IN THE COURT OF APPEALS FOR THE
FOURTH COURT OF APPEALS DISTRICT
Ronald F. Avery
Ms Tavie Murphy,
ON APPEAL FROM THE 25TH JUDICIAL DISTRICT COURT
THE HONORABLE PAUL DAVIS, JUDGE PRESIDING
Ronald F. Avery
Phone & Fax: 830/372-5534
ORAL ARGUMENT REQUESTED
Pursuant to Rule 38.1 (a) of the Texas Rules of Appellate Procedure, the Appellant, Ronald F. Avery, certifies to the best of his knowledge, the following is a complete list of all persons or entities with an interest in this appeal:
1. Appellant - Ronald F. Avery - Pro Se.
2. Appellee – Ms. Tavie Murphy.
307 W. Court Street
307 W. Court Street
The Attorney of record for Ms. Murphy and the GCTO is:
Matthew Tepper SBOT# 24029008
McDreary, Veselka, Bragg & Allen, P.C.
Attorneys at Law
Dr. Irene Garza - Superintendent
The Attorney of record for SISD is:
Ricardo Lopez SBOT# 24013059
Feldman & Rogers, L.L.P.
Attorneys at Law
Bowles v. Clipp, 920 S.W.2d 752................................... 10
Citizens for Better Educ. V. Goose Creek Consol. Indep. Sch. Dist.
719 S.W.2d 350, 354 (Tex. App. – Houston [1st Dist.] 1986,
writ ref’d n.r.e.), cert. denied, 484 U.S. 804 (1987)............. 10
City of Mission v. Cantu 89 S.W.3d 795, 813........................ 7
Johnson Controls, Inc. v. Carrollton-Farmers Branch Indep. Sch.
Dist., 605 S.W.2d 688, 689........................................ 12
Kissick v. Garland Indep. Sch. Dist., 330 S.W.2d 708, 710 (Tex.
Civ. App.-Dallas 1959, writ ref’d n.r.e.)..................... 10, 11
Nat’l. Biscuit, 135 S.W.2d at 692................................. 13
Neeley v. West Orange-Cove 176 S.W.3d 746 (Tex 2005)............... 5
Nichols v. Aldine Indep. Sch. Dist., 356 S.W.2d 182, 185 (Tex.
Civ. App. – Houston 1962, no writ)............................ 10, 11
Nueces Cty. v. Huff, 105 S.W.3d 208, 211 (Tex App. – Corpus
Christi 2003, n.p.h.).............................................. 9
Steele v. City of Houston 603 S.W.2d 786 (Tex 1980)............. 7, 9
Tex. Nat’l. Bank of Baytown v. Harris County,
765 S.W.2d 823, 825............................................... 12
Texas DOT v. Jones, 8 S.W.3d 636, 637—38 (Tex 1999)................ 9
Texas Constitutional Provisions
Article 1 Section 17........................................ 8, 9, 10
Article 1 Section 19............................................... 8
Article 1 Section 29............................................... 6
Article 3 Section 62............................................... 6
Article 7 Section 1........................................ vi, 1, 12
Article 8 Section 1e............................................... 5
Article 8 Section 1e1.......................................... vi, 1
1. The note (F12-14) refers to page 12 through page 14 of the clerk’s Files;
2. The note (H12 L16 – H14 L22) refers to page 12 line 16 through page 14 line 22 of the Hearing transcript.
The Appellant, Ronald F. Avery, sued Tavie Murphy and the GCTO for the charge and collection of unconstitutional property taxes in violation of Article 8 Section 1e1and Article 7 Section 1 (F17), (F21-22). Avery sued the SISD for the same with an additional claim of teaching an unconstitutional curriculum in violation of Article 7 Section 1 (F28-30). Avery sought the return of his money taken under the pretense of a lawful constitutional tax in violation of Article 1 Section 17 (H31 Line 8-10) from all Defendants and equitable relief to stop future unlawful takings of money under the pretense of lawful taxes and for the SISD to stop teaching an unauthorized unconstitutional curriculum harming the property of the Appellant.
All Appellees answered with identical Pleas to the Jurisdiction for want of standing, limitations, “voluntary payment rule,” and no monetary damages for violating constitution. A hearing was held and the Honorable Judge Paul Davis granted the Pleas to the Jurisdiction.
