No. 06-2079-CV




Ronald F. Avery


Ms. Tavie Murphy,

Guadalupe County Tax Office,

Seguin Independent School District







In the District Court


Guadalupe County, Texas


25th Judicial District


Plaintiff’s Response to Original Answers of Defendants Tavie Murphy, Guadalupe County Tax Office and Original Answers & Special Exceptions of Seguin Independent School District




Now comes, Ronald F. Avery, Plaintiff, with his response to the Original Answer of Ms. Tavie Murphy, Guadalupe County Tax Assessor and Collector, and the Guadalupe County Tax Office and the Original Answers and Special Exceptions of the Seguin Independent School District (Seguin ISD, District) and asserts the following.

1.     General Denials and Abandonment of District’s First Original Answer and Request for Disclosures

The Defendants have answered the Plaintiff with general denials, numerous affirmative defenses and prayers for costs upon a dismissal of this suit. The Seguin ISD answered twice with an Original Answer by a second law firm thus under TRCP # 65 they have abandoned their first Original Answer along with their “Request for Disclosures.” The Plaintiff therefore, will not be complying with said request or TRCP # 194. The Seguin ISD claimed more affirmative defenses than did Tavie Murphy and the Guadalupe County Tax Office (GCTO). However, all three Defendants answered with two common affirmative defenses which the Plaintiff will respond to last.

2.     Deprivation of Constitutional Rights and Violation of Constitution to Plaintiff’s Injury distinguished

The Seguin ISD (or District) independently answered affirmatively, in light of the Plaintiff’s pleadings being true, that “it did not deprive Plaintiff of any constitutionally protected rights.” The Plaintiff did not claim that the District had “deprived” Plaintiff of any constitutionally protected rights. Instead, the Plaintiff claimed in his petition that the District had violated Article 7 Section 1 and Article 8 Section 1e1 of the present Texas Constitution of 1876 which caused the Plaintiff injury. There is a vast difference. The present effort of the District to have the Plaintiff’s instant lawsuit dismissed is an effort to deprive the Plaintiff of his constitutional rights to bring a suit against the Seguin ISD under Article 1 Section 2, 13, 17, 19, 29; Article 7 Section 1 and Article 8 Section 1e1. A court that would grant the Defendants’ request for a “take nothing” dismissal would deny Plaintiff’s constitutionally protected rights.

3.     Admission by District of Ignorance of Constitutional Theory and Fundamental Principles of Property Precedent to Constitutions

The Seguin ISD independently answered affirmatively, in light of the Plaintiff’s pleadings being true, that “Plaintiff has failed to state a claim which relief can be granted under the Constitution or any statute, constitutional theory or legal authority.” This is an astonishing statement from a significant lawfirm and a sad commentary on the condition of the practice of law in Texas. The Plaintiff set out clearly the constitutional theory of the delegation of authority establishing and limiting all legal and lawful power upon which the constitution is founded and how those same principles when violated by the Defendants have injured the Plaintiff and every other citizen of Texas. Article 1 Section 2, 13, 17, 19, and 29 and Article 7 Section 1, and Article 8 Section 1e1 protect the property of the Plaintiff from damage caused by those who violate the Constitution of Texas to his injury. The Plaintiff showed how other provisions of late in the Constitution and other statutes and codes violate those fundamental principles and should be altered, amended or abolished to come into harmony with the founding fundamental principles of property. Those that cannot understand those principles expounded by Plaintiff are not Americans or Texans and point again to the violation of Article 7 Section 1 by the District. This continual violation has lead to a now obvious and dramatic disintegration and erosion of law and order in the State of Texas.

4.     Defendants’ Prayer for Costs are without Merit

Because the Plaintiff has based his causes of action upon the most fundamental principles of law in America and Texas he cannot be found to have brought a groundless petition for harassment or other unworthy purpose under TRCP #1 and #13 upon which costs could be awarded to the Defendants. The Plaintiff has clearly brought his suit for the protection of his property, the sole purpose of government, and for the good faith argument for the extension, modification, or reversal of existing law. No sanctions or costs can be awarded the Defendants except for good cause under TRCP #13 which Defendants cannot show with mere affirmative defenses and special exceptions.

