Cause No.
§
David Kent McDade, § in the COURT OF CRIMMINAL APPEALS
§ TRAVIS COUNTY
§ AUSTIN, TEXAS
Petitioner §
§ PETITION FOR
§ WRIT OF HABEAS CORPUS
§ BY A PEOPLE IN STATE
v. § CONSTRUCTIVE CUSTODY
§ (NOT SENTENCED TO DEATH)
§
City of Austin, "Officer Lee Knouse Badge # § Re: Austin Municipal Court
5931 ,""Supervisor," "Second Officer," Sherry § CASE NUMBER(S) 8171190, 8171191,
M. Statman, Mitchell B. Solomon, Barbara L. § 8171192,8171200,8171201/8263463
Garcia, Stephen T. Vieorito, Bianca Bentzin, §
Devin Rourke, Mathew McCabe, Robert § (VERIFIED)
Davis, Diane Montoya, Michelle Rich, Ryan §
Zapata, and Deshone Sauls, § Date: August 19, 2015
§
§Magistrate:_ _ _ _ _ __
Respondents §
§
COMES NOW David Kent McDade (hereinafter McDade/"People"), a People of Texas, and
petitions the above-entitled court of record for a writ of habeas corpus to inquire into the cause of
constructive custody and restraint ofliberty of said McDade who is a People ofTexas neither in
the capacity of a citizen ofthe United States nor a citizen ofthe State ofTexas, and who is not
subject to the jurisdiction of the following Custodians:
RECEIVED IN
COURT OF CRIMINAL APPEALS
City of Austin (a legal fiction) AUG 19 2015
301 West 2"d
Austin, TX. 78701
Sherry M. Stateman (a Austin Municipal Court Judge),
WRIT OF HABEAS CORPUS Page 1 of27
700 E. Seventh St.
Austin, TX. 78701
Barbara L. Garcia (a Austin Municipal Court Judge),
700 E. Seventh St.
Austin, TX. 78701
Mitchell B. Solomon (a Austin Municipal Court Judge),
700 E. Seventh St.
Austin, TX. 78701
Stephen T. Vigorito (a Austin Municipal Court Judge),
700 E. Seventh St.
Austin, TX. 78701
Diane Montoya, (an Affiant),
700 E. Seventh St.
Austin, TX. 78701
Ryan Zapata, (an Affiant),
700 E. Seventh St.
Austin, TX. 78701
Deshone Sauls, (an Affiant and a City Deputy Clerk),
700 E. Seventh St.
Austin, TX. 78701
Michelle Rich, (a City Deputy Clerk),
WRIT OF HABEAS CORPUS Page 2 of27
700 E. Seventh St.
Austin, TX. 78701
Devin Rourke (an Assistant City attorney),
700 E. Seventh St.
Austin, TX. 78701
Bianca Bentzin (Chief Prosecutor City of Austin),
700 E. Seventh St.
Austin, TX. 78701
Mathew McCabe (Assistant City Attorney),
700 E. Seventh St.
Austin, TX. 78701
Robert Davis (Assistant City Attorney),
700 E. Seventh St.
Austin, TX. 78701
Lee Knouse (Austin Municipal Police Officer),
715 E. Eighth St.
Austin, TX. 78701
(
"Supervisor" (Austin Municipal Police Officer),
715 E. Eighth St.
Austin~ TX. 78701
"Second Officer" (Austin Municipal Police Officer),
WRIT OF HABEAS CORPUS Page 3 of27
715 E. Eighth St.
Austin, TX. 78701
LAW OF THIS CASE
The accompanying Attachment "A" is incorporated by reference as though fully stated herein.
Petitioner May Prosecute A Writ Of Habeas Corpus To Inquire Into The Cause Of The
Restraint.
1. Application for a writ of habeas corpus shall be in writing signed and verified by the person
for whose relief it is intended or by someone acting in his behalf. [28 USC Sec. 2242]
2. Every person unlawfully committed, detained, confined or restrained of his liberty, under any
pretense whatever, may prosecute a writ ofhabeas corpus to inquire into the cause of such
imprisonment or restraint.
The writ of habeas corpus is a writ of right, and shall never be suspended. The Legislature shall
enact laws to render the remedy speedy and effectual. [The Texas Constitution Art. 1. Bill of
Rights Sec. 12.], The writ ofhabeas corpus is the remedy to be used when any person is
restrained in his liberty. [Code of Criminal Procedure Title 1. Code of Criminal Procedure Chap.
1. General Provisions Art. 1.08], [Code of Criminal Procedure Title 1. Code of Criminal
Procedure Chap. 11. Habeas Corpus], [Ex parte Rich, 194 S. W.3d 508,510], [Ex parte
Robinson, 641 S. W.2d 552, 553]
3. Availability of writ. Writ of habeas corpus is available to allow presentation of questions of
law that cannot otherwise be reviewed, or that are so important as to render ordinary procedure
inadequate and justify extraordinary remedy. [Ex parte Robbins, 360 S. W.3d 446, 458 (Tex.
Crim. App.20 11 ),
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4. Scope of Writ. The writ of habeas corpus is intended to be applicable to all such cases of
confinement and restraint, where there is no lawful right in the person exercising the power, or
where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by
law. [Tex. CCP ChapllArt. 11.23]
Constructive Custody. The availability of the writ of habeas corpus does not depend on the
actual detention of petitioner in prison. It is also available where petitioner is constructively in
custody and subject to restraint [Tex. CCP Chap11Art. 11.21, 22,23] [Ex parte Canada, 754
S.W.2d 660,666 (Tex.Crim.App.1988)] [Ex parte Robinson, 641S. W.2d 552,553] (In re
Petersen(1958)51 Cal2d 177,181,331 P2d24).
5. This habeas corpus is prosecuted because the taking of the People into custody was without
due process. The respondent's court acted as a nisi prius court, except that the jurisdiction was
fraudulently acquired without David Kent McDade's volunteering or knowingly agreeing to the
proceeding. Gonzalez v. United States, 553 U.S. 242 (12 May 2008) ("If the parties consent")
(construing 28 U.S.C. § 636(b)).
6. The nisi prius court is in fact a nisi prius court falsa because respondent has taken unlawful
dominion of McDade so as to deprive him of his court. McDade should be immediately released
so that he may return to the jurisdiction of his own court.
7. McDade is subject to unlawful constructive custody and restraint. McDade is thus petitioning
for a writ of habeas corpus.
Restraint. By "restraint" is meant the kind of control which one person exercises over another,
not to confine him within certain limits, but to subject him to the general authority and power of
the person claiming such right. [Tex. CCP Chapl1Art. 11.22]
WRITOFHABEASCORPUS Page 5 of27
Because No Jurisdictional Basis For Custody Has Been Proffered Or Stated A Writ Of
Habeas Corpus Should Issue.
8. Broad Meaning of Jurisdiction on Habeas Corpus. For purposes of the writ of habeas corpus,
as for purposes of prohibition or certiorari, the term "jurisdiction" is not limited to its
fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if they
are determined to be in excess of the court's powers as defined by constitutional provision,
statute, or rules developed by courts (In re Zerbe (1964) 60 Cal2d 666, 667-668, 36 CalRptr 286,
388 P2d 192).
9. The liberty of the People is restrained by the Custodians:
A. McDade is in constructive custody by color of the authority of the State of
Texas and/or the Custodians, and was committed for trial before some court
thereof; [28 USC 2241(c)(l)]
B. McDade is in custody in violation of the Constitution or laws of the United
States; [28 USC 2241(c) (3)]
10. Although the true cause of custody ofMcDade is unknown, McDade on information
believes that the claim or authority is under color of law in violation of the Constitutions for the
Republic of Texas and the United States of America. The true basis for jurisdiction by the
Custodians has never been proffered or stated. McDade, as one of the People, has never
knowingly or voluntarily agreed to such jurisdiction. McDade has disputed and disputes any
factual allegation that he has so agreed.
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11. The jurisdictional facts leading up to the custody and restraint are unknown to the People.
The jurisdictional facts by which the Custodians presume to continue to deprive the People of his
court are unknown to the People.
12. The Peo~le, on information and belief, allege that the Custodians are funded in whole or in
part by the City of Austin. Thus motivated, they are acting, under color of law as contractual
agents of their principal, the City of Austin.
13. The Custodians do not state and the proceedings do not show any lawful authority or
jurisdictional facts enabling the Custodians to lawfully take dominion over a People of the
United States. Lacking such jurisdiction, their actions can only be under color of law, violating
due process, in order to execute their own private agendas, whatever they may be. Therefore a
writ of habeas corpus should issue.
A Writ of Habeas Corpus Is A Proper Remedy Because Custodians Have Engaged In
Prosecutorial Vindictiveness; Burden Is Upon Respondents To Rebut Presumption.
14. Petitioner as normally bearing burden of proving facts on which claim for relief is based, but
if possibility that increased or additional charges violating due process supporting charge of
prosecutorial vindictiveness is at issue, petitioner as only needing to demonstrate facts giving rise
to presumption of vindictiveness at which time, even on habeas corpus, burden shifts to people to
rebut presumption. In re Bower (1985) 38 Cal3d 865, 872, 215 CalRptr 267, 700 P2d 1269.
15. McDade is under the restraint of a court not of record. The proceedings came about as1a
result ofDeprivation of Rights under the Color of Law, Conspiracy Against Rights,
Conspiratorial Treason, Judicial Misconduct, Malicious Abuse of Legal Process, and
~TOFHABEASCORPUS Page 7 of27
Prosecutorial Vindictiveness. The following facts support the claim of the prosecutorial
vindictiveness:
I.
1. On or about the 8th day of October, 2014, at approximately 8:17am McDade was stopped
by a person identified as a "City of Austin Municipal "Police Officers."
2. The person(s) who seized, accosted, and unlawfully Aggravatedly Imprisoned McDade
have been identified only as "Officer Lee Knouse Badge # 5931" hereinafter, Knouse #
5931 and his "Supervisor" hereinafter Supervisor and "Second Officer" hereinafter known
as "Unknown Officer" (all hereinafter collectively "Infringers");
3. At the time qfthe "traffic/transportation stop," McDade was "arrested" which amounted to
McDade being seized, accosted, and unlawfully imprisoned by the Infringers upon the
initiation of the stop for the purpose of issuing Citation Number(s) 14092560,
14092561(Attachment B). This fact is attested to by the Infringers admittance of such at the
time of "traffic/transportation stop." McDade was forcibly issued Citation Number(s)
14092560, 14092561 under threat, duress, and coercion by the Infringers.
4. At the time of the ''traffic/transportation stop", and unlawful imprisonment McDade
requested to speak to Knouse # 5931 's Supervisor (name to be determined), during which
time another officer "Unknown Officer" arrived; when Knouse # 5931 's Supervisor
arrived McDade informed the Supervisor of the situation and the Supervisor and other
"Unknown Officer" all of the above identified officers took part in and allowed the
unlawful imprisonment to continue until forcibly issued Citation Nwnber(s) 14092560,
14092561 were completed.
5. At the time of the "traffic/transportation stop", and unlawful imprisonment McDade was
traveling viatically upon the public right-of-way in a private conveyance for his own
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private business and pleasure while utilizing due diligence and care to ensure that his
actions did not cause harm to other person(s) or property and no such harm had taken place.
6. McDade was not engaged in causing harm to any person, property, or thing, nor was
McDade providing the Infringers with any probable cause to believe that McDade was
engaging in any actions to cause harm to any person(s) or property, or thing but, McDade
was still stopped, seized, accosted, and unlawfully imprisoned by the Infringers without
any apparent probable cause to believe such activities were taking place.
7. McDade asserts that at the time of the "traffic/transportation stop" he was not causing harm
to any person or property or being violent in any way. McDade asserts that he is/was doing
nothing more than exercising a unalienable, substantive Right and Liberty to Travel freely
and unencumbered and the use of his private property for Private Travel.
8. The People believe that the Harassment, unlawful Aggravated Imprisonment, and the
issuing of the Citations absent any lawful jurisdiction; beginning the unlawful prosecution
and Deprivation of Rights under color of Law of McDade is the first sign of a vindictive
prosecution.
II.
9. On or about the 2"d of December 2014, Diane Montoya and Michelle Rich conspired
together absent any lawful jurisdiction and filed five false complaints (Attachment D)
against McDade.
10. The People believe that the issuing of the five false complaints absent any lawful
jurisdiction against McDade, furthering the unlawful prosecution of McDade, is the second
sign of a vindictive prosecution.
III.
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11. On or about the 3rd of December 2014, prosecutor Mathew McCabe filed a motion for
Continuance and Mr. Mitchell B. Solomon absent any lawful jurisdiction issued an Order
granting the motion for Continuance (Attachment E) for jury trial, furthering the unlawful
prosecution of McDade.
12. The People believe that the _filing ofthe motion and the issuing of Order for Continuance
absent any lawful jurisdiction, furthering the unlawful prosecution of McDade is the Third
sign of a vindictive prosecution.
IV.
13. McDade received a traffic Citation Number(s) 14092560, 14092561 from the City of
Austin Police Dept., McDade filed documents in the Austin Municipal Court in answer to
said citation in the form of a Special Appearance Challenging Personal and Subject matter
Jurisdiction and Venue I motion to dismiss, a Declination to Plea and an Mfidavit of not
Engaged in Transportation (Attachment F), to show on the record that the court nor the
Counterdefendants had any lawful jurisdiction over the matter or McDade.
14. The court and or Counterdefendants do not have any proof of subject matter jurisdiction in
the form of fact, law, and evidence on the record that McDade was engaged in the
regulatible Commercial activity of Transportation, which the lack of vacates subject matter
jurisdiction. For the/them to prove subject matter jurisdiction they have to prove that the
statue gives them jurisdiction in this particular alleged offence and prove every element as
to what grants them jurisdiction over McDade. The Affidavit Not in Transportation asserts
conclusively that neither the court nor Counterdefendants has such fact, law, or evidence.
15. The Special Appearance/ motion to dismiss addresses both the lack of notice issue and the
lack of subject matter /evidence issue, so you can see the validity ofMcDade's challenge to
both instances of jurisdiction; and McDade's reason to decline to plea to a court lacking hot
only jurisdiction but also standing. At the present time the court and the Counterdefendants
are moving forward absent any lawful jurisdiction.
16. After filing papers in this matter Mrs. Sherry M. Statman, on or about the 11th ofNovember
2014 sent an order (Attachment E) to McDade in the mail addressing his filings in a rude
and threatening manner.
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17. Jurisdiction is not accomplished simply by physicality as presumed by Mrs. Sherry M.
Statman in her order; this assertion of jurisdiction just by physicality claim is just a judicial
avoidance tactic, to avoid on point the true lack of jurisdiction issue. McDade is quite sure
the arguments in the documents that McDade filed, properly and completely address the
critical issues.
18. Mrs. Sherry M. Statman apparently does not understand that a challenge to jurisdiction and
determination of jurisdiction is always a civil matter, that in and of itself is never criminal.
19. A special appearance to challenge jurisdiction of the court is proper until jurisdiction is
proven on the record, and as is well known even to McDade is the fact subject matter can
be challenged at any time even on appeal.
20. McDade realizes that just the fact of challenging jurisdiction does not negate its existence,
however when challenged in fact, law, and evidence the court is absolutely obligated to
stop all proceedings, meet the challenge with fact, law, and evidence on the record
conclusively and substantively before continuing.
21. The challenge is civil, once jurisdiction has been properly established in the record as due
process demands then and only then can the judge lawfully make the assertion that a
special appearance is no longer valid.
22. Mrs. Sherry M. Statman, especially as the presiding judge should be perfectly aware that
the moment that an individual makes a general appearance in-personam jurisdiction has
been waved, only by the making of a special appearance may a challenge to jurisdiction
including in-personam jurisdiction be maintained by the accused.
23. Mrs. Sherry M. Statman states in her Order (Attachment E) that there are no valid pretrial
actions or issues that have been raised. McDade did/does rebut and reject that
presumption/assertion with fact, law, and evidence on the record under oath. Another
attempt to deny the truth, facts, and evidence and in turn McDade's rights.
24. McDade has a different viewpoint; McDade believes that a challenge to jurisdiction is a
critically valid issue in any action, against him or anyone for that matter especially a
supposed criminal one.
25. McDade believes that instead of the issues In Mrs. Statman's Order being valid issues,
McDade believes they are just more judicial avoidance tactics and also a cunning way of
intimidating someone (witness tampering) who is raising extremely valid issues before the
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court; ones the court and Custodians must prove on the record before moving forward to
merits: which by the way McDade has never seen the court and Custodians do, they just
gloss over the necessary elements as if they are secondary in nature or as stated in the
order, one of physicality.
26. This is not the first time McDade has had this type of experience with Mrs. Sherry M.
Statman, McDade has included documents (Attachment G) including a transcript from an
earlier due process and substantive rights violation encounter on July 26th, 2012. .
27. In this encounter McDade had filed similar documents with the Austin Municipal Court on
an alleged traffic violation. On McDade's.second "visit" to the court McDade was brought
into an empty courtroom with only Mrs. Sherry M. Statman, the prosecutor, the clerk, and
the court reporter (private hearing).
28. McDade was immediately verbally abused and threatened by Mrs. Sherry M. Statman; it
was not a "hearing" as much as it was a verbal thrashing. No one else spoke once Mrs.
Sherry M. Statman started including the prosecutor, it was very much a one sided affair.
Then Mrs. Sherry M. Statman immediately left the courtroom, although she came quickly
back when she was told that McDade had a recorder and then verbally threatened McDade
again. This was before McDade really knew what was supposed to happen in a hearing,
along with being taken aback by Mrs. Sherry M. Statman's behavior; McDade was stunned
to the degree that McDade did not even object to the occurrence, although McDade knew at
the time his rights had been violated McDade was not learned enough to defend himself.
29. McDade believes that not only is this another instance of judicial misconduct, and of
witness tampering, by threat, duress, and coercion. McDade also believes it to be clearly a
case of Malicious Abuse of Legal Process.
30. Actually in this matter McDade is the one who is really and constructively being harmed.
The court and prosecution have a duty not to violate McDade's unalienable, substantive
Rights, they have breached that duty which is causing McDade immediate and direct haqn
by loss of Rights and Liberty, emotional distress, loss of financial. gain from time off work,
and time to prepare for this action against him plus costs.
31. The People believe that the issuing of an Order to set cases for trial without due process
and threatening McDade with sanctions per TRCP 1.052(e) absent any lawful jurisdiction
furthering the unlawful prosecution of McDade is the fourth sign of a vindictive
prosecution.
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v.
32. On February 4th, 2015 McDade went to court to file a common law Counterclaim for
Trespass and Trespass on the Case in the Superior Court of Texas, (Attachment C)
concerning the traffic citation actions against McDade, and go to a pre-trial hearing.
33. McDade filed the Counterclaim and also a Writ of Prohibition (Attachment C) which
explicitly states in no uncertain terms that the Judiciary of the inferior court must not act
outside their magisterial capacity within the Superior Court. Then went to a scheduled
hearing on previously filed- motions in the action against him.
34. As stated in the Counterclaim, McDade filed suit against Mrs. Sherry M. Statman, "Officer
Knouse Badge # 5931 ," "Supervisor," and "Second Officer".
35. McDade verbally announced the presence of the Superior Court and that it was in session at
the beginning of the hearing.
36. McDade verbally accepted the oaths of all the officers of the court and bound them to it.
37. Mrs. Barbara L Garcia continued in the proceeding absent any lawful authority, committing
fraud upon the court.
38. The record shows that this court of record held a hearing on February 4, 2015 for the
purpose of considering Counterplaintiff's Motion for Discovery and Motion for Nature and
Cause.
Counterplaintiff was present in personam, and Counterdefendants, were absent.
39. The record shows (audio record, witness testimony, and Order of court) that the magistrate
did not conduct the hearing in accord~ce with the foundation rules of a court of record
(Law of Case, Page 2, Court of Record, Lines 3, 4). Instead, the magistrate conducted her
own court, without notice or concurrence of the parties, and without due process. Not
satisfied with the lawful rules of court, she imposed her own rules and at other points rules
of another jurisdiction foreign to this court.
40. Further, without proper authority, the magistrate stepped out of her function as a magistrate
and, by her actions and statements, figuratively assumed the cloak of a tribunal.
WRITOFHABEASCORPUS Page 13 of27
41. The genius of a court of record is not to be undermined. It is the birthright of every
American to settle issues in a court of record, if he so chooses.
42. Throughout the audio record, the record shows that the rules of the court were not
followed, that the magistrate attempted to function as a tribunal, and that the court was
ineffective in furthering the goal of justice for all. These failures to follow the prescribed
procedures are sufficiently disruptive to the goal of providing fair justice to the degree that
·the court finds it necessary to issue a writ of error quae coram nobis residant.
43. McDade verbally objected to every unlawful action of Mrs. Barbara L Garcia and Mrs.
Devin Rourke throughout the proceedings including but not limited to the presentment of
the false complaints and the unlawful Order.
44. When Mrs. Barbara L Garcia made a "Order" (Attachment E) at the hearing in the presence
of the Superior Court before witnesses she committed an act ofTreason by violating her
oath of office, Conspiracy Against Rights and Deprivation of Rights Under Color of Law
by acting outside her lawful jurisdiction; Judicial Misconduct, by acting as a "judge" in a
Superior Court of Record and was in contempt of The Superior Court.
45. The Order McDade referred to in the previous paragraph was an Order to not allow any
motions except discovery, Mrs. Barbara L Garcia stated in the Order that all discovery was
handed over to McDade, which is not factual.
46. The Discovery motion requests multiple other pieces of evidence that Counterdefendants
did not provide, and of the one they did provide, the CD with the video of the "traffic stop" it is
missing the video or is defective.
47. McDade had also filed a motion for nature and cause, which is his substantive right,
Plaintiff only provided McOade with a copy of each of the complaints, a complaint is not nature
and cause in the form of an Information pursuant to the U.S Const. Amend. VI and Texas Const.
Art.l Sec. 10.
48. Mrs. Barbara L Garcia and the prosecutor Mrs. Devin Rourke worked in concert to
accomplish these felony acts of Conspiratorial Treason, Conspiracy against The Superior Court,
Conspiracy Against Rights, Deprivation of Rights Under Color of Law, Judicial Misconduct,
Malicious Abuse of Legal Process, Fraud upon the Court, and Contempt all under the color of
law. [Title 18 USC. 241, 242]
49. Mrs. Barbara L Garcia and prosecutor Mrs. Devin Rourke failed to even so much as look at
McDade's filings or simply chose to ignore them, before committing these acts; they also failed
to object to any of McDade's filings on the record. As the record shows.
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50. All these acts violating McDade's substantive rights and the law, under the color oflaw
including but not limited to due process were all perpetrated absent any lawful jurisdiction,
which the Counterdefendants and the court have lacked and have yet to prove with facts, law arid
evidence on the record, from the moment the "traffic stop" was initiated.
51. The People believe that the issuing of an Order to not allow any motions except discovery
in violation of due process absent any lawful jurisdiction, furthering the unlawful prosecution of
McDade is the fifth sign of a vindictive prosecution.
VI.
52. McDade went to court on March 2, 2015 to file a common law First Amended Action for
Trespass and Trespass on the Case in the Superior Court ofTexas(Attachment H), concerning
the traffic citation actions against McDade.
53. McDade filed the First Amended Action for Trespass and Trespass on the Case in the
Superior Court ofTexas and also a Writ of Error (Attachment H) March 6, 2015 which details
and rescinds the order of February 4, 2015 by Mrs. Barbara L. Garcia, the Writ of Error which
explicitly states in no uncertain terms that the Judiciary of the inferior court must not act outside
their magisterial capacity within the Superior Court.
54. On or about March 3, 2105 Mrs. Sherry M. Statman issued an order (Attachment E)
denying all motions and documents tendered by. McDade, violating McDade's Rights to due
process. And access to the court.
In other words, contrary to Sherer v. Cullen cited below, the court not of record effectively
sanctioned McDade for exercising a well-established right to challenge jurisdiction.
"There can be no sanction or penalty imposed upon one because of this exercise of
Constitutional rights." [Sherer v. Cullen, 481 F 946.]
55. The record shows (Order of the Court) (Attachment E) that the magistrate did not conduct a
hearing in accordance with the foundation rules of a court of record (Law of Case, Page 2, Court
of Record, Lines 3, 4). Instead, the magistrate conducted her own court, without notice or
- concurrence of the parties, and without due process. Not satisfied with the lawful rules of court,
she imposed her own rules and at other points rules of another jurisdiction foreign to this court.
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56. Further, without proper authority, the magistrate stepped out of her function as a magistrate
and, by her actions, figuratively assumed the cloak of a tribunal.
57. The genius of a court of record is not to be undermined.
58. Through the record, the record shows that the rules of the court were not followed, that the
magistrate attempted to function as a tribunal, and that the court was ineffective in furthering the
goal of justice for all. These failures to follow the prescribed procedures are sufficiently
disruptive to the goal of providing fair justice.
59. The People believe that the (Order of the Court) denying all motions tendered by McDade
and further threatening of McDade through sanctions, furthering the unlawful prosecution of
McDade is the sixth sign of a vindictive prosecution.
VII.
60. On or about March 3, 2105, Prosecutor Matthew McCabe filed a Motion for Continuance
for jury trial, Mr. Stephen Vieorito Issued an Order granting the motion, the above mentioned
persons conspired together absent any lawful jurisdiction; furthering the unlawful prosecution,
perpetration of the aggravated unlawful imprisonment, and violation of McDade's substantive
Rights, and Liberties under the color of law.
61. The record shows (Order of the Court) (Attachment E) that the magistrate did not conduct a
hearing in accordance with the foundation rules of a court of record (Law of Case, Page 2, Court
of Record, Lines 3, 4 ). Instead, the magistrate conducted his own court, without notice or
concurrence of the parties, and without due process. Not satisfied with the lawful rules of court,
he imposed his own rules and at other points rules of another jurisdiction foreign to this court.
62. Further, without proper authority, the magistrate stepped out of his function as a magistrate
and, by his actions, figuratively assumed the cloak of a tribunal.
63. Through the record, the record shows that the rules of the court were not followed, that the
magistrate attempted to function as a tribunal, and that the court was ineffective in furthering the
goal of justice for all. These failures to follow the prescribed procedures are sufficiently
disruptive to the goal of providing fair justice.
64. The People believe that the Order granting the motion for continuance, furthering the
unlawful prosecution of McDade is the seventh sign of a vindictive prosecution.
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VIII.
65. On December 2"d, 2014 a false complaint was generated by Affiant Diane Montoya in cause
number 8171201 on 12/2/14 in that it states that McDade refused to give his name to Officer Lee
Knouse. It was later dismissed then another complaint was generated, number 8260842.
66. A false complaint by Affiant Deshone Sauls was generated, in cause number 8260842 on
4/21115 in that it states that McDade gave a false Date of Birth to Officer Lee Knouse. It was
later dismissed then another complaint was generated number 8263463. (Attachment D)
67. A false complaint was generated by Affiant Ryan Zapata in cause number 8263463 on
4/27/2015 three days before trial in that it states that McDade refused to give his Date of Birth to
Officer Lee Knouse.
68. On April 30th, 2015 McDade was prosecuted under the original cause number 8171201 and
found guilty, having not been given a copy of the complaint number 8263463 until the day of
trial.
69. The People believe that the issuing of false complaints, dismissing the complaints and then
refiling the complaints without giving McDade proper and timely notice to reply to said
complaints is a due process violation and Conspiracy Against Rights, and Deprivation of Rights
under the Color of Law; furthering the unlawful prosecution of McDade is the eighth sign of a
vindictive prosecution.
IX.
70. Actions by Mr. Stephen T.Vigorito and Prosecutor Robert Davis are detailed as follows:
71. On or about April 30th, 2015 the above mentioned persons conspired together absent any
lawful jurisdiction; and then and there Mr. Stephen Vieorito and Prosecutor Robert Davis held a
trial in the presence ofMcDade, furthering the perpetration of the aggravated unlawful
imprisonment, unlawful prosecution, and violation of McDade's substantive Rights, and
Liberties under the color of law.
WRIT OF HABEAS CORPUS Page 17 of27
72. The record shows (Order of court) (Attachment E) that the magistrate did not conduct a
hearing in accordance with the foundation rules of a court of record (Law of Case, Page 2, Court
of Record, Lines 3, 4). Instead, the magistrate conducted his own court, without notice or
concurrence of the parties, and without due process. Not satisfied with the lawful rules of court,
he imposed his own rules and at other points rules of another jurisdiction foreign to this court.
73. Further, without proper authority, the magistrate stepped out ofhis function as a magistrate
and, by his actions, figuratively assumed the cloak of a tribunal.
74. Through the record, the record shows that the rules of the court were not followed, that the
magistrate attempted to function as a tribunal, and that the court was ineffective in furthering the
goal of justice for all. These failures to follow the prescribed procedures are sufficiently
disruptive to the goal of providing fair justice.
75. The People believe that the continuing Prosecution, Order granting the motion in L~e,
the Order and Adjudgement of Guilty, and Ord~r to Pay Fines, absent any lawful jurisdiction,
furthering the Conspiracy Against Rights and Deprivation of Rights under the Color of Law is
the ninth sign of a vindictive prosecution.
76. Briefly, the above events are summarized here:
EVENT 1. Unlawful traffic stop, no probable cause.
EVENT 2. Police harassment, unlawful imprisonment.
EVENT 3. Issuance of jurisdictionally baseless traffic citations.
EVENT 4. Filing of jurisdictionally baseless complaints.
EVENT 5. The Ignoring of all challenges to jurisdiction.
EVENT 6. Issuance of jurisdictionally baseless, threatening court order invalidating all
pretrial motions and to set cases for trial with no prior hearing.
EVENT 7. The ignoring of the filing and existence of McDade's common law
Counterclaim challenging jurisdiction.
EVENT 8. Issuance of jurisdictionally baseless, court order to not allow any motions
except discovery.
EVENT 9. The ignoring ofthe filing and existence of McDade's common law First
Amended Action challenging jurisdiction
WRIT OF HABEAS CORPUS Page 18 of27
EVENT 10. Issuance of jurisdictionally baseless, threatening court order denying all
pretrial motions and documents .
EVENT 11. The STATE'S dismissal and reissuing of charges to prevent McDade proper
due process.
EVENT 12. The continuation of prosecution absent any lawful jurisdiction.
EVENT 13. State's motion in Limine and granting of motion to prevent McDade from
bringing up prior jurisdictional objections at trial.
EVENT 14. The entering of"Guilty Pleas" against the objection of McDade.
EVENT 15. The false statement that McDade entered a plea of guilty contained in
judgement.
EVENT 17. Issuance of jurisdictionally baseless, court order and adjudgement of guilty.
EVENT 18. Issuance of jurisdictionally baseless, court order to pay fines.
77. Any one of the nine plus signs and 18 Events of vindictive prosecution, when taken singly
are not necessarily significant. Together, they evince a pattern that can only be the signature of a
vindictive prosecution.
78. The Custodians do not state and the proceedings do not show any lawful authority or
jurisdictional facts enabling the Custodians to lawfully take dominion over a People of the
United States. Lacking such jurisdiction, their actions can only be under color of law, violating
due process, in order to execute their own private agendas, whatever they may be (perhaps
barratry, i.e. the offense of frequently exciting and stirring up quarrels and suits, either at law or
otherwise). They are vindictive:
"Vindictive ... intended to cause anguish or hurt: Spiteful"
~TOFHABEASCORPUS Page 19 of27
[see Internet Merriam Webster Dictionary at
www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=vindictive ].
79. If, in their returns, the Custodians fail to prove the absence of vindictiveness, and proof of
Jurisdiction then the Custodians must release jurisdiction and custody of McDade back to the
jurisdiction of his own court. And the court should so order.
A Writ Of Habeas Corpus Is A Proper Remedy If Petitioner Has Reasonable Apprehension Of
Restraint Of Liberty.
80. Constraint by Reasonable Apprehension of Force. To justify issuance of the writ of habeas
corpus, constraint need not consist of actual physical force. Conduct inducing a reasonable
apprehension of force may be sufficient to restrain one ofhislher liberty (In re Rider (1920) 50
CalApp 797, 802, 195 P. 965).
81. McDade has a reasonable apprehension that the Custodians will exercise force to deprive or
restrain his liberty because by orders of the court not of record he has been required to
involuntarily appear in said court's proceedings, and has been restricted in his freedom; all
contrary to the people's denial of jurisdiction.
82. Further, when McDade demonstrated good faith in his appearances, he was still restricted
in his freedom.
83. Because of Custodians' history of abuse, a writ of habeas corpus is a proper remedy to
ensure that McDade is released to the jurisdiction of his own court.
84. "Henceforth the writ which is called Praecipe shall not be served on any one for any
holding so as to cause a free man to lose his court." Magna Carta, Article 34.
WRIT OF HABEAS CORPUS Page 20 of27
85. "No person shall be ... deprived oflife, liberty, or property, without due process oflaw."
U.S. Constitution, Amendment V.
86. In this matter McDade is a People of the United States. As such, without due process the
respondents have caused McDade to lose his court.
87. "No officer can acquire jurisdiction by deciding he has it. The officer, whether judicial or
ministerial, decides at his own peril. "Middleton v. Low (1866), 30 C. 596, citing Prosser v.
Secor (1849), 5 Barb.(N.Y) 607, 608.
88. Rhetorically, the question could be asked, "Is it an act of treason when a public official
takes unlawful dominion over the sovereign People of the United States? Could such state
officials be prosecuted under 18 USC 241and 242 which makes it a federal crime to deprive or
conspire to deprive, under color oflaw, any person of his rights.[ State officers may be held
personally liable for damages under 1983 based upon actions taken in their official capacities.
HAFER v. MELO, 502 U.S. 21 (1991) 502 U.S. 21]
89. In this case, strict compliance with the procedure was not followed. A necessary element is
that McDade must voluntarily and knowingly agree to any proceeding outside of the penumbra
of a court of record. McDade neither volunteered nor knowingly agreed to what must
necessarily be a strict nisi prius procedure. The element of due process is missing. Therefor a
writ ofhabeas corpus should issue.
The STATE May Not Diminish The Sovereign Rights Of David Kent McDade.
WRIT OF HABEAS CORPUS Page 21 of27
90. It is the design of our systems of jurisprudence that courts have no jurisdiction until a party
comes forth and declares a cause needing resolution. The particular jurisdiction depends upon
how the cause is declared by the moving party. Jurisdiction may be administrative, at law, in
equity, or in any of many other formats. In this habeas corpus proceeding the jurisdiction is at
law in a court of record under the sovereign_ authority of one of the People.
91. It is essential to understand what are a sovereign, a magistrate, a court, and a court of
record.
92. A court is "The person and suit of the sovereign."NOTE-I Who is the sovereign? It is the
people either in pluralNOTE-2 or in singular capacity.NOTE-J In singular capacity, it is McDade, one
of the People as contemplated in the preambles ofthe Constitution for the Republic of Texas,
and the 1789 Constitution for the United States of America. In singular capacity, it is also
McDade.
93. The State of Texas and the United States of America have no general sovereignty. Theirs
is a clipped sovereignty. Whatever sovereignty they have is limited to their respective
constitutionally defined spheres of control. The general sovereignty is reserved to the people
without diminishment.NOTE-4 Lest that be forgotten, the analogous California Government Code
twice admonishes the public servants that, "The people of this state do not yield their sovereignty
to the agencies which serve them. ,NOTE-s Further, when the State of California did attempt to
diminish one's rights, it was affirmed that the state cannot diminish rights of the people.NOTE-6
Further, Amendments IX and X of the Constitution for the United States of America and Art. 1
Sec. 2 of the Texas Constitution admonishes the federal and state governments of their clipped
sovereignty subservient to the full sovereignty reserved without diminishment to the People.NOTE-
IO
WRITOFHABEASCORPUS Page 22 of27
94. It is by the prerogative of the sovereignNOTE-7 whether and how a court is authorized to
proceed. In this case, the chosen form of this court is that of a court of record.
95. A qualifying feature of a court of record is that the tribunal is independent of the magistrate
appointed to conduct the proceedings.NOTE-s
96. The magistrate is a person appointed or elected to perform ministerial service in a court of
record. NOTE-9 His service is ministerial because all judicial functions in a court of record are
reserved to the tribunal, and, by definition of a court of record, that tribunal must be independent
of the magistrate. The non-judicial functions are assigned by the court of record and are
"ministerial" because they are absolute, certain and imperative, involving merely execution of
specific duties arising from fixed and designated facts.
97. Because the state has no jurisdiction over McDade, and because the magistrate has no
tribunal function, and because McDade has not voluntarily and knowingly granted any
jurisdiction to the state, it follows that the state has no jurisdiction over McDade. Therefore, the
STATE must cease its taking into involuntary custody the person ofMcDade, one ofthe people.
