No

No. 06-2079-CV

Ronald F. Avery

Vs.

Ms. Tavie Murphy,

Guadalupe County Tax Office,

Seguin Independent School District

In the District Court

Guadalupe County, Texas

25^th Judicial District

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

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes, Ronald F. Avery, Plaintiff, with his response to Seguin Independent School District’s Amended Plea to the Jurisdiction and his Plaintiff’s Amended Response to Original Answers of Defendants Tavie Murphy, Guadalupe County Tax Office and Original Answers & Special Exceptions of Seguin Independent School District and asserts the following:

1. District’s Amended Plea to Jurisdiction is their only live Pleading

The Plaintiff must presume here that Seguin Independent School District (“SISD” or “the District”) wants to abandon their first Plea to the Jurisdiction filed by Joe D Los Santos, who was not their “attorney of record.” Therefore, it is clear that the District and their attorneys agree with the Plaintiff that the second filing of their Original Answer and Plea to the Jurisdiction by the second attorney abandoned their first Original Answer and included Requests for Disclosures filed by Ricardo Lopez, the “attorney of record.” Thus, the District agrees with Plaintiff that they were in default until the filing of their Amended Plea to the Jurisdiction.

2. Plaintiff’ will Amend Motion for Default Judgment

Plaintiff intends to amend his “Plaintiff’s Motion for Default Judgment against Seguin ISD, and Contempt and Sanctions against Attorneys Lopez and Santos” to retain only Sanctions against Ricardo Lopez alone for bearing false witness to this Court and the Plaintiff concerning the live pleadings in the file. The Plaintiff will concede that the District has one live pleading on file by their “attorney of record” prior to a hearing for default judgment. However, the Plaintiff has been damaged by the convoluted actions of the Districts attorney to which he may seek sanctions.

3. District’s Mischaracterization of Suit and Libelous Statements

a. Assessment v state ad valorem property tax:

The Plaintiff is not challenging “the assessment of ad valorem property taxes …on the grounds that such taxes are unconstitutional,” as asserted by the District in the Introduction to their Amended Plea to the Jurisdiction. It is not the assessment of an ad valorem tax that is unconstitutional but rather the State ad valorem tax on any private property in the state of Texas under Article 8 Section 1e1. It is irrelevant how it is assessed.

b. District Libels the Plaintiff:

The District in their Introduction of their Amended Plea is now libeling the Plaintiff by their written statement that:

“Plaintiff, who currently owes and has refused to pay pending school property taxes, alleges that such taxes assessed by the Guadalupe County Tax Office on behalf of SISD violate Article VII, Section I and Article VIII Section 1-e of the Texas Constitution.”

The Supreme Court of Texas has ruled that the ad valorem taxes for support of free public school in Texas calculated for the tax year of 2005 are unconstitutional. Therefore, at least those taxes cannot be lawfully “pending school property taxes” that anyone should pay or be libeled for not paying. Regardless, the Plaintiff is libeled by the District’s statement, because he has paid all taxes he has been charged whether they are constitutional or otherwise. The District’s want of principle, absence of constitutional provision, and weakness of arguments (mere affirmative defenses) has reduced them to attacking and clouding the Plaintiff’s membership standing in the community. Nothing outrages the bent over “taxpayer” more than a fellow “taxpayer” that will not pay ‘his fair share.’ This suit is not about an anti social who “refuses” to pay lawful or unlawful taxes; it is about what constitutes lawful taxation and lawful government. And every citizen, attorney, judge, superintendent, tax collector and teacher in this land should dismiss all arguments that would prevent a full discussion and presentation of the principles upon which the foundation of our State rests.

c. Plaintiff is not challenging the taxing authority of Defendants

The District again mischaracterizes the nature and grounds of Plaintiff’s suit under their limitations defense (II C page 4) when they state:

“The upshot of Plaintiff’s claims in this lawsuit are that the Defendants, through the exercise of their taxing authority, have deprived Plaintiff of his personal property (money) through forcing him to pay what he believes are unconstitutional school property taxes.”

