2            IN THE 25TH JUDICIAL DISTRICT COURT

                             GUADALUPE COUNTY, TEXAS


             RONALD F. AVERY             )

          4       -vs-                   )  CAUSE NO. 06-2079-CV

             MS. TAVIE MURPHY,           )



          6  DISTRICT.                   )


          7  -------------------------------------------------------


          8                 TRANSCRIPT OF PROCEEDINGS


          9                       MARCH 6, 2007


         10  -------------------------------------------------------


         11  APPEARANCES:


         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.


         10                 Okay.


         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


         20  District.


         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


         11  wish.


         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


          3  default.


          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


         19  judgment.


         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


         11  Santos."


         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


         24  much.


         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


         17  Boards.


         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


          5  Court.


          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,


         14  please.


         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


         13  identification.)


         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


          9  sustained.


         10                 (Plaintiff's Exhibit No. 6 is refused in


         11  evidence.)


         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


         16  motion?


         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


          7  further.


          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.


         13                 (Recess.)


         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


         22  first?


         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


          7  unconstitutional.


          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


         17  case.


         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


          3  Code.


          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


         22  awkward.


         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


         14  difference?


         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


         19  don't.


         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


         24  question?


         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


          5  that.


          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


         16  Curriculum.


         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


         20  Constitution."


         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


         11  interruption.


         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


         19  relief.


         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


         10  do.


         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


         19  today.


         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


         23  District.


         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


          4  District.


          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.


         21                           (Recess.)


         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


          7  here.


          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