As a matter of right, McDade should be immediately released back to the jurisdiction of his own
court.
NOTES
NOTE-I Black's Law Dictionary, 4th Ed., 425, 426
NOTE-l People, n. [L. populus.] The body of persons who compose a community, town, city or
nation. We say, the people of a town; the people of London or Paris; the English people. In this
WRIT OF HABEAS CORPUS Page 23 of27
sense, the word is not used in the plural, but it comprehends all classes of inhabitants, considered
as a collective body ... Webster's 1828 Dictionary
NOTE-J People ... considered as .... any portion of the inhabitants of a city or country. Ibid.
NOTE-4 " •.• at the Revolution, the sovereignty devolved on the people; and they are truly the
sovereigns of the country, but they are sovereigns without subjects ... with none to govern but
themselves" Chisholm v. Georgia (US) 2 Dall419, 454, 1 LEd 440, 455 @Dall1793 pp471-472
The people of this State, as the successors of its former sovereign, are entitled to all the rights
which formerly belonged to the King by his prerogative. Through the medium of their
Legislature they may exercise all the powers which previous to the Revolution could have been
exercised either by the King alone, or by him in conjunction with his Parliament; ... " Lansing v.
Smith, 4 Wendell9 (N.Y.) (1829), 21 American Decision 89; 10C Const. Law Sec. 298; 18 C
Em.Dom. Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 1'67; 48 C Wharves Sec. 3, 7.
NOTE-s California Government Code, Sections 11120 and 54950
6
NOTE- The state cannot diminish rights of the people. Hurtado v. People of the State of
California, 110 US 516
NOTE-? " ••• at the Revolution, the sovereignty devolv~d on the people; and they are truly the
sovereigns of the country, but they are sovereigns without subjects ... with none to govern but
themselves ..... [Chisholm v. Georgia (US) 2 Dall419, 454, 1 LEd 440, 455 @Dall (1793)
pp471-472.]
The people of this State, as the successors of its former sovereign, are entitled to all the rights
WRIT OF HABEAS CORPUS Page 24 of 27
which formerly belonged to the King by his prerogative. [Lansing v. Smith, 4 Wend. 9 (N.Y.)
(1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3, 228; 37 C Nav.Wat.
Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.]
NOTE-s Court of Record: A judicial tribunal having attributes and exercising functions
independently of the person of the magistrate designated generally to hold it [Jones v. Jones, 188
Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per Shaw, C.J. See,
also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689][Black's Law Dictionary, 4th Ed.,
425, 426]
9
NOTE- Long v. Seabrook, 260 S.C. 562, 197 S.E.2d 659, 662; Black's Law Dictionary, Fifth
Edition, p 899
NOTE-Io Constitution for the United States of America:
Amendment IX. The enumeration in the Constitution, of certain rights, shall not
be construed to deny or disparage others retained by the people.
Article X. The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or to the
people.
The Texas Constitution
Article 1. Bill of Rights
Sec. 2. Inherant 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
WRIT OF HABEAS CORPUS Page 25 of27
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.
Prayer
98. Further, I request that the proceedings in the City of Austin Municipal Court, Case
Number(s) 8171190, 8171191, 8171192, 8171200, 8171201/8263463 be ordered stayed pending
resolution of the jurisdictional challenge in the above-entitled court of record.
I am David Kent McDade. I have personal knowledge of the above-stated facts and am
competent to testify as to the truth of these facts if called as a witness. I declare under penalty of
perjury that the forgoing is true and correct, and that this declaration was executed in Elgin,
Texas, on August 19, 2015.
;s;::fjj!:./'
Dav1o Kent McDade
Private Attorney
Petitioner
209 E. Brenham St.
Elgin, Texas
~TOFHABEASCORPUS Page 26 of27
Verification
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF TRAVIS §
Before me, the undersigned Notary, personally appeared David Kent McDade, the Affiant in this
matter, who satisfied me as to his identity, and who, upon administration of oath or affirmation by me,
declared and deposed as follows:
I David Kent McDade, a People of Texas is at least 21 years of age, and I am competent to make
this Affidavit. I have personal knowledge of these facts and attest under penalty of perjury the
facts stated in this document are true and correct.
I assert all my Birthrights, and all my Inherent, Unalienable rights, privileges and immunities at
Natural Law, Common Law and Maritime Law, and all my respective commercial rights
relevant to a place called "this state. " Affiant does not consent to nor in any way waive any
of my rights in whole or in part, nor does Affiant authorize or consent to any violation of
those rights by any ofAffiant's public servants or any other Corporate Entities.
Further, Affiant sayeth not .
Is/
. ~
David Kent McDade, Affiant
Ic-l day of
Signed and Affinned to before me on this the ----'--'---
Av8 (month) 20 16 (year)
for which witness my seal and signature.
Notary Signature_;__ ~~
~~ -
Certificate of Service
By my signature below, I certify that on this the 19th day of August, 2015, I have no idea who should
be served with a true and correct copy of this document, therefore, it is delivered by hand to the Court
Clerk for whoever shows up on the Respondents behalf. If that is no one, then there is nothing served as
of this date.
David Kent McDade, Affiant
WRIT OF HABEAS CORPUS Page 27 of27
ATIACHMENTA
1. RULES AS TO INDICTMENT APPLY TO INFORMATION. The rules with respect to
allegations in an indictment and the certainty required apply also to an information.
2.
3. WHAT SHOULD BE STATED. Everything should be stated in an indictment which is
necessary to be proved.
4.
CERTAIN FORMS OF INDICTMENTS. The following form of indictments is
5. sufficient:
6.
"In the name and by authority ofthe people of Texas: The grand jury of ............ County, people
7. of Texas, duly organized at the ............ term, A.D ............. , of the district court of said county, in
said court at said term, do present that ............ (defendant) on the .......... day of ............ A.D .
8. ............ , in said county and State, did ............ (description of offense) against the peace and
dignity of the people.
9.
............ ,Foreman ofthe grand jury."
10.
11.
12. OBJECTION TO USE OF PRIVATE LAW: The use of unpublished cases shall not be
used. A cite to "WL" and "Lexis" is a reference to materials not publicly accessible. Such
13. references cannot therefore be meaningful without a full copy of the opinion for each "WL" or
14.
"Lexis" reference available and accessible to all parties.
15.
If any claim, statement, fact, or portion in this action is held inapplicable or not valid, such
16 . decision does not affect the validity of any other portion of this action.
17.
18 . The singular includes the plural and the plural the singular.
19.
The present tense includes the past and future tenses; and the future the present, and the past the
20. present.
21.
The masculine gender includes the feminine and neuter.
22.
23.
24.
25.
26.
27.
Page 36 o£ 36
EXHIBIT A-- LAW OF THE CASE
1. SHALL DRAW COMPLAINTS. Upon complaint being made before a district or county
attorney that an offense has been committed in his district or county, he shall reduce the
2. complaint to writing and cause the same to be signed and sworn to by the complainant, and it
3. shall be duly attested by said attorney.
4. WHEN COMPLAINT IS MADE. If the offense be a misdemeanor, the attorney shall
forthwith prepare an information based upon such complaint and file the same in the court
5. having jurisdiction; an information must be filed in each misdemeanor case. If the offense be a
felony, he shall forthwith file the complaint with a magistrate of the county.
6.
7. COMPLAINT. (a) For purposes of this action, a complaint is a sworn allegation charging
the accused with the commission of an offense.(b) A defendant is entitled to notice of a
8. complaint against the defendant not later than the day before the date of any proceeding in the
prosecution of the defendant under the complaint.
9.
"(b) An indictment is a written instrument presented to a court by a grand jury charging a person
10.
with the commission of an offense. An information is a written instrument presented to a court
11. by an attorney for the State charging a person with the commission of an offense. The practice
and procedures relating to the use of indictments and informations, including their contents,
12. amendment, sufficiency, and requisites, are as provided by law; The presentment ofan
indictment or information to a court invests the court with jurisdiction ofthe cause." (Amended
13. Aug. 11, 1891, and Nov. 5, 1985.)[emphasis added] [Texas Constitution, Article 5, Section 12]
14.
"INFORMATION". An "Information" is a written statement filed and presented in behalf
15. ofthe people of the State by the district or county attorney, charging the defendant with an
offense which may by law be so prosecuted.
16.
REQUISITES OF AN INFORMATION. An information is sufficient if it has the
17. following requisites: 1. It shall commence, "In the name and by authority of the people of
18.
Texas"; 2. That it appear to have been presented in a court having jurisdiction of the offense set
forth; 3. That it appear to have been presented by the proper officer; 4. That it contain the name
19. of the accused, or state that his name is unknown and give a reasonably accurate description of
him; 5.1t must appear that the place where the offense is charged to have been committed is
20. within the jurisdiction of the court where the information is filed; 6. That the time mentioned be
some date anterior to the filing of the information, and that the offense does not appear to be
21. barred by limitation; 7. That the offense be set forth in plain and intelligible words; 8. That it
22. conclude, "Against the peace and dignity of the people of the State"; and 9. It must be signed by
the district or county attorney, officially.
23.
INFORMATION BASED UPON COMPLAINT. No information shall be presented until
24. affidavit has been made by some credible person charging the defendant with an offense. The
affidavit shall be filed with the information. It may be sworn to before the district or county
25. attorney who, for that purpose, shall have power to administer the oath, or it may be made before
26. any officer authorized by law to administer oaths.
27.
Page 35 of36
EXHIBIT A --LAW OF THE CASE
1. certainty that will give the defendant notice of the particular offense with which he is charged,
2. and enable the court, on conviction, to pronounce the proper judgment; and in no case are the
words "force and arms" or "contrary to the form of the statute" necessary.
3.
4. CONTEMPT OF COURT. (b) The punishment for contempt of a court other than a
5. justice court or municipal court is a fme of not more than $500 or confinement in the county jail
for not more than six months, or both such a fine and confinement in jail.
6.
7• BY AGREEMENT. A criminal action may be continued by consent of the parties
8. thereto, in open court, at any time on a showing of good cause, but a continuance may be only
for as long as is necessary.
9.
10. FOR SUFFICIENT CAUSE SHOWN. A criminal action may be continued on the
11. written motion upon sufficient cause shown; which cause shall be fully set forth in the motion.
A continuance may be only for as long as is necessary.
12.
13.
14. MOTION SWORN TO. All motions for continuance must be sworn to by a person
having personal knowledge of the facts relied on for the continuance.
15.
16.
CONTROVERTING MOTION. Any material fact stated, affecting diligence, in a
17. motion for a continuance, may be denied in writing by the adverse party. The denial shall be
18. supported by the oath of some credible person, and filed as soon as practicable after the filing of
such motion.
19.
20. WHEN DENIAL IS FILED. When such denial is filed, the issue shall be tried by the
21. judge; and he shall hear testimony by affidavits, and grant or refuse continuance, according to
the law and facts of the case.
22.
23.
24. ARGUMENT. No argument shall be heard on a motion for a continuance, unless
requested by the judge; and when argument is heard, the applicant shall have the right to open
25 . and conclude it.
26.
WRITTEN PLEADINGS. All motions to set aside an indictment or information and all special
27.
pleas and exceptions shall be in writing.
Page 34 of36
EXIDBIT A·- LAW OF THE CASE
1. OFFICER EXECUTING WARRANT. The same power may be exercised by the office
2. executing the warrant in cases arising under the foregoing Articles as is exercised in th
3.
execution of warrants of arrest.
4.
CONSTRUCTIVE CUSTODY. The words "confmed", "imprisoned", "in custody"
5.
"confmement", "imprisonment", refer not only to the actual, corporeal and forcible detention of
6.
7. person, but likewise to any coercive measures by threats, menaces or the fear of injury, whereb
8. one person exercises a control over the person of another, and detains him within certain limits
9. [Tex. CCP Chap11Art. 11.21, 22, 23] [Ex parte Canada, 754 S.W.2d 660,66
10.
{Tex.Crim.App.1988)] [Ex parte Robinson, 641S. W.2d 552,553] {In re Petersen {1958) 51
11.
Cal2d 177, 181, 331 P2d 24).
12.
RESTRAINT. By "restraint" is meant the kind of control which one person exercise
13.
over another, not to confine him within certain limits, but to subject him to the general authori
14.
15. and power of the person claiming such right.
16. SCOPE OF WRIT. The writ of habeas corpus is intended to be applicable to all sue
17. cases of confinement and restraint, where there is no lawful right in the person exercising th
18.
power, or where, though the power in fact exists, it is exercised in a manner or degree no
19.
sanctioned by law.
20.
WHO MAY SERVE WRIT. The service of the writ may be made by any one competen
21.
to testify.
22.
23.
24. INDICTMENT
25.
CERTAINTY; WliAT SUFFICIENT. An indictment shall be deemed sufficient which
26.
charges the commission of the offense in ordinary and concise language in such a manner as to
27.
enable a person of common understanding to know what is meant, and with that degree of
Page 33 of36
EXHIBIT A-- LAW OF THE CASE
1. CONSTRUCTION. Every provision relating to the writ of habeas corpus shall be most
2. favorably construed in order to give effect to the remedy, and protect the rights of the people
seeking relief under it
3.
4. FILING FEE PROHIBITED. Notwithstanding any other law, a clerk of a court may
5. not require a filing fee from an individual who files an application or petition for a writ of habeas
corpus.
6.
7. RETURNABLE TO ANY COUNTY. Before indictment found, the writ may be made
8. returnable to any county in the State.
9· WHO MAY PRESENT PETITION. Either the party for whose relief the writ i
10.
intended, or any people for him, may present a petition to the proper authority for the purpose o
11.
obtaining relief.
12.
WRIT GRANTED WITHOUT DELAY. The writ of habeas corpus shall be grante
13.
without delay by the judge or court receiving the petition, unless it be manifest from the petitio
14.
\
15. itself, or some documents annexed to it, that the party is entitled to no relief whatever.
16. MAY ARREST DETAINER. Where it appears by the proof offered,
17. circumstances mentioned in the preceding Article, that the person charged with having illeg
18.
custody of the prisoner is, by such act, guilty of an offense against the law, the judge may, in th
19.
warrant, order that he be arrested and brought before him; and upon examination, he may b
20.
committed, discharged, or held to bail, as the law and the nature of the case may require.
21.
22. PROCEEDINGS UNDER THE WARRANT. The officer charged with the execution o
23. the warrant shall bring the persons therein mentioned before the judge or court issuing the same
24. who shall inquire into the cause of the imprisonment or restraint, and make an order thereon, a
25. in cases of habeas corpus, either remanding into custody, discharging or admitting to bail th
26.
party so imprisoned or restrained.
27.
Page 32 of36
EXHIBIT A-- LAW OF THE CASE
1. . "A conviction under an UI,lconstitutionallaw is ... illegal and void and cannot be a legal cause of
2. imprisonment; the courts must liberate a person imprisoned under it...one imprisoned... may be
discharged by the writ of'Habeas Corpus'." (16 Am Jur Sec 150)
3.
4. Availability of writ. Writ of habeas corpus is available to allow presentation of questions oflaw
5. that cannot otherwise be reviewed, or that are so important as to render ordinary procedure
inadequate and justify extraordinary remedy.
6.
7.
Writ available to defendant admitted to bail. Writ of habeas corpus is available to defendant
8.
admitted to bail for purpose of challenging probable cause to hold him for trial, because
9.
defendant was in constructive custody by reason of bail and was subject to restraint.
10.
11.
Constructive Custody. The availability of the writ ofhabeas corpus does not depend on the
12.
actual detention of petitioner in prison. It is also available where petitioner is constructively in
13.
custody and subject to restraint. [Ex parte Robinson, 641 S. W.2d 552,553] (In re Petersen (1958)
14.
51 Ca12d 177, 181,331 P2d 24).
15.
16.
17. WHAT WRIT IS. The writ of habeas corpus is the remedy to be used when any people
is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction,
18.
directed to any one having a people in his custody, or under his restraint, commanding him to
19. produce such people, at a time and place named in the writ, and show why he is held in custody
20. or under restraint.
21.
TO WHOM DIRECTED. It is addressed to a person having another under restraint, or
22. in his custody, describing, as near as may be, the name of the office, if any, of the person to
23 •. whom it is directed, and the name of the people said to be detained. It shall fix the time and
place of return, and be signed by the judge, or by the clerk with his seal, where issued by a court.
24.
25. WANT OF FORM. The writ of habeas corpus is not invalid, nor shall it be disobeyed
for any want of form, if it substantially appear that it is issued by competent authority, and the
26.
writ sufficiently show the object of its issuance.
27.
Page 31 of36
EXHIBIT A --LAW OF THE CASE
1. ISSUANCE OF WRIT; RETURN; HEARING; DECISION [28 USC Sec. 2243]
2. A court, justice or judge entertaining an application for a writ of habeas
corpus shall forthwith award the writ or issue an order directing the respondent to
3. show cause why the writ should not be granted, unless it appears from the
application that the applicant or person detained is not entitled thereto.
4.
The writ, or order to show cause shall be directed to the person having
5. custody of the person detained. It shall be returned within three days unless for
good cause additional time, not exceeding twenty days, is allowed.
6.
The person to whom the writ or order is directed shall make a return certifying
7. the true cause of the detention.
8. When the writ or order is returned a day shall be set for hearing, not more than
five days after the return unless for good cause additional time is allowed.
9.
Unless the application for the writ and the return present only issues of law the
10. person to whom the writ is directed shall be required to produce at the hearing the
body of the person detained.
11.
The applicant or the person detained may, under oath, deny any of the facts set
12. forth in the return or allege any other material facts.
13. The return and all suggestions made against it may be amended, by leave of
court, before or after being filed.
14.
The court shall summarily hear and determine the facts, and dispose of the
15 . matter as law and justice require.
16 . Application for a writ of habeas corpus shall be in writing signed and verified by the person for
whose relief it is intended or by someone acting in his behalf. [28 USC Sec. 2242]
17.
18.
HABEAS CORPUS. The writ of habeas corpus is a writ of right and shall never be
19.
suspended. [Habeas Corpus Act 1640] [Tex. Const.Art. 1 Sec.12]
20.
21.
22.
23.
Every person unlawfully committed, detained, confmed or restrained ofhis liberty, under any
24.
pretense whatever, may prosecute a writ of habeas corpus to inquire into the cause of such
25. imprisonment or restraint. The writ of habeas corpus is a writ of right, and shall never be
26. suspended. The Legislature shall enact laws to render the remedy speedy and effectual. [The
Texas Constitution Art. 1. Bill of Rights Sec. 12.] [Ex parte Rich, 194 S. W.3d 508,510], [Ex
27.
parte Robinson, 641 S. W.2d 552, 553]
Page 30 of36
EXHIBIT A-- LAW OF THE CASE
1.
The Jury has "an unreviewable and irreversible power. ..to acquit in disregard of the
2. instructions of the law given by the trial judge. [U.S. v. Dougherty, 473 F 2d 1113, 1139 (1972)]
3.
"The common law right of the jury to determine the law as well as the facts remains
4.
unimpaired. [State v. Croteau, 23 Vt 14, 54 AM DEC 90 (1849)]
5.
6.
PUBLIC TRIAL. The proceedings and trials in all courts shall be public.
7.
8. CONFRONTED BY WITNESSES. The defendant, upon a trial, shall be confronted
with the witnesses, except where depositions have been taken
9.
10.
11.
HABEAS CORPUS
12.
13.
(c) The writ of habeas corpus shall not extend to a prisoner unless -
14.
( 1) He is in custody under or by color of the authority of the United States or
15. is committed for trial before some court thereof; or
16. (2) He is in custody for an act done or omitted in pursuance of an Act of
Congress, or an order, process, judgment or decree of a court or judge of the
17. United States; or
18. (3) He is in custody in violation of the Constitution or laws or treaties of the
United States; or
19.
20.
21. APPLICATION FOR WRIT [28 USC Sec. 2242]
22. Application for a writ of habeas corpus shall be in writing signed and verified
by the person for whose relief it is intended or by someone acting in his behalf.
23.
It shall allege the facts concerning the applicant's commitment or detention,
24. the name of the person who has custody over him and by virtue of what claim or
authority, ifknown.
25.
It may be amended or supplemented as provided in the rules of procedure
26. applicable to civil actions.
27.
Page 29 of36
EXIDBIT A -- LAW OF THE CASE
1. A court shall presume that a pleading, motion, or other paper is filed in good faith.
2. Sanctions under this article may not be imposed except for good cause stated in the sanction
order.
3.
RIGHT TO BAIL. All prisoners shall be bailable unless for capital offenses when the
4.
proof is evident. This provision shall not be so construed as to prevent bail after indictment
5. found upon examination of the evidence, in such manner as may be prescribed by law.
6.
7. CRUELTY FORBIDDEN. Excessive bail shall not be required, nor excessive fines
imposed, nor cruel or unusual punishment inflicted.
8.
9. RIGHT TO JURY. The right oftrial by jury of twelve persons shall remain inviolate.
10.
"As understood at common law and as used in constitutional provision, jury imports a
11.
body oftwelve men." [State v. Dalton,206 N.C. 507, 174 S.E. 422, 424; People ex rei. Cooley v.
12. Wilder, 255 N.Y.S. 218,222,234 App. Div. 256; Hall v. Brown, 129 Kan. 859,284 P. 396.]
13.
JURY NULLIFICATION
14.
15. "The jury has an unalienable right to judge both the law as well as the fact in
16. controversy."
[John Jay, 1st Chief Justice United States Supreme Court, 1789]
17.
18. "The jury has the right to determine both the law and the facts."
19. [Samuel Chase, Justice US Supreme Court, 1796 Signer of the unanimous Declaration]
20.
"The jury has the power to bring a verdict in the teeth of both law and fact."
21. [Oliver Wendell Holmes, Justice
22. US Supreme Court, 1902]
23.
. "the jury... acts not only as a safeguard against judicial excesses, but also as a barrier to
24. legislative and executive oppression. The Supreme Court... recognizes that the jury.. .is designed
25. to protect Defendants against oppressive governmental practices. [United States ex rei Toth v.
Quarles, 350 US 11, 16 (1955)]
26.
27.
Page 28 of36
EXIDBIT A -- LAW OF THE CASE
1. Action for neglect to prevent:
2. Every person who, having knowledge that any of the wrongs conspired to be done, and
mentioned in section 1985 of this title, are about to be committed, and having power to prevent
3.
or aid in preventing the commission of the same, neglects or refuses so to do, if such wrongful
4. act be committed, shall be liable to the party injured, or his legal representatives, for all damages
5. caused by such wrongful act, which such person by reasonable diligence could have prevented;
and such damages may be recovered in an action on the case; and any number of persons guilty
6.
of such wrongful neglect or refusal may be joined as defendants in the action; and if the death of
7. any party be caused by any such wrongful act and neglect, the legal representatives of the
8. deceased shall have such action therefor, and may recover not exceeding $5,000 damages
therein, ... [42 USC 1986]
9.
10. WILLFULNESS
11.
Claimant must produce evidence regarding "willfulness".
12.
WILLFULNESS: an evil motive or intent to avoid a known duty or tax under the law with a
13.
moral certainty. (U.S. v. Bishop, 412 US 34)
14.
"Element of willfulness involves a specific wrongful intent, namely, actual knowledge of
15. existence of legal obligation and intent to evade that obligation."
U.S. v. Thompson, 230 F.Supp. 530, 338 F.2d 997 (D.C.Conn. 1964).
16.
17.
RIGHTS OF ACCUSED. In all criminal prosecutions the accused shall have a speedy
18.
public trial by an impartial jury. He shall have the right to demand the nature and cause ofthe
19. accusation against him, and to have a copy thereof. He shall not be compelled to give evidence
20. against himself. He shall have the right of being heard by himself, or counsel, or both; shall be
confronted with the witnesses against him, and shall have compulsory process for obtaining
21.
witnesses in his favor.
22.
23. RIGHT TO REPRESENTATION BY COUNSEL. (a) A defendant in a criminal matte
is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be
24.
represented by counsel includes the right to consult in private with counsel sufficiently in
25. advance of a proceeding to allow adequate preparation for the proceeding.
26.
27.
Page 27 of36
EXHIBIT A --LAW OF THE CASE
1. imprisoned not more than ten years, or both; and if death results from the acts committed in
2. violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated
sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be
3.
fmed under this title, or imprisoned for any term of years or for life, or both, or may be sentenced
4. to death. [18, USC 242]
5.
Civil action for deprivation of rights:
6.
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
7. State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
8. the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injure
9.
in an action at law, suit in equity, or other proper proceeding for redress, except that in any
10. action brought against a judicial officer for an act or omission taken in such officer's judicial
11. capacity, injunctive· relief shall not be granted unless a declaratory decree was violated or
declaratory relief was unavailable. For the purposes of this section, any Act of Congress
12.
applicable exclusively to the District of Columbia shall be considered to be a statute of the
13. District of Columbia. [42 USC 1983]
14.
Conspiracy to interfere with civil rights:
15.
Depriving persons of rights or privileges: If two or more persons in any State or Territory
16. conspire or go in disguise on the highway or on the premises of another, for the purpose of
17. depriving, either directly or indirectly, any person or class of persons ofthe equal protection of
the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing
18.
or hindering the constituted authorities of any State or Territory from giving or securing to all
19. persons within such State or Territory the equal protection of the laws; or if two or more persons
20. conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote,
from giving his support or advocacy in a legal manner, toward or in favor of the election of any
21.
lawfully qualified person as an elector for President or Vice President, or as a Member of
22. Congress of the United States; or to injure any citizen in person or property on account of such
23. support or advocacy; in any case of conspiracy set forth in this section, if one or more persons
engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy,
24.
whereby another is injured in his person or property, or deprived of having and exercising any
25. right or privilege of a citizen of the United States, the party so injured or deprived may have an
26. action for the recovery of damages occasioned by such injury or deprivation, against any one or
more of the conspirators. [42 USC 1985(3)]
27.
Page26 of36
EXHIBIT A-- LAW OF THE CASE
1. "Government may not prohibit or control the conduct of a person for reasons that infringe upon
constitutionally guaranteed freedoms. [Smith v. U.S. 502 F 2d 512 CA Tex. (1974)]
2.
3. "Officers of the court have no immunity, when violating a Constitutional right, from liability.
For they are deemed to know the law."
4.
Owen v. Independence, 100 S.C.R 1398, 445 US 622
5.
"A departure by a court from those recognized and established requirements oflaw, however
6. close apparent adherence to mere form in method of procedure, which has the effect of depriving
one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934, 93 7.
7.
8. "Where a court failed to observe safeguards, it amounts to denial of due process of law, court is
deprived of juris." Merritt v. Hunter, C.A. Kansas 170 F2d 739.
9.
State officers may be held personally liable for damages under 1983 based upon actions taken in
10. their official capacities. Pp. 3-10. HAFER v. MELO, 502 U.S. 21 (1991) 502 U.S. 21
11.
Conspiracy against rights:
12.
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any
13. State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any
14. right or privilege secured to him by the Constitution or laws of the United States, or because of
his having so exercised the same; or If two or more persons go in disguise on the highway, or on
15.
the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any
16. right or privilege so secured - They shall be fined under this title or imprisoned not more than ten
17. years, or both; and if death results from the acts committed in violation of this section or if such
acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to
18.
commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or
19. imprisoned for any term of years or for life, or both, or may be sentenced to death. [18, USC
20. 241]
21.
Deprivation of rights under color of law:
22. Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any
23. person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any
rights, privileges, or immunities secured or protected by the Constitution or laws of the United
24.
States, or to different punishments, pains, or penalties, on account of such person being an alien,
25. or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be
26. fined under this title or imprisoned not more than one year, or both; and if bodily injury results
from the acts committed in violation of this section or if such acts include the use, attempted use,
27.
or threatened use of a dangerous weapon, explosives, or fire, shall be fmed under this title or
Page 25 of36
EXHIBIT A --LAW OF THE CASE
1. sheriffs, and prosecutors, and it is the primary distinction between democratic and
totalitarian processes. [STANDLER - Supreme Court of Florida en bane, 36 so 2d
2. 443, 445(1948)]
3.
"Courts, (must) indulge every reasonable presumption against waiver of
4. fundamental constitutional rights, and ... not presume acquiescence in the loss of
fundamental rights." Dimmock v. Scalded, 293 US 474(1935) 304 US at 464
5.
"Government immunity violates the common law maxim that everyone shall have
6. remedy for an injury done to his person or property." Fireman's Ins. Co. of
7. Newark, N.J. v. Washburn County, 2 Wis 2d 214, 85 N.W. 2d 840(1957)
8. . "Judges may be punished criminally for willful deprivation of... rights on the
strength of 18 usc 242." Imbler v. Pachtman, US 47 L Ed 2d 128, 96 S Ct 37.
9. "Judges have no immunity from prosecution for their judicial acts." Bradley v.
Fisher, US 13 Wall335(1871)
10.
11. "Judicial immunity is no defense to a judge acting in the clear absence of
jurisdiction." Bradley v. Fisher, US 13 Wall335 (1871)
12.
"Immunity fosters neglect and breeds irresponsibility, while liability promotes
13. care and caution, which caution and care is owed by the government to its
people." Rabon v. Rowen Memorial Hosp., Inc., 269 NS I, 13, 152 SE ld 485,
14.
493(1967) 40.
15.
"Actions by state officers and employees, even if unauthorized or in excess of
16. authority, can be actions under 'color of law'." Stringer v. Dilger, CA 10 Colo 313
F 2d 536(1963)
17.
"Where rights secured by the Constitution are involved, .there can be no 'rule
18.
making' or legislation which would abrogate them." (Miranda v. Arizona, 384
19. U.S. 426, 491; 86 S. Ct. 1603 (1966)]
20.
"No state shall convert a liberty into a license, and charge a fee therefore."
21. Murdockv. Pennsylvania, 319 U.S. 105
22.
"The claim and exercise of a Constitutional right cannot be converted into a crime" ...
23. "a denial of them would be a denial of due process oflaw".
Simmons v. United States, 390 U.S. 377 (1968)
24.
25. "Statutes that violate the plain and obvious principles of common right and common
reason are null and void."
26. Bennett v. Boggs, 1 Baldw 60
27.
Page 24 of36
EXHIBIT A --LAW OF THE CASE
1.
2.
3. COLOR OF LAW
4.
COLOR OF LAW means "The appearance or semblance, without the substance, of legal
5. right. Misuse of power, possessed by virtue of state law and made possible only because
wrongdoer is clothed with authority of state is action taken under 'color oflaw. "'
6. Atkins v. Lanning. D. C. Old., 415 F. Supp. 186, 188.
7. . "To maintain an action under (42 USC) 1983, it is not necessary to allege or prove that
the defendants intended to deprive Plaintiff of his Constitutional rights or that they acted
8.
willfully, purposely, or in furtherance of a conspiracy... it is sufficient to establish that the
9. deprivation ... was the natural consequences of Defendants acting under the color of
law... " Ethridge v Rhodos, DC Ohio 268 F Sup 83(1967), Whirl v. Kern, CA 5 Texas 407
10. F 2d 781 (1968) Ury v. Santee, DC Ill,(1969)
11.
12. An unconstitutional act is not law; it confers no rights; it imposes no duties; affords no
protection; it creates no office; it is in legal contemplation, as inoperative as though it had
13. never passed." Norton vs Shelby County, 118 US 425
14. The assertion of federal rights, when plainly and reasonably made, is not to be defeated
under the name of local practice.
15. Davis v. Wechsler, 263 US 22, 24.
16.
The Transportation codes applied under Color of Law are a violation of Creator-given,
17. unalienable rights of the people at natural law, common law, and the Constitutionally-protected
rights under the first, fourth, fifth, sixth, ninth and tenth amendments.
18.
Traffic citations are "Bills of Attainder"/ "Bills of Pains and Penalties; and are in violation of
19.
Both the Constitution of the United States and the Texas Constitution respectively. US. Const.
20. Art. 1 Sec 9 I Texas Const. Art. Sec. 16.
21. Transportation Code (TIC) regulates commercial use ofthe road only. It does not apply
to people travelling in their private capacity exercising their Right to Travel freely and
22. unencumbered. Therefore, there is no subject matter jurisdiction. The Constitution does
not authorize the State to regulate, and thereby constrain and limit, the people's right to
23.
travel in their private (i.e. non-commercial) capacities.
24.
25. DEPRIVATION OF RIGHTS
26.
"The Bill of Rights was provided as a BARRIER, to protect, the individual
27.
against the arbitrary extractions of the majorities, executives, legislatures, courts,
Page 23 of36
EXHIBIT A-- LAW OF THE CASE
1. JURISDICTION
2.
3. "Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court
lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the
4. action." Melo v. US, 505 F2d 1026.
5. "While acts of a de facto incumbent of an office lawfully created by law and existing are often
6. held to be binding from reasons of public policy, the acts of a person assuming to fill and
perform the duties of an office which does not exist de jure can have no validity whatever in law.
7. "Jurisdiction, once challenged, cannot be assumed and must be decided." Maine v. Thiboutot,
100 S.C.R.. 2502
8.
9. Under federal Law, which is applicable to all states, the U.S. Supreme Court stated that "if a
court is without authority, its judgments and orders are regarded as nullities. They are not
10. voidable, but simply void, and form no bar to a recovery sought, even prior to a reversal in
opposition to them. They constitute no justification and all persons concerned in executing such
11. judgments or sentences are considered, in law, as trespassers." Basso v. UPL, 495 F. 2d 906
Brookv. Yawkey, 200 F. 2d 633 Elliotv. Piersol, 1 Pet. 328,340,26 U.S. 328,340 (1828)
12.
13.
"One purpose of [TRCP 13] is to check abuses in the pleading process; that is, to ensure that at
14. the time the challenged pleading was filed, the litigant's position was factually grounded and
legally tenable .... Bad faith does not exist when a party merely exercises bad judgment or is
15.
negligent; rather, 'it is the conscious doing of a wrong for dishonest, discriminatory, or malicious
16. purposes."' Appleton v. Appleton, 76 S.W.3d 78, 86-87 (Tex. App.-Houston [14th Dist.] 2002, no
pet.).
17.
18. "A universal principle as old as the law is that a proceedings of a court without jurisdiction are a
nullity and its judgment therein without effect either on person or property." Norwood v.
19. Renfield, 34 C 329; Ex parte Giambonini, 49 P. 732.
20. "Jurisdiction is fundamental and a judgment rendered by a court that does not have jurisdiction
21. to hear is void ab initio." In ReApplication of Wyatt, 300 P. 132; Re Cavitt, 118 P2d 846.
22. "Agency, or party sitting for the agency, (which would be the magistrate of a municipal court)
has no authority to enforce as to any licensee unless he is acting for compensation. Such an act is
23. highly penal in nature, and should not be construed to include anything which is not embraced
within its terms. (Where) there is no charge within a complaint that the accused was employed
24. for compensation to do the act complained of, or that the act constituted part of a contract."
25. Schomig v. Kaiser, 189 Cal596.
26.
27.
Page 22 of36
EXHIBIT A --LAW OF THE CASE
1. NO STANDING
2. Claimant must produce injured party who has claimed palpable harm.
3.
Maxim* of Law: For there to be a crime, there must be an irifured party. An action is not
4. given to one who is not injured.
5. *An established principle or proposition. A principle of law universally admitted, as being just and consonant with
reason. (Bouvier's Law Dictionary, 1856)
6.
7.
8. Claimant must produce evidence regarding substance.
9. Standing, a necessary component of subject-matter jurisdiction, is a constitutional
prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control
10. Bd., 852 S. W.2d 440, 444 (Tex. 1993). As a necessary component of a court's subject-matter
jurisdiction, standing cannot be waived and can be raised for the first time on appeal. Id. at
11.
445-46.
12.
Standing
13.
The Constitution requires standing to maintain suit. Williams v. Lara, 52 S.W.3d 171, 178 (Tex.
14. 2001).
15.
In Texas, the standing doctrine requires that (1) there be "a real controversy between the parties,"
16. and (2) that real controversy "will be actually determined by the judicial declaration sought."
Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659,662 (Tex. 1996) (quoting
17. Tex. Air Control Bd., 852 S.W.2d at 446).
18. "The issue ofstanding focuses on whether a party has a sufficient relationship with the
lawsuit so as to have a 'justiciable interest' in its outcome. " Austin Nursing Ctr. v. Lovato, 171
19.
S.W.3d 845,848 (Tex. 2005) (quoting 6A Charles Alan Wright, Arthur R. Miller, and Mary Kay
20. Kane, Wright, Miller & Kane, Federal Practice and Procedure: Civil2d § 1559,441 (2d ed.
1990)).
21.
"The determination ofwhether a plaintiffpossesses standing to assert a particular claim
22. depends on the facts pleaded and the cause of action asserted." Everett v. TK-Taito, L.L.C., 178
23. S.W.3d 844, 853 (Tex. App.-Fort Worth 2005, no pet.). See also M.D. Anderson Cancer Ctr. v.
Novak, 52 S.W.3d 704,707-08 (Tex. 2001) (analyzing standing in the context of asserted claim).