The Plaintiff claims that the Defendants do not have “taxing authority” to assess, charge and/or collect and/or take a State ad valorem property tax forbidden under Article 8 Section 1e1 and it is irrelevant how Defendants were calculating it or collecting it. The three main questions in this suit are; 1) were the “taxes” paid by Plaintiff constitutional; 2) did the Defendants collect them; and 3) Does the District have a constitutional curriculum “essential to the preservation the liberties and of the people” as required by Art 7 Sec 1 preventing the recurrence of similar injuries to Plaintiff. The Plaintiff also claims that an attack upon his private property by government, making him pay an annual fee to possess it, is an attack on his life and liberty as well under paragraph 31 of his Original Petition. It is not the Plaintiff’s fault that the courts have derived such a convoluted illogical system of determining when an authorized local property tax becomes an unauthorized State ad valorem tax. If the courts rule correctly in this instant suit, it will end the “conundrum,” mentioned by the Supreme Court, and establish the criteria of an unconstitutional State ad valorem property tax that every man, women and child can immediately see and immediately resist and prevent.

4. Plaintiff Adopts his First Response to All Defendants

The Plaintiff adopts herein his “Plaintiff’s Response to Original Answers of Defendants Tavie Murphy, Guadalupe County Tax Office and Original Answers & Special Exceptions of Seguin Independent School District.”

5. District Complains of Plaintiff’s use of Dicta

The District complains on page four of their Amended Plea that the Plaintiff is using mere dicta from the West Orange-Cove Consolidated Indep. Sch. Dist. v. Neeley, 176 S.W.3D 746 (Tex. 2005) case to show that an individual citizen of Texas has standing to bring a suit to avoid an unlawful State ad valorem property tax forbidden under Article 8 Section 1e1. Yet the District uses dicta from L.S. Ranch, Ltd. 970 S.W.2d at 753 on page two of their Amended Plea to again attack the Plaintiff’s membership in the community by saying, “Courts should be particularly concerned with jurisdictional challenges asserted by governmental entities because the high cost of defending lawsuits is ultimately borne by the public.” Therefore, the District would have this Court believe that it is better for the citizens to suffer the plunder, pillage and ravages of unlawful taxation and government to avoid the high cost of extravagant attorney fees for defending governmental usurpation and tyranny. What hope, then, does anyone have of lawful government and taxation if a citizen can not enjoy the protections of the Constitution destroyed by a morass of inferior false doctrines contrived solely to prevent access to the substance of the law?

However, the West Orange-Cove case did raise the issue of the standing of school districts to bring a suit for violation of the Constitution which is designed to protect the people rather than the fictions the people create; “As Mr. Justice Holmes has well expressed it, a constitution deals “with persons, not with tracks of land.””[1] And we can conclude if a constitution does not deal with tracks of land it certainly does not deal with corporate fictions, legal or otherwise. So if people (citizens) don’t have constitutional standing how does a fiction like a school district have standing?

6. Burden on Plaintiff to show Jurisdiction of Court

The District correctly asserts in their Amended Plea page 2, that “the burden is on the plaintiff to allege facts affirmatively showing that the trial court has subject matter jurisdiction.” And the Plaintiff asserts that if the Defendants cannot cite any authority that can show that the Trial Court does not have subject matter jurisdiction then it could be fairly assumed that the court does indeed have said jurisdiction. The District cites City of Austin v. L.S. Ranch, Ltd., 970 S.W.2d 750 (Tex. App. – Austin 1998, no pet.) in support. This case has virtually nothing to do with this instant case. The City of Austin case deals with interlocutory appeals by government on an issue that became moot by their own pleadings. Nothing in this citation suggests that Avery has not shown subject matter jurisdiction to the trial court. The District further cites Dept. of Transp. V. Jones, 8 S.W.3d 636, 639 (Tex. 1999) in support of their assertion. This case was merely the Supreme Court reversal of an affirmed denial of a Plea to the Jurisdiction. No facts or ruling in this citation relates to the facts in this instant case. The Supreme Court said in this cite:

“The party suing the governmental entity must establish the state’s consent, which may be alleged either by reference to a statue or to express legislative permission.”

The Plaintiff has pled a violation of Article 1 Section 17 from the beginning which is a self-enacting Constitutional State waiver of all mythological State sovereign immunity based in Texas upon the Hosner v. DeYoung case which cites no law of any kind for their opinion that the state cannot be sued without its consent. All “sovereign immunity” and the bogus Texas Tort Claims Act are built on that foundationless opinion. Regardless, all sovereign immunity is waived by the State for the Plaintiff’s claims related to monetary damage under Article 1 Section 17 as discussed later herein.

