas have set it out so you
19 don't have to go back and refund all of that money.
20 Mr. Avery wants to claim that he is
21 entitled to an exception because of duress; because
22 there was a tax lien on his home or his property; or
23 because he had to have the taxes paid in order to get a
24 certain permit that he wants.
25 Well, if that is what the definition of
1 duress is, then the voluntary payment rule has
2 absolutely no meaning whatsoever because any citizen in
3 the State of Texas who has not paid the ad valorem
4 taxes is going to be subjected to having a delinquent
5 tax lien filed on their property; have that property be
6 seized; have that property sold at a foreclosure sale.
7 It happens all the time. And that is not what the
8 definition of duress is when you look under the
9 voluntary payment rule.
10 So, because Mr. Avery is seeking
11 economic damages on taxes that he already voluntarily
12 paid, he doesn't have standing and, the limitations
13 argument that Mr. Lopez put forth, we believe that this
14 Court is without any jurisdiction to give him the
15 relief that he asks for and so we would ask that you
16 grant the plea to the jurisdiction and dismiss this
18 Thank you.
19 THE COURT: Thank you, Mr. Tepper.
20 All right. Mr. Avery.
21 MR. AVERY: Yes, sir.
22 I am going to address those items as
23 they brought them up.
24 I would like to direct you to Page 8 and
25 9 of the Plaintiff's Response to Seguin Independent
1 School District's Amended Plea To The Jurisdiction.
2 THE COURT: I have it.
3 MR. AVERY: Their assertion is that in
4 order for me to have, the Plaintiff to have, standing
5 that he has to prove his injury as distinct from that
6 of the general population, but, if you look at all of
7 these cases that they cite, and which I did look at
8 them, they involve an individual, and they call it
9 "taxpayer" here, an individual, who attempts to get to
10 usurp the authority of a public official, to get them
11 to make or break a contract, or to redirect funds from
12 one thing or another to something else.
13 And that is in the case of Burkes versus
14 Yarbrough which they cite.
15 Burke was once a county treasurer and he
16 sued some county commissioners and the county auditor
17 in attempts to redirect how funds were spent that were
18 returned from an insurance contract.
19 In my case, or in the Plaintiff's case,
20 I am not attempting and Plaintiff is not attempting to
21 direct Tavie Murphy or the Seguin Independent School
22 District or anyone there at either one of these offices
23 what to do about anything. All the Plaintiff wants
24 them to do is to stop violating the Constitution and
25 stop taking money without a law.
1 And I think that every one of these
2 cases that they have cited has the same element in it,
3 that every one of the plaintiffs in these cases they
4 cite are attempting to usurp authority of some public
5 official, which I am not doing.
6 The statute of limitations they bring
7 up, I believe that is on Page 13 of my pleading, this
8 is very interesting. I am claiming violations of the
9 Bill Of Rights, Article 1, Section 17 particularly, an
10 unlawful taking of money.
11 They keep calling me a taxpayer, or
12 calling the Plaintiff in this case a taxpayer. Well,
13 he is not a taxpayer of a tax that doesn't have a law
14 for it. The Supreme Court of Texas found that, in 2005
15 at least, those taxes were in violation of Article 8,
16 Section 1(e); that that was a statewide ad valorem tax
17 and it was an unconstitutional taking of money. That
18 wasn't a tax.
19 I am not asking for a refund of any
20 taxes because all of that stuff was not a tax. It was
21 an unconstitutional taking of money without a law and,
22 if something is in violation of the Constitution, it
23 means that it is something that has never been a law
24 and it couldn't become a law.
25 Therefore, the statute of limitations
1 under Article 3, Section 62, I would like to quote
2 that. "The Legislature, in order to insure continuity
3 of state and local government operations in periods of
4 emergency resulting from disasters caused by enemy
5 attack, shall have the power and the immediate duty to
6 provide for prompt and temporary secession of powers
7 and duties of public offices of whatever nature and
8 whether filled by election or appointment, the
9 incumbents of which may become unavailable for carrying
10 on their powers and duties of such offices, provided,
11 however, that Article 1 of the Constitution of Texas
12 known as the Bill Of Rights shall not be in any manner
13 affected, amended, impaired, suspended, repealed, or
14 suspended hereby." End of quote.