24.
The plaintiff/counterdefendant must allege and show how he has been injured or wronged within
25 · the parameters Daimler Chrysler Corporation, v. Bill Inman et al 03118905
26.
27.
Page 21 of36
EXHIBIT A --LAW OF THE CASE
1. People v. Nothaus, 14 7 Colo. 210.
2. "Owners and operators of automobiles have the same right to use the streets and
3. highways that owners and operators of other vehicles possess, and all alike must exercise
reasonable care and caution for the safety of others."
4. Farnsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233. (2 Fla Dig,
Highways, 10.)
5.
"Power conferred upon municipalities to regulate the use of the streets by motor vehicles
6. does not include power to prohibit the use of the streets by them." . . . "regulation is
inconsistent with prohibition or exclusion."
7.
Chicago Motor Coach Company eta/. v. Chicago, hn. 6, 66 A.L.R. 834, 337 Ill.
8. 200, 169 N. E. 22.) (66 A.L.R. 838).
9. ''The streets and highways belong to the public, for the use of the public in the ordinary
and customary manner."
10. Hadfield v. Lundin, L.R.A.1918B, 909, 98 Wash. 657, 168 Pac. 516. (L.R.A.
Digest 1888-1918, Highways and Streets, 65.)
11.
"The title to the streets being in the city as trustee for the public, no grant or permission
12.
can be legally given which will interfere with their public use. The right of the public to
13. the use of the streets is absolute and paramount to any other."
Lincoln Safe Deposit Co. v. New York, L.R.A. 1915F, 1009,210 N.Y. 34, 103 N.
14. E. 768. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
15. "A traveler lawfully using a public highway has the same rights to enjoy such use
undisturbed as if he were the owner in fee simple."
16.
Smethurst v. Independent Cong. Church, 2 L.R.A. 695, 148 Mass. 261, 19 N. E.
17. 387. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
18. "Any and all of the public have an equal right to the reasonable use of a highway."
Haroldv. Jones, 3 L.R.A. 406,86 Ala. 274,5 So. 438. (L.R.A. Digest 1888-1918,
19. Highways and Streets, 66.)
20.
"All persons have equal right to use the public streets and highways for purposes of travel b
21. proper means, with due regard to the corresponding rights of others."
Butler v. Cabe, L.R.A.l915C, 702, 116 Ark. 26, 171 S. W. 1190. (L.R.A. Digest 1888
22. 1918, Highways and Streets, 66.)
23. "A public street in a city is a public highway and its uses belong to the public generally and i
cannot be said that such uses are limited to the municipality or to its Citizens alone."
24.
Alabama Western R. Co. v. State ex rei. Garber, 19 L.R.A. (N.S.) 1173, 155 Ala. 491,4
25. So. 468. (L.R.A. Digest 1888-1918, Highways and Streets, 66.
26.
27. NO INJURED PARTY
Page 20 of36
EXHIBIT A-- LAW OF THE CASE
1. omnibus. The former is the usual and ordinary right of a citizen, a common right, a right
common to all, while the latter is special, unusual, and extraordinary. As to the former, the extent
2. of legislative power is that of regulation; but, as to the latter, its power is broader. The right may
3. be wholly denied, or it may be permitted to some and denied to others, because of its
extraordinary nature."
4. State v. Quigg, hn. 7, 114 So. 859.
5. "A distinction must be observed between the regulation of an activity which may be engaged in
as a matter of right, and one carried on by government sufferance or permission, since in the
6. latter case the power to exclude altogether generally includes the lesser power to impose
7. conditions, and may justify a degree of regulation not admissible in the former."
Packardv. Banton, hn. 8, 264 U.S. 140,44 Sup.Ct. 257.
8.
"The public roads, free from any obstructions to travel, are solely, and from fence to fence, fo
9. the use of the traveling public."
Lebanon Light, Heat & P. Co. v. Leap, 29 L.R.A. 342, 139 Ind. 443,39 N. E. 57. (L.R.A
10.
Digest 1888-1918, Highways and Streets, 67.)
11.
"The right to travel is a well-established common right that does not owe its existence to
12 . the federal government. It is recognized by the courts as a natural right."
Schactman v. Dulles 96 App DC 287,225 F2d 938, at 941.
13.
"Generally "public road" is road used by public as matter of right."
14.
Atchison Transportation & Shipping F. Ry. Co. v. Acosta, (Civ. App. 1968) 435
15. S.W.2d 539 ref. n.r.e. (Vernon's Civil Statutes of State ofTexas Annotated p. 119
Note 9) ·
16.
"Citizen's Right to travel upon public highways includes Right to use usual conveyances
17. of time, including horse-drawn carriage, or automobile, for ordinary purposes of life and
business."
18.
19. "The Right of the Citizen to travel upon the public highways and to transport his property
thereon, either by carriage or by automobile, is not a mere privilege which a city may
20. prohibit or permit at will, but a Common Right which he has under the Right to life,
liberty, and the pursuit of happiness."
21. Thompson v. Smith (Chief ofPolice), 154 S.E. 579,580.
22.
"I am not particularly interested about the rights of haulers by contract, or otherwise, but I
23. am deeply interested in the Right of the public to use the public highways freely for all
lawful purposes."
24. --Chief Justice Tolman, Washington Supreme Court
Robertson v. Department ofPublic Works, 180 Wash. 133 at 139.
25.
26. "Every Citizen has an unalienable Right to make use of the public highways of the state;
every Citizen has full freedom to travel from place to place in the enjoyment of life and
27. liberty."
Page 19 of36
EXHIBIT A-- LAW OF THE CASE
1. "Where rights secured by the Constitution are involved, there can be no rule making or
legislation which would abrogate them. "
2. Miranda v. Arizona, 384 US 436, 491.
3.
"If a law has no other purpose than to chill assertions of Constitutional rights by penalizing those
4. who choose to exercise them it is patently unconstitutional."
Shapiro vs Thompson 394 US 618
5.
There can be no sanction or penalty imposed upon one because of this exercise of
6. constitutional rights. Sherer v. Cullen, 481 F 946.
7•
"If the state converts a liberty into a privilege the citizen can engage in the right with impunity,."
8. Shuttlesworth vs. Birmingham, 373 US Report 262
9. "The right to travel is a part of the liberty of which the Citizen cannot be deprived
without due process of law under the Fifth Amendment."
10. Kent v. Dulles, 357 US 116, 125.
11. "The use of the highway for the purpose of travel and transportation is not a mere
12. privilege, but a common fundamental right of which the public and individuals cannot
rightfully be deprived."
13. Chicago Motor Coach v. Chicago, 169 NE 221.
14. "All persons, in the absence oflegislative edict, are vested with the right to the use of the
streets and highways for travel from one place to another in connection with their
15. business, when such use is incidental to that business. This is an ordinary use of the
streets and highways, and is frequently characterized as an inherent or natural right."
16.
17. [the court then goes on to say]
18. "Even the legislature has no power to deny a Citizen the right to travel upon the highway
and transport his property in the ordinary course of his business or pleasure, though this
19. right may be regulated in accordance with the public interest and convenience."
[Regulated as used here means the use of traffic signs and signals, not mandatory
20.
licensing, registration, or other such "regulation".
21. Chicago Motor Coach Company et a/. v. Chicago, 66 A.L.R. 834,838, 337 lll.
200, 169 N. E. 22
22.
"The right of the Citizen to travel upon the public highways and to transport his property
23. thereon, either by carriage or by automobile, is not a mere privilege which a city may
24. prohibit or permit at will, but a common law right which he has under the right to life,
liberty, and the pursuit of happiness."
25. Thompson v. Smith, 154 SE 579.
26. "The right of a citizen to travel upon the highway and transport his property thereon, in the
ordinary course of life and business, differs radically and obviously from that of one who makes
27. the highways his place of business and uses it for private gain, in the running of a stagecoach or
Page 18 of36
EXIDBIT A --LAW OF THE CASE
1. form of law, and if this sort of trial is not accorded him he has the right to complain, and
to this complaint we will always give an attentive ear."
2.
Parker v. State, 745 S.W.2d 934, 937 (Tex.App.-Houston [1st Dist.] 1988, pet. Ref d)
3.
4. The enumeration of certain rights within the provisions of the Bill of Rights in Article 1, Texas
Const., makes it axiomatic that "A court cannot enact a procedural rule which conflicts with a
5. constitutional provision." Reese v. State, ibid.
6.
"The court is to protect against any encroachment of constitutionally secured liberty."
7. Boyd vs. US, 116 US 616.
8.
No person ... nor shall be compelled in any criminal case to be a witness against himself, nor be
9. deprived of life, liberty, or property, without due process of law; nor shall private property be
taken for public use without just compensation.
10.
11. RIGHTS OF TRAVEL
12.
13. In England in 1215, the right of life, liberty, property, and the express right of travel were
enshrined in Article 42 of Magna Carta to ensure that King John knew without qualification
14. where the authority to prevent the exercise of those rights was to be constrained:
15.
"It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely
16. and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some
short space, for the common good of the kingdom: excepting prisoners and outlaws, according to
17. the laws of the land, and of the people of the nation at war against us, and Merchants who shall be
treated as it is said above."
18.
This right was carried forward in the Constitution for the United States within the Bill of Rights.
19.
This Court long ago recognized that the nature of our Federal Union and our constitutional
20. concepts of personal liberty unite to require that all citizens be free to travel throughout the
length and breadth of our land uninhibited by statutes, rules, or regulations which unreasonably
21.
burden or restrict this movement. It suffices that, as MR. JUSTICE STEWART said for the
22. Court in United States v. Guest, 383 U.S. 745 (1966)]
23. "The claim and exercise of a Constitutional right cannot be converted into a crime" ...
"a denial of them would be a denial of due process of law".
24. Simmons v. United States, 390 U.S. 377 {1968)
25.
"No state shall convert a liberty into a license, and charge a fee therefore."
26. Murdockv. Pennsylvania, 319 U.S. 105
27.
Page 17 of36
EXHIBIT A-- LAW OF THE CASE
1.
Sec. 6. FREEDOM OF WORSHIP. . .... No human authority ought, in any case whatever, to
2.
control or interfere with the rights of conscience in matters of religion, ...
3.
4.
RIGHTS OF PROPERTY
5.
6. 1866 constitution
SEC. 20. The rights of property and of action, which have been acquired under the Constitution
7. and laws of the Republic of Texas, shall not be divested; nor shall any rights or actions, which
8. have been divested, barred, or declared null and void, by the Constitution and laws of the
Republic of Texas, be reinvested, revived, or reinstated, by this Constitution; but the same shall
9. remain precisely in the situation which they were before the adoption of this Constitution.
10.
Art. 1 Sec. 9. Searches and Seizures. The people shall be secure in their persons, houses
11.
papers and possessions, from all unreasonable seizures or searches, and no warrant to search an
12. place, or to seize any person or thing, shall issue without describing them as near as may be, no
without probable cause, supported by oath or affirmation.
13.
14. "Constitutional provisions for the security of person and property are to be liberally construed,
and "it is the duty of courts to be watcltfu1 for the constitutional rights of the citizen, and against
15. any stealthy encroachments thereon." Byars v. U.S., 273 U.S. 28.
16.
17.
RIGHT OF DUE PROCESS
18.
Specifically the rights of due process in the fourth, fifth, sixth and seventh amendments.
19. Constitution for the United States of America
20. People of Texas have unalienable rights. The Texas Const. enumerates only a select few of th
21. people's unalienable rights and does nothing to affect or take away those rights not enumerated
22. nor could it and/or does it allow for any department of government, or its various officers an
23. agencies, to do so. Similarly, The Texas Const. specifically grants certain procedural rights, an
the courts of this State may not act in any manner or with the intended purpose of depriving th
24.
people of those rights or the procedures implemented to protect them:
25.
''No one, under any circumstances, should be deprived of any right given him by the
26. laws of this state, and, if any provision of our [CCP] has been overlooked or disregarded,
if, in the remotest degree, it could have been hurtful or harmful to the person on trial, the
27. verdict should be set aside. He has a right to be tried in accordance with the rules and
Page 16 of36
EXHIBIT A·- LAW OF THE CASE
1. "Do unto others as you would you have them do unto you." Matt. 7.12
2.
3.
RIGHTS
4.
5. "We hold these truths to be self-evident, that all men are created equal, that they are endowed by
their Creator with certain unalienable Rights that among these are Life, Liberty and the pursuit o
6. Happiness."
Declaration ofIndependence of the United States Amendment IX
7.
8. Specifically but not limited to, the rights to due process in the fourth, fifth, and sixth
9. Amendments. The Constitution of the United States of America.
10.
The state cannot diminish rights of the people. Hertado v. California, 100 US 516.
11.
No higher duty rests upon this Court than to exert its full authority to prevent
12.
all violations of the principles of the Constitution." Downs v. Bidwell, 182 U.S. 244 (1901)
13.
The assertion of federal rights, when plainly and reasonably made, is not to be defeated under the
14. name oflocal practice. Davis v. Wechsler, 263 US 22, 24.
15. Rights Secured By the Texas Constitution
16.
Including but not limited to the following:
17.
Bill of Rights
18.
19. 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
20. 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 a
21.
all times the inalienable right to alter, reform or abolish their government in such manner as they
22. may think expedient.
23.
Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights,
24. and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but
in consideration of public services.
25.
26 ~ Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualification to an
office, or public trust, in this State; nor shall anyone be excluded from holding office on accoun
27.
of his religious sentiments, provided he acknowledge the existence ofa Supreme Being.
Page 15 of36
EXHIBIT A-- LAW OF THE CASE
1. "To be that statute which would deprive a citizen of the Rights of person or property
without a regular trial, according to the course and usage of common law, would not be
2. the law of the land."
3. [Hoke v. Henderson, 15 N.C. 15,25 AM. Dec. 677]
4.
The legislature cannot condemn a particular act as an indictable offense, and then
5. empower the courts in the prosecution of such an offense, to substitute in the indictment
and proof, an altogether different act, not prohibited. Nor can it dispense with the
6. essential allegations and proofs, even in offinses mala prohibita."
[Hewitt v. State (1860) 25 T. 722] [State v. Wilburn (1860) 25 T. 738] [State v. Duke
7.
(1875) 42 T. 455] [Williams v. State (1882) 12 Cr.R. 395] [Huntsman v. State (1882) 12
8. Cr]
9. Under rules of common law procedure, acquiescence to stipulations of fact and law set forth in
10. attending fact, claim and/or complaint affidavits, along with conclusions of law included or
incorporated by reference in conditional acceptance, protest and/or rebuttal documents, will have
11. the effect of a common law Retraxit* by Tacit Procuration**, whether for purposes of
administrative or judicial due process remedies. In the event of acquiescence, stipulations
12. secured by tacit procuration may constitute the basis for counter-claims and other appropriate
remedies.
13. *The act by which a Plaintiff withdraws his suit; (Bouvier'sl856)
**implied power of attorney
14.
15. Any judicial record may be impeached by evidence of a want of jurisdiction in the Court or
judicial officer, of collusion between the parties, or of fraud in the party offering the record, in
16. respect to the proceedings.
17. Therefore, you are hereby provided notice that as a precaution, I am invoking the Saving to
Suitors Clause (28 U.S.C. § 1333(1)) in order to secure and proceed in the course of the common
18. law in the event that there is controversy within special maritime and territorial jurisdiction of
19. the United States.
20.
21. ~Rt;t.\T.QR~~..~~W.
22. TORAH
23.
"You shall not steal." Ex. 20.15
24.
"You shall not give false testimony against your neighbor." Ex. 20.16
25.
"You shall not covet your neighbor's house. You shall not covet your neighbor's wife, or his
26. male or female servant, his ox or donkey, or anything that belongs to your neighbor." Exodos 20.
27. 17
Page 14 of36
EXHIBIT A-- LAW OF THE CASE
1. or unusual punishment inflicted. 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. [Tex.
2. Const. Art. I Sec. 13.]
3.
Tex. Const. Art. I Sec. 19. DEPRIVATION OF LIFE, LIBERTY, ETC.; DUE COURSE OF
4. LAW. No citizen of this State shall be deprived oflife, liberty, property, privileges or
immunities, or in any manner disfranchised, except by the due course of the law of the land.
5.
6. "the common law is the rea/law, the Supreme Law ofthe land,
7. the code, rules, regulations, policy and statutes are "not the law"- [Selfv. Rhay, 61 Wn (2d)
·261]),
8.
"Law of the Land" means "The Common Law."
9. Taylor V. Porter, 4 Hill. 140, 146 (1843) See also the oft quoted by the Supreme court,
Wynehamer v. People, 13 N.Y. 378 (1856)
10.
11. "By the 'law of the land' is most clearly intended the general law [common law]; a law
which hears before it condemns; which proceeds upon inquiry, and renders judgment ·
12. only after trial. It means that every Citizen shall hold his life, liberty, property, and ·
immunities under the protection of the general rules which govern society. Everything
13. which passes under the form of an enactment is not, therefore, to be considered the law of
the land. See the meaning of the term "law of the land" fully discussed. [Huntsman v.
14.
State, 12 Cr.R. 619]
15.
"due course of law.. .is synonymous with 'due process of law' or 'law of the land"' ...
16. Kansas Pac. Ry. Co. v. Dunmeyer, 19 Kan 542 (See also Davidson v. New Orelans, 96
US 97, 24, LEd 616).
17.
"Law of the land," "due course oflaw," and "due process of law" are synonymous."--
18.
People v. Skinner, Cal., 110 P.2d 41, 45; State v. Rossi, 71 R.I. 284,43 A.2d 323, 326;
19. Direct Plumbing Supply Co. v. City of Dayton, 138 Ohio St. 540, 38 N.E.2d 70, 72, 137
A.L.R. 1058; Stoner v. Higginson, 316 Pa. 481, 175 A. 527, 531
20.
"Common Law as distinguished from law created by the enactment of legislatures, the
21. 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
22.
from usages and customs of immemorial antiquity, or from the judgments and decrees of
23. the courts recognizing, affirming, and enforcing such usages and customs; and, in this
sense, particularly the ancient unwritten law of England."-- I Kent,
24. Comm. 492. Western Union Tel. Co. v. Call Pub. Co., 21 S.Ct. 561, 181 U.S. 92, 45
L.Ed. 765; Barry v.
25. Port Jervis, 72 N.Y.S. 104, 64 App. Div. 268; U. S. v. Miller, D.C.Wash., 236 F. 798,
26. 800.
27.
Page 13 of36
EXIllBIT A -- LAW OF THE CASE
L.
2. The Fifth, and Seventh Amendments to the Constitution of the United States of America secures
due process in the course of the common law to the American people, which necessarily includes
3.
the right to trial by jury. See Wayman v. Southard, 23 U.S. 1, 6 L.Ed. 253, 10 Wheat 1 (1825).
4.
5. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
and all Treaties made, or which shall be made, under the Authority of the United States, shall be
6. the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in
the Constitution or Laws of any State to the Contrary notwithstanding. [Constitution for the
7. United States of America, Article VI, Clause 2.]
8. It is also not entirely unworthy of observation, that in declaring what shall be the supreme law of
9. the land, the constitution itself is first mentioned; and not the laws of the United States generally,
but those only which shall be made in pursuance of the constitution, have that rank.
10. "The Constitution is superior to any ordinary act of the legislature; the Constitution and not such
ordinary act, must govern the case to which they both apply. "All laws which are repugnant to
11. the Constitution are null and void." [Marbury v. Madison, 5 US 137, 176 (U.S.Supreme Ct)]
12.
"It cannot be assumed that the framers of the Constitution and the people who adopted it, did not
13. intend that which is the plain import of the language used. When the language of the Constitutio
is positive and free of all ambiguity, all courts are not at liberty, by a resort to the refinements of
14. legal learning, to restrict its obvious meaning to avoid the hardships of particular cases. We must
accept the Constitution as it reads when its language is unambiguous, for it is the mandate of the
15. Sovereign power." Cooke v. Iverson, 122, N.W. 251.
16.
17 . "Where the meaning of the Constitution is clear and unambiguous, there can be no resort to
construction to attribute to the founders a purpose or intent not manifest in its letter." Norris v.
18. Baltimore, 172, MD 667; 192 A 531.0.
19.
"Where rights secured by the Constitution are involved, there can be no rule in making or
20.
legislation which would abrogate them." Miranda v. Arizona, (U.S. Supreme Ct) 380 US
21. 436(1966)
22.
"Government may not prohibit or control the conduct of a person for reasons that infringe upon
23. constitutionally guaranteed freedoms." Smith v. U.S. 502 F 2d 512 CA Tex(1974)
24.
"We find it intolerable that one Constitutional right should have to be surrendered in order to
25. assert another." Simmons v. U.S., 390, US 389(1968)
26.
EXCESSIVE BAIL OR FINES; CRUEL AND UNUSUAL PUNISHMENT; REMEDY BY DUE
27. COURSE OF LAW. Excessive bail shall not be required, nor excessive fines imposed, nor cruel
Page 12 of36
EXHIBIT A-- LAW OF THE CASE
1. until amends shall have been made according to their judgment.
Saving the persons of ourselves, our queen and our children.
2. And when amends shall have been made they shall be in accord
3. with us as they had been previously. And whoever of the land
wishes to do so, shall swear that in carrying out all the
4. aforesaid measures he will obey the mandates of the aforesaid
twenty five barons, and that, with them, he will oppress us
5. to the extent of his power. And, to any one who wishes to do
so, we publicly and freely give permission to swear; and we
6. will never prevent any one from swearing. Moreover, all
7. those in the land who shall be unwilling, themselves and of
their own accord, to swear to the twenty jive barons as to
8. distraining and oppressing us with them: such ones we shall
make to swear by our mandate, as has been said. And if any one
9. of the twenty five barons shall die, or leave the
country, or in any other way be prevented from carrying out
10.
the aforesaid measures,--the remainder of the aforesaid
11. twenty five barons shall choose another in his place,
according to their judgment, who shall be sworn in the same
12. way as the others. Moreover, in all things entrusted·to those
twenty five barons to be carried out, if those twenty five
13. shall be present and chance to disagree among themselves with
regard to some matter, or if some of them, having been
14.
summoned, shall be unwilling or unable to be present: that
15. which the majority of those present shall decide or decree
shall be considered binding and valid, just as if all the
16. twenty five had consented to it. And the aforesaid twenty
five shall swear that they will faithfully observe all the
17. foregoing, and will cause them to be observed to the extent
of their power. And we shall obtain nothing from any one,
18.
either through ourselves or through another, by which any of
19. those concessions and liberties may be revoked or diminished.
And if any such thing shall have been obtained, it shall be
20. vain and invalid, and we shall never make use of it either
through ourselves or through another.
21.
22. 63. Wherefore we will and firmly decree that the English
church shall be free, and that the subjects of our realm shall
23. have and hold all the aforesaid liberties, rights and
concessions, duly and in peace, freely and quietly, fully and
24. entirely, for themselves and their heirs, from us and our
25. heirs, in all matters and in all places, forever, as has been
said. Moreover it has been sworn, on our part as well as on
26. the part ofthe barons, that all these above mentioned
provisions shall be observed with good faith and without evil
27. intent.
Page 11 of36
EXHIBIT A --LAW OF THE CASE
1. if, by chance, we desist from our pilgrimage, we shall
straightway then show full justice regarding them.
2.
3. 55. All fines imposed by us urifustly and contrary to the law
of the land, and all amerciaments made urifustly and contrary
4. to the law of the land, shall be altogether remitted, or it
shall be done with regard to them according to the judgment
5.
of the twenty five barons mentioned below as sureties for
6. the peace, or according to the judgment of the majority of
them together with the aforesaid Stephen archbishop of
7. Canterbury, if he can be present, and with others whom he
may wish to associate with himself for this purpose. And if
8. he can not be present, the affair shall nevertheless proceed
without him; in such way that, if one or more of the said
9.
twenty five barons shall be concerned in a similar complaint,
10. they shall be removed as to this particular decision, and in
their place, for this purpose alone, others shall be
11. substituted who shall be chosen and sworn by the remainder
of those twenty five.
12.
13. 61. Inasmuch as for the sake ofEl, and for the bettering of
our realm, and for the more ready healing of the discord which
14. has arisen between us and our barons, we have made all these
aforesaid concessions,--wishing them to enjoy for ever entire
15. and firm stability, we make and grant to them the following
16. security: that the barons, namely, may elect at their pleasure
twenty five barons from the realm, who ought, with all their
17. strength, to observe, maintain and cause to be observed, the
· peace and privileges which we have granted to them and
18. confirmed by this our present charter in such wise, namely,
that if we, our justice, or our bailiffs, or any one of our
19. servants shall have transgressed against any one in any
20. respect, or shall have broken some one of the articles of
peace or security, and our transgression shall have been shown
21. to four barons of the aforesaid twenty five: those four
barons shall come to us, or, if we are abroad, to our
22. justice, showing to us our error; and they shall ask us to
cause that error to be amended without delay. And if we do
23.
not amend that error, or, we being abroad, if our justice do
24. not amend it within a term of forty days from the time when
it was shown to us or, we being abroad, to our justice: the
25. aforesaid four barons shall refer the matter to the remainder
ofthe'twenty five barons, and those twenty five barons, with
26. the whole land in common, shall distrain and oppress us in
every way in their power,--namely, by taking our castles,
27.
lands and possessions, and in every other way that they can,
Page 10 of36
EXHIBIT A-- LAW OF THE CASE
1. well by land as by water, for the purpose of buying and
selling, free from all evil taxes, subject to the ancient
2. and right customs--save in time of war, and if they are of
3.
the land at war against us. And if such be found in our
land at the beginning of the war, they shall be held, without
4. harm to their bodies and goods, until it shall be known to us
or our chief justice how the merchants of our land are to be
5. treated who shall, at that time, be found in the land at war
against us. And if ours shall be safe there, the others shall
6. be safe in our land.
7 ..
42. Henceforth any person, savingfealty to us, may go out
8. of our realm and return to it, safely and securely, by land
and by water, except perhaps for a briefperiod in time ofwar,
9. for the common good ofthe realm. But prisoners and outlaws
are excepted according to the law of the realm; also people
10. of a land at war against us, and the merchants, with regard
11. to whom shall be done as we have said.
12. 45. We will not make men justices, constables, sheriff.s, or
bailiff.s, unless they are such as know the law ofthe realm,
13. and are minded to observe it rightly.
14.
48. All evil customs concerning forests and warrens, and
15. concerning foresters and warreners, sheriffs and their
servants, river banks and their guardians, shall straightway
16. be inquired into in each county, through twelve sworn knights
from that county, and shall be eradicated by them, entirely,
17. so that they shall never be renewed, within forty days after
the inquest has been made; in such manner that we shall first
18.
know about them, or our justice if we be not in England.
19.
52. If anyone shall have been disseized by us, or removed,
20. without a legal sentence of his peers, from his lands, castles,
liberties or lawful right, we shall straightway restore them to
21. him. And if a dispute shall arise concerning this matter it
shall be settled according to the judgment of the twenty-five
22.
barons who are mentioned below as sureties for the peace. But
23. with regard to all those things of which any one was, by king
Henry our father or king Richard our brother, disseized or
24. dispossessed without legal judgment of his peers, which we
have in our hand or which others hold, and for which we ought
25. to give a guarantee: We shall have respite until the common
26. term for crusaders. Except with regard to those concerning
which a plea was moved, or an inquest made by our order, before
27. we took the cross. But when we return from our pilgrimage, or
Page9 of36
-----------------------------------------------------------
EXHIBIT A --LAW OF THE CASE
1.
21. Earls and barons shall not be amerced save through
2. their peers, and only according to the measure of the offence.
3.
24. No sheriff, constable, coroners, or other bailiffs of ours
4. shall hold the pleas ofour crown.
5. 28. No constable or other bailiff ofours shall take the corn
or other chattels ofany one except he straightway give
6. money for them, or can be allowed a respite in that regard by
7• the will of the seller.
8. 30. No sheriffnor bailiffofours, nor any one else, shall
take the horses or carts ofany freeman for transport, unless
9. by the will of that freeman.
10.
31. Neither we nor our bailiffs shall take another's wood for
11. castles or for other private uses, unless by the will of him
to whom the wood belongs.
12.
32. We shall not hold the lands of those convicted of felony
13. longer than a year and a day; and then the lands shall be
restored to the lords of the fiefs.
14.
15. 34. Henceforth the writ which is called Praecipe shall not be
served on any one for any holding so as to cause a free man to
16. lose his court.
17. 36. Henceforth nothing shall be given or taken for a writ of
inquest in a matter concerning life or limb; but it shall be
18.
conceded gratis, and shall not be denied.
19.
38. No bailiff, on his own simple assertion, shall henceforth
20 • put any one to his law, without producing faithfUl witnesses
in evidence.
21.
22.
39. No freeman shall be taken, or imprisoned, or disseized,
or outlawed, or exiled, or in any way harmed-nor will we go
23. upon or send upon him--save by the lawful judgment ofhis peers
or by the law ofthe land
24.
40. To none will we sell, to none deny or delay, right or
25. justice.
26.
41. All merchants may safely and securely go out ofEngland,
27. and come into England, and delay and pass through England, as
Page 8 of36
EXHIBIT A-- LAW OF THE CASE
1. WHO ARE MAGISTRATES. Each of the following officers is a magistrate within the meanin
of this Code: The justices of the Supreme Court ... [Texas Code of Crim. Proc., Art. 2.09]
2.
3. ... that they cause the foresaid charters to be published, and to declare to the people that we have
confirmed them in all points; (3) and that our justices, sheriffs, mayors, and other ministers,
4. which under us have the laws ofour land to guide, shall allow the said charters pleaded before
them in judgement in all their points, that is to wit, the Great Charter as the common law[*] and
5. the Charter of the forest, for the wealth of our realm.
6. [*] This reaffirms that the Magna Carta may be pleaded as the Common Law before a court.
7.
In the Confirmation's second article, it is confirmed that
8.
if any judgement be given from henceforth contrary to the points of the charters aforesaid by the
9. justices, or by any other our ministers that hold plea before them against the points of the
charters, it shall be undone, and holden for nought. 1
10.
11.
MAGNA CARTA
12.
13.
14. 1. First of all have granted to EL, and, for us and for our
heirs forever, have confirmed, by this our present charter,
15. ... And thus we will that it be observed. As is apparent from the fact that
we, spontaneously and of our own free will, before discord
16. broke out between ourselves and our barons, did grant and by
our charter confirm--and did cause the lord pope Innocent III,
17.
to confirm--freedom of elections, which is considered most
18. important and most necessary to the church of England. Which
charter both we ourselves shall observe, and we will that it
19. be observed with good faith by our heirs forever. We have a/so
granted to all free men of our realm, on the part ofourselves
20. and our heirs forever, all the subjoined liberties, to have and
to hold, to them and to their heirs, from us and from our
21.
heirs:
22.
20. A freeman shall only be amerced for a small
23. offence according to the measure of that offence. And for a
great offence he shall be amerced according to the
24. magnitude of the offence, saving his contenement; and a
25. merchant, in the same way, saving his merchandize. And a
villein, in the same way, if he fall under our mercy,
26. shall be amerced saving his wainnage. And none of the
aforesaid fines shall be imposed save upon oath of upright men
27. from the neighbourhood.
Page 7 of36
EXHIBIT A-- LAW OF THE CASE
1. Article 1. Bill of Rights
2. Sec. 2. Inherent Political Power; Republican Form of Government. All political power i
3.
inherent in the people, and all .free governments are founded on their authority, and instituted fo
4.
their benefit. The faith of the people of Texas stands pledged to the preservation of a republic
5.
form of government, and, subject to this limitation only, they have at all times the ina/ienabl
6.
7. right to alter, reform or abolish their government in such manner as they may think expedient.
8.
"Public officers are merely the agents of the public, whose powers and authority are defined and
9. limited by law. Any act without the scope of the authority so defmed does not bind the principal,
and all persons dealing with such agents are charged with knowledge of the extent of their
10.
authority". [Continental Casualty Co. v. United States, 113 F.2d 284, 286 (5th Cir. 1940)]
11.
12.
"It is not the function of our Government to keep the citizen from falling into error; it is the
13. function of the citizen to keep the government from falling into error."
[American Communications Association v. Douds, 339 U.S. 382,442 (1950)]
14.
15.
16.
Notice and Choice of Law
17.
The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American
18.
Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas.
19. 1047]
A written law is that which is promulgated in writing, and of which a record is in existence.
20.
21. COMMON LAW GOVERNS. The rule of procedure in any particular state of case which may
22. arise, the rules of the common law shall be applied and govern, the common law drawn from the
Magna Carta where applicable.
23.
Confmnatio Cartarum
24.
This document is a bridge between the Constitutional protection of one's access to the commo
25. law, and the Magna Carta. The modem value of the following is that it links the Magna Carta t
the Common Law. The U.S. Constitution guarantees one's access to the Common Law,[U.S
26. Const. Amend. V, VII] i.e. the Magna Carta.
27.
Page 6 of36
EXHIBIT A-- LAW OF THE CASE
1. It is the public policy of this state that public agencies exist to aid in the conduct of the people's
business.... The people of this state do not yield their sovereignty to the agencies which serve
2. them. [California Government Code, Section 11120.]
3.
In enacting this chapter, the Legislature fmds and declares that the public commissions, boards
4. and councils and the other public agencies in this State exist to aid in the conduct of the people's
business ....The people of this State do not yield their sovereignty to the agencies which serve
5. them. [California Government Code Section 54950.]
6.
President's Executive Order
7.
(b) The Constitution created a Federal Government of supreme, but limited, powers. The
8.
sovereign powers not granted to the Federal Government are reserved to the people or to the
9. States, unless prohibited to the states by the Constitution.
(d) The people of the States are at liberty, subject only to the limitations in the Constitution itsel
10. or in Federal law, to define the moral, political, and legal character of their lives.
Executive Order 13083- Federalism
11. May 14,1998
12.
Government: Republican Government. One in which the powers ofsovereignty are vested in the
13. people and are exercised by the people, either directly, or through representatives chosen by the
people, to whom those powers are specially delegated. [In re Duncan, 139 U.S. 449, 11 S.Ct.
14. 573, 35 L.Ed. 219; [Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627] [Black's Law
Dictionary, Fifth Edition, p. 626]
15.
16. "Every man is independent of all laws, except those prescribed by nature. He is not bound by an
institutions formed by his fellowmen without his consent" [CRUDEN v. NEALE 2N.C. (1796) 2
17. SE 70 CRUDEN v NEALE, 2 N.C. 338 (1796) 2 S.E. 70]
18.
19. Limits of Government
20. THE Conventions of a number of States, having at the time of their adopting the Constitution,
21. expressed a desire, in order to prevent misconstruction or abuse of its powers that further
declaratory and restrictive clauses should be added [U.S. Congress 1789- Bill ofRights.
22.
Bill of Rights]
23.
Amendment IX. The enumeration in Constitution, of certain rights, shall not be construed to
24. deny or disparage others retained by the people.
25.
Amendment X. The powers not delegated to the United States by the Constitution, nor prohibite
26. by it to the States, are reserved to the States respectively, or to the people.
27. The Texas Constitution
Page 5 of36
EXHIBIT A --LAW OF THE CASE
1. Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas.
1047
2.
3. The sovereignty of the United States resides in the people and Congress cannot invoke the
sovereignty of the people to override their will as declared in the Constitution. P. 294 U.S. 353.
4.
Perry v. United States 294 U.S. 330 (1935)
5.
Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but, in
6.
our system, while sovereign powers are delegated to the agencies of government, sovereignty
7. itself remains with the people, by whom and for whom all government exists and acts. And the
law is the definition and limitation of power.[ Yick Wo v Hopkins, 118 U.S. 356, 370]
8.
"'Sovereignty' means that the decree of sovereign makes law, and foreign courts cannot
9. condemn influences persuading sovereign to make the decree." Moscow Fire Ins. Co. of
10. Moscow, Russia v. Bank ofNew York & Trust Co., 294 N.Y.S. 648,662, 161 Misc. 903.
11. The people of this State, as the successors of its former sovereign, are entitled to all the
rights which formerly belonged to the King by his prerogative. [Lansing v. Smith, 4
12. Wend. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C Em.Dom. Sec. 3,
228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.]
13.
14. A consequence of this prerogative is the legal ubiquity of the king. His majesty in the eye
of the law is always present in all his courts, though he cannot personally distribute
15. justice. (Fortesc.c.8. 2Inst.186) His judges are the mirror by which the king's image is
reflected. 1 Blackstone's Commentaries, 270, Chapter 7, Section 379.
16.
17.