7. Citizen and Taxpayer Distinguished

Plaintiff asserts herein and from the commencement of this suit that he is a citizen of Texas. The Plaintiff is not asserting a special class of rights only applicable to a taxpayer of lawful taxes. The Plaintiff is asserting rights he has as an individual citizen protected by the Texas Constitution to which he has tacitly agreed only upon the condition that the provisions of it are enforced against the government it created. As a citizen of Texas the Plaintiff has the protections of the Article 1 Bill of Rights and other provisions of the Texas Constitution. The Citizen Plaintiff, Avery, should only be considered and labeled a taxpayer when the tax he challenges is shown to be a lawful tax. He should not be labeled a taxpayer of lawful taxes merely to cut off his constitutional rights to show and prove how those same taxes are unconstitutional. A taxpayer is a special class of person and all their rights are identified in the Texas Property Tax Code (TPTC). But this taxpayer classification should only be attached to a person after it is proven that the tax is lawful under the challenge by a citizen plaintiff with all the rights they have secured by their agreement to the Texas Constitution creating the State of Texas. The Citizen Plaintiff, Avery, may have paid many years of unlawful taxes under the threat of the loss of his private property unlawfully seized and aliened by government, but that does not limit or diminish his first and primary status as a citizen of Texas. And under Article 1 Section 13 and 17 he should be able to access the substance of the law against whatever and whoever is violating it. If this one citizen, Avery, does not have private property which he can use without asking permission or paying another person or entity a single thing then he has no property at all either in life or liberty. This is what Constitutions are constructed to protect, the property of the citizens. This is why people enter society, for the security of their private property, not only from murderers and thieves in moonlight but from politicians, officials and lawyers in daylight.

The “voluntary payment rule” is logical only because the TPTC presumes first that all taxes regulated under it are lawful. This means that the only way a taxpayer could be injured under the TPTC is if an assessment was improperly preformed by the employee or official of the County Tax Office, Appraisal District or Appraisal Review Board. The Plaintiff has already shown under # 4 above how there is no remedy for a “taxpayer” under the TPTC to his claim that the entire ad valorem property tax system to support public education in Texas is unconstitutional. This is precisely why the Plaintiff brought his suit in the District Court rather than exhausting “administrative remedies” not found under the TPTC. There were no “administrative remedies” under the TPTC. The key to this argument of unique injury revolves around what status the Plaintiff is claiming. The Plaintiff does not claim to be a taxpayer with problems with the appraisal district or review board. The Plaintiff is claiming that he is a citizen that is charged an unconstitutional ad valorem property tax forbidden under Article 7 Section 1 and Article 8 Section 1e1. It is absurd to suggest that one citizen cannot challenge an unconstitutional rule, code, statute, law or constitutional provision if it harms every citizen in Texas. How did the Supreme Court of Texas arrive with a ruling that the funding scheme for free public school in Texas is unconstitutional and unlawful wherein all citizens of Texas suffered? This notion implies that only school districts and other fictional entities without life, liberty or property can bring such claims and obtain such global rulings for the benefit of all citizens. Extending this notion means that the security of life, liberty and property springs from government fictions not individual people vigilant over their social contract with one anther to protect one another and develop courts to hear and resolve their claims of abuse by government. If a citizen has no property, neither does an attorney, judge, teacher, superintendent, legislator or governor and no one is safe.

8. The Decision Making Issue

The District asserts that the Plaintiff lacks standing “as an individual taxpayer... to contest government decision making.” The District cites Burks v. Yarbraough, 157 S.W.2D 876, 879 (Tex. App. – Houston [14^th Dist.] 2005, no pet.) (citing Bland Indep. Sch. Dist., 34 S.W.3D at 555)) in support of their contention. However, upon inspection of the case we find that a private citizen, Burks, once a County Treasurer, in his suit against several County Commissioners and County Auditor attempts to redirect how funds were spent that were returned from an insurance contract. All of Burks’ causes were to redirect the decisions of government officials. The Plaintiff, Avery is not attempting to direct or redirect the actions of any public official or office in the pursuit of their lawful duties. All of Plaintiff’s claims relate to stopping government from violating the Constitution and unlawfully taking his money and the return of same. The Plaintiff, Avery, is not interfering in any government contract or activity. Plaintiff is not attempting to tell government how to carry out their public duties. Plaintiff may have added some public policy language in his pleadings to implicate the seriousness of the matter or to illustrate his point but all his claims for relief are restricted to the violations of the Constitution and the resulting damage caused to him personally as a result. Plaintiff is not instructing the government to break a contract that any of the Defendants have or direct their business. Plaintiff merely requests that the Defendants stop violating the Constitution to his damage and that they return to him money they took unlawfully. Plaintiff is not requesting the Defendants to return money to any other person or entity or to direct it elsewhere. Plaintiff is not attempting to direct how the Defendants get into conformity with the Constitution or how to administer their public duties to avoid violating the Constitution. Plaintiff is merely asking the court to order Defendants to stop violating the Constitution and to return what was unlawfully taken from him.

