No. 04-0499-CV
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Ronald F. Avery |
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In the District Court |
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Vs. |
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William E. West Jr.; David Welsch |
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25th Judicial District |
Plaintiff’s Response to
Defendants’ Plea to the Jurisdiction
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes the Plaintiff, Ronald F. Avery, with his Response to Defendants’ Plea to the Jurisdiction and in support thereof would show the following:
The Plaintiff having suffered the abuses of the state is still thankful to God that he has been chosen to see and expound upon an error in the present law that if reversed will bring benefit and liberty and justice to many Americans in and out of the State of Texas. It is rare that a man finds something in the law needing correction that is so large, so wrong, so obvious, and if corrected, so beneficial to so many. One, given that opportunity, has no other perspective than energetic thankfulness to God.
The Plaintiff adopts all his Briefs and responses that he has filed earlier in this case in response to other filings by the Defendants. This filing will take precedence over any other filing which stands in apparent contradiction. The great weight of evidence in this case from the founders is that sovereignty belongs to the citizens and the sole purpose of government is to protect the property of every member and that the government is not above those same fences it creates to guard the property of citizens.
This document (Exhibit A) is a newspaper tabloid produced by the Plaintiff and circulated in the Seguin Gazette Enterprise on the subject of sovereignty and who has it and why. This tabloid is the product of Plaintiff and 8100 copies were circulated for the 4th of July on Friday 7/2/04. An online version to fit letter paper is at www.PostWTC.com/sov-tab-1.pdf
The State and Federal Governments have adopted ancient common law
which says “the King can do no wrong” in order to claim sovereignty of the
state over the citizens that have conceived and formed it. Those that form
governments and alter reform and abolish governments as they see fit for the
protection of their properties are the sovereign and no other. The citizens are
sovereign over the state they create and no prior common law can stand opposed
to that in
There need not be legislative law made that nullifies, voids, alters, modifies, etc. common law if that common law is in contradiction to the constitution on its face. The Texas claim of sovereignty over the citizens of Texas via the common law that the king owns all the property and therefore the king can do no wrong and the king cannot be sued in his own court is contradictory to the Texas Constitution which is the superior law in Texas and the first act of the sovereign people in the creation of the state of Texas. Only law or parts of law that are not repugnant remain in effect until altered or abolished by the legislature.
If the repugnant parts of the monarchial common law in existing in each state prior to the Constitution of each state and the federal government is not altered and can override or nullify contradictions to it in the Constitution, then what law could the legislature pass to alter or modify or abolish the old monarchial common law? Since the Constitution itself is an act of the legislature or representatives of the people and it is held not to alter the common law prior to it, what law could be passed that would alter it? This is absurd to suggest that something prior to the creation of the state has superiority over the state and be contradictory to the state. The constitution is the superior law of the land and no prior common law in contradiction to it may stand.
Since there are no statutory laws creating sovereignty or
sovereign immunity for the state of
“All laws and parts of laws now in force in the State of Texas, which are not repugnant to the Constitution of the United States, or to this Constitution, shall continue and remain in force as the laws of this State, until they expire by their own limitation or shall be amended or repealed by the Legislature.” (Bolding added)
Therefore, since sovereign immunity of the state over its own
citizens to do them harm and damage without recourse is repugnant to the
Constitution of Texas there need not be any law passed to alter, amend or
abolish it. Since the constitutionality
of common law is the jurisdiction of the Judicial System of Texas and Sovereign
Immunity is a common law adoption, this suit challenging sovereign immunity of
the state is within the jurisdiction of the Judicial System of Texas and no
other branch. This provision of the Constitution is the filter that automatically
removes common law which is repugnant to our new world in
Sec. 1 Freedom and Sovereignty of the State.
“
Sec. 2 Inherent Political Power; Republican Form
of Government.
“All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient.”[2] (Bolding added)
Sec. 3 Equal Rights.