5.     No Limitations for Violation of Constitution

The Seguin ISD independently answered affirmatively, in light of the Plaintiff’s pleadings being true, that the “District also asserts the defense of limitations as a bar to the claims and causes of action asserted by Plaintiff.” A Plaintiff is not barred from suit by a “statute of limitations” any more than he is barred from suit by a ‘statute of sovereign immunity’ i.e., the Texas Tort Claims Act. No Statute or Act of the Legislature can set aside the provisions of the Constitution of Texas. Since there is no Constitutional Provision or Amendment for Limitations barring a suit for violation of the Constitution, the Plaintiff is not barred. The Legislature cannot destroy or limit the Constitution of Texas except by Amendment to the Constitution. Only the makers of the constitution of Texas can make and destroy, namely, the citizens or people of Texas under Article 1 Section 2. If Plaintiff were bringing a suit under some common law or statutory claim there might be an applicable limit established by common law and statute that would apply. However, the Plaintiff is not barred from his instant suit brought for the violation of Constitutional Provisions that harm the Plaintiff with no constitutional provision or amendment limiting his claim as long as the constitutional provision was in place at the time of the violation, i.e., the Plaintiff cannot bring an action for ex-post facto violations of the Constitution. In this instant suit the constitutional provision was in place from the beginning of the violation and continued up until the time Plaintiff filed his Petition.

6.     No Remedy to Exhaust & No Immunity to avoid a State Property Tax Forbidden under Article 8 Section 1e1

All the Defendants claimed two affirmative defenses; first, all Defendants claim that Plaintiff has not exhausted his “administrative remedies” prerequisite to filing suit against the Defendants contained completely within the Texas Property Tax Code (TPTC). And second, a “plea to the jurisdiction,” that outside those administrative remedies provided by the TPTC, all the Defendants are protected by the Texas Tort Claims Act (TTCA) as codified mainly in Chapters 101 – 110 of the Texas Civil Practice and Remedies Code (CPRC) and referenced as merely the TTCA. The Defendants’ assertions make the Supreme Court of Texas look like a bunch of morons when quoted from its most recent ruling on public school funding finding the free public school financing scheme to be unlawful and unconstitutional on 11/22/05:

“Prior cases challenging public school finance have involved individual claimants as well as school districts. The State defendants do not contest that individuals would have standing to raise the claims in this case. The interests of individual taxpayers in suitable, adequate, efficient public education and in avoiding a state property tax might well diverge from those of their school districts. But individuals’ standing to assert these constitutional claims does not deprive school districts of standing to assert the same claims.”[1] (Bolding added)


The Plaintiff has pleaded that he is a Citizen of Texas and has been an individual taxpayer with Constitutional protections that have been violated by the local County Tax Assessor Collector and the Guadalupe County Tax Office (GCTO) by collecting a State ad valorem property tax on Plaintiff’s property that violates Article 8 Section 1e1. How did the other “individual claimants” get into court “challenging public school finance?” Surely the individual claimants did not allege that they were run over with a tractor (CPRC 101.021.1) driven by the County Tax Assessor Collector or that the claimant slipped and fell on freshly mopped floors at the high school (CPRC 101.021.2 & 101.022) or that the County pen they used to sign their check blew up in their face (CPRC 101.021.2). How would any of that apply to the lawfulness and constitutionality of State ad valorem property taxes? Surely the Defendants do not believe that individual citizens do not have constitutional rights but rather only fictions like school districts and tax offices have constitutional rights. If school districts have constitutional rights, where did they get them as they are not entities possessing life and liberty? The high court merely conferred the constitutional rights of individual citizens under the constitution to school districts with the notion that the benefit obtained by the school district, viewed as an individual in court, would trickle down to the actual individuals. This has proved to be a fruitless notion. Under the Defendants’ theory the Plaintiff could only bring an action that complained of improper action by the County Appraisal District in the calculation of his lawful taxes by first exhausting the administrative remedies of the TPTC then continue in State District Court.

7.     Supreme Court says Individual tax payers have standing and rights and interest to avoid a State Property Tax

The Supreme Court of Texas has opined above that “individual tax payers” have standing and rights and “interests” in “suitable, adequate, efficient public education” (Article 7 Section 1) to assert constitutional claims (Article 1 Section 13, Article 7 Section 1 and Article 8 Section 1e1) against county tax offices and the local school districts to “avoid a state property tax,” forbidden under Article 8 Section 1e1, and given that fundamental notion, the same was thought fair to be conferred upon a school district. But the Defendants herein maintain the ludicrous notion that the rights conferred upon school districts from individuals cannot be maintained by an individual claimant alone. Any immunity afforded the Defendants from the claims of the Plaintiff as an individual tax payer is waived here by the Supreme Court of Texas.