9. Citizen without standing if all Citizens suffered not applicable

The District makes the claim on page three of their Amended Plea that no citizen has standing, as a taxpayer, if it can be shown that all citizens suffered in the same way. Applying this logic we see that no one has constitutional protection under Article 8 Section 1e1 because all citizens were charged the same unlawful tax and will continue to be charged this same unlawful tax because one cannot get past this contradictory affirmative defense if allowed to stand unchallenged. Plaintiff, however, asserts that the authorities cited by the District do not apply herein as Avery is not seeking a public right. In the Scott v. Harris Methodist HEB, 871 S.W.2d 548, 550 (Tex. App.- Ft. Worth 1994, no writ) case cited by the District, Scott had attempted to exercise the right of the public County Appraisal District to revoke a tax exemption granted to the Hospital. Only the CAD can review and revoke the tax exemption of another party, not a private individual, unless they were harmed independently of the public by that act. The term public is used two ways here. In one, public means the public at large or the citizens in their individual capacity and in the other, public means the public institutions created or the government bodies created to act for and on behalf of the public at large. Therefore, Plaintiff asserts that all three cases cited by the District have no application to this suit. Plaintiff agrees that private persons cannot get into the administrative role of the public institutions via a private civil action. In the Parker v. City of San Antonio, 609 S.W.2d 877, 879 (Tex. Civ. App. – San Antonio 1980, no writ) case cited by the District, a taxpayer brought suit against the city, city manager and director of finance seeking to enjoin defendants from expending public funds in order to acquire certain parcels of land for the purpose of leasing them to a partnership for construction of a hotel. Again a private individual was attempting to re-direct or exercise a public right to contract. In the Tuck v. Texas Power & Light Co., 543 S.W.2d 214, 215 (Tex. Civ. App. – Austin 1976, writ ref’d. n.r.e.) cited by the District, a city resident brought an action against city and electric company seeking to annul an ordinance providing for an electric rate increase. Here again a private individual seeks to manipulate or exercise a public right delegated to others, constituting a usurpation of authority, by filing a lawsuit without a private unique injury distinct from the rest of the citizens. But, the Plaintiff, Avery, is not attempting to make any public institution or public official do any thing other than stop violating the Constitution and return his private property. The Plaintiff, Avery, is not asking any Defendant to pursue a particular course of action or direct their lawful activities or to make and break contracts. The Plaintiff is not attempting to exercise authority belonging to a public institution but rather attempting to stop Defendants from unlawfully taking his own private property and attempting to stop Defendants from putting his property at risk by their unlawful curriculum. Therefore these cases cited by the District are clearly inapplicable to this instant case. The District maintains herein that the taxpayer must show that he had a separate and distinct injury from that suffered by the general public. That would be true if Plaintiff was asking the court to enjoin some business that the District was conducting with some other entity. The Plaintiff has shown herein that the District’s citations relate to a private citizen attempting to administer a public power or authority requiring a unique injury. The Plaintiff is not seeking to administer public authority belonging to someone else. The Defendants herein may do as they wish as long as they stop unlawfully taking the Plaintiff’s property and stop putting it at risk by conforming to the Constitution.