RESERVATION OF SOVEREIGNTY: "Even if the Tribe's power to tax were derived solei
18. from its power to exclude non-Indians from the reservation, the Tribe has the authority to impos
the severance tax. Non-Indians who lawfully enter tribal lands remain subject to a tribe's powe
19. to exclude them, which power includes the lesser power to tax or place other conditions on th
non-Indian's conduct or continued presence on the reservation. The Tribe's role as commercia
20. partner with petitioners should not be confused with its role as sovereign. It is one thing to fm
that the Tribe has agreed to sell the right to use the land and take valuable minerals from it, an
21.
quite another to fmd that the Tribe has abandoned its sovereign powers simply because it has no
22. expressly reserved them through a contract. To presume that a sovereign forever waives the righ
to exercise one of its powers unless it expressly reserves the right to exercise that power in
23. commercial agreement turns the concept of sovereignty on its head. Merrion v. Jicarilla Apach
Tribe; Amoco Production Company v. Jicarilla Apache Indian Tribe, 455 U.S. 130, 131, 10
24. S.Ct. 894, 71 L.Ed.2d 21 (1981)
25.
Bond v. U.S. SCOTUS recognizes personal sovereignty, June 16,2011
26.
People are supreme, not the state. [Waring vs. the Mayor ofSavanah, 60 Georgiaat 93]
27.
Page4 of36
EXHIBIT A --LAW OF THE CASE
1. Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal225; Erwin v.
2. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117
N.E. 229, 23l.][Black's Law Dictionary, 4th Ed.~ 425, 426]
3.
4.
5.
6.
SOVEREIGNTY
7.
Constitution for the United States of America
8.
Preamble
9.
We the people ... do ordain and establish this Constitution ...
10.
11.
12. The Texas Constitution
13. Preamble
14.
Humbly invoking the blessings of Almighty God, the people of the State of Texas, d
15.
ordain and establish this Constitution.
16.
The Texas Constitution
17.
Article 1. Bill ofRights
18.
19. Sec. 2. Inherant Political Power; Republican Form of Government. All political power i
20. inherent in the people, and all free governments are founded on their authority, and instituted fo
21. their benefit. The faith of the people of Texas stands pledged to the preservation of a republic
22.
form of government, and, subject to this limitation only, they have at all times the inalienabl
23.
right to alter, reform or abolish their government in such manner as they may think expedient.
24.
... at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of
25.
the country, but they are sovereigns without subjects...with none to govern but themselves .....
26. [CHISHOLM v. GEORGIA (US) 2 Dall419, 454, 1 LEd 440,455 @DALL (1793) pp471-472
27.
The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American
Page 3 of36
EXHIBIT A --LAW OF THE CASE
1. COURT. 1. The person and suit of the sovereign; the place where the sovereign sojourns with his
2. regal retinue, wherever that,may be. [Black's Law Dictionary, 5th Edition, page 318.]
3. 2. An agency of the sovereign created by it directly or indirectly under its authority, consisting o
4. one or more officers, established and maintained for the purpose of hearing and determining
issues of law and fact regarding legal rights and alleged violations thereof, and of applying the
5.
sanctions of the law, authorized to exercise its powers in the course of law at times and places
6. previously determined by lawful authority. [Isbill v. Stovall, Tex.Civ.App., 92 S.W.2d 1067,
7. 1070; Black's Law Dictionary, 4th Edition, page 425]
8.
COURT OF RECORD. To be a court of record a court must have four characteristics, and may
9. have a fifth. They are:
10.
1. A judicial tribunal having attributes and exercising functions independently of
11. the person of the magistrate designated generally to hold it [Jones v. Jones, 188
12. Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per
Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688,
13.
689][Black's Law Dictionary, 4th Ed., 425, 426]
14.
2. Proceeding according to the course of common law [Jones v. Jones, 188
15.
Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per
16. Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688,
17. 689][Black's Law Dictionary, 4th Ed., 425, 426]
18.
19. 3. Its acts and judicial proceedings are enrolled, or recorded, for a perpetual
20. memory and testimony. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas
Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal225; Erwin v. U.S.,
21.
D.C.Ga., 37 F. 488,2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E.
22. 229, 231]
23.
4. Has power to fine or imprison for contempt. [3 Bl. Comm. 24; 3 Steph. Comm.
24.
383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal225;
25. Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St.
26. 205, 117 N.E. 229, 231. ][Black's Law Dictionary, 4th Ed., 425, 426]
27.
5. Generally possesses a seal. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The
Page 2 of36
EXHIBIT A ~- LAW OF THE CASE
1. I. LAW OF THE CASE
2.
The law of the case is decreed as follows:
3.
4. Justice and judgment are the habitation ofthy throne
Mercy and truth shall go before thy face. - Psa 89:14
5.
Do justice to the afflicted and the needy. Psa. 82:3
6.
7.
8. SUPERIOR COURT
9.
Origin of the term "superior court"
10.
In common law systems, a superior court is a court of general competence which typically has
11.
unlimited jurisdiction with regard to civil and criminal legal cases. A superior court is "superior"
12. relative to a court with limited jurisdiction, which is restricted to civil cases involving monetary
amounts with a specific limit, or criminal cases involving offenses of a less serious nature. A
13. superior court may hear appeals from lower courts.
14. The term "superior court" has its origins in the English court system. The royal courts were the
highest courts in the country, with what would now be termed supervisory jurisdiction over
15.
baronial and local courts. Decisions of those courts could be reviewed by the royal courts, as part
16. of the Crown's role as the ultimate fountain of justice. The royal courts became known as the
"superior courts", while lower courts whose decisions could be reviewed by the royal courts
17. became known as "inferior courts". The decisions of the superior courts were not reviewable or
appealable, unless an appeal was created by statute.
18.
To constitute a court a superior court as to any class of action within the common- law meaning
19.
of that term; its jurisdiction of such actions must be unconditional, so that the only thing requisite
20. to enable the court to take cognizance of them is the acquisition of jurisdiction of the persons of
the parties. Simons v. De Bare, 4 Bosw., N.Y.
21.
A statutory or constitutional court (whether it be an appellate or supreme court) may not second
22.
guess the judgment of a common law court of record. The Supreme Court of the USA
23. acknowledges the common law as supreme: "The judgment of a court of record whose
jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is
24.
as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact,
25. by deciding it." Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v.
BUSTAMONTE, 412 U.S. 218,255 (1973)]
26.
"Henceforth the writ which is called Praecipe shall not be served on any one for any holding so
27.
as to cause a free man to lose his court." [Magna Carta, Article 34].
Page 1 of36
EXIDBIT A --LAW OF THE CASE
ATIACHMENTB
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CONTEST TO EACH VIOLATION USTEO ON THIS TICKET. FOR MORE INFORMATION CALL (512) 974-4800.
DEFENDANT COPY
ATIACHMENTC
1. THE STATE OF TEXAS, § In the SUPERIOR COURT OF TEXAS 1
Plaintiff, § OF PUBLIC RECORD
2 ..
v. § AUSTIN, TEXAS,
3. § TRAVIS COUNTY, Texas2
David Kent McDade, §
4. Respondent §
5. § Date: 1104/2015
David Kent McDade, §
6. counterplaintiff, §
v. §
7.
§
8. THE STATE OF TEXAS, §
Sherry M. Statman,
9. "Officer Knouse Badge #
5931 ,""Supervisor," and
10. "Second Officer"
... counterdefendants §
11.
§
12.
13.
FIRST CAUSE OF ACTION
14.
15. TRESPASS
16.
17.
18. 1. David Kent McDade, (hereinafter "McDade") is one of the people of Texas and in this court
19. of record complains of each of the following:
20.
21. THE STATE OF TEXAS "STATE", People vs. David Kent McDade, Citation
22. Number(s) 14092560, 14092561 (hereinafter "Inferior Court"); and Sherry M.
23. 1
Only cases have numbers. There being no charging instrument filed, much less served, there is no case, here, by
any number. Until STATE proves standing on the record this is a non-case, Austin v. New Hampshire, 420 U.S. 656,
24. 668 (1975) (Blackmun, J., dissent); Deposit Guaranty Nat'/ Bank v. Roper, 445 U.S. at 353 (Powell, J., and Stewart,
J., dissent); Williams v. Vermont, 472 U.S. at 36 (dissent) (citing Austin), i.e., civil, until STATE proves standing. A
25. common number associated with this matter is yet to be established to the knowledge of Respondent.
2
26. The above style is mostly guess work, however, comfortably presumed are the Plaintiff and the County. The
proper name and capacity of both the Plaintiff and the court are all still unknown. There has never been timely or
27. proper service on McDade of any charging instrument or anything at all identifying all parties and proper service
information for same.
Page I of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. Statman, "Officer Knouse Badge# 5931," "Supervisor," and "Second Officer"
2. (hereinafter "Infringers"); (all hereinafter collectively "Infringers");
3.
4.
5.
6. who are each summoned to answer the said counterplaintiti in a plea of trespass and trespass on
7. the case, to wit:
8.
9. BACKGROUND
10.
11 . 2. Each of the Infringers exceeded his jurisdiction by either directly, through an agent, or in
12. concert with another did cause counterplaintiffMcDade to be aggravatedly unlawfully
13 . imprisoned3 against his will, without jurisdiction. Preceding the imprisonment counterplaintiff
14. McDade was dull engaged in good faith exercising his unalienable, substantive right to Travel
15. freely and unencumbered. Said Infringers interrupted said Travel, then unlawfully, aggravatedly
16. imprisoned counterplaintiffMcDade. During this unlawful, aggravated imprisonment under,
17. threat, duress, coercion, and against his will Infringers subjected counterplaintiffMcDade to
18 . multiple threats of further charges and or incarceration if certain requested information and or
19 · papers was/were not given verbally and or produced physically.
20.
21. 3. At the time of the alleged offence, till the present counterplaintiffMcDade under color oflaw,
22 . was held in actual or constructive aggravated unlawful imprisonment. Although he objected to
23 · the assumed jurisdiction, those who kept him aggravatedly, imprisoned under color of law did
24.
3
25. Imprison: To confine a person or restrain his liberty in any way. Black's Law Dictionary, 5th Edition
Imprisonment: .. .it may be in a locality used only for the specific occasion; or it may take place without the actual
26. application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of
available force. Black's Law Dictionary, 5th Edition
27. 4
Duly: ... according to law in both form and substance. Black's Law Dictionary, 5th Edition
Page 2 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. not respond to any of his demands and requests for proof of jurisdiction or for discharge of the
2. action against him and the reinstatement of his liberty. They continued to assume the jurisdictio
3. without proof of jurisdiction or any attempt at proof of jurisdiction. Counterplaintiff McDade
4. continues to be subject, under color oflaw, to the assumed jurisdiction of the Infringers.
5.
6.
7. JURISDICTION
8.
9. 4. On examination of all available information, counterplaintiff is able to ascertain that
10. counterdefendants had/have no lawful jurisdiction to commit their acts.
11.
12. 5. Therefore, on information and belief, counterplaintiffMcDade alleges thatinfringers do/did·
13. not have any jurisdiction and may not extrajudicially proceed. 5
14.
15 · 6. Counterplaintiff demands that Infringers submit to the court proof of jurisdiction, if any they
16. have.
17.
18.
5
"However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the
19. United States, it must be considered and decided, before any court can move one further step in the cause; as any
movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject
20. matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question
21. is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law,
to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a
22. judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with
which is the right of the case, is judicial action, by hearing and determining it. 6 Peters, 709; 4 Russell, 415; 3
23. Peters, 203-7" Cited by STATE OF RHODE ISLAND v. COM. OF MASSACHUSETTS, 37 U.S. 657,718 (1838)
"Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its
24.
decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if it
25. act· without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and
form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; an
26. all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliott v
Peirsol, l Pet. 328,340,26 U.S. 328,340, 7L.Ed. 164 (1828)
27.
Page 3 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1· 7. If no proof of jurisdiction is submitted to the court, counterplaintiff demands that the above-
2. entitled court of record find that Infringers are without jurisdiction, that the counterplaintiff be
3. discharged from above stated matters stated in Citation Number(s) 14092560, 14092561 without
4. delay, and that the Inferior Court may not proceed.
5.
6.
SECOND CAUSE OF ACTION
7.
8. TRESPASS
9.
10. JURISDICTION
11.
12 . 8. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein.
13.
14. 9. Each counterdefendant acted in such a way, or failed to act in such a way, that
15. counterplaintiff McDade is deprived of his liberty. Each counterdefendant acted to deprive
16. counterplaintiff McDade of his liberty; or each counterdefendant failed to act to prevent the loss
17. by counterplaintiff McDade of his liberty. Further, each counterdefendant is a willing
18. participant in concert with each of the remaining counterdefendants.
19.
20 . 10. At all times mentioned in this action each counterdefendant is the agent of the other, and in
21 . doing the acts alleged in this action, each is acting within the course and scope of said agency.
22.
23.
24.
Facts of Incident
25.
Counterplaintiff McDade hereby makes the following statements of fact under penalty of perjury
26.
and asserts that they are true and correct.
27.
Page 4 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. 1. Counterplaintiff McDade was stopped on or about the 8th day of October, 2014 a
2. approximately 8:17am by a person(s) identifying themselves as "City of Austin Municipa
3.
"Police Officers."
4.
2. The person(s) who seized, accosted, and unlawfully Aggravatedly Imprisone
5.
counterplaintiff McDade has been identified only as "Officer Knouse Badge # 5931'
6. hereinafter, Knouse # 5931 and his "Supervisor" hereinafter Supervisor and "Secon
7. Officer" hereinafter known as "Unknown Officer" (all hereinafter collectively "Infringers");
8.
3. At the time of the "traffic/transportation stop," counterplaintiff McDade was "arrested'
9.
which amounted to counterplaintiff McDade being seized, accosted, and unlawfully,
10.
aggravatedly imprisoned by the Infringers upon the initiation of the stop for the purpose o
11. issuing Citation Number(s) 14092560, 14092561. This fact is attested to by the Infringer
12. admittance of such at the time of "traffic/transportation stop". counterplaintiff McDade wa
13. forcibly issued Citation Number(s) 14092560, 14092561 under threat, duress, and coercion b
14. the Infringers.
15.
4. At the time of the "traffic/transportation stop", and unlawful Aggravated Imprisonmen
16. counterplaintiff McDade requested to speak to the Knouse # 5931 's Supervisor (name to b
17. determined), during which time another officer "Unknown Officer" arrived; when Knouse
18. 5931 's Supervisor arrived counterplaintiff McDade informed the Supervisor of the situation an
19. the Supervisor and other "Unknown Officer" all of the above identified officers took part in an
allowed the unlawful Aggravated Imprisonment to continue until forcibly issued Citatio
20.
Number(s) 14092560, 14092561 were completed.
21.
22. 5. At the time of the "traffic/transportation stop", and unlawful, aggravated Imprisonmen
23. counterplaintiff McDade was traveling viatically upon the public right-of-way in a privat
24. conveyance for his own private business and pleasure while utilizing due diligence. and care t
25·. ensure that his actions did not cause harm to other person( s) or property and no such harm ha
taken place.
26.
27.
Page 5 of31
-----------------------------------------------------------
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. 6. Counterplaintiff McDade was not engaged in causing harm to any person, property, or thing,
2. nor was counterplaintiff McDade providing the Infringers with any probable cause to believe tha
3. counterplaintiffMcDade was engaging in any actions to cause harm to any person(s) or property
or thing but, counterplaintiff McDade was still stopped, seized, accosted, and unlawfully
4.
aggravatedly imprisoned by the Infringers without any apparent probable cause to believe sue
5.
activities were taking place.
6.
7. 7. Counterplaintiff McDade asserts that at the time of the "traffic/transportation stop" he was
not causing harm to any person or property or being violent in any way. McDade asserts that
8. he is/was doing nothing more than exercising a unalienable, substantive Right and liberty to
Travel freely and unencumbered and the use of his private property for Private Travel.
9.
10.
11. THIRD CAUSE OF ACTION
12.
TRESPASS
13.
14. JURISDICTION
15.
16. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein.
17.
18. DISCUSSION
19.
20.
11. ISSUE: Does the court have personal jurisdiction over counterplaintiffMcDade
21.
22. in the instant matter?
23.
24. Overview: The systemic problem with Notice.
25. For there to be personal jurisdiction, there must first be proper Notice.
26.
27.
Page 6 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. Notice requires both filing and serving the paperwork.
2. Murphy Bros., Inc. (timing and sequence matter regarding filing and serving); Lloyd, 5
3.
U.S. at 366 ("A citation not served is as no citation."). It may help to mention in this context tha
4.
an "administrative citation" (a "ticket") and a "complaint," Art. 45.018(b), are two entirel
5.
different things.
6.
Thus, it doesn't matter, yet, whether this is characterized as civil or criminal, becaus
7.
8. Notice will have the same requirements, either way. And, there is, to date, no Notice.
9.
10. Notice previously required the filing and serving of two documents.
11. In a generic misdemeanor matter, Notice used to require the filing and serving of tw
12.
different documents: (I) a "complaint," which is a sworn statement, and (2) a pleading,
13.
commonly known and referred to as an Information. Arts. 2.04, 21.20, 21.21, 21.22.
14.
15. Art. 2.04. [28] [34] [35] Shall draw complaints
16. Upon complaint being made before a district or county
attorney that an offense has been committed in his
17. district or county, he shall reduce the complaint to
writing and cause the same to be signed and sworn to by
18.
the complainant, and it shall be duly attested by said
19. attorney.
Art. 2.04 (emphasis added).
20.
21. Art. 2.05. [29] [35] [36] When complaint is made
22. If the offense be a misdemeanor, the attorney shall
forthwith prepare an information based upon such
23. complaint and file the same in the court having
jurisdiction; provided, that in counties having no county
24.
attorney, misdemeanor cases may be tried upon complaint
25. alone, without an information, provided, however, in
counties having one or more criminal district courts an
26. information must be filed in each misdemeanor case . ...
27. Art. 2. 05 (Thomson/West 2005) (emphasis added).
Page 7 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. Art. 21.20. [413] [477] [465] "Information"
2. An "Information" is a written statement filed and
presented in behalf of the State by the district or
3. county attorney, charging the defendant with an offense
which may by law be so prosecuted.
4.
Art. 21.20 (emphasis added}.
5.
6. Art. 21.21. [414] [478] [466] Requisites of an information
[District/County Court]
7. An information is sufficient if it has the following
requisites:
8.
1. It shall commence, "In the name and by authority of
9. the State of Texas";
10. 2. That it appear to have been presented in a court
having jurisdiction of the offense set forth;
11.
3. That it appear to have been presented by the proper
12. officer;
13. 4. That it contain the name of the accused, or state that
his name is unknown and give a reasonably accurate
14. description of him;
15. 5. It must appear that the place where the offense is
charged to have been committed is within the jurisdiction
16. of the court where the information is filed;
17. 6. That the time mentioned be some date anterior to the
filing of the information, and that the offense does not
18.
appear to be barred by limitation;
19. 7. That the offense be set forth in plain and
intelligible words;
20.
8. That it conclude, "Against the peace and dignity of
21. the State"; and
22. 9. It must be signed by the district or county attorney,
officially.
23.
Art. 21.21 (emphasis added).
24.
Art. 21.22. [4)5] [479] [467] Information based upon
25.
complaint
26. [District/County Court]
No information shall be presented until affidavit has
27. been made by some credible person charging the defendant
Page 8 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. with an offense. The affidavit shall be filed with the
information. It may be sworn to before the district or
2. county attorney who, for that purpose, shall have power
3. to administer the oath, or it may be made before any
officer authorized by law to administer oaths.
4. Art. 21.22 (emphasis added).
5.
Art. 27. 01. [ 504] [ 568] [ 557] Indictment or information
6.
The primary pleading in a criminal action on the part of
7. the State is the indictment or information.
8. Art. 27.01 (emphasis added).
9.
10. Without both of those documents, two key problems existed.
11.
THE "LACK OF ATTORNEY SIGNATURE" PROBLEM.
12. To examine into the pleading first, STATE OF TEXAS is, in actuality, a corporate entity
13.
a commercial enterprise, doing business in "this state" via the benefit of a tax exemptio
14.
certificate. To date, most who read that think that the author of such a thought has complete}
15.
lost his mind. So, rather than proving that point at this early stage, it's still the case that all wh
16.
17. are faced with the question eventually realize that whether it's a commercial enterprise, o
18. something governmental, it's still an artificial entity. No artificial entity may appear in co
19. without authorized signature. For a misdemeanor case, that authorized signature exists if there'
20. a pleading. For a misdemeanor, the pleading is the Information.
21.
22. No PLEADING FILED?-No NOTICE.
23. [TEX. CONST. Art. 5, § 12]; Arts. 2.04, 21.20, 21.21, 21.22, 27.01; Rowland, 506 U.S. a
24. 201-03 (all artificial entities must have counsel-federal); TEX. R: Civ. P. 7 (corporations mus
25.
have counsel-state); Kuntoplast of Am., Inc. (same); Computize, Inc. (same); Moore (same)·
26.
Dell Dev. Corp. (same); Globe Leasing, Inc., 43.7 S.W.2d at 45-46 (same); ABA MODEL RULE
27.
Page 9 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. OF PROF'L CONDUCT R. 3.7 (material witness can't also be attorney of Record); TEX.
2. DISCIPLINARY RS. PROF'L CONDUCT R. 3.08, 5.05 (same, plus facilitating unauthorized practice)·
3.
Garcetti v. Ceballos (ethics still matter; "whistleblower" lawyer who testifies against client i
4.
fortunate still to have license, much less job); Tex. Dept. of Parks & Wildlife v. Mirand
5.
(standing, burden on plaintiff, requires "actual grievance"-state). r
6.
7.
8.
9. No PLEADING SERVED?-No NOTICE.
10. A pleading has meaning sometime after it's been filed, not before. See Murphy Bros.
11. Inc .. A pleading has meaning sometime after it's been served, not before. Lloyd, 5 U.S. at 36
12.
("A citation not served is as no citation.").
13.
14. IN SUM, No PLEADING?-No NOTICE.
15. Thus, without a pleading, there simply was no Notice, thus no case.
16.
17. THE ''LACKOFWITNESSSTATEMENT" PROBLEM.
No "administrative citation" ("'ticket") has ever been a "complaint." A "complaint" is
18.
19. sworn statement. See Arts. 2.04, 21.22, 45.018, and 45.019.
20.
IN SVM, NO COMPLAINT AND NO PLEADING?-NO NOTICE.
21.
Thus, it used to be that without the filing and serving of both a "complaint" and a
22.
Information, there simply was no Notice.
23.
24.
When the Money became "funny money," almost everything changed.
25. See, e.g., Schinzing ("complaint" is an adequate charging instrument).
26.
27.
Page 10 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. The relationship with Art. 45.019- a "ticket" is not a "complaint."
2. A "ticket" is not a "complaint." How do we know? First, Art. 45.019 informs us that
3. "complaint" is something that is, among other things, (1) sworn to, (2) started with certai
4. language, and (3) ended with certain language. No "ticket" satisfies all of those elements.
5.
Art. 45.019. [883] [973] [938] Requisites Of Complaint
6. [Municipal Court]
(a) A complaint is sufficient, without regard to its
7.
form, if it substantially satisfies the following
8. requisites:
(1) it must be in writing;
9.
(2) it must commence "In the name and by the authority
10. of the State of Texas";
11. (3) it must state the name of the accused, if known,
or if unknown, must include a reasonably definite
12. description of the accused;
13. (4) it must show that the accused has committed an
offense against the law of this state, or state that
14.
the affiant has good reason to believe and does
15. believe that the accused has committed an offense
against the law of this state;
16.
( 5) it must state the date the offense was committed
17. as definitely as the affiant is able to provide;
(6) it must bear the signature or mark of the affiant;
18.
and
19. (7) it must conclude with the words "Against the peace
20. and dignity of the State" and, if the offense charged
is an offense only under a municipal ordinance, it may
21. also conclude with the words "Contrary to the said
ordinance".
22.
(b) A complaint filed in justice court must allege that
23. the offense was committed in the county in which the
complaint is made.
24.
(c) A complaint filed in municipal court must allege that
25. the offense was committed in the territorial limits of
the municipality in which the complaint is made.
26.
(d) A complaint may be sworn to before any officer
27. authorized to administer oaths.
Page 11 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. (e) A complaint in municipal court may be sworn to
before:
2.
(1) the municipal judge;
3.
( 2) the clerk of the court or a deputy clerk;
4. (3) the city secretary; or
5. (4) the city attorney or a deputy city attorney.
6. (f) If the defendant does not object to a defect, error,
or irregularity of form or substance in a charging
7. instrument before the date on which the trial on the
merits commences, the defendant waives and forfeits the
8. right to object to the defect, error, or irregularity.
9. Nothing in this article prohibits a trial court from
requiring that an objection to a charging instrument be
10. made at an earlier time.
11. Art 45.019 (emphasis added).
12. But cf Art. 21.21 (attorney signature required). See also TEX. TRANSP. CODE ANN.
13. 708.105 (regarding the "Notice of surcharges" statement typesetting requirements and th
14.
citations non-compliance with same).
15.
Thus, the Information is no longer required, which means that STATE doesn't appear vi
16.
signature of authorized counsel anymore. That failure renders Service of documents such as thi
17.
18. next to impossible, but when STATE wants to correct that oversight, the legislature will compe
19 . inclusion of an authorized signature along with a name and address on the complaints so tha
.20. defendants in courts of Record may serve the documents that are "required" to file.
21.
The reason why there's no need for a pleading, any more, is that the forum isn't the sam
22.
type forum as used to exist. Some people go into orbit hearing this, but it's still the case that th
23.
gold fringe on the flags proclaims the maritime-law nature of the fundamental "choice of law" i
24.
operation. Thus, what used to be a judicial forum is now an executive, maritime forum. This i
25.
26. why there is no more need for STATE to appear via pleading, i.e., via authorized signature.
27. Whatever may be the paperwork, Notice is still required.
Page 12 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. Art. 45.018. Complaint [Justice and Municipal Courts]
2. (a) For purposes of this chapter, a complaint is a sworn
allegation charging the accused with the commission of an
3. offense.
4. (b) A defendant is entitled to notice of a complaint
against the defendant not later than the day before the
5.
date of any proceeding in the prosecution of the
6. defendant under the complaint. The defendant may waive
the right to notice granted by this subsection.
7.
Art. 45.018 (emphasis added).
8.
Where this provision is not satisfied, there is no Notice. To date, this provision remain
9.
unsatisfied.
10.
11. Where this provision is not satisfied, a statutorily defined right belonging to McDade ha
12. been violated. Art. 45.018(b) creates a statutory right that declares McDade "is entitled to'
13. Notice of a complaint at least one day prior to any prosecutorial proceeding related to tha
14.
complaint.
15.
This phrase is defined in§ 311.016(4), Gov. Code.
16.
Sec. 311.016). "MAY," "SHALL," "MUST," ETC. The following
17. constructions apply unless the context in which the word or
phrase appears necessarily requires a different
18.
construction or unless a different construction is
19. expressly provided by statute:
20. ( 1) "May" creates discretionary authority or grants
permission or a power.
21.
(2), "Shall" imposes a duty.
22. (3) "Must" creates or recognizes a condition precedent.
23. (4) "Is entitled to" creates or recognizes a right.
24. ( 5)"May not" imposes a prohibition and is synonymous
with "shall not."
25.
(6) "Is not entitled to" negates a right.
26. (7) "Is not required to" negates a duty or condition
precedent.
27.
Page 13 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. As this phrase establishes a reference to either an already existing and recognized right,
2. or, a right created by statute, it is a right that cannot be taken away or ignored unless it is waive
3.
by counterplaintiff McDade or removed by due process of law. Counterplaintiff McDade has no
4.
and will not waive this right, and, does in fact object to the failure of both the STATE and th
5.
court to ensure that counterplaintiffMcDade's right is fully protected and complied with.Neithe
6.
7. has counterplaintiff McDade been convicted of anything that could work to remove this righ
8. from his access.
9. In short, where we 're headed, at light speed, is toward a void judgment.
10. The court must have personal jurisdiction. See Milliken (the Wyoming judgment wa
11.
valid because service was valid; hence, the Wyoming court did have personal jurisdiction).
12.
13. [I}t has been settled, that a judgment depending upon proceedings in personam can
have no force as to one on whom there has been no service of process, actual or
14. constructive; who has had no day in court, and no notice of any proceeding against
him. That with respect to such a person, such a judgment is absolutely void ....
15.
Harris, 55 U.S. at 339 (cited in Commercial Equip., 678 S.W.2d at 918, which holds tha
16.
even a default judgment is void where there is no service). See also Peralta (even "'meritoriou
17.
18. defense" issue is irrelevant to question of Notice); Lloyd ("'A citation not served is as n
19. citation."); Hamdi (habeas proceeding, which is, of course, a CIVIL proceeding); Internal'
20. Shoe; Mullane; Armstrong, 380 U.S. at 552; Sniadach; Boddie; Fuentes v. Shevin; N Ga.
21.
Finishing; and Jones.
22.
The "arraignment" is "any proceeding." Cf Rothgery v. Gillespie County, Texas, 55
23.
U.S. 191 (2008). There beirig no notice of any complaint at least a day before the arraignment
24.
25. there is no Notice.
26.
27.
Page 14 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. No matter what is delivered to a defendant, where there is no case number, no cou
2. name, and no contact information provided for service of defense pleadings, motions, and briefs
3.
it follows that no original pleading has been filed, much less served.
4.
5.
6.
7. No NOTICE?--NO PERSONAL JlJRISDICTION.
8.
ISSUE: Does this court have subjeCt matter jurisdiction?
9.
Where there is no personal jurisdiction, the matter is a non-case. All cases are non-cases
10.
Cf Austin (Blackmun, J., dissent); Deposit Guaranty Nat 'I Bank, 445 U.S. at 353 (Powell, J., an
11.
12. Stewart, J., dissent); Williams, 472 U.S. at 36 (dissent) (citing Austin), i.e., civil, until STAT
13. proves standing. Some matters, just like this one, never stop being non-cases. Cf Rockwell Int'
14. Corp (the final pre-trial order confirmed that this was a non-case).
15.
This is a "criminal case only" forum. Non-cases are civil in nature. This court has n
16.
subject matter jurisdiction over any "civil" (non-case) matter.
17.
18.
Statutory Challenges.
19.
20.
ISSUE: Does Art. 25.04 violate Due Process?
21.
Given Art. 45.018(b) , counterplaintiff McDade doubts that Art. 25.04 is in any wa
22.
relevant to this matter. However, should Art. 25.04 be relevant, counterplaintiff McDade object
23.
to Art. 25.04 as repugnant to Due Process.
24.
Art. 25.04.
25.
In misdemeanors, it shall not be necessary before trial
26. to furnish the accused with a copy of the indictment or
27.
Page 15 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. information; but he or his counsel may demand a copy,
which shall be given as early as possible.
2.
3.
4.
5. Art. 25.04.
6. This language purports to give STATE a pass on its Due Process duty to serve Notice.
(
7. This language pretends that a court, especially a court of "criminal case only" jurisdiction, rna
8.
proceed without affirmative proof of Notice. To the exact opposite result, no such court ha
9.
jurisdiction of any kind unless and until STATE has filed its original pleading, by whateve
10.
name, e.g., a "complaint", and then served it (timely).
11.
Cf Murphy Bros. Inc. (sequence matters regarding filing and serving the ongma
12.
13. pleading). 6 See also Lloyd, 5 U.S. at 366 ("A citation not served is as no citation.").
14. To date, counterplaintiff McDade has received nothing that tells him that STATE ha
15. filed anything. Service would tell counterplaintiff McDade what the case number is, in whic
16.
court any case has been filed, and on whom he should serve his filings. The case style used in th
17.
documents to date is largely guesswork. The guesses are included so that what he files may fin
18.
its way, eventually, to the right destination. If STATE had served its original pleading, the
19.
20.
McDade would not be guessing, at all. In short, counterplaintiff McDade has no Notice that an
21. "case or controversy" exists.
22. There is no legislative enactment or judicial procedural rule that lawfully relieves STAT
23. of its duty to provide meaningful Notice. A competent, Due-Process minded statute/plan wil
24.
25. 6
Murphy Bros. is a civil case, but all cases are non-cases, i.e., civil, until the plaintiff, here STATE, proves standing.
26. It's impossible for STATE to prove standing for a criminal case where there is no charging instrument even filed,
much less served. The authority to determine authority is civil. Marbury v. Madison. Civil authority is inherent. C.f
27. United Mine Workers. STATE must prove standing in the criminal context before there's anything even remotely
possible to label as criminal.
Page 16 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. place the burdens properly. First, STATE files its original pleading. Then, STATE Serves it
2. original pleading. Once the Record shows return of competent service on the defendant o
3.
STATE's original pleading, then an Arraignment may/can be scheduled. Until then, it's not eve
4.
a case; it's a non-case, i.e., a civil matter.
5.
6.
"Hearing" the charge read in no way constitutes meaningful Notice.
7.
In "this state," we deal with a world of very insidious, clever but insidious, semantics
8.
9. Some of those semantics are in the terms, themselves. No code or statutory plan/scheme is mor
10. semantics-driven, semantics-dependent than any STATE's "transportation" code (and/or
11. "vehicles and traffic" code). Responding verbally to a verbal presentation of those semantics i
12.
humanly possible (although, as discussed next, compelling an "instant" response is repugnant t
13.
Due Process). But some of the semantics on which the systems in "this state" depend aren'
14.
discemable until detected visually via the presentation of the words on the page. For this reason
15.
16. it's 100% legally impossible for anyone to have any idea, at all, whatsoever, of what STATE'
17. case is about unless and until the written word is delivered by means consistent with Du
18. Process. "Hearing" the words read aloud will never be legally equivalent to "reading" them
19. "[T]his state" is just too semantics-driven, too semantics-dependent, for "hearing" to replac
20.
"seeing".
21.
How does a defendant obtain a copy of STATE's original pleading so as to be able t
22.
read it? Either the defendant waives Notice and does STATE's work for STATE, finding th
23.
24. information on his own, or else the defendant compels STATE to satisfy its duty under Du
25. Process to serve at a meaningful time, in a meaningful manner, on the defendant a copy of wha
26. STATE has filed.
27.
Page 17 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. An elementary and fundamental requirement of due process in any proceeding which
is to be accorded finality is notice reasonably calculated, under the circumstances, to
2. apprise interested parties of the pendency of the action and afford them the
3. opportunity to present their objections.
4. Mullane, 339 U.S. at 314. A failure of Notice violates "the most rudimentary demands of du
5. process of law." Armstrong, 380 U.S. at 550 (Notice, meaningful time, meaningful manner. 38
6. U.S. at 552).
7.
See also Milliken (Notice, opportunity to be heard, fair play, substantial justice);
8.
Internat'l Shoe (Notice, opportunity to be heard); Sniadach (Notice, opportunity to be heard)·
9.
Fuentes v. Shevin (Notice, meaningful time); N Ga. Finishing (Notice, opportunity to be heard,
10.
even for corporations (i.e., the shareholders)); Burns (Notice, opportunity to be heard, o
11.
12. upward departure); Hamdi (denial of access and of opportunity to be heard); Jones (Notice
13. opportunity to be heard).
14.
15. To compel an instant response is to offend Due Process.
16.
If Due Process in/for "this state" allowed "hearing" (a non-filed complaint?) to substitut
17.
for "reading/seeing" the filed original pleading, it's still the reality that a system that demand
18.
that a defendant respond immediately to any presentation of charges against him, whether verba
19.
or in writing, is a system that offends Due Process. There's nothing "meaningful" about "Notice'
20.
21. that allows absolutely no time to study into the matter..
22. In general, even in criminal matters, which this one isn't but pretends to want to be
23. STATE must give Notice. Cf O'Grady.
24.
Under the applicable federal standards, the duty is on STATE to provide Notice. The du
25.
is not placed on the defendant to demand it. It's placed on STATE to provide it. This statut
26.
purports to reverse that burden, to relieve STATE of its duty to provide meaningful Notice, at
27.
Page 18 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. meaningful time in a meaningful manner. Therefore, this statute facially defies and offends Du
2. Process.
3.
4. ISSUE: What does· "person" mean?
5.
TRANSP. CODE§§ 541.001(4)
6.
Defined- "person" means: an individual, firm, partnership, association, or
7.
corporation.
8.
Translation: "commercial legal entity"
9.
10. Application of statutory algebra: If no "person" then no "transportation" or
11. If no "transportation" then no "person,"
12. Conclusion: If no "person" then No statue violated.
13.
14.
ISSUE: What does "transportation" mean?
15.
Not defined in the Transp. Code.
16.
What is the Transp. Code about? The "transportation" code nowhere define
17.
18. "transportation." It's not that we can't come up with a definition. It's that when wedo, we fin
19. that "transportation" is "commercial." Thus, where there's no definition, there's vagueness. But,
20. there is a definition, if we look long and hard enough.
21.
22.
Defined.
23.