All issues in this case were a matter of law as the case did not go to trial nor was there any dispute of the following facts in Plaintiff’s Original or First Amended Original Petition or any other document or hearing:
The Appellant has owned a piece of commercial property in
The Appellant attempted to obtain a permit to build his RV Park from the County wherein he was required to pay all “ad valorem property taxes” for the subject property his Park would be built upon (F184), (H36).
The Appellees charged and received from Appellant approximately $80,897
(F202) in unlawful “State ad valorem
property taxes” to support “public free schools” which the Supreme Court of
The Appellant has alleged without rebuttal that his property consisting of life, liberty and estate has been damaged and remains at risk due to an unlawful curriculum allegedly administered by the SISD and its excessive cost allegedly in violation of Article 7 Section 1 and Article 8 Section 1e1 of the Texas Constitution (F222-224).
TO THE HONORABLE COURT OF APPEALS:
Now comes Appellant, Ronald F. Avery, and respectfully submits
Appellant’s Reply Argument to the Appellee’s Brief filed by
The Appellant respectfully replies to new assertions made on
appeal by the
The Appellant’s motions for default and sanctions in Trial Court were evidentiary in nature (H3 L1 – H18 L9), But no evidence was submitted to the Trial Court in the Appellees’ Pleas to the Jurisdiction. And for the same reason the Appellant’s motion for Findings of Fact and Conclusions of Law (F273-276) were denied by the Honorable Judge Davis (F277-281). Therefore, the appeal herein of the Appellees Plea to the Jurisdiction cannot be made into one that reviews facts found by the judge at the trial court level as none were heard nor received. All law must be determined from the pleadings and arguments construed in favor of the Appellant and his intent.
2. Appellant admits herein that he abandoned his Punitive Damage Claims in Trial Court responses but in haste inadvertently failed to remove them from his First Amended Petition which explains the lack of argument on the issue at the Trial Court hearing:
The Appellant had expressed his full intentions of dropping his punitive damage claim from his First Amended Petition somewhere in the trial court proceedings but in haste to update and clarify other matters critical to the case he forgot to remove them.
The Appellant filed his lawsuit and then paid the unlawful taxes to avoid foreclosure proceedings which were implied and explicit in the Appellant’s Petitions (F60-62), (F254-256), and to obtain a permit (F192) from the County to build an RV Park on his property (F202). These are the facts as plead and argued at the hearing (H35 L22- H36 L4). The Appellees even plead in their Amended Plea to the Jurisdiction that Appellant had not paid his taxes before filing his lawsuit and owed them during the trial court proceedings (F129).
The SISD says on page 8 that, “Appellant’s characterization of his action makes no sense given that the primary relief sought in his lawsuit is for the Appellees not to continue performing an act for which they are authorized by law – namely, the assessment and collection of property taxes.” On November 22, 2005, The Supreme Court of Texas ruled that this activity at least for the year 2005 was a violation of Article 8 Section 1e of the Texas Constitution and the Appellant was going to show that all the other years were of the identical type. Therefore, at least for the year 2005, the Appellees do not have authority to assess and collect property taxes in violation of the constitution, see Neeley v. West Orange-Cove 176 S.W.3d 746 (Tex 2005).
The Appellant has cited
the most superior law in the State of
Statutes are made by the legislature whereas; the Constitution is made by the people. The Constitution made the legislature and limits its powers as it does so make and limit the judiciary and the executive branches. When the Appellant cited Article 3 Section 62 of the Constitution as an authority against which the legislature cannot impair any Article One provision of the Constitution he is citing superior authority and need not cite any inferior case law to support it. A clear reading of the said article shows that Article One provisions of the constitution cannot be altered or limited without a statewide election held in accordance with Article 17 of the Texas Constitution. Therefore, it matters not what the legislature does with its statutes, it does not impair any Article One provision. Article 3 Section 62 and Article 1 Section 29 also apply as well to the Texas Tort Claims Act rendering it null and void.
SISD attempts to spread the findings pertinent to the Steele case to all other cases under Article 1 Section 17. On appeal the Court in Steele had to determine if the City was liable for the intentional acts of the police officers in the burning down of a citizen’s home to catch criminals hiding there or if the home was burned for public use. The Appellant herein need not show all those elements concerning damage, destruction or intentions or discretion of government officials to prove that money was taken from him for public use without a law (or in violation of Article 8 Section 1e) to support the unlawful taking in violation of a clear reading of Article 1 Section 17. The SISD ignores all its other citations but Steele to make this assertion.