10. District’s Misuse of the West Orange-Cove case

The District also asserts that nothing in their Amended Plea, “that nothing in the Supreme Court’s decision specifically stated that a taxpayer still did not have to satisfy the general Texas Legal requirement of demonstrating a particularized injury distinguishable from other members of the general public in order to establish standing.” Plaintiff can show herein that in essence the Supreme Court did indeed say that a citizen could show standing without distinct unique injury not like that of their fellow citizens. First, the corollary of the District’s assertion is also true, namely, the Supreme Court did not state that a citizen had to show a distinct injury separate from his fellow citizens in order to avoid a state ad valorem property tax. Secondly, it would be impossible for a citizen to bring a suit that would have the judicial result that all property taxes in Texas supporting the free public schools are unconstitutional as the Plaintiff could not survive the unique injury rule. Therefore, the application of unique injury rule must apply to those cases wherein an individual citizen or taxpayer is trying to usurp the power and authority of government institutions and officials and run their business. But the unique or distinct injury rule cannot possibly apply to a case where a Plaintiff brings a suit for injuries to him alone as the result of violations of the Constitution. It is only incidental that all citizens suffered as well from the violations complained of. If we apply the logic of the District we find that it is impossible for a taxpayer or citizen to bring a suit that is not based upon an improper assessment which then in turn could only produce a judicial decision finding some incidental act committed unknowingly by the assessor in conjunction with other assessors doing the same across Texas resulting in the accident of a state ad valorem property tax. This is absurd. A citizen must be allowed the constitutional protection under Article 1 Section 2, 13, 17, 19, 29 and Article 7 Section 1 and Article 8 Section 1e1 to bring a suit challenging the entire taxation scheme to protect the Plaintiff from continued injury from violation of the Constitution. It is only incidental that it protects all other citizens from the same injuries.

11. District claims Plaintiff has cited no Authority as none exists

The District makes the astonishing assertion in their Amended Plea to the Jurisdiction that “Plaintiff cites no authority, as none exists, to show that an ad valorem taxpayer has any direct standing to challenge the taxing authority of a government entity.” Plaintiff agrees as long as their statement is restricted to the rights of an ad valorem taxpayer under the Texas Property Tax Code paying lawful taxes directly challenging the taxing authority of a government entity. However, Plaintiff objects to his relegation to the status of ad valorem taxpayer rather than a citizen with Constitutional protections to prevent the unlawful taking of his property. The District’s assertion is truly amazing in the light of Plaintiff citing the most supreme and fundamental law of Texas, i.e., Art 1 Sect 2, 13, 17, 19 and 29; Art 7 Sec 1 and Art 8 Sec 1e1. There exists a hierarchy of law in Texas starting at the top with the people (or the precedent Principles of Property alluded to in the Preamble of the Constitution and Art 1 Sec 1 and 2) going down to the Constitution, down to common or case law, including Supreme Court decisions, down to statutes down to codes and down to rules. The District has offered numerous inapplicable case law citations, some from the Supreme Court of Texas. When the Constitution provides a self-enacting provision, as in Article 1 Section 17, a citation of statute and case law is not required to pursue a cause of action against a party in violation as so stated in Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) cited in City of Beaumont v. Bovillion proffered by the District.

12. The Statute of Limitations Issue

When does a statute or code trump a Constitutional Provision? Only Constitutional Amendments trump Constitutional Provisions unless some constitutional provision allows a statute to limit other constitutional provisions. The Plaintiff would like to see the Article and Section numbers for a Constitutional Limitations Amendment, or other constitutional provision numbers that grant authority to the legislature or any other branch of government to limit the time to bring a suit for a constitutional violation. The Plaintiff could not find either type of constitutional authority or any other amendment that would accomplish a limitation. To the contrary, the Plaintiff did find another Constitutional Provision at Article 3 Section 62 preventing the legislature from limiting the Bill of Rights in any way:

“(a) The Legislature, in order to insure continuity of state and local governmental operations in periods of emergency resulting from disasters caused by enemy attack, shall have the power and the immediate duty to provide for prompt and temporary succession to the powers and duties of public offices, of whatever nature and whether filled by election or appointment, the incumbents of which may become unavailable for carrying on the powers and duties of such offices. Provided, however, that Article 1 of the Constitution of Texas, known as the “Bill of Rights” shall not be in any manner affected, amended, impaired, suspended, repealed or suspended hereby. (Emphasis added.)

What is the big fear being expressed in Article 1 Section 13 and 29 and Article 3 Section 62 other than the fear that government will begin to violate the Constitution and the principles of property and begin to harm the citizens. As a guard against this the legislature may not tamper with the Bill of Rights even under attack by enemies much less on a nice sunny day merely to prevent a citizen from challenging unconstitutional plunder and booty. This prohibition under Art 3 Sec 62 would include a limit on the time to bring a suit or time covered in a suit. The District has taken the Plaintiff’s money for over 12 years under the threat of foreclosing a lien on his property they cannot lawfully obtain and Article 1 Section 13 says, inter alia, “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” The “due course of law” includes application of Art 1 Sec 17 providing the return of money unlawfully taken for public use. The passing of inferior statutes and acts by the Legislature cannot in any manner affect, amend, impair, suspend, repeal, or limit any provision of Article 1 (Bill of Rights). Therefore, the Legislature may not close the court with inferior statutes and acts such as the statute of limitations and Texas Tort Claims Act. To do so would impair the Bill of Rights. Surely, the framers did not merely intend that the door to the court house would remain open while the Legislature could determine who or what “shall have remedy by due course of law.” And surely the framers did not intend that the “due course of law” would become the application of some “rule” or “statute” or “law” contrary to the Constitution that throws injured citizens out into the street without the access to the substance of the law referred to as “due course of law.” The intent of the framers is clearly stated in Article 1 Section 13 and 29 forbidding the use of such “laws” to “close” the courts and assuring the citizens that all laws, rules, codes and amendments that close the courts to the due course of law “shall be void.”