8.     No Administrative Remedy to Exhaust

It is falsely presumed by Defendants that the individual tax paying claimants referred to above by the Supreme Court must have penetrated the mythological absolute prerogative and sovereign and governmental immunity vale of all the King’s men under King Texas via the “administrative remedy” provided for by the Texas Property Tax Code (TPTC) made prerequisite to filing suit in State District Court. Upon application of this theory we find that no individual tax payer has a remedy for his complaint that the entire ad valorem property tax scheme to support free public education in Texas is unconstitutional and unlawful on a principle that is not dependent on the activity of the County Appraisal District. However, the school districts were not barred in an action that produced that very ruling in 11/22/05. Surely the school districts did not go through the administrative prerequisites of Section 41.41 of the TPTC to bring their conferred constitutional rights violation complaint. What property did the District own that was improperly appraised and how did that relate to their claims? Clearly there is no remedy for the claims of the Plaintiff found in the TPTC as they all are listed below in Section 41.41 as stated by Defendants:

Sec. 41.41. Right of Protest.

(a) A property owner is entitled to protest before the appraisal review board the following actions:

(1) determination of the appraised value of the owner's property or, in the case of land appraised as provided by Subchapter C, D, E, or H, Chapter 23, determination of its appraised or market value;

(2) unequal appraisal of the owner's property;

(3) inclusion of the owner's property on the appraisal records;

(4) denial to the property owner in whole or in part of a partial exemption;

(5) determination that the owner's land does not qualify for appraisal as provided by Subchapter C, D, E, or H, Chapter 23;

(6) identification of the taxing units in which the owner's property is taxable in the case of appraisal district's appraisal roll;

(7) determination that the property owner is the owner of the property;

(8) a determination that a change in use of land appraised under Subchapter C, D, E, or H, Chapter 23, has occurred; or

(9) any other action of the chief appraiser, appraisal district, or appraisal review board that applies to and adversely affects the property owner.


It is clear from the Section 41.41 that the administrative remedies do not address the bulk of the Plaintiff’s complaints. Plaintiff will admit one of his complaints could have been addressed but that this complaint was made only as an example of the futility of lowering the tax rate as a solution to the violation of Article 8 Section 1e1. The monetary damage resulting from just one claim of Plaintiff related to the lack of discretion applied to the tax rate in 2005. This lack of discretion claim is moot as it was an unknown amount of a total that was inclusively claimed as unlawful as all the assessments over the years asserted by Plaintiff. The Plaintiff’s real complaint is that all ad valorem property taxes for the support of the free public school system in Texas are unlawful and unconstitutional under Article 7 Section 1 and Article 8 Section 1e1. There is no remedy provided in the TPTC nor can the CAD fix the claims of Plaintiff.

9.     No Remedy -  No Compulsion

Where there is no remedy provided one cannot be compelled to seek it. And where there is no other remedy outside the courts, the courts must be open in Texas for any harm done to a citizen in his lands, goods, person and reputation as clearly and explicitly declared in Article 1 Section 13 of the Texas Constitution of 1876 represented to all by the courts of Texas as the law of the land. This constitutional provision contemplates harm done by government as it is clearly and explicitly declared in Article 1 Section 29:

“Sec. 29. PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE. To guard against the transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.


The above Article 1 Section 29 coupled with Article 1 Section 13 alone is enough to defeat the entire TTCA yet the Defendants would have this Court believe that he does not have the protection of the Constitution but that the Legislature can vote his Constitutional protections and rights away without one explanation by the Courts as to why they no longer apply to him in the face of clear explicit declaration of fundamental law to the contrary.

10. Dilemma - immunity is admission by Murphy & GCTO that Tax was a State Tax forbidden under Article 8 Section 1e1

Without waiving the Plaintiff’s assertion that the government of Texas and its employees and officers do not have sovereign or governmental immunity over a Citizen of the State of Texas to harm him without judicial recourse unless waived by statute or congressional resolution, the Plaintiff asserts that no State sovereign or governmental immunity, if it existed, is due the Defendants as they were not sued in their State capacity. Rather, the Plaintiff sued the Defendants for their unauthorized act of collecting a state ad valorem property tax forbidden under Article 8 Section 1e1 while acting as mere Local ad valorem property tax assessors and collectors. If Defendants admit that they are due sovereign and governmental immunity afforded the State of Texas while collecting the ad valorem tax complained of by Plaintiff, they admit that the ad valorem tax they were collecting is a State tax which is forbidden by Article 8 Section 1e1. If the Defendants claim that the ad valorem tax they collect for the School District is a local District tax rather than a State tax then they are no longer afforded the protection of sovereign or governmental immunity because Plaintiff would not be seeking liability, monetary damages or control of a state activity. The Plaintiff sued Murphy and the GCTO for collecting an unauthorized tax.