“All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.[3]”
This Court is charged with finding a term that would be consistent with all the other terms and their meanings in the Constitution. What can the Court call the people described in Art. 1 Sec 2? Is the term for them not sovereignty? What is the supreme authority to rule, create and destroy government called? Is it not called Sovereignty? Therefore the correct titles for Sec 1 and 2 should be: Sec. 1 - The State of Texas has the Delegated Power to Act for the Sovereign Citizens of Texas and is Free and Independent; Sec. 2 – The Sovereignty of the Citizens of Texas (presumes Republican Form of Government).
It is clear from Art. 1 Sec. 2 that the people are sovereign and
that the present state of
“No person's property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created under its authority shall be subject to the control thereof.”
Obviously, no citizen can have their property destroyed for the purpose of cleaning up river banks (use of the State) as alleged herein without compensation or consent. And certainly we cannot say that when the state, acting through its employees and agencies harms the reputation of a person by use of their position in the state knowing the falsehood of their actions, is immune when it is the false sovereign immunity claimed by the state that creates the culture and environment for the abuse of citizens. Therefore if the state cannot destroy property of citizens for a good purpose how much less for a bad purpose? Art. 1 Sec. 19 of the Texas Constitution further states that:
“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”
Certainly the court cannot say that “dismissal for want of
jurisdiction” in a suit against the state of Texas for property damage against
a citizen of Texas is “due course of the law of the land.” For it is clear that
the term “citizen” establishes the necessary standing to apply to the courts of
Texas when the state of Texas deprives the citizen of his properties so named
in Sec. 19. If it can be shown that GBRA and its employees Mr. William West Jr.
and David Welsch are not agents and employees of the state of
It is obvious that there must be a shift in what is viewed as
sovereignty to match what we perceive in our minds. If the king of
There is no positive law passed by the legislature of
The present state of the false perception of state sovereignty over its citizens is aided by the false precept that state sovereignty existed prior to the Constitution and nothing but the passage of new law can modify this supposed reality. This fiction is codified in the Texas Civil Practice and Remedy Code as the result of the Texas Tort Claims Act. The modern view of state sovereignty is identical to the old monarchial idea that the king owned all the property and the only way he could ever invade the right of another was for the king to waive it or grant some property to another. But the truth is that the king never possessed sovereignty over the people of the kingdom either. The people made the king and its office and its power for their benefit and the king never possessed immunity to harm an individual in his life, liberty or possessions.
The king never owned the property as was mistakenly believed by
most. All people own their own lives, liberty and possessions and they do not
have power to pass that those properties to another. Therefore the state of
The Citizen can only delegate the authority each holds in
themselves to protect their property to their delegates. And since no person
has a right or authority to invade the life, liberty and possessions of another
they cannot delegate such authority to government. Therefore, the state of
Now if the constitution of Texas was not repulsive to the idea of state sovereignty and sovereign immunity over its citizens, but positively granted that power over the citizens of Texas and expressly stated that the courts could not hear cases against the state for property damage by its own citizens, we would have before us a communist nation where no one would have property consisting of life, liberty and possessions that the state could not infringe upon. Here no one would expect to be heard in court except where one of the comrades had hurt another comrade. This is where one would expect to be dismissed for want of jurisdiction, want of standing, want of property, want of sovereignty, or want of “all political power inherent in the people.” But we do have a constitution that says that state sovereignty over the citizen is repulsive and repugnant.
It has been established, in gross error, in American Jurisprudence that state sovereignty over its citizens has been acknowledged and granted to them by the U.S. Constitution under the 11th Amendment:
“The roots of sovereign immunity from tort liability extend to
medieval
This grant then would deny the citizens of each state the
benefits of the American Revolution and its hard won fight against the crown of
“The Judicial power of the
How could any honest man read that from the U.S. Constitution and
conclude that it meant that no citizen of
The 11th Amendment is clearly addressing the sovereign
of one state suing the representative agency of another group of sovereigns.