15 Now, this means to me that if the Texas
16 Legislature cannot amend or impair or limit the Article
17 1, the Bill Of Rights, in the Texas Constitution during
18 wartime, which Texas basically is not in that I am
19 aware of, cannot alter those things. And, this,
20 certainly they couldn't alter it just to keep a man
21 from trying to show that the ad valorem property taxes
22 on private property are unconstitutional.
23 Therefore, under Article 1, Section 17,
24 where I am asking for a return of money unlawfully
25 taken from me, there is no way that the statute of
1 limitations which is made by the Legislature can impair
2 Article 1, Section 17.
3 Now, they also contend on Administrative
4 Remedies -- I believe we are in agreement with what he
5 said here under Administrative Remedies. There was a
6 point in my original pleading, in my Original Petition,
7 or Plaintiff's Original Petition, where it states that
8 there was not a discretionary calculation of property
9 taxes and that is what the Supreme Court of Texas based
10 their decision on in 2005, was that none of the
11 counties, the school districts, were making
12 discretionary decisions about how much their taxes
13 should be assessed at. They had all bumped up to the
14 very top, which was $1.50 for maintenance and
15 operations and they still couldn't fund all these
16 schools, so that is what the whole thing was really
17 about. They had totally saturated the ad valorem
18 property tax system. All of the districts were at the
19 maximum they could charge and they still weren't
20 getting enough money.
21 To me I think this is systemic of an
22 entire public education system that is broken and the
23 people don't know what is going on, but the fact that I
24 also, or the Plaintiff in my Original Petition, claimed
25 that, that at least that part was unconstitutional, but
1 since then, and Mr. Lopez is correct, that is an issue
2 that you should take up under the Texas Property Tax
4 THE COURT: I should take up?
5 MR. AVERY: I'm sorry. The Plaintiff
6 should have taken up with the Property Tax Code, the
7 Texas Property Tax Code, and they have an
8 administrative procedure for doing that in there and
9 where I could have taken, or the Plaintiff could have
10 taken, that claim.
11 THE COURT: To short sheet this, you are
12 not saying that any more in this case?
13 MR. AVERY: Correct, sir.
14 THE COURT: Thank you.
15 MR. AVERY: Correct, Your Honor. So we
16 are in agreement with that, that the Plaintiff has
17 dropped that.
18 THE COURT: That is out of that.
19 MR. AVERY: Yes.
20 THE COURT: Okay. And you don't have to
21 refer to yourself in the third person. That is very
23 MR. AVERY: I can do that as "I"?
24 THE COURT: That is really okay with me.
25 MR. AVERY: Okay.
1 THE COURT: And I will try not to call
2 myself "The Court" either.
3 MR. AVERY: Okay. Thank you,
4 Your Honor.
5 THE COURT: You are welcome.
6 MR. AVERY: The voluntary payment rule
7 came up next. That is on Page 17 of my Amended. I
8 believe Mr. Lopez in fact did touch on my claim under
9 the voluntary payment rule. He is correct that just
10 because the State can come out and seize your property
11 and put an unlawful lien on it, obtained by a bunch of
12 voters who don't have individual rights to lien your
13 property, they can somehow enter a voting booth and
14 magic happens in there and they produce an authority
15 and transfer authority they don't have over to the
16 State to lien one's private property; that if he
17 doesn't pay property taxes they can impose -- put a tax
18 lien on it and sell it on the Courthouse steps.
19 And that is the condition of the law
20 unfortunately in Texas or I should say the condition of
21 the case law in Texas.
22 That is not considered duress, the fact
23 that you could lose your property by not paying is
24 somehow not duress, but I go further than that in my
25 claim in that I could not get a permit to develop my
1 commercial property, which is what this property is, in
2 this suit. I cannot develop an RV park on it without
3 having to show certification that I have paid my
4 pending property taxes.
5 And I also attached that very law as
6 Exhibit A, which is called in the County here
7 Infrastructure Development Plan, Section 1, and, if you
8 go to the -- down at the bottom, it says A-3. On Page
9 44, it says, "2." I quote "A tax certificate showing
10 that all taxes currently due with respect to the
11 original tract have been paid." Now unquote.