11. Plaintiff does not seek liability, pecuniary damages or control of State action against Defendant Murphy & GCTO

No Sovereign or governmental immunity applies when Plaintiff does not seek liability or monetary damage from the State or does not seek to control the State. The Plaintiff in this instant suit is not seeking to impose liability on the State, nor seeking to control a lawful function of the State nor seeking monetary damages against the State for which it has a lawful constitutional authority. The Plaintiff in his instant suit is seeking the return of his property, money, with exemplary damages for the collection of an unlawful ad valorem state tax supporting the school district forbidden under Article 8 Section 1e1.

12. No Immunity for Murphy & GCTO  for Ultra Vires Claim

The Defendant, Murphy, provided verified evidence that: 1) Plaintiff did not exhaust his administrative remedy; 2) she individually is due sovereign or governmental immunity in her official capacity as Local County Tax Assessor and Collector; 3) she and the Guadalupe County Tax Office are due sovereign or governmental immunity in their official capacity. This verified evidence speaks to personal knowledge of the law rather than fact which can be ascertained without the evidence provided and does not benefit the Defendant. However, Plaintiff has attached his Affidavit hereto to contest that evidence as Exhibit A. The Plaintiff has alleged that the Guadalupe County Tax Office and Tavie Murphy charged him and collected money from him without authority as the tax was an ad valorem State Tax forbidden under Article 8 Section 1e1 as ruled by the Supreme Court of Texas and therefore the harm done to the Plaintiff represented an ultra vires claim outside the authority of the County Tax Assessor Collector and the Guadalupe County Tax Office to collect as collectors of presently deemed lawful Local District ad valorem taxes. Had Plaintiff complained that the tax collected by Defendants was a lawful local tax but improperly calculated, assessed or collected under their authority to collect local district property taxes the Defendants would be afforded the modern fictitious doctrine of sovereign and governmental immunity. But the Plaintiff claimed the Defendants collected a tax they had no authority to collect, an act which is ultra vires.

13. No Immunity for Seguin ISD for Ultra Vires Claim

The Plaintiff has made it clear that the actions of the Seguin ISD complained of were not made in the execution of their lawful duties. The Plaintiff did not claim that he was harmed by the District by the teaching a false idea under a lawful curriculum or harmed him with information which is part of a lawful curriculum or hurt him while in the performance of their duties. Rather, the Plaintiff’s Petition claims the District had no duty or authority to build football stadiums, gymnasiums, instruct people on how to repair automobiles, cook meals, act on stage, climb ropes, draw pictures, exercise, etc., etc. The Plaintiff did not claim that the District harmed him while in the pursuit and exercise of their lawful authority but rather have damaged the Plaintiff by continual concealment of the principles of property, that protect him and his fellow citizens, with a mountain of propaganda and irrelevant material not authorized by the Texas Constitution under Article 7 Section 1.

14. District’s Special Exceptions

The Seguin ISD also filed Special Exceptions requesting the Court to order the Plaintiff to re-plead and cure the defects asserted by the Seguin ISD. The Plaintiff will be most happy to defend his pleadings at a hearing on that request and attempt to comply with any court orders.


WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that Defendants Tavie Murphy and the Guadalupe County Tax Office and the Seguin Independent School District defend themselves from the claims for damages by the Plaintiff before a jury of Plaintiff’s peers in all issues and all damages except those involving want of discretion in the calculations made in assessments, charges and collections made by the GCTO in 2005, an unknown and moot amount.


 Certificate of Service


I hereby certify that a true and correct copy of the foregoing Plaintiff’s Response to Original Answers of Defendants Tavie Murphy, Guadalupe County Tax Office and Original Answers & Special Exceptions of Seguin Independent School District and Affidavit of Ronald F. Avery was forwarded by certified mail, return receipt requested on this the _____ day of ____________, 2007 to the following as identified below:


# ­­­­7004 2890 0002 0325 8035 to:


Attorney of Record for Defendants Tavie Murphy and the Guadalupe County Tax Office:


Kirk Swinney / Matthew Tepper

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

5929 Balcones Drive, Suite 200-A

Austin, Texas 78731

PH:      512/451-9000

Fax:      512/323-3294




# 7004 2890 0002 0325 8042 to:


Attorney of Record for Defendant Seguin Independent School District:


Joe A. De Los Santos / George E. Grimes

Walsh, Anderson, Brown, Schulze & Aldridge, P.C.

100 N.E. Loop 410 Suite 1000

San Antonio, Texas 78216

PH:      210/979-6633

Fax:      210/979-7024




Ronald F. Avery

[1] No. 04-1144 Shirley Neeley, Texas Commissioner of Education, et al, APPELLANTS, v. West Orange-cove Consolidated Independent School District, et al., APPELLEES (Sup Ct 11/22/05) p 63