No. 04-0499-CV
|
Ronald F. Avery |
* * |
In the District Court |
|
Vs. |
* |
|
|
William E. West Jr.; David Welsch |
* * * * * |
25th Judicial District |
Brief on Jurisdiction of Subject
Matter
In Support of Plaintiff’s Response
to
Defendants’ Special Exceptions
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes the Plaintiff, Ronald F. Avery, with his Brief on the Jurisdiction of the court in support of his Response to Defendants’ Motion for Special Exceptions and shows the following:
Since we are in a civil court of law, let us speak of civil law[1], natural law or reason[2], common law[3] and lawful things rather than mere rules, codes and forced remedies. The Plaintiff has pled what is natural and common law to be heard in a court of common and natural law. If this is not a court of natural and common law then the court needs to inform us of what kind of court is being conducted and on what authority and under what rules. The Plaintiff pled facts that suggest wrong doing that came naturally to him without the invoking of any particular codes or rules i.e., he did not invoke any specific private or special act or law of the state of Texas as under Texas Rule of Civil Procedure 53 (TRCP 53). The court can infer its own application of theory of law to the Plaintiff’s pleadings of fact without the necessity of forcing the facts plead into statutory remedies insisted upon by Defendants’ motion for Special Exceptions.
Plaintiff’s pleadings are not “groundless” for they show a basis in law or fact and warrant a good faith argument for the extension, modification, or reversal of existing law under TRCP 13. Further, the objective of the Texas Rules of Civil Procedure, that govern this court, is to obtain a just, fair, equitable, and impartial adjudication of the rights of litigants under established principles of substantive law[4], according to TRCP 1. In order to satisfy TRCP 1, this court must use reason and common law as shown and described above to adjudicate the Plaintiff’s causes of action. Therefore, this court is one in pursuit of substantive due process[5] rather than mere enforcement of rules and remedies legislated by the Texas Tort Claims Act and codified under the Texas Civil Practice and Remedies Code. This court must seek substance[6] rather than mere statute, procedure or remedy based upon violation of property rights. To force the Plaintiff’s pleadings to fit the CPRC is to arbitrarily deny the Plaintiff access to substantive law and participate in the continuation of his injury and to continue a culture of abuse of property, the protection of which is the grand end of all civil government and all those in its employ.
It cannot be presumed that a plaintiff pleads one set of laws or an act over another merely upon motion for Special Exceptions to force a Plaintiff into pleading a theory of law that does not apply to the facts of a pleading and cause Plaintiff to abandon the real substantive law that governs the causes of action. The Defendants want the Plaintiff to apply an unlawful legislative act upon the facts that are governed by substantive law in order to defeat the causes of action. If a Plaintiff has pled facts to support a cause of action for a breach of contract he certainly does not want to be restricted to a cause of action for malicious prosecution wherein the facts pled fail to support that cause of action. The Plaintiff in this case gave fair notice of the right of Plaintiff, the duty of Defendant, and the injury resulting from the breach of duty by defendant, through a general pleading of facts rather than specific reference to rules, acts and law. Plaintiff’s reference to the breach of a public trust does not imply the CPRC but goes to the root and marrow of the foundation of all civil government.
The Defendants’ Special Exceptions hinge on one great concept, namely, that of immunity which supposedly belongs to government. And for that reason we must determine what that immunity is and how far it goes before we get into the applicability of the Texas Tort Claim Act and its resultant Texas Civil Practice and Remedies Code (CPRC). Once determined we can then consider how this immunity, lack of immunity, or waiver of immunity applies to the particulars or causes of action alleged in the facts pled.
|
Respectfully submitted, _______________________________________ Ronald F. Avery Pro Se 1955 830/372-5534 |
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was forwarded by certified mail, return receipt requested # 7099 3220 0001 5083 3356, on this the ____ day of ___________, 2004 to the following:
Attorney of Record for Defendants:
William S. Helfand
Chamberlain, Hrdlicka, White, Williams & Smith
Attorneys at Law
___________________________
[1] Black’s Law Dict. (6th Ed): Civil Law: That body of law which every particular nation, commonwealth, or city has established peculiarly for itself; more properly called “municipal” law, to distinguish it from the “law of nature,” and from international law. Laws concerned with civil or private rights and remedies, as contrasted with criminal laws.
[2] Black’s Law Dict.: Reason: A faculty of the mind by which it distinguishes truth form falsehood, good from evil, and which enables the possessor to deduce inferences from facts or form propositions.
[3] Black’s Law Dict.: Common Law: As distinguished from statutory law created by the enactment of legislatures, the common law comprises the body of those principles and rules of action, relating to the government and security of persons and property, which derive their authority solely from usages and customs of immemorial antiquity, or from the judgements and decrees of the courts recognizing, affirming, and enforcing such usages and customs; In General, it is a body of law that develops and derives through judicial decisions, as distinguished from legislative enactments.
[4] Black’s Law Dict.: Substantive Law: That part of law which creates, defines, and regulates rights and duties of parties, as opposed to “adjective, procedural, or remedial law,” which prescribes method of enforcing the rights or obtaining redress for their invasion. Allen v. Fisher, 574 P.2d 1314, 1315. The basic law of rights and duties (contract law, criminal law, tort law, law of wills, etc.) as opposed to procedural law (law of pleading, law of evidence, law of jurisdiction, etc.)
[5] Black’s
Law Dict.: Substantive Due Process: Doctrine that due process clauses of the
Fifth and Fourteenth Amendments to the United States Constitution require
legislation to be fair and reasonable in content as well as application. Such
may be broadly defined as the constitutional guarantee that no person shall be
arbitrarily deprived of his life, liberty or property. The essence of
substantive due process is protection from arbitrary and unreasonable action.
Jefferies v.
[6] Black’s Law Dict.: Substance: Essence; the material or essential part of a thing, as distinguished from “form.” That which is essential.