The Plaintiff is not suing the State of
The following quote from American Jurisprudence illustrates the modern
delusion that the states in post revolution
“The general principle of jurisprudence that the sovereign
cannot be sued without its own consent applies with full force to the several
states of the
“Since the doctrine of sovereign immunity was part of the common law before the adoption of the state constitution, it has been held that a constitutional provision that the common law should remain in force until altered by the legislature makes sovereign immunity part of the constitutional law of the state, subject to the right of the legislature to alter it by enactment of a law.”[5] (Bolding added)
The foregoing could not have been written in 1795 without serious ramifications for the author. It should be obvious to every American that the proposition that the state has become the king, and that it can do no wrong, is repugnant to the Constitutions Americans have died for.
The state has come up with substitute reasons to move itself into the position of a monarchial state where all property is vested in the state. Therefore it is not so clear regarding the “social policy” of the state to:
· Avoid “burdensome interference;”
· preserve control of “state funds, property, and instrumentalities;”
· maintain “public safety;”
· assure “proper administration”
· etc.
But without much further thought, this too is dismissed as
ridiculous because the whole purpose of civil government is to protect the
lives, liberties and possessions of every member in it. First, it is presumed
that suing the state by a citizen for property damage would be “burdensome
interference.” What is the state doing greater than protecting the property of
its citizens that it cannot be interfered with to return to its duty? What is
the state doing with the “funds and property and instrumentalities” of the
citizens of
Has the state of
The earliest case record in the state of
“A state cannot be sued in her own courts without her own consent, and then only in the manner indicated by that consent.”[6]
“A mandamus is not a process that can be resorted to against the state without its consent”[7]
But the legal theory that no citizen of a state could sue their
state was and is a theory erroneously imposed upon that case in the perversion
of the 11th amendment to the U.S. Constitution passed in 1798. What is
meant by, “her courts?” They aren’t “her courts,” as if we were under the
Queen. They are OUR COURTS! They are the courts of the Citizens. The state claim
to sovereignty over the citizens of
The adoption of monarchial common law repugnant to the Constitution of Texas to dismiss all cases against the state brought by citizens of Texas for want of jurisdiction except where state has waived its usurped sovereignty from the citizens of Texas is an abrogation of Judicial responsibility to balance governmental power established by the Constitution of Texas Art. 2 Sec 1:
“The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”
The effect of the adoption of monarchial common law with the view that all property has been vested with the king or the state whereby it is falsely perceived that the state or king is sovereign reduces the judicial branch of government to a mere task master among slaves. The slaves are fooled into believing that their privileges are liberties under state sovereignty but none own any property or have any right that is not alienable under that false perception and legal theory. This is not the intent or express language of the Constitution of Texas.
It is the intent of the Constitution of Texas that the powers of
government be balanced to protect the citizens from governmental abuse
resulting from the concentration of power in only one or two of the other
branches resulting in crimes against the property of the citizen. It is the
intent of the Constitution that the judicial branch of government is to remain
open to the citizens of
It should be recognized that there is a change in the air when
the Supreme Court of the
There can be no sacrifice of the property of one for the greater
good for the greater number of people without the permission of that one
effected. It is only lawful for the government to commit the whole for the
protection of the property of one. This is the law of the land. Any system that
does the other is an enemy of
It is obvious that the only steps taken by the Texas legislatures
over the years has been to waive varying degrees of “sovereign immunity” which
it does not possess in the smallest increment. The citizen of
There is no point for the legislature to pass a law that denies
sovereignty and sovereign immunity on behalf of the state because it is already
in the Constitution on page 1 i.e., Art. 1 Sec 2. Therefore it is left to the judicial
branch to rightly discern the law as it is written and to reverse a lot of bad
case law based upon common law repugnant to the Constitution. It is the job of
the judiciary to take its place in the great balance of power in the state of
A state that can have sovereign immunity over its citizens to harm
property without recourse except where waived is in all practicality the owner
of the property. No man owns property unless it cannot be invaded by any one
else or any other agency without recourse. A condition where the state can
invade property and commit intentional torts has cast the citizen into a state
of nature without government at all. Sovereign immunity on behalf of the state
is the vesting of all property in the state and is unconstitutional in Post
American Revolution
Wherefore premises considered, the Plaintiff prays to the sovereign God above and upon earth in the person of Christ Jesus that this court would:
· Deny the Defendants’ “Plea to the Jurisdiction” which has been shown to be a perversion of Post Revolutionary American Constitutional Law that must finally be reversed;
·
Perceive that the judiciary of
·
Restore the property of every citizen of the
state of
·
Reclaim the balance of power and real
jurisdiction of the judicial system of
· Reinstate the Citizens of Texas, lost in a state of nature and war without recourse to a judge for damage to their properties, to a real lawful state with courts and judges to guard their lives, liberties and possessions from invasion by executives and legislators. Amen.