13. Administrative Remedies Inapplicable

The District asserts that the citizen Plaintiff, Avery, must exhaust “his administrative remedies” as a taxpayer under the Texas Property Tax Code (TPTC) even if no remedy is available under the TPTC for his complaint. The fundamental issues raised by the Plaintiff cannot be addressed or cured by any action or ruling of any official, board or group with authority under the TPTC. The Plaintiff in his Original Petition merely used the Supreme Court’s pivotal issue of the “lack of discretion” in the 2005 tax year and how the legislature attempted to cure those findings as an illustration of how futile it is to avoid an unconstitutional State ad valorem property tax by lowering the rate of a local ad valorem property tax. The “lack of discretion” issue is moot as it was not calculated and no one knows or could have determined what it would be and, most importantly, it was not claimed in the Plaintiff’s ultimate damages in any pleading. The difference between the amount the Plaintiff should have been assessed and what he was charged was and is irrelevant as the Plaintiff claimed that the entire amount was unconstitutional regardless of how it was calculated, assessed or collected.

The District cites Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex. 1992) for authority to support their contention. In the Tex Education Agency case the District sought to prevent the Commissioner of Education from hearing the complaints of aggrieved employees and deciding if the actions of the Districts were lawful under the school laws of Texas. In the Cypress-Fairbanks case we have a different code (Texas Education Code) that grants authority to the Commissioner of Education to review all complaints of School District Employees to determine the lawfulness of the actions of the Board of Trustees. It was shown in the Cypress-Fairbanks case that even though the Commissioner could not remedy all the issues he could determine the validity of the School Boards’ actions and did have extended authority to hear appeals by any person aggrieved by actions of the Board of Trustees, although Commissioner would not have authority to grant all relief, including damages, which employees would be otherwise be entitled. Justice Gammage in his opinion wrote in regard to the administrative remedy rule:

“An exception to the rule is that a trial court may intercede before administrative remedies are exhausted where the administrative agency lacks jurisdiction. Westtheimer Indep. Sch. Dist. v. Brockette, 567 S.W.2d 780, 785 (Tex. 1978).”

Employees of the School District should indeed proceed through channels especially to warn those whom they work for. But the Plaintiff, Avery, does not work for the County, or the County Tax Office or the Appraisal District or the School Board but is merely a citizen who is not a taxpayer of unlawful unconstitutional taxes. The Plaintiff owes no duty to the Defendants and is not a subject of the Texas Property Tax Code unless he complains that his lawful taxes were somehow mishandled by the Defendants. The Plaintiff’s claim is that all ad valorem taxes on private property in Texas for the support of free public schools is unconstitutional under Article 7 Section 1 and Article 8 Section 1e1. The Plaintiff maintains it is irrelevant how these taxes were handled by the Defendants and there is simply no provision in the TPTC or any other legislation that would address or correct this claim outside of the Supreme Court of Texas.

The District also cited Denton Central Appraisal Dist. v. CIT Leasing Corp., 115 S.W.3d 261, 264 (Tex. App. – Fort Worth 2003, pet. Denied), cert. denied. 125 S.Ct. 106 (1994) in support of their contention. In this case a taxpayer failed to timely protest appraisal district’s alleged lack of notice of appraised value of aircraft precluded taxpayer from obtaining judicial review. Again this case does not apply to Plaintiff herein. Plaintiff does not care anything about the operation of the CAD or how they do anything. The Plaintiff’s moot and abandoned claim or language concerning “no discretion” was used to illustrate the futility of any County Appraisal District complying with the Constitution by lowering or raising tax rates in regard to taxes in support of free public school. The District should not be permitted to force the Plaintiff to claim a moot question used for illustration only, for which he claimed no damages, strictly to force him out of court on his real claims.