The SISD assumes that
because a party claiming a cause of action with multiple elements must name the
cause and then plead facts that provide for each of the elements to maintain
the cause, that those who give fair notice of single element causes must do the
same. The SISD cites City of Mission v. Cantu 89 S.W.3d 795, 813 as authority for the need
to cite the law in a Petition to maintain it. The
The Appellant gave “fair notice” of all these claims and argued them in his Petitions and gave explicit citations of them in other trial court pleadings and the hearing. Fair notice is all that is required under constitutional claims such as Article 1 Section 17 as shown in Bowles wherein the Appellate court recognized the “fair notice” pleadings of an Article 1 Section 17 claim affirming a trial court award of a return of over $3,000,000 collected as bail bond fees which were unconstitutional. The Appellate court noted that the pleadings referring to Article 1 Section 19 throughout really should be and will be affirmed under Article 1 Section 17. Fair notice is recognized in regard to causes of action that do not contain multiple elements such as waivers and exceptions to waivers under various Texas Tort Claims Act suits which the SISD agrees this case is not.
Further, the Appellant cited Article 1 Section 17 in several pleadings in response to the Appellees’ Plea to the Jurisdiction (F84-85), (F172-173), (F178-180), (F186) and at the hearing (H31 L6-H33 L2).
The fictitious erroneous
doctrine of “Sovereign Immunity” can be waived on behalf of a school district: The
Appellees state the following on page 12, “SISD has never asserted any
governmental or sovereign immunity defense from Appellant’s claims.” Immunity
from liability is an affirmative defense that the governmental entity has the
burden of pleading and proving
The Appellant has cited Article
1 Section 17 at the hearing in trial
court and in several of his pleadings in trial court in response to the
Appellees’ Pleas to the Jurisdiction. The Constitution is the superior law and
it was written by the people of
10. The SISD assertion, page 13, that the District Trial Court cannot find the SISD in violation of Article 7 Section 1 of the Texas Constitution is false and their citations do not support their position:
In support of their
assertion the SISD cites Citizens for Better Educ. V.
However, none of these cases show that the local trial court could not find by law that the SISD did not comply with a constitutional provision under Article 7 Section 1. There is further no way to determine the constitutionality of district’s actions or non-action nor is there any local means to correct the system as the provision for Article 7 Section 1 protects the Appellant in all of Texas not just in Seguin. But the SISD is still liable for their part. The District trial court is the court of origination for this harm done to the Appellant and the said court had jurisdiction to rule on the matter.
The SISD cites
The further assertion by
SISD, page 16, that a threat to prevent one from doing business requires its
extent to include all of the State of
Duress of goods lies “where the act consists of a tortuous seizure of detention of property from the person entitled to it, and requires some act as a condition for its surrender.” If the tax was unconstitutional, the associated penalty for not paying it was also unconstitutional. And “any unlawful threat or coercion used by a person to induce another to act (or refrain from acting) in a manner he or she otherwise would not (or would)” is duress by legal definition. Therefore any unconstitutional penalty or threat, especially to take property or property rights, to collect an unconstitutional tax is duress by legal definition. The Appellant has pled at least two kinds of duress and the facts to support it.
None of the cases cited or any argument made by the Appellees prove a lack of standing for the Appellant or a want of jurisdiction for the Trial Court. For this reason the Appellant adopts all the cases used by the Appellees as authority for a reversal of the Trial Court’s Order (F271-272), (Ae-f) dismissing the Appellant’s lawsuit. The Appellees provided no authorities for support of their argument that the Appellant’s suit should be dismissed.
The Appellant prays that the Court of Appeals reverse the Order of the Trial Court granting a dismissal of the Appellant’s law suit based upon Appellees’ Plea to the Jurisdiction by signing said Order March 6, 2007, and that this cause be remanded to the Trial Court for further proceedings.
F. Avery Pro
Se __________________________ 1955
Ronald F. Avery
I, hereby certify that on the ____ day of ____________, 2007, the foregoing Appellant’s Reply Brief to Seguin ISD was sent to Counsel for Appellees by certified mail return receipt requested as identified below:
Defendant Murphy & GCTO:
7006 2760 0005 3028 3128
McCleary, Veselka, Bragg
& Allen, P.C.
Attn: Matthew Tepper
7006 2768 0005 3028 3135
Feldman & Rogers, L.L.P.
Attn: Ricardo R. Lopez
Ronald F. Avery