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 3370, on this the ____ day of ___________, 2004 to the following:
William S. Helfand
Chamberlain, Hrdlicka, White, Williams & Smith
Attorneys at Law
___________________________
Table of Contents:
1. Plaintiff is Injured but Exhilarated
and Thankful
2. Plaintiff Adopts Prior Briefs and
Responses
3. Plaintiff Adopts Exhibit A
“SOVEREIGNTY” attached as part of this response
4. Government cannot Adopt Common Law
in Contradiction to Constitution
4.1. Citizens are sovereign because they
hold supreme power
4.2. Common Law is automatically
repealed if repugnant
4.3. Automatic Repeal of Repugnant Law
Absolute
4.4. The Constitutional Common Law
Filter
4.5. What would we call the Citizen
under Art. 1 Sec 2?
4.6. Was Texas designed to do what it
was to prevent?
4.7. Can Texas harm for evil while
forbidden to harm for good?
4.8. Is Dismissal for Want of
Jurisdiction Due Course?
5. The Mystery of State Sovereignty and
its Source
5.2. No legislation granting sovereignty
or immunity to state
5.3. The Fiction behind the Texas Tort
Claims Act and TCPRC
5.4. The Monarchy Never held Sovereignty
to adopt by Common Law
5.5. The Sovereign only Delegate limited
Authority to Act for Them
5.6. There simply is no State
Sovereignty
6. Perversion of the 11th
Amendment to the Constitution of the United States
6.1. Historical search for State
Sovereignty over the Citizen
6.2. The 11th Amendment is
Silent on Citizens suing their own State
6.3. Social Policy to substitute for
Royal Prerogative
6.4. State fears the interference from
its Citizens
7. Perversion of Case Law in Texas
8. Voluntary Abrogation of Judicial
Power is Unlawful
8.1. Court closed against the state is
joined to Executive Branch
8.2. Are Courts to be Task Masters or
Guardians of Liberty
8.3. Post 9/11 America needs the Court
Open to Guard Liberty
8.4. There is a Change in the Air
8.5. Protection of Individual Property
is Greater Good for Greater Number
9. Reversal of the Usurpation of
Sovereignty Lawful Mandatory Judicial Remedy
9.1. The Legislature is helpless to
address Sovereignty
9.2. The correction of Sovereignty is
strictly a Judicial Matter
10. State Sovereignty over Citizens is
Seizure of All Property
[1] Even
though this phrase is titled with the word sovereignty
that term is not described until sec 2 below and it is properly attributed to
the citizens of
[2] Herein is the true definition of sovereignty made.
[3] Public emoluments or privileges do not include pillage plunder of private property. Therefore, government (or set of men) cannot harm property without recourse for they are not above the law.
[4] § 2 Historical basis of immunity [57 Am Jur 2d MUNICIPAL, COUNTY, SCHOOL, AND STATE TORT LIABILITY]
[5] § 99 General rule as to state's immunity from suit [72 Am Jur 2d STATES, TERRITORIES, AND DEPENDENCIES]
[6] States key 191.2(2) Most Cited Cases (formerly 360k191(1.2)); States key 191.4(1) Most Cited Cases (Formerly 360k191(1.5)).
[7] Mandamus key 64 250k64 Most Cited Cases.