12 In the cases that he cites, they mention
13 that there is an exception to the rule of the voluntary
14 payment and that is when the person is charged a tax or
15 made to pay the tax in order to get a permit to do
16 business or to carry on its business.
17 Well, this is in fact what has happened
18 in my case and that is why I say that the voluntary
19 payment rule is not sufficient to bump me out or to
20 deny you jurisdiction in this case.
21 Now, they also bring up refund of taxes.
22 I certainly object to the idea that this is -- that it
23 involves refund of taxes. Most of these cases that are
24 cited here involve people that are -- that were paying
25 lawful taxes, but there was some kind of a problem with
1 the way somebody calculated them or somebody didn't
2 give them notice and they complained that when they
3 didn't pay them that the County Appraisal District
4 didn't give them notice. This is not what this is
5 about at all.
6 I am not challenging any part of a
7 lawful tax and the money that the Plaintiff is
8 requesting in this case has no part of a lawful tax.
9 It is just absolutely an unlawful taking of money. And
10 that is what he would like returned to him. It is just
11 like a thief takes the property and the innocent party
12 wants his property returned is basically what it is.
13 THE COURT: How does that make a
15 MR. AVERY: I'm sorry, Your Honor?
16 THE COURT: I understand that you say
17 that it makes a difference, but I am asking how.
18 MR. AVERY: It makes a difference in how
19 the party is perceived. In most of the cases, after
20 looking at all their cases they cited, they refer to
21 these people as taxpayers and their problems are in the
22 way their taxes were calculated or handled in some way
23 by the taxing authority.
24 And, of course, taxing authorities have
25 authority to tax and what they do in the process of
1 doing that, a taxpayer can make a claim and say, "You
2 didn't do that right," or, "You made a mistake," and,
3 under a lawful tax system where that tax is lawful, I
4 understand that, but we have a case here in this case,
5 the whole tax was unlawful and nobody had authority to
6 be taking that money.
7 So my claim doesn't have anything to do
8 with how they assessed it or what they did with it
9 particularly or how they handled it or how they got it
10 from me, but the idea is that they just simply didn't
11 have a law to collect it and they did indeed take it
12 and that is why I am not asking for a return of
13 property tax and that is what they keep referring to
14 this as. It wasn't a property tax. It was an unlawful
15 taking of money.
16 Now, Curriculum, they address equitable
17 relief. I do mention the term "curriculum". I am not
18 really asking the Seguin Independent School District to
19 make a particular change in their curriculum, but I do
20 say this: That we probably wouldn't be having this
21 hearing today if the principles of property, which are
22 the foundation of our Nation, were being taught in
23 public schools.
24 Our problem in public schools -- And I
25 am not really telling them how to do it, how to fix
1 it. I am just saying --
2 THE COURT: What is the claim that you
3 are asserting in the First Amended Original Petition
4 which you are addressing in, for instance, Paragraph 43
5 on Page 29?
6 MR. AVERY: Yes, sir. And your question
7 again? I'm sorry.
8 THE COURT: What is the claim?
9 MR. AVERY: The claim is that they don't
10 have a duty to teach what has bumped our taxes to be
11 totally saturated at the very top and force now the
12 raising of other taxes in order to add to that. The
13 curriculum is way out of hand.
14 THE COURT: So what are you asking --
15 MR. AVERY: They are not teaching what
16 protects our property under Article 7, Section 1.
17 THE COURT: You missed a very
18 fundamental rule of this Court. When I talk, you
20 MR. AVERY: I'm sorry, Your Honor.
21 THE COURT: What is it that you are
22 asking the Court to do with respect to the claim you
23 are asserting in Paragraph 43?
24 MR. AVERY: That is actually in
25 combination. I am not asking you to do anything
1 actually in reference to that. It is combined,
2 however, with the claim under Article 8, Section 1(e)1,
3 because without Article 7, the State of
4 Texas --
5 THE COURT: I will ask you to remember
6 the rule. And here is the sub part of that rule: I
7 get to interrupt.