"Transportation" means removing people and/or property from here to there for profit o
24.
hire under the choice of law of the "place" called "this state."
25.
26.
Removing People and/or Property.
27.
Page 19 of31
--------------------------------~~-------------------------
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. Transp. Act of 1940, 54 Stat. 898, 929, 49 U.S.C. § 902(i)(l ), in particular § 302(i)(l) .
2. Cornell Steam-boat, 321 U.S. at 641-42 (Frankfurter, J., dissent).
3.
4.
From Here To There.
5.
Cf Maynard (context: unlawful "transportation" of intoxicating liquor).
6.
7.
For Profit or Hire.
8.
St. Clair Cnty, 192 U.S. at 456-57 (allegations regarding operating a ferry without
9.
10. license). See also Cosio, 182 S.W. at 85.
11.
12. Under the Choice of Law of the "Place" Called "this State."
13. The entirety of STATE's regulatory authority, for anything, is limited to that "place'
14. where circulating "funny money" is not flat out fraud, i.e., to the "place" called "this state." Cf
15.
7; Graham (special maritime and territorial jurisdiction).
16.
17.
The Generic Concept of "use."
18.
If use were irrelevant, it'd be "fraud" to deny a mileage deduction, e.g., Sched. A., fo
19.
"personal use" of the car. Because "personal use" is not deductible, it follows that use determine
20.
21. "personal v. commercial" treatment and that "personal use" is not commercial in any context
22. Obviously, personal (non-commercial) use (i.e., travel) needs no "license."
23.
24. "Use" and the TenyStop.
25. . The ticketing officer never even tried to establish "transportation" use. He asked nothin
26.
about any passenger manifest or any bill of lading. The executive has to have authority t
27.
Page 20 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. determine his/its authority, and police always have authority to protect themselves. Terry. Th
2. car has a license plate.
3.
But, that's where the Terry authority ended, because counterplaintiff McDade was no
4.
engaged in "transportation," at the time of the stop.
5.
6.
7.
Deliberate indifference.
8• This officer had nor been taught that "transportation" regulation has limits. In the exac
9. same way that Rap1os and Compean were never taught about "this state" and the limits of thei
10. authority at the border, this officer was not taught the limits of "transportation" regulation. "[A]
i
11.
violation of federal rights may be a highly predictable consequence of a failure to equip la
12.
enforcement officers with specific tools to handle recurring situations." Brown, 520 U.S. at 409.
13.
14.
ISSUE: What does "vehicle" mean?
15.
TRANSP. CODE§§ 502.001(25), 541.201(23), 621.001(9), Sec. 750.003(a).
16.
Translation: a conveyance used for "transportation" purposes.
17.
18. Application of statutory algebra: If no '"transportation," then no "vehicle."
19.
20. ISSUE: What does "motor vehicle" mean?
21. TRANSP. CODE §§ 501.002(17), 502.001(25), 522.003(21), 541.201(11), 601.002(5)
22. 642.001(1), 647.001(4), 683.001(4), 728.001(2).
23. Translation: "Vehicle" with a motor.
24.
Application of statutory algebra: If no "transportation," then no "vehicle;" if n
25.
"vehicle," then no "motor vehicle."
26.
27.
Page 21 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. ISSUE: What does "drive" mean?
2. TRANSP. CODE§ 522.003(11).
3.
The sole definition for "drive" m the entire "transportation" code 1s found m
4.
"commercial driver's license" chapter, Ch. 522.
5.
Translation: In the disciplined "transportation" code, "drive" means being behind th
6.
7. wheel of a "vehicle." In the TRANSP. CODE, "drive" means being behind the wheel of a "moto
8. vehicle."
9. Application of statutory algebra: If no "transportation," then no "vehicle;" if n
10.
"vehicle," then no "motor vehicle;" if no "motor vehicle," then no "driving;: hence, no "driver."
11.
12.
ISSUE: What does "operator" mean?
13.
TRANSP. CODE§ 541.001(1).
14.
This "definition" is very confused. "Drives," which has meaning only with respect to
15.
"motor vehicle," is juxtaposed with the concept of "physical control of a vehicle." Ultimately, i
16.
17. doesn't matter, here, but which is it: "vehicle" or "motor vehicle?" 7
18. Translation: In the disciplined "transportation" code, "operator" is the one behind th
19. wheel of a "motor vehicle." In the Transp. Code, "operator" is the one behind the wheel of eithe
20.
a "vehicle" or a "motor vehicle."
21.
Application of statutory algebra: No "transportation?"-no "vehicle;" no "vehicle?"-n
22.
"motor vehicle;" no "(motor) vehicle?"-no "operator.".
23.
24.
ISSUE: What does "this state" mean?
25.
26.
7
27. See also§§ 601.002(8) ("motor vehicle"), 642.00 1(2) (same), 647.001(5) (same);§ 724.00 1(11) (looks to a "motor
vehicle" or watercraft, i.e., "transportation" activity); § 24.013(f)(2) (regarding aircraft).
Page 22 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. Contrary to popular belief, "this state" isn't really a "place." It's a "choice of law." Th
2. "place" called "this state" is a "federal area" or a "federal zone," a "Constitution-free, maritime
3.
commercial zone," associated with the "funny money" found in the 48 contiguous states, Alaska
4.
Hawaii, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, the Virgin Islands
5.
and all the rest of the territories and protectorates. The capital of "this state" is DC.
6.
7. Without "this state," running the present "funny money" scam would be criminal. Thus
8. the fundamental "choice of law" to which "this state" refers is the Law of the Sea, to b
9. distinguished from the "choice of law" associated with an honest system of weights an
10.
measures, Lev. 19:35-36, which is the Law of the Land. The Law of the Sea doesn't just apply; i
11.
applies only if there's an agreement that includes that choice oflaw. Ogden. Cf § 7; Graham.
12.
In application of these terms.
13.
There was never any "transportation" at issue. Since counterplaintiff McDade was no
14.
15. engaged in "transportation " there was no "vehicle " no "driver " no "motor vehicle " and n
' ' ' '
16. "operator." Therefore, there was never any authority to issue any "ticket", or "citation".
17.
18. ISSUE: Does this court even really exist as a court ofRecord?
'19. The procedures set out in GOV'T CODE§ 30.00003 have not been followed.
20. The name may or may not be fatally material, but the naming protocol for a municipa
21.
court of record set out by statute has not been applied or followed. More to the point, th
22.
ordinances simply do not create a court of Record.
23.
To label the court one way, i.e., as a court of Record, but to have its existence be something else
24.
entirely, i.e., as a generic municipal court, shows up most prominently in the appellate process.
25.
The mismatch can produce an effective denial of access problem. Cf Harbury
26.
27.
Page 23 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1.
2.
THIRD CAUSE OF ACTION
3.
4.
TRESPASS ON THE CASE
5.
6. JURISDICTION
7.
8. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein.
9.
10. To: State Commission on Judicial Conduct
11.
The issue of the most recent Judicial Misconduct by Mrs. Statman is detailed as follows:
12.
CounterplaintiffMcDade received a traffic citation from the City of Austin Police Dept.,
13.
counterplaintiff McDade filed documents in the Austin Municipal Court in answer to said
14. citation in the form of a Special Appearance Challenging Personal and Subject matter
Jurisdiction and Venue I motion to dismiss, a Declination to Plea and an Affidavit of not
15.
Engaged in Transportation, to show on the record that the court/ Plaintiff had no lawful
16. jurisdiction over the matter or counterplaintiff McDade.
17. There was never any proper and timely notice to counterplaintiff McDade by the court at the
time of the filing of counterplaintiff McDade's documents, as can be proven by the attached
18.
docket call print out from the court website; of ether a Complaint pursuant to Tx. CCP. Art. 2.05,
19. 15.04,5 or an Information that still to this day does not exist (the primary pleading ofthe
STATE) pursuant to Tx. CCP 1.03(5), 1.04,1.05, 27.01, U.S. of A. Const. Amend VI, Tex.
20.
Const. Art. 1 Sec 10; which vacated irreparably any personal jurisdiction by lack of proper and
21. timely action by the court (latches).
22. The court and /or Plaintiff do not have any proof of subject matter jurisdiction in the form of
fact, law, and evidence on the record that counterplaintiff McDade was engaged in the
23.
regulatible Commercial activity of Transportation, which the lack of vacates subject matter
24. jurisdiction. For the/them to prove subject matter jurisdiction they have to prove that the statue
gives them jurisdiction in this particular offence and prove every element as to what grants them
25.
jurisdiction over counterplaintiffMcDade. The Affidavit Not in Transportation proves
26. conclusively the court/Plaintiff does not have such evidence. (No probable cause determination
hearing)
27.
Page 24 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. The Special Appearance/ motion to dismiss addresses both the lack of notice issue and the lack
of subject matter /evidence issue, so you can see the validity of counterplaintiffMcDade's
2.
challenge to both instances of jurisdiction; and my reason to decline to plea to a court lacking not
3. only jurisdiction but also standing. At the present time the court/ Plaintiff is moving forward
absent any lawful jurisdiction (as usual).
4.
5.
6. Jurisdiction is not accomplished simply by physicality as presumed by Mrs. Statman in her
order; this assertion ofjurisdictionjust by physicality claim is (really lame) just ajudicial
7. avoidance tactic (that is taught in law school), to avoid on point the true lack of jurisdiction
8• issue. CounterplaintiffMcDade is quite sure the arguments in the (attached) documents that
counterplaintiffMcDade filed properly and completely address ilie critical issues. They are there
9. for the whole world to see.
10. Mrs. Statsman apparently does not understand (really?) that a challenge to jurisdiction and
11. determination of jurisdiction is always a civil matter, that in and of itself is never criminal; which
is a sad state for a presiding judge (or just a ploy to trick me into general appearance).
12.
A special appearance to challenge jurisdiction of the court is proper until jurisdiction is proven
13. on the record, and as is well known even to a laky like counterplaintiff McDade is the fact
14. subject matter can be challenged at any time even on appeal.
Counterplaintiff McDade realize that just the fact of challenging jurisdiction does not negate its
15. existence, however when challenged the court is absolutely obligated to stop all proceedings,
meet the challenge with fact, law, and evidence on the record conclusively and substantively
16. before continuing not just give it lip service.
17.
The challenge is civil, once jurisdiction has been properly established in the record as due
18. process demands then and only then can the judge lawfully make the assertion that a special
appearance is no longer valid.
19.
Even Mrs. Statman Should be perfectly aware that the moment that an individual makes a
20.
general appearance in-personam jurisdiction has been waved, only by the making of a special
21. appearance may a challenge to jurisdiction including in-personam jurisdiction be maintained by
the accused.
22.
Mrs. Statman states in her (attached) order that there are no valid pretrial actions or issues that
23.
have been raised. CounterplaintiffMcDade did/does rebut and reject that presumption/assertion
24. with fact, law, and evidence on the record under oath, as counterplaintiff McDade does all
Presumptions that come from the Austin Municipal Court. Another attempt to deny the truth,
25.
facts, and evidence and in turn counterplaintiff McDade's rights.
26.
27.
Page 25 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. CounterplaintiffMcDade has a different viewpoint; counterplaintiffMcDade believes that a
challenge to jurisdiction is a critically valid issue in any action, against me or anyone for that
2.
matter especially a supposed criminal one.
3.
Counterplaintiff McDade also has never received from the court either a Tx. CCP Art. 15.17
4. magistration or a Tx. CCP. Art 16.01 Examining Trial, both very important due process violation
issues.
5.
As for the judicial notice issue found in paragraph 1, of Mrs. Statman' s order counterplaintiff
6.
McDade would beg to differ again. A judicial notice is not an action taken by ajudge, but by a
7. court as you can see in this definition from Blacks Law 9th Ed.
Judicial notice: A court's acceptance, for purposes of convenience and without requiring a
8. party's proof, of a well-known and indisputable fact.
9. A judge is not a court! Again defined in Black's as Court: In international law: The person and
Suite of the sovereign; the place where the sovereign sojourns with his regal retinue. wherever
10.
that may be.
11.
12. CounterplaintiffMcDade believes and does believe that instead of the issues In Mrs. Statman's
order being valid issues, counterplaintiff McDade believes they are just more judicial avoidance
13.
tactics and also a cunning way of intimidating someone (witness tampering) who is raising
14. extremely valid issues before the court; ones the court/ Plaintiff must prove on the record before
moving forward to merits: which by the way I have never seen the court/Plaintiff do, they just
15.
gloss over the necessary elements as if they are secondary in nature or as stated in the order, one
16. of physicality.
17.
This is not the first time counterplaintiff McDade has had this type of experience with Mrs.
18. Statman, counterplaintiff McDade has included documents including a transcript from an earlier
due process and substantive rights violation encounter 7/26/2012.
19.
In this encounter counterplaintiff McDade had filed similar documents with the Austin
20. Municipal Court on an alleged traffic violation. On my second "visit" to the court
counterplaintiff McDade was brought into an empty courtroom with only Mrs. Statman, the
21. prosecutor, the clerk, and the court reporter (private trial).
22. Counterplaintiff McDade was immediately verbally abused and threatened by Mrs. Statman; it
23. was not a "hearing" as much as it was a verbal thrashing. No one else spoke once Mrs. Statman
started including the prosecutor, it was very much a one sided affair. Then Mrs. Statman
24. immediately left the courtroom, although she came quickly back when she was told that
counterplaintiffMcDade had a recorder and then verbally threatened counterplaintiffMcDade
25. again. This was before counterplaintiffMcDade really knew what was supposed to happen in a
hearing, along with being taken aback by Mrs. Statman's behavior; counterplaintiffMcDade was
26.
stunned to the degree that counterplaintiff McDade did not even object to the occurrence,
27.
Page 26 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. although couriterplaintiff McDade knew at the time my rights had been violated counterplaintiff
McDade was not learned enough to defend himself. This is no longer the situation.
2.
3.
CounterplaintiffMcDade has reason to believe and does believe that not only is this another
4. instance of judicial misconduct, and of witness tampering, by threat, duress, and coercion.
Counterplaintiff McDade believes it to be clearly a case of Malicious prosecution
5. Counterplaintiff McDade is actually truly concerned for his safety in this court, over a silly
alleged class C misdemeanor. It's not like counterplaintiffMcDade has harmed someone.
6. Actually to speak the truth in this matter counterplaintiff McDade is the one who is really and
7. constructively being harmed. The court and prosecution have a duty not to violate
counterplaintiffMcDade's unalienable, substantive rights, they have breached that duty which is
8. causing counterplaintiffMcDade immediate and direct harm by not only a loss ofliberty, also a
loss of financial gain from time off work, and time to prepare for this action against him plus·
9. costs.
10.
12. Because of the ~ctions committed with actual and implied force counterplaintiffMcDade was
11.
immediately and directly injured and suffered loss of liberty, and was Aggravatedly imprisoned,
12.
and is being maliciously prosecuted under color of law.
13.
14.
13. Counterdefendants had/have a duty to not cause counterplaintiff McDade to be Aggravated!
15.
imprisoned, and be maliciously prosecuted under color of law, and to not cause loss of liberty.
16.
Further, counterdefendants had/have a duty to prove jurisdiction when objection to jurisdiction is
17.
asserted.
18.
19.
14. Counterdefendants have breached that duty.
20.
21.
15. The damages for the injury caused by counterdefendants' actions are $500.000 for unlawful
22.
constructive and actual aggravated imprisonment and malicious prosecution.
23.
24.
25.
26.
27.
Page 27 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. LAW OF THE CASE
2.
3.
16. Exhibit "A" is incorporated by reference as though fully stated herein.
4.
5.
REQUEST FOR RELIEF
6.
7.
17. For that cause of action therefore Plaintiff brings his suit.
8.
9.
18. WHEREFORE, Counterplaintiff McDade requests relief and judgment against
10.
Counterdefendants as follows:
11.
12.
On all causes of action:
13.
14.
19. For general damages in the sum of$500,000 for constructive and actual imprisonment;
15.
16.
20. For loss of earnings according to proof;
17.
18.
21. That the court enter a declaratory judgment that counterdefendants have acted arbitrarily and
19.
capriciously, have abused their discretion and have acted not in accordance with law, but under
20.
color of law;
21.
22.
22. That the court enter a declaratory judgment that counterdefendants have acted contrary to
23.
constitutional right, power or privilege.
24.
25.
23. That the court enter a declaratory judgment that counterdefendants' actions were in excess of
26.
statutory jurisdiction, authority and short of statutory right.
27.
Page 28 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE .
1.
2. 24. That the court enter a declaratory judgment that permanently enjoins counterdefendants' and
3. STATE from interfering in any way with counterplaintiff McDade's lawful right to Travel freel
4• and unencumbered;
5.
6. 24. That the court permanently enjoin counterdefendants from interfering in any way with
7. counterplaintiff McDade's lawful right to Travel freely and unencumbered;
8.
9. 25. That the court enter a declaratory judgment that the records of the court not of record are
'J
10 . impeached for want of jurisdiction in the Court or judicial officers, for collusion between the
11 . parties, and/or for fraud in the parties offering the record, in respect to the proceedings;
12 . 26. That the court grant counterplaintiff McDade his attorneys fees;
13 . 27. That the court grant counterplaintiff McDade such other and further relief as the court deems
14. proper;
15 . 29. For interest as allowed by law; and
16. 30. For costs of suit incurred.
17.
31. I have read and am aware of the foregoing writing. I have personal knowledge of the
18.
foregoing facts and am competent to testify as to the truth of those facts if called as a witness. I
19.
declare under penalty of perjury that the foregoing facts are true and correct, and that this
20.
affidavit was executed in Austin, Texas on 2/3/2015
21.
22.
/s/ - - - - - - - -
23.
24. David Kent McDade
25.
26.
27.
Page 29 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1. COUNTERPLAINTIFF'S CONTACT INFORMATION
2. Contact information for Counterplaintiff McDade is as follows:
3.
David Kent McDade
4.
310 E. Brenham St.
5. Elgin, Texas
6.
7• VERIFICATION
8. 32. STATE OF TEXAS §
ss KNOW ALL MEN BY THESE PRESENTS
9.
COUNTY OF TRAVIS §
10.
Before me, the undersigned Notary, personally appeared David Kent McDade in this matter, whc
11. satisfied me as to his identity, and who, upon administration of oath or affirmation by me, declared anc
deposed as follows:
12. I, David Kent McDade. I am at least 21 years of age, and I am competent to make this Affidavit.
have personal knowledge of these facts and attest under penalty of perjury the facts stated in thi~
13. document are true and correct.
14. I, one of the People of Texas, Assert and Reserve all my unalienable rights, privileges and immunitie~
at Natural Law, Common Law and Maritime Law and all my respective commercial rights relevant t<
15. a place called "this state." Affiant does not consent to nor in any way waive any of my rights in who!€
or in part, nor does Affiant authorize or consent to any violation of those rights by any of Affiant'•
16. public servants or any other Corporate Entities.
17.
The facts stated in this motion, are true and correct.
18.
Further, Affiant sayeth not.
David KenfMcDade, Affiant
19.
20. Notal)' Stamp
Signed and Affirmed to before me on this the 51\ j day of
21. ~~ (month)20 )'£ (year)
22. for which witness my seal and signature.
23. '
Signature:~ ~Vljo"--'
'
24. Notary
25.
26.
27.
Page 30 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
1.
2. CERTIFICATE OF SERVICE
3.
By my signature below, I certify that on this the 29th day ofJanuary, 2015, I have no idea who shoul
4. be served with a true and correct copy of this document, because there is no competent chargin
instrument, much less one showing a name or address for service of such documents on the Plaintiff b
5. McDade In other words, no one has made any Appearance on the Plaintiff's behalf. Therefore, it i
delivered by hand to the court clerk to whoever shows up on the Plaintiff's behalf J.f that is no one, the
6. there is nothing served as of this date.
7.
8.
9. David Kent McDade, Affiant
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
Page 31 of31
COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE
EXHIBIT A
1. I. LAW OF THE CASE
2.
The law of the case is decreed as follows:
3.
4. Justice and judgment are the habitation of thy throne
Mercy and truth shall go before thy face. - Psa 89: 14
5.
6. Yahshua said: If you abide in My word, of a truth My disciples are ye,
You shall know the truth and the truth shall make you free. -Jn. 8:31,32
7.
Do justice to the afflicted and the needy. Psa. 82:3
8.
9.
COMMON LAW GOVERNS. The rule of procedure in any particular state of case which may
10. arise, the rules of the common law shall be applied and govern
11.
Superior Court
12.
13. To constitute a court a superior court as to arty class of
action within the common - law meaning of that term; its
14. jurisdiction of such 'actions must be unconditional, so that
the only thing 'requisite to enable the court to take cognizance
15. of them is the acquisition of jurisdiction of the
16.
gs := persons of the parties. Simons v. De Bare, 4 Bosw., N.Y.
~~J
.~i}~T. ; e p~~ sojourn~ with his
c::>
17.
'd suit of the sovereign; the place where the sovereign
18. 1
reg~l_:· ;bin_tte, w}ie~ved
·' ·:· I
that may be. [Black's Law Dictionary, 5th Edition, page 318.] .
19.
~3 : ;; ::~
20. COURT. Afl. ag~)ley ~Ethe sovereign created by it directly or indirectly under its authority,
t_/J __ ; -
consisting~f Olt1~ or J:l:'mre officers, established and maintained for the purpose of hearing and
21.
determining issues of law and fact regarding legal rights and alleged violations thereof, and of
22. applying the sanctions of the law, authorized to exercise its powers in the course of law at times
and places previously determined by lawful authority. [Isbill v. Stovall, Tex.Civ.App., 92
S.W.2d 1067, 1070; Black's Law Dictionary, 4th Edition, page 425]
25. COURT OF RECORD. To be a court of record a court must have four characteristics, and may
have a fifth. They are:
2 6.
27.
Page 1 of30
EXHIBIT A -- LAW OF THE CASE
1. A. A judicial tribunal having attributes and exercising functions independently of
2. the person of the magistrate designated generally to hold it [Jones v. Jones, 188
Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per
3.
Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688,
4. 689][Black's Law Dictionary, 4th Ed., 425, 426]
5.
6.
7. B. Proceeding according to the course of common law [Jones v. Jones, 188
Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per
8.
Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688,
9. 689][Black's Law Dictionary, 4th Ed., 425, 426]
10.
C. Its acts and judicial proceedings are enrolled, or recorded, for a perpetual
11.
memory and testimony. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas
12. Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S.,
13. D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E.
229,231]
14.
15. D. Has power to fme or imprison for contempt. [3 Bl. Comm. 24; 3 Steph. Comm.
(X) z
16. c::J38Ji=The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal225;
r7};~: '·~~~
~E~.·!:~~..
\.TJf-
(r.::;20$,, 1~7
,S., D.C.Ga., 37 F. 4~8, 2 L.~·~· 229; Heininger v. Davis, 96 Ohio St.
.E. 229, 23l.][Black sLaw Dtct10nary, 4th Ed., 425, 426]
..., __ -1
18 . \'. f:l
1~/ .•.•• -<.:..:.· .
:;- . ··~ f':
19. c::JE. Qe~_er~y possesses a seal. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The
t=Thpiri~
·····'
Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v.
20. ; ~-
;·~U.S~, D.Goa., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117
("...J ~-- -
21. N.E. 229, 23l.][Black's Law Dictionary, 4th Ed., 425, 426]
22.
Henceforth the writ which is called Praecipe shall not be served on any one for any holding so as
23. to cause a free man to lose his court. [Magna Carta, Article 34].
24. A statutory or constitutional court (whether it be an appellate or supreme court) may not second
25. guess the judgment of a common law court of record. The Supreme Court of the USA
acknowledges the common law as supreme: "The judgment of a court of record whose
26. jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is
27.
as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact,
Page 2 of30
EXHIBIT A -- LAW OF THE CASE
1. by deciding it." Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v.
BUSTAMONTE, 412 U.S. 218,255 (1973)]
2.
3.
4.
5.
Sovereignty
6.
... at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of
7. the country, but they are sovereigns without subjects ... with none to govern but themselves .....
[CHISHOLM v. GEORGIA (US) 2 Dall419, 454, 1 LEd 440,455 @DALL (1793) pp471-472
8.
9.
10. The very meaning of 'sovereignty' is that the decree of the sovereign makes law.
[American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53
11. L.Ed. 826, 19 Ann.Cas. 1047
12.
13. The sovereignty of the United States resides in the people, and Congress cannot invoke the
sovereignty of the people to override their will as declared in the Constitution. P. 294 U. S. 353.
14.
Perry v. United States 294 U.S. 330 (1935)
15.
16. CC) ~
c:::> 1--
'l.) I-
~"'S(ly~ig1y' me.ans that the decree_ of soverei_gn makes law, and foreign courts
~c~[:¢o emn mfluences persuadmg sovereign to make the decree." Moscow
rire..Il}~- C . of Moscow, Russia v. Bank ofNew York & Trust Co., 294 N.Y.S.
. /~-.~-/ -· . I .
19. :r- ··--·~ :·· I . 648, 662, 161 MI~C. 903. .
c:::JThe pe.opl~ of this State, as the successors of Its former sovereign, are entitled to
20. ~ll the rJglit~ which formerly belonged to the King by his prerogative. [Lansing v.
Lc;.SmHh;4 W:end. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C
21. ~::'3 Etrt~Donf:Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves
22. Sec. 3, 7.]
23. A consequence of this prerogative is the legal ubiquity of the king. His majesty in
the eye of the law is always present in all his courts, though he cannot personally
24. distribute justice. (Fortesc.c.8. 2Inst.186) His judges are the mirror by which the
king's image is reflected. 1 Blackstone's Commentaries, 270, Chapter 7, Section
25. 379.
26.
27.
Page 3 of30
EXHIBIT A -- LAW OF THE CASE
1. RESERVATION OF SOVEREIGNTY: "Even if the Tribe's power to tax were derive
solely from its power to exclude non-Indians from the reservation, the Tribe has th
2. authority to impose the severance tax. Non-Indians who lawfully enter tribal lands remai
3. subject to a tribe's power to exclude them, which power includes the lesser power to tax o
place other conditions on the non-Indian's conduct or continued presence on the reservation.
4. The Tribe's role as commercial partner with petitioners should not be confused with its rol
as sovereign. It is one thing to find that the Tribe has agreed to sell the right to use the ian
5. and take valuable minerals from it, and quite another to find that the Tribe has abandone
its sovereign powers simply because it has not expressly reserved them through a contract.
6. To presume that a sovereign forever waives the right to exercise one of its powers unless i
7. expressly reserves the right to exercise that power in a commercial agreement turns th
concept of sovereignty on its head. Merrion v. Jicarilla Apache Tribe; Amoco Productio
8. Company v. Jicarilla Apache Indian Tribe, 455 U.S. 130, 131, 102 S.Ct. 894, 71 L.Ed.2d 21
(1981)
9.
Government: Republican Government. One in which the powers of sovereignty are vested i
10. the people and are exercised by the people, either directly, or through representatives chose
by the people, to whom those powers are specially delegated. In re Duncan, 139 U.S. 449
11.
11 S.Ct. 573, 35 L.Ed. 219; Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627
12. Black's Law Dictionary, Fifth Edition, p. 626
13. Bond v. U.S. SCOTUS recognizes personal sovereignty, June 16, 2011
14. Notice and Choice of Law
The Fift~ixt~and Seventh Amendments to the Constitution of the United States of America
15
·
16 ...~~es ~ pn)~ei ~·n the course of the common law to the American people, which necessarily
17 _,.,;~~es ~ rig~ta'.? al by jury. See Wayman v. Southard, 23 U.S. 1, 6 L.Ed. 253, 10 Wheat 1
(182'5). ~- :: !
/ ~-.' :;-- "- P.. !
18. f
c:o :·: : ,, (.')
19. Thereforoou::ar~ihefeby provided notice that as a precaution, I am invoking the saving to
20. suitors c~se~(2:·u~.C. § 1333(1)) in order to secure and proceed in the course of the common
C'·..J ;,.,,_
law in the event that there is controversy within special maritime and territorial jurisdiction of
21.
the United States.
22.
23. Under rules of common law procedure, acquiescence to stipulations of fact and law set forth in
attending fact, claim and/or complaint affidavits, along with conclusions of law included or
24. incorporated by reference in conditional acceptance, protest and/or rebuttal documents, will have
the effect of a common law Retraxit by Tacit Procuration, whether for purposes of administrative
25. or judicial due process remedies. In the event of acquiescence, stipulations secured by tacit
procuration may constitute the basis for counter-claims and other appropriate remedies.
26.
27.
Page 4 of30
EXHIBIT A -- LAW OF THE CASE
1. CREATORS LAW
2. TORAH
3.
"You shall not steal..
4.
"You shall not give false testimony against your neighbor.
5.
"You shall not covet your neighbor's house. You shall not covet your neighbor's wife, or his
6.
male or female servant, his ox or donkey, or anything that belongs to your ~eighbor." Exodos 20
7.
In England in 1215, the right of life, liberty, property, and the express right of travel wer
8. enshrined in Article 42 of Magna Carta to ensure that King John knew without qualificatio
where the authority to prevent the exercise of those rights was to be constrained:
9.
It shall be lawful to any person, for the future,· to go out of our kingdom, and to return,
10. safely and securely, by land or by water, saving his allegiance to us, unless it be in time
11. of war, for some short space, for the common good of the kingdom: excepting prisoners
and outlaws, according to the laws of the land, and of the people of the nation at war
12. against us, and Merchants who shall be treated as it is said above.
13. This right was carried forward in the Constitution for the United States of America within the
Bill of Rights.
14.·
Republican government. One in which the powers of sovereignty are vested in the
15. people and are exercised by the people, either directly, or through representatives
16. chosen by the people, to whom those powers are specially delegated. [In re
D81Jcan;::139 U.S. 449, 11 S.Ct. 573,35 L.Ed. 219; Minor v. Happersett, 88 U.S.
17. {R ~1\:2 162,22 L.Ed. 627." Black's Law Dictionary, Fifth Edition, p. 626.]
C) ::JCC:
,-{ ~~ ;::)
18.
fE ~~ ~ Rights
19.
:.. . . No'j~~ s~all convert a liberty into a lice~se, and charge a fee therefore."
20. c::l ·•~ : ~ u) Murdock v. Pennsylvania, 319,\U.S. 105 ·
21.
::= ::~ ~~ ~~
"'I:{!'e claim an'9 exercise of a Constitutional right cannot be converted into a crime" ...
t ___ ;l :~ -
22. "'·--' - "a aenial of them would be a denial of due process of law".
Simmons v. United States, 390 U.S. 377 (1968)
23.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
24. and all Treaties made, or which shall be made, under the Authority ofthe United States, shall be
the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in
25.
the Constitution or Laws of any State to the Contrary notwithstanding. [Constitution for the
26. United States of America, Article VI, Clause 2.]
27. The rights of property
Page 5 of30
EXHIBIT A -- LAW OF THE CASE
1.
1866 constitution
2. SEC. 20. The rights of property and of action, which have been acquired under the Constitution
3. and laws of the Republic ofTexas, shall not be divested; nor shall any rights or actions, which
have been divested, barred, or declared null and void, by the Constitution and laws of the
4. Republic of Texas, be reinvested, revived, or reinstated, by this Constitution; but the same shall
remain precisely in the situation which they were before the adoption of this Constitution.
5.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparag
6. others retained by the people." [The Constitution ofthe United States of America, Amend. IX.]
7.
(b) The Constitution created a Federal Government of supreme, but limited, powers. The
8. sovereign powers not granted to the Federal Government are reserved to the people or to the
States, unless prohibited to the states by the Constitution.
9. (d) The people of the States are at liberty, subject only to the limitations in the Constitution itsel
or in Federal law, to define the moral, political, and legal character of their lives.
10. Executive Order 13083- Federalism
11. May 14, /998
12.
Specifically the rights to due process in the fourth, fifth, and sixth amendments.
13.
The right of the pe(Jple to be secure in their persons, houses, papers and effects against
14.
unreasonable searches and seizures shall not be violated and no warrant shall issue but upon
15. probable cause supported by oath or affirmation and particularly describing the place to be
g; ~ searched and the person to be seized.
16. Cf) 1-
~ hi1her d~ty r:sts upon this. Co_urt than to exert i~s ~11 authority to prevent
0 ::..:. all v10lat10ns of the pnnc1ples of the ConstitutiOn."
: : -.·,. I
>- :.:-.:!
-·-. ·····
Downs v. Bidwell, 182 U.S. 244 (1901)
(11 :·': ~.-~· : (F)
19.
It is t~j,ublic~{ioJA~y of this state that public agencies exist to aid in the conduct of the
20. people'~\'>usil\~s ::r -__ ~: I passed." Norton vs Shelby County, 118 US 425
.. c ·- I
16. en .. · -·_, i..lJ
TM assertjorr~f federal rights, when plainly and reasonably made, is not to be defeated
17.
:~~ iliider the name oflocal practice. [Davis v. Wechsler, 263 US 22, 24.]
t-=:.='
("',_J
,~ :-·
w.....
:z:
18.
Where rights secured by the Constitution are involved, there can be no rule making
19. or legislation which would abrogate them. [Miranda v. Arizona, 384 US 436, 491.]
20. There can be no sanction or penalty imposed upon one because of this exercise of
constitutional rights. [Sherer v. Cullen, 481 F 946.]
21.
22. "If the state converts a liberty into a privilege the citizen can engage in the right with impunity,.'
Shuttlesworth vs. Birmingham, 3 73 US Report 262
23.
24. "Constitutional provisions for the security of person and property are to be liberally construed,
25. and "it is the duty of courts to be watchful for the constitutional rights of the citizen, and against
any stealthy encroachments thereon."
26. Byars v. U.S., 273 U.S. 28.
27. Color of Law
Page 9 of30
EXHIBIT A -- LAW OF THE CASE
1.
"Color of Law" means "The appearance or semblance, without the substance, of
2. legal right. Misuse of power, possessed by virtue of state law and made possible
3. only because wrongdoer is clothed with authority of state is action taken under
'color oflaw."' Atkins v. Lanning. D.C.Okl., 415 F. Supp. 186, 188.
4.
5.
6.
WILLFULNESS
7.
Claimant must produce evidence regarding "willfulness".
8.
Defined willfulness as an evil motive or intent to avoid a known duty or tax under the law with a
9. moral certainty.
U.S. v. Bishop, 412 US 34
10.
11. "Element of willfulness involves a specific wrongful intent, namely, actual knowledge of
existence of legal obligation and intent to evade that obligation."
12. U.S. v. Thompson, 230 F.Supp. 530,338 F.2d 997 (D.C.Conn. 1964).
13.
14.
NO INJURED PARTY
15. NO STANDING
16.
()")
c.:::>
-
~
1-
(/)f-
~ :~§imtt must produce injured party who has claimed palpable harm.
~ ~i.1~imlofLaw: For there to be a crime, there must be an injured party.
-· ; ~·· I An action is not given to one who is not injured.
19. r:o -= :~ . : (/)
M~: 1\ri ~tatdished principle or proposition. A principle of law universally admitted, as
20. ::S lj~ingj§;t and consonant with reason. (Bouvier's Law Dictionary, 1856)
'• ~
1 .. ••
.._
21. Claimant must produce evidence regarding substance.
22.
Standing, a necessary component of subject-matter jurisdiction, is a constitutional prerequisite to
23. maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440,
444
24. (Tex. 1993). As a necessary component of a court's subject-matter jurisdiction, standing cannot
be
25. waived and can be raised for the first time on appeal. ld. at 445-46.
26. Standing by Statute
27. The Constitution requires standing to m_aintain suit. Williams v. Lara, 52 S.W.3d 171, 178
Page 10 of30
EXHIBIT A -- LAW OF THE CASE
1. (Tex.
2001 ). A party suing under a statute must establish standing, or the right to make a claim,
2. under
3. that statute. See id.; Scott v. Bd. of Adjustment, 405 S.W.2d 55, 56 (Tex. 1966). In these
cases,
4. the statute itselfprovides theframeworkfor the standing analysis. See Williams, 52 S.W.3d
at
5. 178-79; Scott, 405 S.W.2d at 56. We do not imply a right of enforcement just because a
party
6. has suffered harm from the violation of a statute; we look to the intent of the Legislature as
7• expressed in the language of the statute. See Brown V. DelaCruz, 156 s.W.3d 560, 567
8. In Texas, the standing doctrine requires that (1) there be "a real controversy between the
parties," and (2) that real controversy "will be actually determined by the judicial declaration
9. sought." Nootsie, Ltd. v. . .
Williamson CountyAppraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996) (quoting Tex. Air
10.
Control Bd., 852
11. S.W.2d at 446).
12. "The issue ofstanding focuses on whether a party has a sufficient relationship with the
lawsuit so as to have a 'justiciable interest' in its outcome." Austin Nursing Ctr. v. Lovato,
13. 171 S.W.3d
845, 848 (Tex. 2005) (quoting 6A Charles Alan Wright, Arthur R. Miller, and Mary Kay
14.