14. The “Voluntary Payment Rule” Issue

The District says that “Here, Plaintiff seeks a refund of property taxes he voluntarily paid from 1995 to the present.” Plaintiff made it clear in his Original Petition that the only reason he or anyone else ever paid these so-called property taxes was the threat of foreclosure of an unlawfully obtained lien at ¶ 29 p 18; ¶ 31 p 20; ¶ 32 p 21; ¶ 34 p 23; ¶ 37 p 25; ¶ 39 p 27; ¶ 40 p 28; ¶ 43 p 30. Therefore, Plaintiff had his money taken by Defendants that threatened to foreclose on a lien they had obtained unlawfully if he did not surrender his money to them. The Plaintiff is not asking for a “refund of property taxes,” rather, he is asking that the Defendants return the money that was unlawfully taken from him under the threat of taking his land and buildings by foreclosing a lien Defendants cannot and could not lawfully obtain by a community vote of those who did not have authority to lien Plaintiff’s private real property. This description of the facts constitutes something more along the lines of extortion to force a citizen to succumb. Voluntary performance can only be an action that has no understood penalty if not performed. If there is a penalty, lawful or otherwise, for non performance then it is no longer a voluntary act. An act performed under penalty, especially unlawful penalty, cannot become a voluntary act nor become a lawful means to waive the rights of the Plaintiff. The Plaintiff’s compliance to the demands of a person or group of persons threatening to take the Plaintiff’s property and sell it to others cannot become acquiescence in order to waive the Plaintiff’s rights to show how it was all unlawful. The District’s taking of a State ad valorem property tax to provide for uniform State wide free public school on behalf of the State is done by extortion to foreclose an unlawfully obtained lien upon private property. The threat to commit an unlawful act, like foreclosure on an unlawful lien if something is not performed is extortion not the seeking of voluntary donations. The fear of the process and its power displayed by government cannot be construed as waiver of rights under the Texas Constitution. The District could not cite a code or statute or constitutional provision for such a notion and depend merely upon a group of case rulings to support their so-called “voluntary payment rule.”

The District cites State v. Conn. Gen. Life Ins. Co., 382 S.W.2d 745, 746-47 (Tex. 1964) in support of their “voluntary payment rule.” In this case the overpayments of a lawful tax were refundable where it is shown that the failure to pay would result in loss of a right to do business. However, Plaintiff Avery, can also show ( Exhibit A ) that Guadalupe County requires that the owner of property planning the development of a rental community (RV Park in Avery’s case) must provide a tax certificate showing that all taxes currently due with respect to the original tract have been paid (C2 of Section I of Infrastructure Development Plan):

“A tax certificate showing that all taxes currently due with respect to the original tract have been paid.”

The provision does not mention a contest of the lawfulness of the tax. Therefore, Plaintiff was double coerced into paying an unlawful state ad valorem tax in support of free public schools because if he did not surrender his money he could not obtain a permit to develop his land as he has intended from the time he acquired it in 1995. Therefore, Plaintiff was coerced in common with other citizens and coerced independently of others in his right to develop his own land to do business. The Plaintiff’s subject property is commercial and he cannot do business as desired without paying “all taxes currently due.”

The District also cites Sheldon v. Jasper Indep. Sch. Dist., 768 S.W.2d 884, 885 (Tex. App. – Beaumont 1989, writ denied); National Biscuit Co. v. State, 135 S.W.2d 687, 692 (Tex. 1940); Texas Nat’l. Bank of Baytown v. Harris County, 765 S.W.2d 823, 824-25 (Tex. App. – Houston [14^th Dist.] 1988, writ denied) in support of their “voluntary payment rule.” All these cases acknowledge that the voluntary payment rule does not apply when there is duress. It is clear that the Plaintiff’s claims come under an exception to the voluntary payment rule which permits recovery of unlawful taxes and penalties when they are collected under duress of losing a right to do business if not paid. This is true if the duress is implied or expressed. The National Biscuit case further found liability against the State of Texas for 12 years of unconstitutional state taxes demonstrating the an unconstitutional claim is not barred by a statute of limitations which may lawfully limit some statutory and common law claims. Plaintiff, Avery, seeks damages against Defendants for collecting money that amounted to a constitutionally forbidden State ad valorem property tax.