8 MR. AVERY: Thank you, Your Honor.
9 THE COURT: How about 44?
10 MR. AVERY: No particular thing there,
11 Your Honor.
12 THE COURT: Okay.
13 MR. AVERY: May I add something there?
14 THE COURT: Yes.
15 MR. AVERY: This is more like a
16 discussion of my damages. I am not asking all the way
17 through this for a particular relief; I am just trying
18 to make my point with this. You might call it
19 conjecture or whatever you would call it; rambling.
20 THE COURT: From whom are you seeking
21 your damages? I notice in Paragraph 50 you have a
22 damage claim that is just under $81,000.
23 MR. AVERY: Yes, sir. What was the
25 THE COURT: From whom are you seeking
1 that money?
2 MR. AVERY: An I am seeking that jointly
3 from both the Seguin Independent School District --
4 Actually that may be an item where we need more
5 discovery because, of course, we are trying to get into
6 court actually and I am not sure -- I don't know if it
7 ever left the County Office and went to the District or
8 what. I am just saying that is what I lost.
9 THE COURT: And that is not an amount of
10 taxes there? That is something other than the amount
11 of taxes that was paid?
12 MR. AVERY: That was money that was
13 taken unlawfully, without law, under the negative
14 presumption or guise of taxes, of property taxes,
15 something that looked like property taxes.
16 THE COURT: You and I have a difficulty
17 of communicating there.
18 How do you get to the $80,897?
19 MR. AVERY: That is actually money that
20 was paid to the Guadalupe County Tax Office.
21 THE COURT: Thank you. They perceive it
22 as taxes?
23 MR. AVERY: That's correct. Your Honor.
24 THE COURT: Okay.
25 Under Paragraph 52, what would the Court
1 order look like that you are seeking?
2 MR. AVERY: In regard to abandonment of
3 the claim regarding this "no discretion"?
4 THE COURT: No, 52, the paragraph above
6 MR. AVERY: I would imagine that would
7 look like something that "Mr. Avery's property be no
8 longer applied an ad valorem property tax for the
9 payment of the free public schools in Texas under
10 Article 1 or Article 8, Section 1(e)1."
11 THE COURT: That looks like the relief
12 you are requesting under Paragraph 51. I may be
13 misreading here.
14 MR. AVERY: Yes, that would be there
15 too. Oh, I see. 52 regards the Public School
17 THE COURT: Yes, sir. It reads, "You
18 seek conformance of free public education curriculum to
19 the requirements of a provision of the Texas
21 MR. AVERY: Correct. Sir.
22 THE COURT: And so what would the Court
23 order look like?
24 MR. AVERY: It would look like that,
25 "The Court orders that the Seguin Independent School
1 District conform to Article 7, Section 1, of teaching
2 the fundamentals by which the life and liberty of
3 citizens is protected."
4 THE COURT: And I am assuming that, if
5 the Seguin ISD didn't do what you believe to be this
6 conformance, that the folks who are required to run the
7 Seguin ISD could potentially be held in contempt of the
8 Court's order.
9 MR. AVERY: Yes, sir.
10 THE COURT: Thank you. That ends my
12 MR. AVERY: Okay. Thank you,
13 Your Honor.
14 THE COURT: If there are other matters
15 you would like to argue on the plea to the
16 jurisdiction, I'm happy to hear that.
17 MR. AVERY: Yes, sir, thank you.
18 I don't know that I covered; they
19 mentioned the no monetary remedy for violation of
20 constitutional issues and they cited Beaumont versus
21 Bullion, I believe.
22 And, when we look at that case, it even
23 states in there, it cites another case, Steele versus
24 City of Houston where I quote: "Where we say that the
25 Constitution itself is the authorization for
1 compensation for the destruction of property or is a
2 waiver of governmental immunity for the taking,
3 damaging, or destruction of property for public use;
4 however, this language cannot be interpreted beyond its
5 context." End of quote.