Kane, Wright,
15. Miller & Kane, Federal Practice and Procedure: Civil 2d § 1559, 441 (2d ed. 1990)).
16. "The dete.r.mination ofwhether a plaintiffpossesses standing to assert a particular claim
17.
depiflds an
the facts pleaded and the cause of action asserted." Everett V. TK-Taito, L.L.C.,
178 ~.? f-
18. ,. ';~;!.:Io-._wever-iate Uiir.i>bJ~ction has been made, or may be made in any cause, in an inferior or
";-p~~}~te ~urt;(ffllie nited States, it must be considered and decided, before any court can
19.
mqv~~pne further ~ep the cause; as any movement is necessarily the exercise of jurisdiction."
20. Rho~e Island v.:.Massa~hussetts,
' '
'
37 U.S. 657, 718, 9 L.Ed. 1233 (1838) "Jurisdiction is
fundame~ and.: ~:jud~ent rendered by a court that does not have jurisdiction to hear is void ab
21. initio." Int:Re Appli_baijon
... f-
L--,.~; ~
ofWyatt, 300 P. 132; Re Cavitt, 118 P2d 846.
L.)~ ~·"·- -~ ..
22. "It i's mos~:::fi.ue ithat th~ Court will not take jurisdiction if it should not: but it is equally true, that
it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a
23.
measure because it approaches the confines ofthe constitution. We cannot pass it by because it is
24. doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must
decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction
25. which is given, than to usurp that which is not given. The one or the other would be treason to
the constitution. Questions may occur which we would gladly avoid; but we cannot avoid them.
26. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In
27. doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all
Page 12 of30
EXHIBIT A -- LAW OF THE CASE
1. cases arising under the constitution and laws of the United States. We find no exception to this
grant, and we cannot insert one." Cohens v. Virginia, 19 U.S. 264, 404, 5 L.Ed. 257, 6 Wheat.
2. 264 ( 1821) "Agency, or party sitting for the agency, (which would be the magistrate of a
municipal court) has no authority to enforce as to any licensee unless he is acting for
3.
compensation. Such an act is highly penal in nature, and should not be construed to include
4 •. anything which is not embraced within its terms. (Where) there is no charge within a complaint
that the accused was employed for compensation to do the act complained of, or that the act
5. constituted part of a contract." Schomig v. Kaiser, 189 Cal596.
6.
7.
RIGHT TO TRAVEL
8.
"No state shall convert a liberty into a license, and charge a fee therefore."
9. Murdock v. Pennsylvania, 319 U.S. 105
10.
11.
12. The Transportation codes applied under Color of Law are a violation of Creator given,
unalienable rights of the people at natural law, common law, and the Constitutionally protected
13. rights under the first, the fourth, fifth, sixth, ninth and tenth amendments.
14. Traffic citations are "Bills of Attainder"/ "Bills of Pains and Penalties; and are in violation of
15. Both the Constitution of the United States for America and the Texas Constitution respectively.
U. S. of A. Const. Art. 1 Sec 9 I Tx. Const.Art. Sec. 16
16. 0") z
CJ f-
1)--.~,--
a ~~ .
.-.· .~---·-...
'
€En_~aiiP. id 1~15, the right of life, liberty, property, ~d the express ~ght of tra~el w~r
18>,; enshrinea·.m 1uttcle 42 of Magna Carta to ensure that Kmg John knew wtthout quahficatw
~here.}hf:autfority to prevent the exercise of those rights was to be constrained:
19.
If~hall b~J3:Wful to any person, for the future, to go out of our kingdom, and to return,
20. safely ;~a~seeurely, by land or by water, saving his· allegiance to us, unless it be in time
21. ~e~ach or omnibus. The former is the usual and ordinary right of a Citizen,
'Comfu9i\ ght, a right common to all, while the latter is special, unusual, an
l9~F,·1~ ~xttaot~in y. As to the former, the extent of legislative power is that of regulation; but
as to: tlie I tter, its power is broader. The right may be wholly denied, or it may b
20. ,,
=rpermitt~d td some and denied to others, because of its extraordinary nature."
21. c::J Stale ~~Quigg, hn. 7, 114 So. 859.
~ ;:~; ~~ ~~
22. ~!..!!AdistinCtion must be observed between the regulation of an activity which may b
c:~::) ~, - r
"''engaged in as a matter of right, and one carried on by government sufferance o
23.
permission, since in the latter case the power to exclude altogether generally includes th
24. lesser power to impose conditions, and may justify a degree of regulation not admissibl
in the former."
25. Packard v. Banton, hn. 8, 264 U.S. 140,44 Sup.Ct. 257.
26. "The public roads, free from any obstructions to travel, are solely, and from fence t
27.
fence, for the use of the traveling public."
Page 14 of30
EXHIBIT A -- LAW OF THE CASE
1. Lebanon Light, Heat & P. Co. v. Leap, 29 L.R.A. 342, 139 Ind. 443, 39 N. E. 57.
(L.R.A. Digest 1888-1918, Highways and Streets, 67.)
2.
3.
"The right to travel is a well-established common right that does not owe its
existence to the federal government. It is recognized by the courts as a natural
4. right."
Schactman v. Dulles 96 App DC 287,225 F2d 938, at 941.
5.
6.
"Generally "public road" is road used by public as matter of right."
7. Atchison Transportation & Shipping F. Ry. Co. v. Acosta, (Civ. App. 1968)
435 S.W.2d 539 ref. n.r.e. (Vernon's Civil Statutes of State of Texas
8.
Annotated p. 119 Note 9)
9.
"The public have the right to adopt any method of travel upon the public streets
10. not calculated to render the streets unsafe to others."
Chicago v. Collins, 49 L.R.A. 408, 175 Ill. 445, 51 N. E. 907. (L.R.A. Digest
11. 1888-1918, Highways and Streets, 70.)
12.
"Citizen's Right to travel upon public highways includes Right to use usual
13. conveyances of time, including horse-drawn carriage, or automobile, for ordinary
purposes of life and business."
14.
15. "The Right of the Citizen to travel upon the public highways and to transport his
property thereon, either by carriage or by automobile, is not a mere privilege
16. which £l city may prohibit or permit at will, but a Common Right which he has
u~r tfre Right to life; liberty, and the pursuit of happiness." ·
:: : "~'~ o~erWi~~i:::bufr
. ;:a:rc::: (::::::: ~:~; ~: ~:~:: ~:::~ers contrac' or
0 1 8 9
by
19 . /' ..: am deeply interested in the Right of the public to use the public
highways freely for all lawful purposes."
20. -E~hiefJ;gsticl~ Tolman, Washington Supreme Court
~~erfspii(v.i!>epartment of Public Works, 180 Wash. 133 at 139.
21. ;~~
r. J
;~~·:
1~'>-
z
_
"Every Citizen has an unalienable Right to make use of the public highways of
22.
the state; every Citizen has full freedom to travel from place to place in the
23. enjoyment of life and liberty."
People v. Nothaus, 147 Colo. 210.
24.
"A highway established for the general benefit of passage and traffic must admit
25. of new methods of use whenever it is found that the general benefit requires
them."
26.
Indiana Springs Co. v. Brown, 1 L.R.A. (N.S.) 238, 165 Ind. 465, 74 N. E.
27. 615. (L.R.A. Digest 1888-1918, Highways and Streets, 68.)
Page 15 of30
EXHIBIT A -- LAW OF THE CASE
1. "The general power to regulate the use of streets is not confined to public uses
known at the time of its dedication, but extends to new uses as 'they spring into
2. existence."
3.
State ex rel. St. Louis Underground Service Co. v. Murphy, 34 L.R.A. 369,
134 Mo. 548,31 S. W. 784,34 S. W. 51, 35 S. W. 1132. (L.R.A. Digest 1888-
4. 1918, Highways and Streets, 68.)
5. "Owners and operators of automobiles have the same right to use the streets and
highways that owners and operators of other vehicles possess, and all alike must
6. exercise reasonable care and caution for the safety of others."
Farnsworth v. Tampa Electric Co., 62 Fla. 166, 57 So. 233. (2 Fla Dig,
7.
Highways, 10.)
8.
"Automotive vehicles are lawful means of conveyance and have equal rights upon
9. the streets with horses and carriages."
Chicago Motor Coach Company et al. v. Chicago, 66 A.L.R. 834,838, 337 Ill.
10. 200, 169 N. E. 22.
11. "Power conferred upon municipalities to regulate the use of the streets by motor
vehicles does not include power to prohibit the use of the streets by them." ...
12.
"regulation is inconsistent with prohibition or exclusion."
13. Chicago Motor Coach Company et al. v. Chicago, hn. 6, 66 A.L.R. 834, 337
Ill. 200, 169 N. E. 22.) (66 A.L.R. 838).
14.
"A Citizen has an absolute right to choose his mode of conveyance provided he
15. observes all of the "laws of the road."
Swift v. Topeka, 8 L.R.A. 772, 43 Kan. 671, 23 Pac. 1075. (L.R.A. Digest
16.
1888-1918, Highways and Streets, 70.
17.
18. z "The streets and highways belong to the public, for the use of the public in the
t- ordinary and customary manner." ·
19. ? ~-- Tadfield v. Lundin, L.R.A.1918B, 909, 98 Wash. 657, 168 Pac. 516~ (L.R.A.
;:: ?
';~\"
igest 1888-1918, Highways and Streets, 65.)
-::"> <.,_) -
-~ ;~·Th~ title to the streets being in the city as trustee for the public, no grant or
- 2:1.
•"~"' ·_- "pen-t\ission can be legally given which will interfere with their public use. The
22. ,.::: itig~ of the public to the use of the streets is absolute and paramount to any
:..;.-! :otqer."
23. .___,
~;.~ :Lincoln Safe Deposit Co. v. New York, L.R.A. 1915F, 1009, 210 N. Y. 34,
103 N. E. 768. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
24.
"A traveler lawfully using a public highway has the same rights to enjoy such use
25. undisturbed as if he were the owner in fee simple."
26. Smethurst v. Independent Cong. Church, 2 L.R.A. 695, 148 Mass. 261, 19 N.
E. 387. (L.R.A. Digest 1888-1918, Highways and Streets, 65.)
27.
Page 16 of30
EXHIBIT A-- LAW OF THE CASE
1. "Any and all of the public have an equal right to the reasonable use of a
highway."
2. Harold v. Jones, 3 L.R.A. 406, 86 Ala. 274, 5 So. 438. (L.R.A. Digest 1888-
3. 1918, Highways and Streets, 66.)
4. "Every person whether an owner of the land or not, whether a Citizen or stranger, has th
right in common with the rest of the public, to travel all of the public highways."
5. Hyde v. Minnesota, D. & P.R. Co., 40 L.R.A. (N.S.) 48, 29 S.D. 220, 136 N. W. 92
(L.R.A. Digest 1888-1918, Highways and Streets, 66.)
6.
7. "All persons have equal right to use the public streets and highways for purposes of travel
by proper means, with due regard to the corresponding rights of others."
8. Butler v. Cabe, L.R.A.1915C, 702, 116 Ark. 26, 171 S. W. 1190. (L.R.A. Diges
1888-1918, Highways and Streets, 66.)
9.
"Every Citizen has a right to use public highways."
10.
Swift v. Topeka, 8 L.R.A. 772, 43 Kan. 671, 23 Pac. 1075. (L.R.A. Digest 1888
11. 1918, Highways and Streets, 66.)
12. "A public street in a city is a public highway and its uses belong to the public generall
and it cannot be said that such uses are limited to the municipality or to its Citizen
13. alone."
Alabama Western R. Co. v. State ex rei. Garber, 19 L.R.A. (N.S.) 1173, 155 Ala. 491
14.
46 So. 468. (L.R.A. Digest 1888-1918, Highways and Streets, 66.)
15.
16.
i
17. 0') z
<=J 1--
~~
DEPRAVATION OF RIGHTS
Ji.,.Stp.-ODE ANN. Sec. 683.001(4) (Thomson/West 2011) .............................................. 21
18. TEX. TR-aNSP~'!=gpEfNN. Sec. 728.001(2) {Thomson/West 2011) .............................................. 21
.-.s:~'::t'g'·. TR~SP~~.·.·-~E NN. Sec. 750.003(a) (Thomson/West 2011) .............................................. 21
19 . .·.:.
·{,\
\,:\
(-.;=:.
-..
0 0
.
. 2 o. ~i~'fession~rResponsibility
. . . ".. '1'.'
21. ABA~EL:~tii.:EipFPROF'LCONDUCTR. 3.7 .......................................................................... 10
TEX. DI~IPL~RY iKs. PROF'L CONDUCT R. 3.08, reprinted in 3A TEX. Gov'T CODE ANN.
22 · pp.29Q597,i327 (tffie 2, subtitle G. app. A (after§ 84) (Thomson/West 2011) (Tex. State Bar
23
• Te~· ~~c~tfn~"R~~-P~~ri..c~~d~~~'R~·;·~os·:·~~~ri~~~d·i~·3A·:r~-~~·a·~~:~·c~~~-A~·--~~·.·2·9·6~9\~
24. 327 (title 2, subtitle G. app. A {after§ 84) (Thomson/West 2011) (Tex. State BarR. art. X,§
9)) .............................................................................................................................................. 10
25.
26.
27.
Page 22 of30
EXHIBIT A -- LAW OF THE CASE
1. WHO ARE MAGISTRATES. Each of the following officers is a magistrate within the
2. meaning of this Code: The justices of the Supreme Court, the judges of the Court of Criminal
Appeals, the justices of the Courts of Appeals, the judges of the District Court, the magistrates
3.
app9inted by the judges of the district courts of Bexar County, Dallas County, or Tarrant County
4. that give preference to criminal cases, the criminal law hearing officers for Harris County
5. appointed under Subchapter L, Chapter 54, Government Code, the criminal law hearin~ officers
for Cameron County appointed under Subchapter BB, Chapter 54, Government Code, the
6.
magistrates or associate judges appointed by the judges of the district courts of Lubbock County,
7. Nolan County, or Webb County, the magistrates appointed by the judges of the criminal district
8. courts of Dallas County or Tarrant County, the associate judges appointed by the judges of the
district courts and the county courts at law that give preference to criminal cases in Jefferson
9.
County, the associate judges appointed by the judges of the district courts and the statutory
10. county courts of Brazos County, Nueces County, or Williamson County, the magistrates
11. appointed by the judges of the district courts and statutory county courts that give preference to
criminal cases in Travis County, the criminal magistrates appointed by the Brazoria County
12.
Commissioners Court, the criminal magistrates appointed by the Burnet County Commissioners
13. Court, the county judges, the judges ofthe county courts at law, judges ofthe county criminal
14 . courts, the judges of statutory probate courts, the associate judges appointed by the judges of the
statutory probate courts under Chapter 54A, Government Code, the associate judges appointed
15.
by the judge of a district court under Chapter 54A, Government Code, the magistrates appointed
16 · under Subchapter JJ, Chapter 54, Government Code, as added by H.B. No. 2132, Acts of the
17. 82nd ~sla~e, Regular Session, 2011, the justices of the peace, and the mayors and recorders
({) 1-
18 ·<: -~the ~g~?~e runicipal courts of incorporated cities or towns.
19
· ~.:w ju;ces:;~ri,, mayors, and other ministers, which under us have the laws of our land to
20 . guide, s4all allo~ t~<; said charters pleaded before them in judgment in all their points, that is to
LO .,< I ·
wit, the ~Jeat:~~~ as the common law .... [Confirmatio Cartarum, November 5, 1297, Sources
21. . . •.L,! -·- t- · · .
of Our ft{qertf.f_':s Ed~d by Richard L. Perry, American Bar Foundation]
22. (··~
23. RIGHTS OF ACCUSED. In all criminal prosecutions the accused shall have a speedy
public trial by an impartial jury. He shall have the right to demand the nature and cause of the ·
24.
accusation against him, and to have a copy thereof. He shall not be compelled to give evidence
25. against himself. He shall have the right of being heard by himself, or counsel, or both; shall be
26. confronted with the witnesses against him, and shall have compulsory process for obtaining
witnesses in his favor.
27.
Page 23 of30
EXHIBIT A -- LAW OF THE CASE
1.
2. RIGHT TO REPRESENTATION BY COUNSEL. (a) A defendant in a criminal matte
is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be
3.
represented by counsel includes the right to consult in private with counsel sufficiently in
4. advance of a proceeding to allow adequate preparation for the proceeding.
5.
A court shall presume that a pleading, motion, or other paper is filed in good faith.
6.
Sanctions under this article may not be imposed except for good cause stated in the sanction
7. order.
8. RIGHT TO BAIL. All prisoners shall be bailable unless for capital offenses when the
proof is evident. This provision shall not be so construed as to prevent bail after indictment
9.
found upon examination of the evidence, in such manner as may be prescribed by law.
10.
11.
HABEAS CORPUS. The writ of habeas corpus is a writ of right and shall never be
12. suspended.
13.
WHAT WRIT IS. The writ ofhabeas corpus is the remedy to be used when any person
14. is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction,
15. directed to any one having a person in his custody, or under his restraint, commanding him to
produce such person, at a time and place named in the writ, and show why he is held in custody
16.
or under restraint.
17 • 0
,--1
z
1-
18. __ SfO~O~DIRECTED. The writ runs in the name of"The State ofTexas". It is
. ':~<·~.-·\.~.res~ to,:~Jij_rs having another under restraint, or in his custody, describing, as near as
· ·may be, the h~e o the office, if any, of the person to whom it is directed, and the name of the
19
20 . p~f~on fa.id to~ hi;! d~lained.
-C) ' ''" 4'
It shall fix the time and place of return, and be signed by the judge,
or by t4e-clerk. ¥.tlkhis seal, where issued by a court.
21. \.~ ·:'.\ -'~ f~
"("----- z
22. ~~ t~-~-
WANT OF FORM. The writ of habeas corpus is not invalid, nor shall it be disobeyed
23~
for any want of form, if it substantially appear that it is issued by competent authority, and the
24. writ sufficiently show the object of its issuance.
25.
26.
27.
Page 24 of30
EXHIBIT A -- LAW OF THE CASE
1. CONSTRUCTION. Every provision relating to the writ of habeas corpus shall be most
2. favorably construed in order to give effect to the remedy, and protect the rights of the person
seeking relief under it
3.
4. BY WHOM WRIT MAY BE GRANTED. The Court of Criminal Appeals, the District
5. Courts, the County Courts, or any Judge of said Courts, have power to issue the writ of habeas
corpus; and it is their duty, upon proper motion, to grant the writ under the rules prescribed by
6.
law.
7.
8. FILING FEE PROHIBITED. Notwithstanding any other law, a clerk of a court may
not require a filing fee from an individual who files an application or petition for a writ of habeas
9.
corpus.
10.
RETURNABLE TO ANY COUNTY. Before indictment found, the writ may be made
11.
returnable to any county in' the State.
12.
13. CERTAINTY; WHAT SUFFICIENT. An indictment shall be deemed sufficient which
charges the commission of the offense in ordinary and concise language in such a manner as to
14.
enable a person of common understanding to know what is meant, and with that degree of
15. certainty that will give the defendant notice of the particular offense with which he is charged,
16. and enable the court, on conviction, to pronounce the proper judgment; and in no case are the
, words "force and arms" or "contrary to the form of the statute" necessary.
17.
18 · ~J$ELTY FORBIDDEN. Excessive bail shall not be required, nor excessive fines
19_.•-:o. impos~ n~~ciellr unusual pup.ishment inflicted.
2 ~-~~·.·: ~RI~~ T , JURY. The right of trial by jury of twelve persons shall remain inviolate.
21. :r ·'-··!
CCJ . -~ ;,; U)
22. t;:PUI3.1i$:: OOAL. The proceedings and trials in all courts shall be public.
r '.. :.' ~'-"· 1--
L ...rl ,._1
,--c ,_,_
23. ~::.3 L;_
24. CONFRONTED BY WITNESSES. The defendant, upon a trial, shall be confronted
with the witnesses, except in certain cases provided for in this Code where depositions have been
25.
taken.
26.
27.
Page 25 of30
----~---------------------------;-----------------~--------
EXHIBIT A-- LAW OF THE CASE
1. WORDS AND PHRASES. All words, phrases and terms used in this Code are to be
2. taken and understood in their usual acceptation in common language, except where specially
defined.
3.
4. CONTEMPT OF COURT.
5. (b) The punishment for contempt of a court other than a justice court or municipal court
is a fine of not more than $500 or confinement in the county jail for not more than six months, or
6.
both such a fine and confinement in jail.
7.
8. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses,
papers and possessions from all unreasonable seizures or searches. No warrant to search any
9.
place or to seize any person or thing shall issue without describing them as near as may be, nor
10. without probable cause supported by oath or affirmation.
11.
12.
BY AGREEMENT. A criminal action may be continued by consent of the parties
13. thereto, in open court, at any time on a showing of good cause, but a continuance may be only
14. for as long as is necessary.
15. FOR SUFFICIENT CAUSE SHOWN. A criminal action may be continued on the
16. written motion upon sufficient cause shown; which cause shall be fully set forth in the motion.
A continuance may be only for as long as is necessary.
17.
18.
No p~on;:;=,nor shall be compelled in any criminal case to be a witness against himself, nor be
19
_. __:"___ . depri~d oJfl~ li;r~, or p~operty, withou~ due process of law; nor shall private property be
:2°:--·- . Zl'akem:fur p~bij~
\~\ ..) .
c::~
us without JUSt compensatiOn. \\
21 :~.:- •,_, ---~· \
22
: . JiigM~~ a tria[;bY}fY (71h amendment) . .
In smft_at C(?~~law, where the value m controversy shall exceed twenty dollars, the nght of
23 · trial b)cjurY,:~:$li"ail ~ preserved, and no fact tried by a jury shall be otherwise reexamined in any
t-::=> l~'..- -
24. court O'f'the United States, than according to the rules ofthe common law.
25.
MOTION SWORN TO. All motions for continuance must be sworn to by a person
26.
having personal knowledge of the facts relied on for the continuance.
27.
Page 26 of30
EXHIBIT A -- LAW OF THE CASE
1.
2. CONTROVERTING MOTION. Any material fact stated, affecting diligence, in a
motion for a continuance, may be denied in writing by the adverse party. The denial shall be
3.
supported by the oath of some credible person, and filed as soon as practicable after the filing of
4. such motion.
5.
WHEN DENIAL IS FILED. When such denial is filed, the issue shall be tried by the
6. judge; and he shall hear testimony by affidavits, and grant or refuse continuance, according to
7. the law and facts of the case.
8.
9. ARGUMENT. No argument shall be heard on a motion for a continuance, unless requested by
the judge; and when argument is heard, the applicant shall have the right to open and conclude it.
10.
11.
COMMON LAW GOVERNS. The rule of procedure in any particular state of case which may
12. arise, the rules of the common law shall be applied and govern.
13. WRITTEN PLEADINGS. All motions to set aside an indictment or information and all special
14. pleas and exceptions shall be in writing.
15. MOTION TRIED BY JUDGE. An issue of fact arising upon a motion to set aside an indictment
_ or information shall be tried by the judge without a jury.
16.
SHALL DRAW COMPLAINTS. Upon complaint being made before a district or county
17 · attorney that an offense has been committed in his district or county, he shall reduce the
18 . complaint to writing and cause the same to be signed and sworn to by the complainant, and it
shall b~ulE!lttested by said attorney.
19. rl ~~--
~- ~HE~O!\l?~*T IS MADE. Ifthe offense be a misdemeanor, the attorney shall forthwith
20~-.;-~' -p~ar~ itif,.o@laf n based upon such complaint and file the same in the court having
·-j~~diclton; ·prr purposes of this action, a complaint is a sworn allegation charging the
24 · accused with the commission of an offense.(b) A defendant is entitled to notice of a complaint
against the defendant not later than the day before the date of any proceeding in the prosecution
25
· of the defendant under the complaint. The defendant may waive the right to notice granted by
26. this subsection.
2 7. Texas Constitution, Article 5, Section 12:
Page 27 of30
EXHIBIT A -- LAW OF THE CASE
1. "(b) An indictment is a written instrument presented to a court by a grand jury charging a person
with the commission of an offense. An information is a written instrument presented to a court
2. by an attorney for the State charging a person with the commission of an offense. The practice
3. and procedures relating to the use of indictments and informations, including their contents,
amendment, sufficiency, and requisites, are as provided by law. The presentment of an
4. indictment or iriformation to a court invests the court with jurisdiction ofthe cause." (Amended
Aug. 11, 1891, and Nov. 5, 1985.)[emphasis added] ·
5.
6.
7. "INFORMATION". An "Information" is a written statement filed and presented in behalf of the
State by the district or county attorney, charging the defendant with an offense which may by
8. law be so prosecuted.
9. REQUISITES OF AN INFORMATION. An information is sufficient if it has the following
requisites: 1. It shall commence, "In the name and by authority of the State of Texas"; 2. That it
10.
appear to have been presented in a court having jurisdiction of the offense set forth; 3. That it
11. appear to have been presented by the proper officer; 4. That it contain the name of the accused,
or state that his name is unknown and give a reasonably accurate description of him; 5. It must
12. appear that the place where the offense is charged to have been committed is within the
jurisdiction of the court where the information is filed; 6. That the time mentioned be some date
13. anterior to the filing of the information, and that the offense does not appear to be barred by
limitation; 7. That the offense be set forth in plain and intelligible words; 8. That it conclude,
14.
"Against the peace and dignity of the State"; and 9. It must be signed by the district or county
15. attorney, officially.
16. INFORMATION BASED UPON COMPLAINT. No information shall be presented until
affidavit has been made by some credible person charging the defendant with an offense. The
17. affidavi!;yhal:l-:be filed with the information. It may be sworn to before the district or county
18. attorneyivh~;;fgr that purpose, shall have power to administer the oath, or it may be made before
: , y offii?~r a:w:l~riz1d by law to administer oaths.
~~LE§"t:As ~o~diCTMENT
19.
APPLY TO INFORMATION. The rules with respect to
20. .a~J~gations ir(aP.:inc$ctment and the certainty required apply also to an information.
.... · !
CO : -~: U)
21.
WHAMHOUED:;BE STATED. Everything should be stated in an indictment which is
22. neces~y tdje~pr~ed.
s
c··....J
;·,- z
23. CERTAIN FORMS OF INDICTMENTS. The following form of indictments is sufficient:
24. "In the name and by authority of the State ofTexas: The grand jury of ............ County, State of
Texas, duly organized at the ............ term, A.D ............. , of the district court of said county, in
25.
said court at said term, do present that ............ (defendant) on the .......... day of ............ A.D .
26. ............ , in said county and State, did ............ (description of offense) against the peace and
dignity of the State.
27.
Page 28 of30
EXHIBIT A -- LAW OF THE CASE
1. ............ ,Foreman of the grand jury."
2.
3.
4.
"Article 5 JUDICIAL DEPARTMENT Sec. 12. JUDGES TO BE CONSERVATORS OF THE
5. PEACE; INDICTMENTS AND INFORMATION. (a) All judges of courts of this State, by
virtue of their office, are conservators of the peace throughout the State. (b) An indictment is a
6.
written instr~ment presented to a court by a grand jury charging a person with the commission
7. ofan offense. An information is a written instrument presented to a court by an attorney for the
State charging a person with the commission ofan offense. The practice and procedures relating
8. to the use of indictments and informations, including their contents, amendment, sufficiency, and
requisites, are as provided by law. The presentment ofan indictment or information to a court
9. invests the court with jurisdiction of the cause.{emphasis added]
10.
11. If any claim, statement, fact, or portion in this action is held inapplicable or not valid, such
12. decision does not affect the validity of any other portion of this action.
13.
The singular includes the plural and the plural the singular.
14.
15 . The present tense includes the past and future tenses; and the future the present, and the past the
present.
16.
17. The masculine gender includes the feminine and neuter.
18.
19
E
o:: Objection to use of private law
20.
'· />> ::r -·~· n.,~ 1
-) . I
21. h9bject Jo (lp.d do not consent to the use of unpublished cases. A cite to "WL" an
;--:--' -~ =~· :;-:;!
22. "Lexis",~i_§ a r~rJ-'eri~~ to materials not publicly accessible. For such references even to begin t
~~::~ ~;= :7::
23.
be meaningful, a full copy of the opinion for each "WL" or "Lexis" reference must be attached.
24.
25.
26.
27.
Page 29 of30
EXHIBIT A -- LAW OF THE CASE
1. OBJECTION TO NON-JUDICIAL DECISION-MAKING
2.
McDade objects to and does not consent to any assignment or any referral of this case, in any
3. part, to any decision-maker other than a duly elected or properly appointed judicial officer
4. exercising full authority of a municipal court judge and who has an active and current oath of
office on file. Gonzalez v. United States, 553 U.S. 242 (12 May 2008) ("lfthe parties consent")
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
C> z
....--1 i-
16. (/) 1-
0 ::::.~ 0:::
I
r-{
,...__
•..::.:.1: =.>
r.::_ iJ_ 0
cc <::)C'>
18. /<.: . . .
--
_,
··- .-··
·-
..
····• r• I
j
19. co ... ·--- .
{_.1)
w...J ....!
'.
~ c~ -~··J
....-
20. L ...;"J ' ...: - r-
......... ..... _J
21.
c:::.
r·· •...J i ..<;._
-·-
-~
22.
23.
24.
25.
26.
27.
Page 30 of30
EXHIBIT A -- LAW OF THE CASE
DIL
SUPERIOR COURT OF TEXAS, TRAVIS COUNTY
One of the people ofTexas
David Kent McDade Coram Ipso Rege: INDEX NO. 00000001
MAGISTRATE_ _ _ _ _ __
Coram NobisS:
-a-
AUSTIN MUNICIPAL COURT DECREED
10 THE STATE OF TEXAS,
Sherry M. Statman, "Officer Knouse Badge# 5931,"
"Supervisor," and "Second Officer"
counterdefendants
WRIT OF PROHIBITIONtts
As is custom in these Peoples' courts of Justice judges2, as tht;!y have been cunningly educated
to perf9rm;zillegally initiate equity law in place of common law3, which is fraud on the court.
Expeiren~ shown that these inferior courts are obstinate in their seizing of jurisdiction and
~ theretJ.y o~t j tice, thus we find it necessary to redress the issue beforehand, preventing the
.:c;t'"'J,·~-·~. ,. ela;s!f_j~fj, ~eans ?~thi~ extraor~ary writ of prohibition cl~ly 20 stating
-··::,.':? bstliiinn~.wu
/fo
,: . amst NISI PnusS, that IS to say "We the people resists the first encroachment"
,'::'>. /c d ·-- <.
. AJ :r :; ?:: •
--- proceed accotd to the supreme6 common law of the land7, Coram NobiS
. co --· -~· ()
8. LW Cl 5 ~
Th~re~S!!Frior Court ofRecord9 prohibits the inferior court not of record from
assuiii}nggmisdii!ion in this matter over which it has no control or legitimate authority.10 And
its judge is to function as Magistrate 1125 . (see law of the case)
Signed by ORDER and on behalf of the SUPERIOR COURT OF TEXAS
~rivalus
1 h is only issued in cases of extreme necessity where the grievance cannot be redressed by ordinary proceedings at
law, orin
equity, or by appeal. Niagara FaDs Power Co. v. Halpin, 45 N.Y.S2d 421, 424, 181 Misc. 13; State ex rei. Levy v.
Savord, 143 Ohio
St. 451, 55 N.E2d 735, 736.; An extraordinary judicial writ issuing out of a court of superior jurisdiction, directed to
an inferior
Page 1 of3
court or tribunal exercising judicial powers, for the purpose of preventing the inferior tribunal from usurping a
jurisdiction with
which it is not lawfully vested, State v. Stanfield, 11 Ql(l.Cr. 147, 143 P. 519, 522; from assuming or exercising
jurisdiction over ·
matters beyond its cognizance, Jackson v. Calhoun, 156 Ga. 756, 120 S.E. 114, 115; or from exceeding its
jurisdiction in matters
of which it has cognizance. Jackson v. Calhoun, 156 Ga. 756, 120 S.E. 114, 115; The writ of prohibition is the
counterpart of the
writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are
without
or in excess of the jurisdiction of such tribunal, corporation, board, or person. Code Civ.Ptoc.Cal. § 1102. State v.
Packard, 32
N.D. 301, 155 N.W. 666,667. iohnston v. Hunter, 50 W.Va. 52,40 S.E. 448. State v. Evans, 88 Wis. 255, 60 N.W.
433.
2 CHANCELLOR. In American law, this is the name given in some states to the judge (or the presidingjudge) of a
court of ·
chancery.; COURT OF CHANCERY. A court having the jurisdiction of a chancellor; a court administering equity
and proceeding
according to the forms and principles of equity. In England, prior to the judicature acts, the style of the court
possessing the
largest equitable powers and jurisdiction w~ the "high court of chancery." In some of the United States, the title
"court of
chancery" is applied to a court possessing general equity powers, distinct from the courts of common law. Parmeter
v. Bourne,
8.Wash. 45,35 P. 586; Bull v. International Power Co., 84 N.J.Eq. 209,93 A. 86, 88. The terms "equity" and
"chancery," "court of
equity'~d "Cfiurt of chancery," are constantly used as synonymous in the United States. It is presumed that this
custom arise(;;
" from t~irciiih~ce t the equity jurisdiction which is exercised by the courts of the various states is assimilated
.::·:.:::--~ tha g<::::
.}~z "'~. se~ bY-th · h courts of chancery. Indeed, in some of the states it is made identical therewith by statute,
·::;. sO' far as '- ~
.· ---1C'~nfonhable~t9 cf titutions. Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E. 397, 401.
... .-- !~:~~~~~~sLaw 4th edition, ,1891- As distinguished from equity law, it is a body of rules and
unwrilten, ~cftar~ffixed and immutable authority, and which must be applied to controversies rigorously and in
th err·~
.-:=>
-J
--
-
. z
entire'ir, anJL-c annorbe modified to suit the peculiarities of a specific case, or colored by any judicial discretion, and
which rests
con-fessedly upon custom or statute, as distinguished from any claim to ethical superiority. [Klever v. Seawall,
C.C.A.Ohio, 65 F.
395, 12 C.C.A. 661).
OBSTA PRINCIPDS. Lat. Withstand begin-nings; resist the first approaches or encroach-ments. Bradley, J.,
Boyd v. U. S., 116
U.S. 635, 6 Sup.Ct. 535, 29 L.Ed. 746.
5
NISI PRIUS COURT "Nisi prius" is a Latin tenn (Black's 5th) "Prius" means "first." "Nisi" means "unless." A "nisi
prius" procedure '
is a procedure to which a party FIRST agrees UNLESS he objects. A rule of procedure in courts is that if a party fails to object to
something, then it means he agrees to it A nisi procedure is a procedure to which a person has failed to object A "nisi prius
court" is a court which wiU proceed unless a party objects. The agreement to proceed is obtained from the parties first.
6 Supremacy Clause- This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all
treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the
judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the cont:nuy notwithstanding.
Page 2 of3
------
Article VI
7 "Law of the land," "due course oflaw," and "due process of law" are synonymous. People v. Skinner, Cal., 110 P.2d 41, 45;
State v. Rossi, 71 R..L 284, 43 A.2d 323, 326; Direct Plmnbing Supply Co. v. City of Dayton, 138 Ohio St. 540, 38 N.E.2d 70,
72,
137 A.L.R.. 1058; Stoner v. Higginson, 316 Pa. 481, 175 A. 527, 531.
8 [Blacks Law] Before us ourselves, (the king, i.e., in the Icing's or queen's bench.) [tribunal pre-trial] CORAM NOBIS. [Blacks
Law] Before us ourselves, (the king, i.e., in the king's or queen's bench.) Applied to writs of error directed to another braJ:Jch of
the same court, e. g.• from the full bench to the court at nisi prius. 1 Archb. Pr. K. B. 234. See Writ of Error.
9 The decisions of an inferior court are subject to collateral attack. In other words, in a superior court one may sue an inferior
court directly, rather than resort to appeal to an appellate court. Decision of a court of record may not be appealed. It is binding
on ALL other courts. However, no statutory or constitutional court (whether it be an appellate or supreme court) can second
guess the judgment of a coiut of record. "The judgment of a court of record whose jurisdiction is final, is as conclusive on all the
world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry
concerning the fact, by deciding it" [Ex parte Watkins, 3 Pet, at 202-203. [cited by SCHNECKL01H v. BUSTAMONTE, 412
u.s.
218,255 (1973)].
I0 An extraordinary writ, issued by a superior court to an inferior court to prevent the latter fiom exceeding its jurisdiction,
either by prohibiting it from assuming jurisdiction in a matter over which it has no control, or from going beyond its legitimate
powers in a matter of which it ha'sjurisdiction. State v. Medler, 19N.M. 252, 142 P. 376,377.