15. No Monetary remedy for violation of Constitution Issue

The District asserts under paragraph F of their Amended Plea to the Jurisdiction that, “It is well-settled under Texas law that there is no private cause of action for monetary relief under the Texas Constitution, whether sought from a state agency or an individual official.” The District cites City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995) in support of their contention. However, upon review of this case we find that several officers claiming monetary damage for retaliation by Police Department for exercising free speech and right of assembly. The Supreme Court in Bouillion cites Steele v. City of Houston, 608 S.W.2d 786, 791 (Tex. 1980):

“where we stated: “The Constitution itself is the authorization for compensation for the destruction or property and is a waiver of governmental immunity for the taking, damaging or destruction of property for public use.” However, this language cannot be interpreted beyond its context.”

Therefore, if the public took it the public should pay it back. The money the Plaintiff wants returned from the Defendants is not a tax refund of any kind. Rather, the money is property taken for public use without a law in violation of the Constitution. The Plaintiff is neither attempting to convert a violation of a constitutional right that he has into damages resulting from its prevention nor is he attempting to convert a punishment for exercising one of his constitutional rights into monetary damages. Rather, the Plaintiff is claiming that the violation of several constitutional provisions (Art. 7 Sec. 1 and Art. 8 Sec. 1e1) has resulted in the violation of another (Art. 1 Sec 17) which has been held consistently to be self-executing or self-enacting. If the public was the beneficiary of the Plaintiff’s money then under Art 1 Sec 17 he should get it back as there is no law for it to be taken for public use if it was in fact a State ad valorem property tax which is forbidden under Art 8 Sec 1e1. Regardless of the issue of monetary damages, the Plaintiff has now included equitable relief in his Plaintiff’s First Amended Original Petition, and his cause should not be dismissed for want of subject matter jurisdiction.

The District also cited Univ. of Tex. System v. Courtney, 946 S.W.2d 464, 471 (Tex. App. – Fort Worth 1997, writ denied) in support of their assertion about monetary damages. This case is similar to the District’s other citations in which Courtney sought monetary damages for violation of his due process rights before being terminated as a lecturer. Again, that case involved a person attempting to obtain monetary damages as the result of the prevention of due process being applied to their employment. The due process provision of the Texas Constitution is not self-executing and Courtney tried to convert his deprivation of constitutional right restricted to equity relief into a suit for monetary damages.

The District also says, “In the present case, the sole relief Plaintiff seeks is monetary damages…” In Plaintiff’s First Amended Original Petition he has amended his Original Petition to include a claim for equitable relief wherein an ad valorem tax cannot be imposed on his property in the future to support the free public schools. And the Plaintiff in his Original Petition complained of unlawful curriculum which has resulted in damage to his life, liberty and possessions and for that he has further amend his Original Petition to include equitable relief to bring the State curriculum into conformance with Article 7 Section 1 of the Texas Constitution.

16. Summary

In summary to all the responses, pleadings and motions of all Defendants in this instant lawsuit, none have cited authority that precludes the continuance of this lawsuit. The substance of the Plaintiff’s lawsuit has not been addressed by any Defendant nor has any Defendant supplied authority for the dismissal of any cause against any Defendant other than the one moot point related to the “no discretion” in the calculation or assessment of taxes due in 2005 used by Plaintiff as illustration only yet never claimed as damage by the Plaintiff. This can be corrected by an amendment to Plaintiff’s Original Petition. Further, if any other alleged deficiency be raised by Defendants they should give the Plaintiff opportunity to amend his pleadings under Special Exceptions, even those relating to jurisdiction.

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 assessments, charges and collections or takings conducted by Defendants in 2005, an unknown and moot amount and Plaintiff be allowed to amend his Petition to correct any deficiencies.

Certificate of Service

I hereby certify that on the ____ day of ___________, 2007, the foregoing Plaintiff’s Response to Seguin Independent School District’s Amended Plea to the Jurisdiction and Plaintiff’s Amended Response to Original Answers of Defendants Tavie Murphy, Guadalupe County Tax Office and Original Answers & Special Exceptions of Seguin Independent School District; Plaintiff’s Amended Motion for Default Judgment Against Seguin ISD, and Contempt and Sanctions Against Attorneys Lopez and Santos; was sent to Defendants’ counsel by certified mail return receipt requested as identified below:

Defendant Murphy & GCTO:

7006 0810 0004 3827 2019

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

700 Jeffrey Way (Suite 100)

Round Rock, Texas 78664-2425

Attn: Kirk Swinney

Matthew Tepper

kswinney@mvbalaw.com

mtepper@mvbalaw.com

www.mvbalaw.com

Phone 512/323-3200

Fax 512/323-3294