6 And I believe, Your Honor, that this is
7 what I am claiming and this would be an exception to
8 the no monetary remedy when you bring an Article 1,
9 Section 17, claim for the return of property.
10 Then the Beaumont versus Bullion case
11 can't apply because the Article 1, Section 17, is
12 self-enacting and, if you can show that there was money
13 taken or property taken, you have a claim that can
14 stand in court wherein you can be returned -- where the
15 property can be returned.
16 THE COURT: All right. Thank you very
17 much, Mr. Avery.
18 MR. AVERY: Thank you, Your Honor.
19 THE COURT: Back to you, Mr. Lopez.
20 MR. LOPEZ: Thank you, Your Honor. I
21 just have a few brief points in response to Mr. Avery.
22 The first is no matter how Mr. Avery
23 tries to couch it, he is ultimately contending that the
24 property tax scheme employed by the Seguin ISD or the
25 concept, the very concept of ad valorem property taxes
1 in general, violates the Constitution, at least as
2 imposed by the School District.
3 Now, the method of damages, what he has
4 been damaged, Your Honor, as he contends is this amount
5 of $80,897. If you look at earlier in his Amended
6 Petition that amount is the exact amount of taxes he
7 has paid over the last 10 to 15 years on this
8 property. Those are the damages; no matter how
9 Mr. Avery wants to try and count or split hairs or
10 engage in a game of semantics, ultimately that is the
11 damage that he is seeking and the case law is clear on
12 all aspects of the Constitution.
13 Mr. Avery is not the first to bring a
14 claim similar to this challenge in the imposition and
15 collection of property damages. Ultimately the case
16 law is clear that there are no private causes of action
17 for monetary damages for violations of the Texas
18 Constitution. We are limited to simply equitable
20 Now, ultimately in this case the
21 equitable relief that he is really seeking, Your Honor,
22 really has to do entirely with the taxes. I mean it is
23 all about the collection of taxes.
24 My guess would be that in the event that
25 Mr. Avery were not being charged school property taxes
1 he probably would not be making any claim for changing
2 the public school curriculum.
3 And Mr. Avery has offered you no basis,
4 Your Honor, to sustain his claim for equitable relief
5 that you should be charged with determining or ordering
6 what the public school curriculum in this State is
7 supposed to be.
8 Moreover, he mentioned the inculcation
9 of the principles of property. Well, Your Honor, I
10 venture to say that if you went to a lot of different
11 people and had a roomful of 25 different property
12 owners and you asked them what the principles of
13 property are, they are all going to be different, so
14 I'm not sure that this nebulous standard that Mr. Avery
15 is asking you to engage in is really proper.
16 And, moreover, Your Honor, like I said
17 before, I think the Legislature really sets through its
18 administrative agencies and statutes, the Education
19 Code being a primary example, what the curriculum is
20 that is supposed to be taught in the public schools and
21 seise a lot of that local control to the districts and
22 so ultimately, Your Honor, that is not something I
23 think that the Court has jurisdiction over.
24 As far as the voluntary payment rule,
25 again, Your Honor, as he stated, it's all about his
1 inability to do business because of the statutory
2 penalties for failing to pay your property taxes and
3 ultimately that is not enough to constitute duress as
4 defined for the exception of the voluntary payment
5 rule. And ultimately you have to show something beyond
6 the fact that there may be some additional penalty as a
7 result of failing to pay your taxes.
8 The upshot of that argument would be to
9 turn the entire taxation system on its head because
10 ultimately anybody could come in and say, "Well, look.
11 I don't agree with this tax. I don't think it is
12 lawful. Therefore, I shouldn't have to pay it and if
13 you impose consequences on me in some form that limits
14 my ability to do something, then, you know, ultimately
15 I am free not to pay my taxes and you can't catch me."
16 And that is simply not the way that the system can
17 work, Your Honor.
18 Finally, with respect to his claim that
19 he is somehow engaging in some different thing other
20 than trying to tell the government or taxing authority
21 what to do, Your Honor; you know, as he put it, he is
22 not trying to direct anybody to do anything. I would
23 argue that the very essence of this lawsuit, Your
24 Honor, is that Mr. Avery is trying to direct the Seguin
25 Independent School District from being able to collect
1 property taxes from any property owner.