II "A Court of Record is a judicial tribunal having attributes and exercising functions independently of the person of the
magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings
being enrolled fora perpetual memorial". Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass.,
171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688,689.
4
l..J')
:r
co
r==
a:
Page3of3
ATIACHMENTD
Ticket Number: 14092560 Cause Number: 8171190
Violation Code: 01310 DO NOT ENTER INTERSECTION- POSTED SIGN
THE STATE OF TEXAS § IN THE MUNICIPAL COURT
vs § CITY OF AUSTIN, TEXAS
David McDade §
COMPLAINT
THE STATE OF TEXAS § IN THE NAME AND
§ BY THE AUTHORITY OF
CITY OF AUSTIN § THE STATE OF TEXAS
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe
that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of
this complaint, within the territorial limits of the City of Austin, Texas,
Did operate a motor vehicle on a public street: NORTH lli 35 SERVICE ROAD and tum said vehicle
and enter onto another public street, to-wit: EAST 53RD STREET when official signs were in place at
the intersection of said public streets prohibiting the movement, stating: do not enter,
Against the Peace and Dignity of the State. 12/2/14
Diane Montoya, Affiant
Sworn to and subscribed before me by affiant on this day
Deputy Clerk, for and on behalf of
The Clerk of the Municipal Court,
City of Austin, Texas
COMPLAINT /Diane Montoya
Ticket Number: 14092560 Cause Number: 8171191
Violation Code: 20510 INSPECTION STICKER- EXPIRED
THE STATE OF TEXAS § IN THE MUNICIPAL COURT
vs § CITY OF AUSTIN, TEXAS
David McDade §
COMPLAINT
THE STATE OF TEXAS § IN THE NAME AND
§ BY THE AUTHORITY OF
CITY OF AUSTIN § THE STATE OF TEXAS
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe
that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of
this complaint, within the territorial limits of the City of Austin,.Texas,
Did operate a motor vehicle registered in Texas, on a public street, to wit: NORTH IH 35 SERVICE
ROAD AT EAST 53RD STREET, after the fifth day after the date of expiration of the period designated
for inspection, which failed to display a current inspection certificate,
Against the Peace .and Dignity of the State. 12/2/14
Diane Montoya, Affiant
Sworn to and subscnbed before me by affiant on this day
~~e(b;J_J2
Deputy Clerk, for and on behalf of
The Clerk of the Municipal Court,
City of Austin, Texas
COMPLAINT /Diane Montoya
Ticket Number: 14092560 Cause Number: 8171192
Violation Code: 26310 FAILED TO DISPLAY DRIVER LICENSE
THE STATE OF TEXAS § IN THE MUNICIPAL COURT
vs § CITY OF AUSTIN, TEXAS
David McDade §
COMPLAINT
THE STATE OF TEXAS § IN THE NAME AND
§ BY THE AUTHORITY OF
CITY OF AUSTIN § THE STATE OF TEXAS
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe
that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of
this complaint, within the territorial limits of the City of A~stin, Texas,
Did then and there operate a motor vehicle on a public street, at a time when he did not have in his
possession a driver's license appropriate for the type of vehicle operated and did fail to display the
license upon the demand of a peace officer,
Against the Peace and Dignity of the State. 12/2/14
Diane Montoya, Affiant
Sworn to and subscnbed before me by affiant on this day
M~rzf6;},r£
Deputy Clerk, for and on behalf of
The Clerk of the Municipal Court,
City of Austin, Texas
COMPLAINT /Diane Montoya
Ticket Number: 14092561 Cause Number: 8171200
Violation Code: 04920 FAILED TO MAINTAIN FINANCIAL RESPONSffiiLITY
THE STATE OF TEXAS § IN THE MUNICIPAL COURT
vs § CITY OF AUSTIN, TEXAS
David McDade §
COMPLAINT
THE STATE OF TEXAS § IN THE NAME AND
§ BY THE AUTHORITY OF
CITY OF AUSTIN § THE STATE OF TEXAS
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe
that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of
this complaint, within the territorial limits of the City of Austin, Texas,
Did operate a motor vehicle without maintaining financial responsibility in the minimum amount
required by law and operator was asked to provide evidence of financial responsibility by a peace officer
or a person involved in an accident with said defendant and which the defendant did not produce,
Against the Peace and Dignity of the State. 12/2/14
Diane Montoya, Affiant
Sworn to and subscribed before me by affiant on this day
Deputy Clerk, for and on behalf of
The Clerk of the Municipal Court,
City of Austin, Texas
COMPLAINI' !Diane Montoya
Ticket Number: 14092561 Cause Number: 8171201
Violation Code: 60910 FAILED/REFUSED TO IDENTIFY
THE STATE OF TEXAS § IN THE MUNICIPAL COURT
vs § CITY OF AUSTIN, TEXAS
David McDade §
COMPLAINT
THE STATE OF TEXAS § IN THE NAME AND
§ BY THE AUTHORITY OF
CITY OF AUSTIN § THE STATE OF TEXAS
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe
that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of
this complaint, within the territorial limits ofthe City of Austin, Texas,
Did th~n and there intentionally refuse to give his NAME to a peace officer, to-wit: OFFICER
KNOUSE , who had lawfully arrested the said defendant and requested the information, said defendant
knowing that the person requesting the information was a peace officer,
Against the Peace and Dignity of the State. 12/2/14
fJ~ lfiJ--ctt
Diane Montoya, Affiant
Sworn to and subscribed before me by affiant on this day
WJ~ef6;}_JZ
Deputy Clerk, for and on behalf of
The Clerk of the Municipal Court,
City of Austin, Texas
COMPLAINT /Diane Montnya
Ticket Number: 14092561 Cause Number: 8263463
Violation Code: 60910 FAILED/REFUSED TO IDENTIFY
THE STATE OF TEXAS § IN THE MUNICIPAL COURT
vs § CITY OF AUSTIN, TEXAS
David McDade §
COMPLAINT
THE STATE OF TEXAS § IN THE NAME AND
§ BY THE AUmORITY OF
CITY OF AUSTIN § THE STATE OF TEXAS
I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe
that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of
this complaint, within the territorial limits of the City of Austin, Texas,
Did then and there intentionally refuse to give DATE OF BIRTH to·a peace officer, to-wit: OFFICER
KNOUSE, who had lawfully arrested the said defendant and requested the information, said defendant
knowing that the person requesting the information was a peace officer, ·
Against the Peace and Dignity of the State. 4/27115
14.~
Ryan Zapata, Affiant
Sworn to and subscribed before me by affiant on this day
Deputy Clerk, for and on behalf of
The Clerk of the Municipal Court,
City of Austin, Texas
COMPLAINT /Ryan Zapata
ATIACHMENTE
ORDER FOR CONTINUANCE
STATE OF TEXAS IN THE MUNICIPAL COURT
CITY OF AUSTIN,TEXAS
vs.
David K McDade
CASE NUMBER: 8171190
ORDER
On this the December 3, 2014, came to be filed a Motion for Continuance for the Jury Trial on
Thursday, December 18, 2014 at 8:30 AM. The Court having considered said motion is of the
opinion that the Motion for Continuance is GRANTED.
Judge Municipal Court City of Austin
Date: December 4, 2014
Judge's notes:
Defendant David K McDade
310 E Brenham ST
Elgin, TX 786213017
Phone: (512) 587-7748 Phone:
Def. Attorney:
Phone: Phone:
Witness:
Phone: Phone:
Officer: Lee Knouse
Deputy Clerk processing motion
Orcong-
mitsol
CAUSE Nre-filcd
testimony (i.e. atlidavits) are not accepted in this court. "Judicial notice" refers to a
doctrine of evidence and is an action taken by a judgc..The argument that the defendant is
a corporation and only subject to the Uniform Commercial Code and exempt from all
traffic rules is asinine.
II. Special Appearance and formal notice of Declination to Plea
Special Appearance motions arc made in civil cases to challenge venue. Generally, they
arc made by companies sued in a venue in which they have limited business contact. Sec
International Shoe Co V Wushington. Again, this is a class c misdemeanor and
inappropriate. The oflenses alleged are class c misdemeanors alleged to have been
committed in the city limits of Austin Texas and the Austin Muf1idpal Court has
jurisdiction. The Defendant has the right to refuse to cnkr a plea. This is addressed by
Tex. Code Criminal Procedure Art. 45.024: "The juslil:c or judge shall enter a plea of not
guilty if the defendant refuses to plead.'"
Ill. Order
BE IT HEREBY ORDERED that no valid pre-trial a~:tions or issues have been raised and
no pre-trial hearing shall be set. It is further ordered that the cases enumerated above shall
be set l(lr a trial hy JURY.
Defendant is·further ADMQNISllED that the filing
of pleadings or other doctnnents that are false,
groundless or for the purposes of delay or harasstnent
shall result in sanctions per Texas Rules of Criminal
Procedure 1.052(e)
Signed this the // f{-t day of ..d_fl:V , 2014.
Presiding Judge
City of Austin Municipal Court
~ u
City of Austin Municipal Court
700 East 7th Street P.O. Box 2135 Austin Texas 78768 Phone: (512) 974-4800
ORDERS OF THE COURT
This Order applies to 5 cases (s) with fines totaling$_ _ _ _ __
Hearing as to lndigency: Finding: ( J Indigent [ ] Not Indigent
EXTENSIONTOPAY:$ Today; S_ _ _ _ _ by(date) _ _ _ _ _ __
$ every week/month beginning ( d a t e ) - - - - - - - and due on or before the
same day of each succeeding week/month until paid in fu11.
COMMUNITY SERVICE: Defendant is ordered to perform _ _ _ hours of community service at
o All community service hours must be completed by ( d a t e ) - - - - - -
0 The Defendant shall perform _ _ _ hours of community service by _ _ ___.· then, _ _ _ hours
per week/month beginning {date) and such proof Is due every week/month thereafter on or
before the same day of each succeeding week/month until total hours are completed. Tum In proof at
Municipal Court,
And the court having further found that the worldng of more than 15 houn of community service per~ (will) (w#H not} worlc a ltanlship on the
Defendant.
Appearance set for AM PM on (date) Courtroom#
Bond:$ _ _ _ _ _ by ( d a t e ) - - - - - Personal Bond _ __
REVOKE DEFERRAL/ DEFENSIVE DRIVING:-------- and enter judgment
EXTENSION TO COMPLETE DEFERRAL or DEFENSIVE DRIVING BY ( d a t e ) - - - - -
TO TURN IN PROOF BY ( d a t e ) - - - - - - - - - ·
JURY WAIVER: I waive my right to trial by jury in the above-referenced cause numbers.
Date Signature of Defendant
Order Notes:
Date:
CAUSENO. 8J112QQ, 817/~0/
811/lc:rO, '817Jt9i/ t:g/7/19~
STATE OF TEXAS IN THE MUNICIPAL COURT
v CITY OF AUSTrN, TEXAS
TRAVIS, COUNTY TEXAS
ORDER OF THE COURT
All motions/documents tendered by the Defendant arc hereby DEN lED.
Defendant does not have leave of court per local rule 7.2 for any additional Pre-Trial
hearings.
I Defendant is further ADMONISHED that the filing of pleadings or other documents that
arc false, groundless or for the purposes of delay or harassment shall result in sanctions
per Texas Rules of Criminal Procedure 1.052(c)
Sherry M. Statman
Presiding Judge
City of Austin Municipal Court
ORDER FOR CONTINUANCE
STATE OF TEXAS IN THE MUNICIPAL COURT
CITY OF AUSTIN,TEXAS r
vs.
David K McDade
. CASE NUMBER: 8171190
ORDER
On this the March 3, 2015, came to be filed a Motion for Continuance .for the Jury Trial on
Thursday, March 12, 2015 at 1:15 PM. The Court having considered said motion is of the opinion
that the Motion for Continuance is GRANTED.
Judge Municipal Court City of Austin
Date: March 3, 2015
Judge's notes:
Defendant David K McDade
310 E Brenham ST
Elgin, TX 78621-3017
Phone: (512) 587-7748 Phone: .
Def. Attorney:
Phone: Phone:
Witness:
Phone: Phone:
Officer: Lee Knouse
~~uWW~
Deputy Clerk processing motion
Orcong-
stevig
-.--------------------
700 East 7tr. Street
Clty~of Austin Municipal c'iurt _
,State oJ_Texas~. ·
P.O. Box 2135 Austin. Texas 78768
D~VI d 11 C ()~e
ORDERS OF THE
This Order applies to ~ cases (s) with fines totaling $ l Jlt.b
I"
JQ
Hearing as to lndigency: Finding: [ ] Indigent [ 1Not Indigent
EXTENSION T£-PAY: $ Today; $ by(date)
S [DO everyw~to~t~ · ~ ... ing (date) ? - { )""-/) and due on or before the
same day of each succeeding ., -?~h~; paid in full.
COMMUNITY SERVICE: Defendant is ordered to perfonn
- hours of community service at
0 All community service hours must be compfeted by (date)
- The Defendant shall perfonn hours of community service by ·then, hours
per week/month beginning (date) and such proof is due every week/month ther-eafter on or
before the same day of each succeeding week/month until total hours are completed. Tum in proof at
Municipal Court.
And the courl having furlher found that the working of more than 16 hours of community service per week (will) (will not) worlr a hiiTdship on the
Defendant.
SET APPEARANCE AND NOTIFY DEFENDANT/ATTORNEY FOR: DOCKET
Appearance set for AM PM on (date} Courtroom#
'
Bond:$ by (date) Personal Bond
REVOKE DEFERRAL I DEFENSIVE DRMNG: and enter judgment.
EXTENSION TO COMPLETE DEFERRAL or DEFENSIVE DRIVING BY (date)
'
TO TURN IN PROOF BY (date) .
JURY WAIVER: I waive my right to trial by jury in the above--referenced cause numbers.
Date Signature of Defendant
Order Notes:
I
Date: ~-312!S ~CJkJ!
Judge of the Municipal C'ourt
Failure to c::omply with the above orders may result In the denial of the renewal of your drivers .
' 110811Se and additional administrative fees. 0512
ATIACHMENTF
THE STATE OF TEXAS, § In the CITY OF AUSTIN MUNICIPAL COURT1
Plaintiff, § OF (public) RECORD
v. § AUSTIN, TEXAS,
§ TRAVIS COUNTY, Texas 2
David Kent McDade §
§
§ Date: 11/05/2014
MCDADE'S SPECIAL APPEARANCE
TO THE SAID COURT:
COMES NOW David Kent McDade, in his Proper Capacity, and in his FEDERAL
CAPACITY, as DAVID KENT MCDADE, by which latter capacity he confirms his waiver of
his objection to the debts of the United States so that this court may both "see" him and "hear"
him in this matter, who asserts as follows:
ASSERTION OF RIGHTS
David Kent McDade, ("McDade") asserts his Birthrights, and all his Inherent, unalienable
rights, privileges and immunities at Natural Law, and Common Law, and all his commercial
rights relevant to ''this state."
1
Only cases have numbers. There being no charging instrument(s) filed, much less served, there is no case, here, by
any number. Until STATE proves standing on the record this is a non-case, Austin v. New Hampshire, 420 U.S. 656,
668 (1975) (Blackmun, J., dissent); Deposit Guaranty Nat 'I Bank v. Roper, 445 U.S. at 353 (Powell, J., and Stewart,
J., dissent); Williams v. Vermont, 472 U.S. at 36 (dissent) (citing Austin), i.e., civil, until STATE proves standing. A
common number associated with this matter is yet to be established to the knowledge of Respondent.
2
The above style is mostly guess work, however, comfortably presumed are the Plaintiff and the
County. The proper name and capacity ofboth the Plaintiff and the court are all still unknown.
There has never been timely or proper service on McDade of any charging instrument or
anything at all identifying all parties and proper service information for same.
Page 1 of 28
McDade does not consent to nor in any way waive any of McDade's rights in whole or in
part, nor does McDade authorize or consent to any violation of those rights by any of his public
servants, or any other Corporate Entities
SPECIAL APPEARANCE
McDade asserts his special appearance, objecting to the court's subject matter jurisdiction,
personal jurisdiction, and venue.
OBJECTION TO NON-JUDICIAL DECISION-MAKING
McDade objects to and does not consent to any assignment or any referral of this case, in
any part, to any decision-maker other than a duly elected or properly appointed judicial officer
exercising full authority of a municipal court judge and who has an active and current oath of
office on file. Gonzalez v. United States, 553 U.S. 242 (12 May 2008) ("If the parties consent")
(construing 28 U.S.C. § 636(b)).
OBJECTION TO USE OF PRIVATE LAW
McDade objects to the use of unpublished cases. A cite to "WL" and "Lexis" is a
reference to materials not publicly accessible. For such references even to begin to be
meaningful, a full copy of the opinion for each "WL" or "Lexis" reference must be attached.
Page 2 of 28
MCDADE'S CONTACT INFORMATION
Contact information for McDade is as follows:
Mailing Address:
310 E. Brenham St.
Elgin, Tx.
TABLE OF CONTENTS
McDade's Special Appearance ....................................................................................................... 1
Assertion of Rights ......................................................................................................................... 1
Special Appearance ......................................................................................................................... 1
Objection to Non-judicial Decision-making ................................................................................... 2
Objection to use of private law ..............................................................._........................................ 2
McDade's Contact information ....................................................................................................... 3
Table of Contep.ts ............................................................................................................................ 3
Table of Authorities ........................................................................................................................ 4
Discussion ....................................................................................................................................... 6
Due order of pleadings ............................................................................................................ 6
Reservation of additional objections....................................................................................... 7
ISSUE: Does the court have personal jurisdiction over McDade in the instant matter? ...... 7
Overview: The systemic problem with Notice ....................................................................... 7
Notice requires both filing and serving the paperwork........................................................... 7
Notice previously required the filing and serving of two documents ..................................... 8
Without both of those documents, two key problems existed.............................................. 10
ISSUE: Does this court have subject matter jurisdiction? .................................................. 16
Statutory Challenges ............................................................................................................. 16
ISSUE: Does Art. 25.04 violate Due Process? ................................................................... 16
"Hearing" the charge read in no way constitutes meaningful Notice ................................... 18
Page 3 of 28
To compel an instant response is to offend Due Process...................................................... 19
ISSUE: What does "person" mean? ..................................................................................... 20
ISSUE: What does "transportation" mean?············:··························································· 20
Defined ................................................................................................... 21
Removing People and/or Property........................................................................................ 21
From Here To There ............................................................................................................. 21
For Profit or Hire .................................................................................................................. 21
Under the Choice of Law of the "Place" Called "this State." ............................................... 21
The Generic Concept of"use." ............................................................................................. 22
"Use" and the Terry Stop ...................................................................................................... 22
Deliberate indifference.......................................................................................................... 22
ISSUE: What does "vehicle" mean? ................................................................................... 22
ISSUE: What does "motor vehicle" mean? ......................................................................... 23
ISSUE: What does "drive" mean? ...................................................................................... 23
ISSUE: What does "operator" mean? ................................................................................. 23
ISSUE: What does "this state" mean? ................................................................................ 24
ISSUE: Does this court even really exist as a court of Record? ......................................... 25
Request for Relief ......................................................................................................................... 25
Verification ............. ....................................................................... Error! Bookmark not def"med.
Certificate of Service .................................................................................................................... 26
ORDER ......................................................................................................................................... 28
TABLE OF AUTHORITIES
Cases
Armstrongv. Manzo, 380 U.S. 545 (1965) ................................................................................... 17
Armstrong v. Manzo, 380 U.S. 545, (1965) .................................................................................. 14
Austin v. New Hampshire, 420 U.S. 656, 668 (1975) (Blackmun, J., dissent) ......................... I, 15
Bd. of County Comm'rs v. Brown, 520 U.S. 397 (1997) ............................................................... 20
Boddie v. Connecticut, 401 U.S. 371 (1971) ................................................................................ 14
Chicago, R. l & G. Ry. Co. v. Cosio, Seventh District, 182 S. W., 83 ........................................ 19
Christopher v. Harbury, 536 U.S. 403 (2002) .............................................................................. 23
Computize, Inc., v. NHS Comm. Group, Inc., 992 S.W.2d 608 (Tex. App.-Texarkana 1999, no.
pet) .............................................................................................................................................. 9
Cornell Steamboat Co. v. United States, 321 U.S. 634, 641 (1944) (Frankfurther, J., dissent) ... 19
Dell Dev. Corp. v. Best Indus. Unif. Supply Co., Inc., 743 S.W.2d 302 (Tex. App.- Houston
[14th Dist.] 1987, writ denied) .................................................................................................... 9
Page 4 of 28
Deposit Guaranty Nat '1 Bank v. Roper, 445 U.S. 326, 344 (1980) (Powell, J ., and Stewart, J.,
dissent) .................................................................................................................................. 1, 15
Fuentes v. Shevin, 407 U.S. 67 (1972) .................................................................................... 14, 17
Garcetti v. Ceballos, 547 U.S. 410 (2006) ..................................................................................... 9
Globe Leasing, Inc. v. Engine Supply & Mach. Serv., 437 S.W.2d 43 (Tex. Civ. App.-Houston
[1st Dist.] 1969, no writ) ............................................................................................................. 9
Gonzalez v. United States, 553 U.S. 242 (12 May 2008) ............................................................... 2
Graham v. Lappin, 255 F.3d 906 (7th Cir. 2001) ................................................................... 19,22
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............................................................................... 14, 17
Harris v. Hardeman, 55 U.S. (14 How.) 334 (1852) .................................................................... 14
Internat'l Shoe Co. v. Washington, 326 U.S. 310,322 (1945) (opinion by Black, J.) ........... 14, 17
Jones v. Flowers, 547 U.S. 220 (2006) ................................................................................... 14, 17
Kuntoplast ofAm., Inc. v. Formosa Plastics Corp. USA, 937 S.W.2d 455 (Tex. 1996) .... :........... 9
Lloyd v. Alexander, 5 U.S. (1 Cranch) 365 (1803) ....................................................... 6, 10, 14, 16
Marburyv. Madison, 5 U.S. (1 Cranch) 137 (1803) .................................................................... 16
Maynardv. Texas, 249 S.W. 473 (Tex. Crim. App. 1923) ........................................................... 19
Milliken v. Meyer, 311 U.S. 457 (1940) ................................................................................. 14, 17
Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324 (Tex. App.-El Paso 1994, writ
denied) ......................................................................................................................................... 9
Mullane v. Cent. Hanover Trust Co., 339 U.S. 306 (1950) .................................................... 14, 17
Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) ......................... 6, 10, ~6
N Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) ............................................... 14, 17
Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827) ................................................................... 22
Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) ................................................................ 14
Rockwell Int'l Corp. v. United States, 549 U.S. 457 (2007) ......................................................... 15
Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008) .......................................................... 14
Rowlandv. California Men's Colony, 506 U.S. 194 (1993) ........................................................... 9
Schinzing v. State, 234 S.W.3d 208 (Tex. App.- Waco 2007, no pet.) ....................................... 10
Smith v. O'Grady, 312 U.S. 329 (1941) ............................................................................ ,........... 18
Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) ...................................................... 14, 17
St. Clair Cnty v. Interstate Sand & Car Transfer Co., 192 U.S. 454 (1904) ................................ 19
Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................................. 20
Tex. Dept. ofParks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..................................... 9
United States v. United Mine Workers ofAmerica, 330 U.S. 258 (1947) .................................... 16
Williams v. Vermont, 472 U.S. 14,28 (1985) (dissent) ............................................................ 1, 15
Rules of Criminal Procedure
TEX. CRIM. PROC. CODE ANN. Art. 2.04 (Thomson/West 2011) .......................................... 7, 9, 10
TEx. CRIM. PROC. CODE ANN. Art. 2.05 (Thomson/West 2011) .................................................... 7
TEX. CRIM. PROC. CODE ANN. Art. 21.20 (Thomson/West 2011) .............................................. 7, 9
TEX. CRIM. PROC. CODE ANN. Art. 21.21 (Thomson/West 2011) ........................................ 7, 9, 12
TEX. CRIM. PROC. CODE ANN. Art. 21.22 (Thomson/West 2011) .................................... 7, 8, 9, 10
TEX. CRIM. PROC. CODE ANN. Art. 25.04 (Thomson/West 2011) ................................................ 15
TEX. CRIM. PROC. CODE ANN. Art. 27.01 (Thomson/West 2011) .............................................. 8, 9
TEX. CRIM. PROC. CODE ANN. Art. 45.018 (Thomson/West 2011) .................................. 10, 12, 15
Page 5 of 28
TEX. CRIM. PROC. CODE ANN. Art. 45.018(b) (Thomson/West 2011) ................................. ~ ...•...... 6
TEX. CRIM. PROC: CODE ANN. Art. 45.019 (Thomson/West 2011) .............................................. 10
Statutes
49 u.s.c. § 302(i)(1) ...................................................................................................... :....... :..... 19
49 u.s.c. § 902(i)(1) .................................................................................................................... 19
TEX. CONST. ART. 5, § 12 ............................................................................................................ 10
TEX. Gov. CODE ANN. Sec. 311.016 (Thomson/West 2011) ........................................................ 13
TEX. Gov'T. CODE ANN. Sec. 30.00003 (Thomson/West 2011) .................................................. 23
TEX. R. CIV. P. 7 ............................................................................................................................ 10
TEX. TRANSP. CODE ANN. Art. 708.105 (Thomson/West 2011) ........ ~·········································· 12
TEX. TRANSP. CODE ANN. Ch. 522 (Thomson/West 2011) .......................................................... 21
TEX. TRANSP. CODE ANN. Sec. 501.002(17) (Thomson/West 2011) ............................................ 21
TEX. TRANSP. CODE ANN. Sec. 502.001(25) (Thomson/West 2011) ............................................ 23
TEX. TRANSP. CODE ANN. Sec. 522.003(11) (Thomson/West 2011) ............................................ 21
TEX. TRANSP. CODE ANN. Sec. 522.003(21) (Thomson/West 2011) ............................................ 21
TEX. TRANSP. CODE ANN. Sec. 541.001 (1) (Thomson!West 2011 ) .................................... 23
TEX. TRANSP. CODE ANN. Sec. 541.001(4) (Thomson/West 2011) .............................................. 20
TEX. TRANSP. CODE ANN. Sec. 541.201(11) (Thomson/West 2011) ............................................ 21
TEX. TRANSP. CODE ANN. Sec. 541.201 (23) (Thomson!West 2011 ) ............................................ 21
TEX. TRANSP. CODE ANN. Sec. 601.002(5) (Thomson/West 2011) .............................................. 21
TEX. TRANSP. CODE ANN. Sec. 621.001(9) (Thomson/West 2011) .............................................. 21
TEX. TRANSP. CO[)E ANN. Sec. 642.001(1) (Thomson/West 2011) .............................................. 21
TEX. TRANSP. CODE ANN. Sec. 647.001(4) (Thomson/West 2011) .............................................. 21
TEX. TRANSP. CODE ANN. Sec. 683.001(4) (Thomson/West 2011) .............................................. 21
. TEX. TRANSP. CODE ANN. Sec. 728.001(2) (Thomson/West 2011) .............................................. 21
TEX. TRANSP. CODE ANN. Sec. 750.003(a) (Thomson/West 20l 1) .............................................. 21
Professional Responsibility
ABA MODEL RULES OF PROF'L CONDUCT R. 3. 7 .......................................................................... 10
TEX. DISCIPLINARY Rs. PROF'L CONDlJCT R. 3.08, reprinted in 3A TEX. Gov'T CODE ANN.
pp.296-97, 327 (title 2, subtitle G. app. A (after§ 84) (Thomson/West 2011) (Tex. State Bar
R. art. X,§ 9)) :·························································································································· 10
Tex. Disciplinary Rs. Prori Conduct R. 5.05, reprinted in 3A TEX. Gov'T CODE ANN. pp.296-97,
327 (title 2, subtitle G. app. A (after§ 84) (Thomson/West 2011) (Tex. State BarR. art. X,§
9)) ......................................... :.................................................................................................... 10
DISCUSSION
Due order of pleadings.
Page 6 of.28
This Special Appearance is accompanied by McDade's Formal Declination to Plea, and
his Objection to Round-Robin Processing. While a ruling on "due order of pleadings" would be
helpful, sufficient is the fact that in the event this one must be considered filed first, it is
submitted with the other "first filings" in this case.
Reservation of additional objections.
Should a "complaint" ever exist, and should STATE ever satisfy its Due Process burden
by serving such "complaint," McDade reserves the right to supplement this motion should there
be defect, error, or irregularity with such "complaint."
ISSUE: Does the court have personal jurisdiction over Respondent in the
instant matter?
Overview: The systemic problem with Notice.
For there t9 be personal jurisdiction, there must first be proper Notice.
Notice requires both filing and serving the paperwork.
Murphy Bros., Inc. (timing and sequence matter regarding filing and serving); Lloyd, 5
U.S. at 366 ("A citation not served is as no citation."). It may help to mention in this context that
an "administrative citation" (a ''ticket") and a "complaint," Art. 45.018(b), are two entirely
different things.
Thus, it doesn't matter, yet, whether this is characterized as civil or criminal, because
Notice will have the same requirements, either way. And, there is, to date, no Notice.
Page 7 of 28
Notice previously required the filing and serving of two documents.
In a generic misdemeanor matter, Notice used to require the filing and serving of two
different documents: (1) a "complaint," which is a sworn statement, and (2) a pleading,
commonly known and referred to as an Information. Arts. 2.04, 21.20, 21.21, 21.22.
Art. 2.04. [28] [34] [35] Sba22 draw comp2aints
Upon complaint being made before a district or county
attorney that an offense has been committed in his
district or county, he shall reduce the complaint to
writing and cause the same to be signed and sworn to by
the complainant, and it shall be duly attested by said
attorney.
Art. 2.04 (emphasis added).
Art. 2.05. [29] [35] [36] When c~2aint is made
If the offense be a misdemeanor, the attorney shall
forthwith prepare an information based upon such
complaint and file the same in the court having
jurisdiction; provided, that in counties having no county
attorney, · misdemeanor cases· may be tried upon complaint
alone, without an information, provided, however, in
counties having one or more criminal district courts an
information must be filed in each misdemeanor case . ...
Art. 2.05 (Thomson/West 2005) (emphasis added).
Art. 21.20. [413] [477] [465] "Information"
An "Information" is a written· statement filed and
presented in behalf of the State by the district or
county attorney, charging the defendant with an offense
which may by law be so prosecuted.
Art. 21.20 (emphasis added).
Page 8 of 28
Art. 21.21. [414] [478] [466] Requisites of an information
[District/County Court]
An information is sufficient if it has the following
requisites:
1. It shall commence, "In the name and by authority of
the State of Texas";
2. That it appear to have been presented in a court
having jurisdiction of the offense set forth;
3. That it appear to have been presented by the proper
officer;
4. That it contain the name of the accused, or state that
his name is unknown and give a reasonably accurate
description of him;
5. It must appear that the place where the offense is
charged to have been committed is within the jurisdiction
of the court where the information is filed;
6. That the time mentioned be some date anterior to the
filing of the information, and that the offense does not
appear to be barred by limitation;
7. That the offense be set forth in plain and
intelligible words;
8. That it conclude, "Against the peace and dignity of
the State"; and
9. It must be signed by the district or county attorney,
officially.
Art. 21.21 (emphasis added).
Art. 21.22. [415] [479] [467] Information based upon
complaint
[District/County Court]
No information shall be presented until affidavit has
been made by some credible person charging the defendant
with an offense. The affidavit shall be filed with the
information. It may be sworn to before the district or
county attorney who, for that purpose, shall have power
to administer the oath, or it may be made before any
officer authorized by law to administer oaths.
Art. 21.22 (emphasis added).
Page 9 of 28
Art. 27.01. [504] [568] [557] Indictment or information
The primary pleading in a criminal action on the part of
the State is the indictment or in£or.mation.
Art. 27.01 (emphasis added).
Without both of those documents, two key problems existed.
THE "LACK OF ATTORNEY SIGNATURE" PROBLEM.
To examine into the pleading first, STATE OF TEXAS is, in actuality, a corporate entity,
a commercial enterprise, doing business in "this state" via the benefit of a tax exemption
certificate. To date, most who read that think that the author of such a thought has completely
lost his mind. So, rather than proving that point at this early stage, it's still the case that all who
are faced with the question eventually realize that whether it's a commercial enterprise, or
something governmental, it's still an artificial entity. No artificial entity may appear in court
without authorized signature. For a misdemeanor case, that authorized signature exists if there's
a pleading. For a misdemeanor, the pleading is the Information.
No PLEADING FILED?-NO NOTICE.
[TEX. CONST. Art. 5, § 12]; Arts. 2.04, 21.20, 21.21, 21.22, 27,01; Rowland, 506 U.S. at
201-03 (all artificial entities must have counsel-federal); TEX. R. CIV. P. 7 (corporations must
have counsel-state); Kuntoplast of Am., Inc. (same); Computize, Inc. (same); Moore (same);
Dell Dev. Corp. (same); Globe Leasing, Inc., 437 S.W.2d at 45-46 (same); ABA MODEL RULES
OF PROF'L CONDUCT R. 3.7 (material witness can't also be attorney of Record); TEX.
DISCIPLINARY Rs. PROF'L CONDUCT R. 3.08, 5.05 (same, plus facilitating unauthorized practice);
Garcetti v. Ceballos (ethics still matter; "whistleblower" lawyer who testifies against client is
Page 10 of 28
fortunate still to have license, much less job); Tex. Dept. of Parks & Wildlife v. Miranda
(standing, burden on plaintiff, requires "actual grievance"-state).
No PLEADING SERVED?-No NOTICE.
A pleading has meaning sometime after it's been filed, not before. See Murphy Bros.,
Inc .. A pleading has meaning sometime after it's been served, not before. Lloyd, 5 U.S. at 366
("A citation not served is as no citation.").
IN SUM, No PLEADING?-No NOTICE.
Thus, without a pleading, there simply was no Notice, thus no case.
THE "LACK OF WITNESS STATEMENT" PROBLEM.
No "administrative citation" (''ticket") has ever been a "complaint." A "complaint" is a
sworn statement. See Arts. 2.04, 21.22, 45.018, and 45.019.
IN SUM, NO COMPLAINT AND NO PLEADING?-NO NOTICE.
Thus, it used to be that without the filing and serving of both a "complaint" and an
Information, there simply was no Notice.
When the Money became "funny money," almost everything changed.
See, e.g., Schinzing ("complaint" is an adequate charging instrument).
Page 11 of 28
The relationship with Art. 45.019- a "ticket" is not a "complaint."
A "ticket" is not a "complaint." How do we know? First, Art. 45.019 informs us that a ·
"complaint" is something that is, among other things, (1) sworn to, (2) started with certain
language, and (3) ended with certain language. No "ticket" satisfies all of those elements.
Art. 45.019. [883] [973] [938] Requisites Of Complaint
[Municipal Court]
(a) A complaint is sufficient, without regard to its
form, if it substantially satisfies the following
requisites:
(1) it must be in writing;
(2) it must commence "In the name and by the authority
of the State of Texas";
( 3) it .must state the name of the accused, if known,
or if unknown, must include a reasonably definite
description of the accused;
(4) ·it must show that the accused has committed an
offense against the .law of this state, or state that
the affiant has good reason , to believe and does
believe that the accused has committed an offense
against the law of this state;
(5) it must state the date the offense was committed
as definitely as the affiant is able to provide;
(6} it must bear the signature or mark of the affiant;
and
(7) it must conclude with the words "Against the peace
and dignity of the State" and, if the offense charged
is an offense only under a municipal ordinance, it may
also conclude with the words "Contrary to the said
ordinance".
(b) A complaint filed in justice court must allege that
the offense was committed in the county in which the
complaint is made.
(c) A complaint filed in municipal court must allege that
the offense was committed in the t·erri torial limits of
the municipality in which the complaint is made.
Page 12 of 28
(d) A complaint may be sworn to before any officer
authorized to administer oaths.
(e) A complaint in municipal court may be sworn to
before:
(1) the municipal judge;
( 2) the clerk of the court or a deputy clerk;
( 3) the city secretary; or
(4) the city attorney or a deputy city attorney.
(f) If the defendant does not object to a defect, error,
or irregularity of form or substance in a charging
instrument before the date on which the trial on the
merits commences, the defendant waives and forfeits the
right to object to the defect, error, or irregularity.
Nothing in this article prohibits a trial court from
requiring that an objection to a charging instrument be
made at an earlier time.
Art 45.019 (emphasis added).
But cf Art. 21.21 (attorney signature required). See also TEX. TRANSP. CODE ANN. §
708.105 (regarding the "Notice of surcharges" statement typesetting requirements and the
citations non-compliance with same).