2 And so in that regard he is absolutely
3 engaging in trying to challenge or change or order the
4 Seguin Independent School District to do something that
5 he ultimately doesn't want them to do. So in that
6 regard, Your Honor, there is really no meaningful
7 distinction in what he tried to argue with respect to
8 the issue related to what he is asking the Court to do
9 and what he is ultimately seeking to have Seguin ISD
11 Again, Your Honor, with respect to the
12 standing argument, he has failed to allege to you; he
13 has failed to provide evidence today of any individual
14 injury that is separate and distinct from any other
15 property owner.
16 So, given those circumstances, the
17 applicable case law dictates that he doesn't have
18 standing to bring the particular claims that he seeks
20 So, for all of these reasons, Your
21 Honor, we would ask that the Court grant the plea to
22 the jurisdiction for Seguin Independent School
24 THE COURT: Thank you.
25 Mr. Tepper?
1 MR. TEPPER: Very briefly again.
2 Mr. Lopez stated both of our arguments very eloquently
3 and we would like to adopt those.
4 You, sitting here today, as a district
5 court judge and the judicial branch of the State of
6 Texas government have the power and the authority to
7 look at the tax that is being put into place by any
8 governmental unit from the Legislature down to a road
9 system and decide whether or not that tax is
10 unconstitutional going forward.
11 You have the authority and the
12 jurisdiction to enter prospective injunctive relief.
13 Unfortunately for Mr. Avery, what this Court -- what
14 you do not have the authority to do and do not have
15 jurisdiction to do is to order a refund of money
16 damages back to Mr. Avery for any violation of any
17 constitutional right which he might be able to prove.
18 And, because of that, we think that the
19 Court doesn't have jurisdiction over this matter and
20 that the plea to the jurisdiction should be granted.
21 And, with the Court's permission, I
22 would like to provide a copy of the order that we would
23 ask the Court to enter and I will give a copy to
24 Mr. Avery and Mr. Lopez.
25 Thank you, Your Honor.
1 THE COURT: Thank you very much.
2 MR. LOPEZ: Your Honor, if I may also
3 provide a similar order for Seguin Independent School
5 THE COURT: Sure.
6 MR. LOPEZ: In the event, of course, the
7 Court grants it.
8 Thank you, Your Honor.
9 THE COURT: All right. You all go to
10 lunch. I will be back at 1:15 and announce my ruling
11 at that time.
12 I am going to lunch. I need to put
13 something on the record to make sure there is no
14 problem with this.
15 I am going to go to lunch and have lunch
16 with the Honorable B. B. Schraub. I will, of course,
17 not discuss this case nor any of the parties with Judge
18 Schraub during lunch. Is there any objection to my
19 doing so? Of course not. Thank you very much. I will
20 see you back at 1:15.
22 THE COURT: Thank you very much, Folks.
23 First of all, I want to thank everyone
24 for the very interesting argument and I very much
25 appreciate your manner of presentation.
1 I have carefully considered the argument
2 and it is my opinion that the two pleas to the
3 jurisdiction are good and that pleas to the
4 jurisdiction are granted.
5 I have signed the proposed orders and
6 have made copies of them for each party. They are
8 Mr. Avery, if you wouldn't mind passing
9 them out to each person.
10 MR. AVERY: Yes, sir.
11 (Copies are distributed.)
12 MR. LOPEZ: Thank you, Your Honor.
13 MR. TEPPER: Thank you, Your Honor.
14 MR. AVERY: Thank you.
15 THE COURT: Thank you all very much.
16 And, with that, I believe that concludes
17 our business.
18 MR. LOPEZ: Thank you, Your Honor.
19 (END OF HEARING.)
2 REPORTER'S CERTIFICATE
4 I, Bonnie C. Minatra, Certified Court
5 Reporter in and for the State of Texas, do hereby
6 certify that I appeared at the time and place
7 hereinbefore set forth and I took down in Stenograph
8 machine shorthand the proceedings had in the within
9 entitled cause and that the foregoing constitutes a
10 true and correct transcription of my shorthand notes so
11 made at such time and place.
12 Given under my hand this 12th day of
13 March, 2007.
Bonnie C. Minatra
19 CSR File 2545