Thus, the Information is no longer required, which means that STATE doesn't appear via
signature of authorized counsel anymore. That failure renders Service of documents such as this
next to impossible, but when STATE wants to correct that oversight, the legislature will compel
inclusion of an authorized signature along with a name and address on the complaints so that
defendants in courts of Record may serve the documents that are "required" to file.
The reason why there's no need for a pleading, any more, is that the forum isn't the same
type forum as used to exist. Some people go into orbit hearing this, but it's still the case that the
gold fringe on the flags proclaims the maritime-law nature of the fundamental "choice of law" in
Page 13 of 28
operation. Thus, what used to be a judicial forum is now an executive, maritime forum. This is
why there is no more need for STATE to appear via pleading, i.e., via authorized signature.
Whatever may be the paperwork, Notice is still required.
Art. 45.018. C~~aint [Justice and MUnicipa~ Courts]
(a) For purposes of this chapter, a co~~aint is a sworn
allegation charg~ng the accused with the commission of an
offense.
(b) A defendant is entit~ed to notice of a c~~aint
against the defendant not ~ater
than the day before the
date of any proceeding in
the prosecution of the
defendant under the c~~aint. The defendant may waive
the right to notice granted by this subsection.
Art. 45.018 (emphasis added).
\
Where this provision is not satisfied, there is no Notice. To date, this provision remains
unsatisfied.
Where this provision is not satisfied, a statutorily defined right belonging to McDade has
been violated. Art. 45.018(b) creates a statutory right that declares McDade "is entitled to"
Notice of a complaint at least one day prior to any prosecutorial proceeding related to that
complaint.
This phrase is defined in § 311.0 16(4 ), Gov. Code.
Sec. 311.016). "MAY," "SHALL," "MUST," ETC. The following
constructions apply unless the context in which the word or
phrase appears necessarily requires a different
construction or unless a different construction is
expressly provided by statute:
(1) "May" creates discretionary authority or grants
permission or a power.
(2) "Shall" imposes a duty.
(3) "Must" creates or recognizes a condition precedent.
(4) "Is entit~ed to" creates or recognizes a right.
Page 14 of 28
( 5) "May not" imposes a prohibition and is synonymous
with "shall not."
(6) "Is not entitled to" negates a right.
(7) "Is not required to" negates a duty or condition
precedent.
As this phrase establishes a reference to either an already existing and recognized right,
or, a right created by statute, it is a right that cannot be taken away or ignored unless it is waived
by McDade or removed by due process of law. McDade has not and will not waive this right,
and, does in fact object to the failure of both the STATE and the court to ensure that McDade's
right is fully protected and complied with. Neither has McDade been convicted of anything that
could work to remove this right from his access.
In short, where we're headed, at light speed, is toward a void judgment.
The court must have personal jurisdiction. See Milliken (the Wyoming judgment was
valid because service was valid; hence, the Wyoming court did have personal jurisdiction).
[I]t has been settled, that a judgment depending· upon proceedings in personam can
have no force as to one on whom there has been no service of process, actual or
constructive; who has had no day in court, and no notice of any proceeding against
him. That with respect to such a person, such a judgment is absolutely void ....
Harris, 55 U.S. at 339 (cited in Commercial Equip., 678 S.W.2d at 918, which holds that
even a default judgment is void where there is no service). See also Peralta (even "meritorious
defense" issue is irrelevant to question of Notice); Lloyd ("A citation not served is as no
citation."); Hamdi (habeas proceeding, which is, of course, a CIVIL proceeding); Internat'l
Shoe; Mullane; Armstrong, 380 U.S. at 552; Sniadach; Boddie; Fuentes v. Shevin; N Ga.
Finishing; and Jones.
Page 15 of 28
The "arraignment" is "any proceeding." Cf Rothgery v. Gillespie County, Texas, 554
U.S. 191 (2008). There being no notice of any complaint at least a day before the arraignment,
there is no Notice.
No matter what is delivered to a defendant, where there is no case number, no court
name, and no contact information provided for service of defense pleadings, motions, and briefs,
it follows that no original pleading has been filed, much less served.
NO NOTICE?--NO PERSONAL JURISDICTION.
ISSUE: Does this court have subject matter jurisdiction?
Where there is no personal jurisdiction, the matter is a non-case. All cases are non-cases,
Cf Austin (Blackmun, J., dissent); Deposit Guaranty Nat'! Bank, 445 U.S. at 353 (Powell, J., and
Stewart, J., dissent); Williams, 472 U.S. at 36 (dissent) (citing Austin), i.e., civil, until STATE
proves standing. Some matters, just like this one, never stop being non-cases. Cf Rockwell Int 'I
Corp (the fmal pre-trial order confirmed that this was a non-case).
This is a "criminal case only" forum. Non-cases are civil in nature. This court has no
subject matter jurisdiction over any "civil" (non-case) matter.
Statutory Challenges.
ISSUE: Does Art. 25.04 violate Due Process?
Page 16 of 28
Given Art. 45.018(b) , McDade doubts that Art. 25.04 is in any way relevant to this
matter. However, should Art. 25.04 be relevant, McDade objects to Art. 25.04 as repugnant to
Due Process.
Art. 25.04.
In misdemeanors, it shall not be necessary before trial
to furnish the accused with a copy of the indictment or
information; but he or his counsel may demand a copy,
which shall be given as early as possible.
Art. 25.04.
This language purports to give STATE a pass on its Due Process duty to serve Notice.
This language pretends that a court, especially a court of "criminal case only" jurisdiction, may
proceed without affirmative proof of Notice. To the exact opposite result, no such court has
jurisdiction of any kind unless and until STATE has filed its original pleading, by whatever
name, e.g., a "complaint", and then served it (timely).
Cf Murphy Bros. Inc. (sequence matters regarding filing and servmg the original
pleading). 3 See also Lloyd, 5 U.S. at 366 .("A citation not served is as no citation.").
To date, McDade has received nothing that tells him that STATE has filed anything.
Service would tell McDade what the case number is, in which court any case has been filed, and
on whom he should serve his filings. The case style used in the documents to date is largely
guesswork. The guesses are included so that what he files may find its way, eventually, to the
right destination. If STATE had served its original pleading, then McDade would not be
guessing, at all. In short, McDade has no Notice that any "case or controversy" exists.
3
Murphy Bros. is a civil case, but all cases are non-cases, i.e., civil, until the plaintiff, here STATE, proves standing.
It's impossible for STATE to prove standing for a criminal case where there is no charging instrument even filed,
much less served. The authority to determine authority is civil. Marbury v. Madison. Civil authority is inherent. Cf
United Mine Workers. STATE must prove standing in the criminal context before there's anything even remotely
possible to label as criminal.
Page 17 of 28
There is no legislative enactment or judicial procedural rule that lawfully relieves STATE
of its duty to provide meaningful Notice. A competent, Due-Process minded statute/plan will
place the burdens properly. First, STATE files its original pleading. Then,· STATE Serves its
original pleading. Once the Record shows return of competent service on the defendant of
STATE's original pleading, then an Arraignment may/can be scheduled. Until then, it's not even
a case; it's a non-case, i.e., a civil matter.
"Hearing" the charge read in no way constitutes meaningful Notice.
In "this state," we deal with a world of very insidious, clever but insidious, semantics.
Some of those semantics are in the terms, themselves. No code or statutory plan/scheme is more
semantics-driven, semantics-dependent than any STATE's "transportation" code (and/or a
"vehicles and traffic" code). Responding verbally to a verbal presentation of those semantics is
humanly possible (although, as discussed next, compelling an "instant" response is repugnant to
Due Process). But some of the semantics on which the systems in "this state" depend aren't
· discemable until detected visually via the presentation of the words on the page. For this reason,
it's 100% legally impossible for anyone to have any idea, at all, whatsoever, of what STATE's
case is about unless and until the written word is delivered by means consistent with Due
Process. "Hearing" the words read aloud will never be legally equivalent to "reading" them.
"[T]his state" is just too semantics-driven, too semantics-dependent, for "hearing" to replace
"seeing".
How does a defendant obtain a copy of STATE's original pleading so as to be able to
read it? Either the defendant waives Notice and does STATE's work for STATE, finding the
information on his own, or else the defendant compels STATE to satisfy its duty under Due
Page 18 of 28
Process to serve at a meaningful time, in a meaningful manner, on the defendant a copy of what
STATE has filed.
An elementary and fundamental requirement of due process in any proceeding which
is to be accorded finality is notice reasonably calculated, under the circumstances, to
apprise interested parties of the pendency of the action and afford them the
opportunity to present their objections.
Mullane, 339 U.S. at 314. A failure of Notice violates "the most rudimentary demands of due
process of law." Armstrong, 380 U.S. at 550 (Notice, meaningful time, meaningful manner. 380
U.S. at 552).
, See also Milliken (Notice, opportunity to be heard, fair play, substantial justice);
Internat 'l Shoe (Notice, opportunity to be heard); Sniadach (Notice, opportunity to be heard);
Fuentes v. Shevin (Notice, meaningful time); N. Ga. Finishing (Notice, opportunity to be heard,
even for corporations (i.e., the shareholders)); Burns (Notice, opportunity to be heard, on
upward departure); Hamdi (denial of access and of opportunity to be heard); Jones (Notice,
opportunity to be heard).
To compel an instant response is to offend Due Process.
If Due Process in/for "this state" allowed "hearing" (a non-filed complaint?) to substitute
for "reading/seeing" the filed original pleading, it's still the reality that a system that demands
that a defendant respond immediately to any presentation of charges against him, whether verbal
or in writing, is a system that offends Due Process. There's nothing "meaningful" about ''Notice"
that allows absolutely no time to study into the matter.
In general, even in criminal matters, which this one isn't but pretends to want to be,
STATE must give Notice. Cf O'Grady.
Page 19 of 28
Under the applicable federal standards, the duty is on STATE to provide Notice. The duty
is not placed on the defendant to demand it. It's placed on STATE to provide it. This statute
purports to reverse that burden, to relieve STATE of its duty to provide meaningful Notice, at a
meaningful time in a meaningful manner. Therefore, this statute facially defies and offends Due
Process.
ISSUE: What does 'person" mean?
TRANSP. CODE§§ 541.001(4)
Defined- "person" means: an individual, firm, partnership, association, or
corporation.
Translation: "commercial legal entity"
Application of statutory algebra: If no "person." then no "transportation," or
If no ".transportation" then no "person,"
ISSUE: What does "transportation" mean?
Not defined in the Transp. Code.
What is the Transp. Code about? The "transportation" code nowhere defines
"transportation." It's not that we can't come up with a definition. It's that when we do, we find
that "transportation" is "commercial." Thus, where there's no definition, there's vagueness. But,
there is a definition, if we look long and hard enough.
Page20of 28
Def'med.
"Transportation" means removing people and/or property from ~ere to there for profit or
hire under the choice oflaw of the "place" called ''this state."
Removing People and/or Property.
Transp. Act of 1940, 54 Stat. 898, 929, 49 U.S.C. § 902(i)(1), in particular§ 302(i)(l) .
Cornell Steam-boat, 321 U.S. at 641-42 (Frankfurter, J., dissent).
From Here To There.
Cf Maynard (context: unlawful "transportation" of intoxicating liquor).
For Profit or Hire.
St. Clair Cnty, 192 U.S. at 456-57 (allegations regarding operating a ferry without a
license). See also Cosio, 182 S.W. at 85.
Under the Choice of Law of the "Place" Called "this State."
The entirety of STATE's regulatory authority, for anything, is limited to that "place"
where circulating "funny money" is not flat out fraud, i.e., to the "place" called "this state." Cf §
7; Graham (special maritime and territorial jurisdiction).
Page 21 of 28
The Generic Concept of "use."
If use were irrelevant, it'd be "fraud" to deny a mileage deduction, e.g., Sched. A., for
"personal use" of the car. Because "personal use" is not deductible, it follows that use determines
"personal v. commercial" treatment and that "personal use" is not commercial in any context.
Obviously, personal (non-commercial) use (i.e., travel) needs no "license."
"Use" and the TerryStop.
The ticketing officer never even tried to establish "transportation" use. He asked nothing
about any passenger manifest or any bill of lading. The executive has to have authority to
determine his/its authority, and police always have authority to protect themselves. Terry. The
car has a license plate.
But, that's where the Terry authority ended, because McDade was not engaged m
"transportation," at the time of the stop.
Deliberate indifference.
This officer had not been taught that "transportation" regulation has limits. In the exact
same way that Ramos and Compean were never taught about "this state" and the limits of their
authority at the border, this officer was not taught the limits of "transportation" regulation. "[A]
violation of federal rights may be a highly predictable consequence of a failure to equip law
enforcement officers with specific tools to handle recurring situations." Brown, 520 U.S. at 409.
ISSUE: What does "vehicle" mean?
TRANSP. CODE§§ 502.001(25), 541.201(23), 621.001(9), Sec. 750.003(a).
Translation: a conveyance used for "transportation" purposes.
Page 22 of 28
Application of statutory algebra: If no ''transportation," then no "vehicle."
ISSUE: What does "motor vehicle" mean?
TRANSP. CODE §§ 501.002(17), 502.001(25), 522.003(21), 541.201(11), 601.002(5),
642.001(1), 647.001(4), 683.001(4), 728.001(2).
Translation: "Vehicle" with a motor.
Application of statutory algebra: If no "transportation," then no "vehicle;" if no
"vehicle," then no "motor vehicle."
ISSUE: What does "drive" mean?
TRANSP. CODE§ 522.003(11).
The sole definition for "drive" in the entire "transportation" code is found in the
"commercial driver's license" chapter, Ch. 522.
Translation: In the disciplined "transportation" code, "drive" means being behind the
wheel of a "vehicle." In the TRANSP. CODE, "drive" means being behind the wheel
(
of a "motor
vehicle."
Application of statutory algebra: If no "transportation," then no "vehicle;" if no
"vehicle," then no "motor vehicle;" if no "motor vehicle," then no "driving;: hence, no "driver."
ISSUE: What does "operator" mean?
TRANSP. CODE§ 541.001(1).
Page23 of 28
This "definition" is very confused. "Drives," which has meaning only with respect to a
"motor vehicle," is juxtaposed with the concept of "physical control of a vehicle." Ultimately, it
doesn't matter, here, but which is it: "vehicle" or "motor vehicle?" 4
Translation: In the disciplined "transportation" code, "operator" is the one behind the
wheel of a "motor vehicle." In the Transp. Code, "operator" is the one behind the wheel of either
a "vehicle" or a "motor vehicle."
Application of statutory algebra: No "transportation?"-no "vehicle;" no ''vehicle?"-no
"motor vehicle;" no "(motor) vehicle?"-no "operator."
ISSUE: What does "this state" mean?
Contrary to popular belief, ''this state" isn't really a "place." It's a "choice of law." The
"place" called "this state" is a "federal area" or a "federal zone," a "Constitution-free, maritime,
commercial zone," associated with the "funny money" found in the 48 contiguous states, Alaska,
Hawaii, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, the Virgin Islands,
and all the rest of the territories and protectorates. The capital of "this state" is DC.
Without "this state," running the present "funny money" scam would be criminal. Thus,
the fundamental "choice of law" to which "this state" refers is the Law of the Sea, to be
distinguished from the "choice of law" associated with an honest system of weights and
measures, Lev. 19:35-36, which is the Law ofthe Land. The Law ofthe Sea doesn't just apply; it
applies only if there's an agreement that includes that choice oflaw. Ogden. Cf § 7; Graham.
In application of these terms.
4
See also§§ 601.002(8) ("motor vehicle"), 642.001(2) (same), 647.001(5) (same);§ 724.001(11) (looks to a "motor
vehicle" or watercraft, i.e., ''transportation" activity); § 24.013(t)(2) (regarding aircraft).
Page 24 of 28
There was never any "transportation" at issue. Since McDade was not engaged in
''transportation," there was no "vehicle," no "driver," no "motor vehicle," and no "operator."
Therefore, there was never any authority to issue any "ticket", or "citation".
ISSUE: Does this court even really exist as a court of Record?
The procedures set out in GOV'T CODE § 30.00003 have not been followed.
The name may or may not be fatally material, but the naming protocol for a municipal
'
court. of record set out by statute has not been applied or followed. More to the point, the
\
ordinances simply do not create a court of Record.
To label the court one way, i.e., as a court of Record, but to have its existence be
something else entirely, i.e., as a generic municipal court, shows up most prominently in the
appellate process. The mismatch can produce an effective denial of access problem. Cf Harbury.
REQUEST FOR RELIEF
Therefore, McDade requests that this court grant his special appearance and dismiss this
case.
Respectfully Submitted
David Kent McDade
Page 25 of 28
VERIFICATION
STATE OF TEXAS §
ss KNOW ALL MEN BY THESE PRESENTS
COUNTY OF TRAVIS §
Before me, the undersigned Notary, personally appeared David Kent McDade in this matter, who
satisfied me as to his identity, and who, upon administration of oath or affirmation by me, declared and
deposed as follows:
I am David Kent McDade. I am at least 21 years of age, and I am competent to make this Motion. I
have personal knowledge of these facts and attest under penalty of petjury the facts stated in this
document are true and correct.
I assert all my Birthrights and all my Inherent, unalienable rights, privileges and immunities at
Natural Law, and Common Law and all my respective commercial rights relevant to a place called
"this state." Affiant does not consent to nor in any way waive any of my rights in whole or in
part, nor does Affiant authorize or consent to any violation of those rights by any of Affiant's
public servants or any other Corporate Entities.
Further, Affiant sayeth not.
Is/
David Kent McDade Affiant
Notary Stamp
Signed and Affirmed to before me on this the _ _ _ day of
_ _ _ _ _ _ _ _ _ _ _ _ (monili)20 ~e~)
for which witness my seal and signature.
Notary Signature: - - - - - - - - - - - - - - -
CERTIFICATE OF SERVICE
By my signature below, I certifY that on this the 6th day of November, 2014, I have no idea who
should be served with a true and correct copy of this document, because there is no competent charging
instrument, much less one showing a name or address for service of such documents on the Plaintiff by
McDade In other words, no one has made any Appearance on the Plaintiffs behalf. Therefore, it is
delivered by hand in open court to whoever shows up on the Plaintiffs behalf. If that is no one, then there
is nothing served as of this date.
ragt: .Zu ur .Zo
David Kent McDade
Page27'of 28
CAUSE NO(s). 14092560, 14092561
In the CITY OF AUSTIN MUNICIPAL COURT
THE STATE OF TEXAS, §
(of) RECORD
Plaintiff, § AUSTIN, TEXAS
v. § TRAVIS COUNTY, Texas
§
DAVID KENT MCDADE, §
Respondent. §
§ Date: 11106/2014
ORDER
ON THIS the day of , 20_ _, came on to be heard the foregoing
RESPONDENT'S SPECIAL APPEARANCE, and after consideration of
{CHOOSE APPROPRIATE STATEMENT)
___ (A) the response, the Court hereby
___ (B) the response, and the evidence on file, the Court hereby
___ (C) the response, the evidence on file, and arguments of counsel, the Court hereby
___ (D) the response, and arguments of counsel, the Court hereby
___ (E) the response, and arguments of counsel, and after receiving evidence in open
court, the Court hereby
___ DENIES the motion, to which Respondent excepted.
___ GRANTS the motion to dismiss _ _ with prejudice/ _ _ without prejudice.
COMMENTS: -----------------------------------------------------
SIGNEDon 20
--------~ PRESIDING JUDGE
Page 28 of 28
STATE OF TEXAS, § in the SUPERIOR COURT OF TEXAS
Plaintiff, § OF PUBLIC RECORD
v. § AUSTIN, TEXAS
David Kent McDade, § TRAVIS COUNTY, Texas
Respondent, §
---------------------------------------------------------------
David Kent McDade, § AFFIDAVIT: NOT ENGAGED
Counterplaintiff § IN COMMERCE
§ OR TRANSPORTATION
v. §
§ (VERIFIED)
"Officer Knouse Badge # 5931 ," "Supervisor," §
"Second Officer," Sherry M. Statman, Barbara § Date: March 2, 2015
L. Garcia, Devin Rourke, §
§
Counterdefendants §
§
________________________________________________________________ J§ __________________________________________ ~----------------·
Affidavit of David Kent McDade -
Not Engaged in Commerce or "Transportation"
TO THE SAID COURT:
COMES NOW David Kent McDade, hereinafter ("McDade") one of the people of Texas,
who asserts as follows:
McDade, requests the court to discharge Plaintiff's cause(s) of action for lack of in
personam jurisdiction and subject matter jurisdiction for causes stated herein.
Assertion of Rights
1. McDade Asserts and Reserves all his unalienable rights including but not limited to
his, rights, privileges, and immunities at Natural Law, Common Law, and Maritime Law and all
his respective commercial rights relevant to ''this state." Tx. Const. Art. 1 Sec. 2
Page 1 of 6
AFFIDAVIT NOT ENGAGED IN COMMERCE·
McDade does not consent to nor in any way waive any of McDade's rights in whole or in
part, nor does McDade authorize or consent to any violation of those rights by any of his public
servants, or any other Corporate Entities.
Objection to use of private law
McDade objects to the use of unpublished cases. A cite to "WL" and "Lexis" is a
reference to materials not publicly accessible. For such references even to begin to be
. meaningful, a full copy of the opinion for each "WL" or "Lexis" reference must be attached;
Objection to Use of Undefined Terms and Phrases
McDade moves the court to direct and so order whomever is purporting to act as the
"Attorney for the State" that, unless the prosecution is both willing and does provide the
complete legal definitions and usages of Terms and Phrases relating to the regulatible activity
oftransportation.to McDade in open court, then, the terms and phrases are not to be used or
alluded to at any point in the proceedings against McDade. Such usage would include but not
be limited to jury voir dire, opening statements, direct or cross-examination, closing
statements or as a response given in testimony by any witness for THE STATE OF TEXAS,
hereinafter "the State".
Facts
McDade hereby makes the following statements of fact under penalty of perjury and
asserts that they are true and correct.
Page 2of 6
AFFIDAVIT NOT ENGAGED IN COMMERCE
McDade was stopped on or about the 8th day of October, 2014 at approximately 8:17am
by a person identified as a "City of AustinMunicipal "Police Officer."
The person who aggravatedly, unlawfully imprisoned McDade has been identified only
as "Officer Knouse Badge # 5931" hereinafter, Knouse # 5931.
At the time of the ''traffic/transportation stop," McDade was unlawfully imprisoned by
Knouse # 5931 upon the initiation of the stop for the purpose of issuing citation #s 14092560;
14092561. This fact is attested to by Knouse # 5931 admittance of such at the time of
"traffic/transportation stop".
At the time of the "traffic/transportation stop" and unlawful imprisonment McDade was
traveling viatically upon the public right-of-way in a private conveyance for his own private
business and pleasure while utilizing due diligence and care to ensure that his actions did not
cause harm to other person(s) or property and no such harm had taken place.
McDade was not engaged in causing harm to any person, property, or thing, nor was
McDade providing Knouse # 5931 with atiy probable cause to believe that McDade was
engaging in any use of the highways that would make McDade subject to the regulatory
provisions of the Transp. Code, but, McDade was still stopped and unlawfully imprisoned by
Knouse # 5931 without any apparent probable cause to believe such activities were taking place.
A~ the time of the ''traffic/transportation stop" and unlawful imprisonment McDade was
not acting in the capacity of a public, private, or common "carrier" for the purpose of
"transporting" any "person(s)," "goods," or "property" from one place to another upon the
highways of ''this state" for compensation or hire.
At the time of the "traffic/transportation stop" and unlawful imprisonment McDade was
not "operating" or "driving," or any of the grammatical variations of those terms, a "motor
vehicle" or ''vehicle" upon the highway for the purpose of transporting any "person(s)," "goods,"
Page 3 of 6
AFFIDAVIT NOT ENGAGED IN COMMERCE
or "property" from one place to another for compensation or hire while acting in the capacity of
a public, private, or common "carrier" in "this state."
At the time of the "traffic/transportation stop" and unlawful imprisonment McDade was
not "transporting" any "person(s)" or "passenger(s)" for compensation or hire.
At the time of the ''traffic/transportation stop" and unlawful imprisonment McDade was
not transporting any "goods" or "property" for compensation or hire.
At the time of the "traffic/transportation stop" and unlawful imprisonment McDade was
not engaged/engaging in any commercial acts whatsoever upon the highways that could be
mistakenly construed as engaging in ''transportation."
At the time of the "traffic/transportation stop" and unlawful imprisonment McDade
informed Knouse # 5931 that McDade was not acting as a "carrier" nor engaging in any acts of
''transportation."
At the time of the ''traffic/transportation stop" and unlawful imprisonment Knouse # 5931
made no effort to determine if McDade was in possession of a passenger manifest proving the
"transporting" of "persons" or "passengers" for compensation or hire.
At the time of the ''traffic/transportation stop" and unlawful imprisonment Knouse # 5931
made no effort to determine if McDade was in possession of a bill of lading proving the
"transporting" of "goods" or "property" for compensation or hire.
At the time of the "traffic/transportation stop" and unlawful imprisonment Knouse # 5931
made no effort at all to determine McDade's actual capacity or to collect any evidence proving
that McDade was engaging in "transportation" upon the highways of"this state".
At the time of the "traffic/transportation stop" and unlawful imprisonment Knouse # 5931
proceeded against McDade as if it were a foregone legal conclusion that an individual's act of
Page 4 of 6
AFFIDAVIT NOT ENGAGED IN COMMERCE
privately traveling upon the public right-of-way automatically constituted
I
"transportation."
McDade asserts for the record that he absolutely was not engaging in any privileged
activity(s) or act(s) constituting "transportation," especially those pertaining to any form of
commercial use of the highways, nor to McDade's knowledge is "the State" in possession of any
physical evidence that could or would prove the contrary.
McDade was traveling viatically upon the highways in a private personal conveyance for
personal business and/or pleasure and was not engaged/engaging in any commercial activity
whatsoever, including any and all of those activities codified within the Transp. Code and/or
Title 49 of the United States Code.
I
\.
McDade maintains that, at the time of the "traffic" stop and unlawful imprisonment,
McDade absolutely was not engaged/engaging in any act(s) of "transportation" upon the
highway that might create a legal and binding duty upon McDade to comply with any such
r regulatory authority codified in the Transp. Code.
McDade absolutely was not engaged/engaging in any act(s) of a coirunercial nature that
might be consistent with the legal meaning and application of the term "transportation" and that
could/would create a legal and binding duty upon McDade to comply with any such commercial
regulatory authority.
McDade asserts that McDade is/was doing nothing more than exercising an unalienable
Right to liberty and the use his private property for Private Travel.
Respectfully submitted
Seal_______________
David Kent McDade
Page 5 of 6
· AFFIDAVIT NOT ENGAGED IN COMMERCE
Verification
STATE OF TEXAS §
§ KNOW ALL MEN BY THESE PRESENTS
COUNTY OF TRAVIS §
Before me, the undersigned Notary, personally appeared David Kent McDade, the Affiant in this
matter, who satisfied me as to his identity, and who, upon administration of oath or affirmation by me,
declared and deposed as follows:
I am David Kent McDade. I am at least 21 years of age, and I am competent to make this
Affidavit. I have personal knowledge of these facts and attest under penalty of perjury the facts
stated in this document are true and correct.
I, one of the people of Texas, Assert, and Reserve all my unalienable Rights, privileges and
immunities at Natural Law, Common Law and Maritime Law, and all my respective
commercial rights relevant to a place called "this state. " Affiant does not consent to nor in
any way waive any of my rights in whole or in part, nor does Affiant authorize or consent
to any violation of those rights by any ofAffiant's public servants or any other Corporate
Entities.
Further, Affiant sayeth not.
Seal
David Kent McDade, Affiant
Notary Stamp
Signed and Affirmed to before me on this the _ _ _ day of
- - - - - - - - - - - - ( m o n t h ) 20 (year)
for which witness my seal and signature.
Notary Signature: ----------~----
Certificate of Service
By my signature below, I certify that on this the 2nd day of March, 2015, I have no idea who should
be served with a true and correct copy of this document, because there is no competent charging
instrument, much less one showing a name or address for service of such documents on the Plaintiff by
the Affiant In other words, no one has made any Appearance on the Plaintiff's behalf. Therefore, it is
delivered by hand to the Court Clerk for whoever shows up on the Plaintiff's behalf. If that is no one, then
there is nothing served as of this date.
David Kent McDade, Affiant
Page 6 of 6
AFFIDAVIT NOT ENGAGED IN COMMERCE
ATIACHMENTG
CAUSENO. 1'/-:J35J9J
STATE OF TEXAS IN THE MUNICIPAL COURT
v CITY OF AUSTIN, TEXAS
TRAVIS, COUNTY TEXAS
ORDER OF THE COURT
All motions/documents tendered by the Defendant are hereby DENIED. 1
Defendant does not have leave of court per local rule 7.2 for any additional Pre-Trial
hearings.
Defendant is further ADMONISHED that the filing of pleadings or other docwnents that
are false, groundless or for the purposes of delay or harassment shall result in sanctions
per Texas Rules of Criminal Procedure 1.052(e)
Signed this the ~fit day of~'(! '2012.
Sherry M. Statman
Associate Judge
City of Austin Municipal Court
1
A motion granting all discoverable items the Defendlmt is entitled to as a matter oflaw is entered under a separate
title.
Page: 1 of 7
1 REPORTER'S RECORD
VOLUME 1 OF 1 VOL.UME
2 CAUSE NO. 7723513
3
4 STATE OF TEXAS IN THE MUNICIPAL COURT
5
6 vs. OF AUSTIN
7
8 DAVID K. MCDADE TRAVIS COUNTY, TEXAS
9
10
11
12 STATEMENT OF FACTS
13
14
15
16
17 On the 26TH day of July, 2012, the following
18 proceedings came on to be held in the above-titled and
19 numbered cause before the Honorable Judge Sherry Statman,
20 Judge Presiding, held in Austin, Travis County, Texas.
21 Proceedings reported by computerized stenotype
22 machine.
23
24
MARY LOU TAYLOR, CSR, AUSTIN, TEXAS,
25 512-658-0354; mltaylor1234@gmail.com
Paqe: 2 of 7
1 APPEARANCES
2 Ms. Sherry Statman, Judge Presiding
3
Witness: Mr. David K. McDade
4
5
6 TABLE OF CONTENTS
7 PAGE:
8 Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
9 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page: 3 of 7
1 PROCEEDINGS
2 THE COURT: Case No. 7723513, titled the
3 State of Texas versus David K. McDade. The
4 parties are present. First and foremost, I'm
5 going to go over a few things. The law requires
6 me to treat a person proceeding Pro Se the same
7 as a licensed attorney. You are held to the
8 same rules and same standards as an attorney.
9 When you sign and submit a motion or
10 document to this Court, you are asserting, first
11 of all, that you have read the motion. Second,
12 that you understand it, and that you believe
13 that it contains valid legal arguments.
14 In this case, multiple documents have been
15 submitted to the Court. Some of them are
16 repetitive, contain the same things, they are
17 nonsensical, they do not in any way, shape or
18 form resemble a legitimate motion. You site
19 noncontrolling and nonadvisory law, you site
20 incorrect or inapplicable statutes, and these
21 contain very little legal argument. Mostly it
22 is a rant about what you think the law is and
23 your interpretation of it, if you in fact wrote
24 any of this, I doubt highly.
25 I have seen these motions multiple times
Page: 4 of 7
1 before with different names on them, same font,
2 same grammatical errors, et cetera, et cetera.
·3 What is here is ~pecious at best. A motion
4 has to state, first of all, it actually is a
5 motion. Second, it must present a coherent
6 legal argument, and third, it must ask the Court
7 to take action that the Court has the authority
8 to take. These motion don't do any of that.
9 What they do, other than waste the time of
10 the Court and everybody here, is present
11 arguments such as you have to be charged with an
12 indictment for a Class C Misdemeanor which is
13 incorrect, that you must be magistrated even
14 though you were not arrested, which is
15 incorrect, and that the whole case is invalid
16 because of the font on the ticket, also
17 incorrect. All the motions are denied.
18 According to our Court rules, you have
19 waived any other things that you did not bring
20 up by this proceeding, so any other pretrial
21 matters are waived. You do not have leave of
22 Court for another pretrial. This case is going
23 to proceed to a jury trial. You're going to get
24 an order of the Court that all the motions are
25 denied. There's a subsequent order granting
Page: 5 of 7
1 discovery of all tangible items, so anything
2 that you would be entitled to discover by law,
3 you will receive, the prosecutor will supply
4 those to you. And with that, my court clerk is
5 going to get you copies of these motions and we
6 are off the record and that's all for today.
7 (Off the record.}
8 THE COURT: Back on the record.
9 I've just been informed that you recorded
10 this, that is against the Court rules. I do not
11 consent for you to use my voice, my image, or
12 any other thing regarding this proceeding in any
13 public way. If you want a copy of the
14 transcript, you will contact the court reporter.
15 These little rules and the -- you know,
16 these statutes and things that apply, they're
17 not a joke. Because this is your first time
18 here, I am not going to hold you in contempt for
19 violating a Court rule, but I am going to
20 admonish you, take this seriously, and if you do
21 come to court and you do have recording devices
22 and you have been told that you are not to do
23 that, that is posted outside, that is a rule of
24 this Court, you are subjecting yourself to
25 contempt, which means you can be fined money or
Page: 6 of 7
1 you can be taken and arrested and held up for 24
2 hours for these cases, so let's not do that.
3 These orders also contain an admonishment
4 about the effect of filing frivolous
5 proceedings, you can be sanctioned for that as
6 well. With that, we're off the record.
7 (Proceedings concluded.)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Page: 7 of 7
1 STATE OF TEXAS
2 COUNTY OF TRAVIS
3 I, Mary Lou Taylor, Deputy Official Court Reporter
4 in and for the MunicipalCourt, City of Austin, Travis
5 County, Texas, do hereby certify that the above and
6 foregoing contains a true and correct transcription of
7 all portions of evidence and other proceedings requested
8 for the parties to be included in this volume of the
9 Reporter's Record, in the above-styled and numbered
10 cause, all of which occurred in open court or in chambers
11 and were reported by me.
12 I further certify that this Reporter's Record of the
13 proceedings truly and correctly reflects the exhibits, if
14 any, offered by the respective parties.
15 I further certify that the total cost for the
16 preparation of this Reporter's Record is $25 and was paid
17 by Mr. David McDade.
18 WITNESS MY HAND on this the 6th day of
19 August, 2012.
20
21 Mary Lou Taylor, CSR No., 2215
Expiration Date: 12/31/12
22 Certified Shorthand Reporter
Municipal Court, City of Austin
23 Travis County,.Texas
mltaylor1234@gmail.com
24 512-658-0354
25
ATIACHMENTH
1.
STATE OF TEXAS, § in the SUPERIOR COURT OF TEXAS
2. Plaintiff, § OF PUBLIC RECORD
3. V. § AUSTIN, TEXAS
David Kent McDade, § TRAVIS COUNTY, Texas
4. Respondent, §
" -------------------------------------------------------------
§ FIRST AMENDED ACTION
5. David Kent McDade, § FOR TRESPASS AND
6. Counterplaintiff § TRESPASS ON THE CASE
V. §
7. § Citation Number(s) 14092560, 14092561
"Officer Knouse Badge # 5931 ," §
8. "Supervisor," "Second Officer," Sherry M. § (VERIFIED~
Statman, Barbara L. Garcia, Devin Rourke, §
9.
§ Date: March 2, 2015
10. Counterdefendants §
- _______________________________________________________________§__________________________________________________________ .
11.
12. FIRST CAUSE OF ACTION
13.
14. TRESPASS
15.
This First Amended Action amends by entire substitution the action filed January 4th, 2015 in
16. the above entitled court.
17.
CAUSE OF ACTION
18.
19. 1. David Kent McDade, counterplaintiff (hereinafter "McDade") is one of the people of Texas
20. and in this court of record complains of each of the following:
21.
22.
"Officer Knouse Badge # 5931 ," "Supervisor," and "Second Officer," Sherry M.
23.
Statman, Barbara L. Garcia, Devin Rourke, (hereinafter "Infringers"); (all
24.
hereinafter collectively "Infringers");
25.
26. who are each summoned to answer McDade in a plea of trespass and trespass on ,the case, to wit:
27.
Page 1 of 15
FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE
1.
2. BACKGROUND
3.
4· 2. Each ofthe Infringers exceeded his jurisdiction by either directly, through an agent, or in
5. concert with another did cause McDade to be aggravatedly unlawfully imprisoned 1 against his
6. will, without jurisdiction. Preceding the unlawful imprisonment McDade was duly2 engaged in
7. good faith exercising his unalienable, substantive Right to Travel freely and unencumbered.
8· Said Infringers interrupted said Travel, and then unlawfully imprisoned McDade. During this
9. unlawful imprisonment under, threat, duress, coercion, and against his will Infringers subjected
10 . McDade to multiple threats of further charges and or incarceration if certain requested
11 · information and or papers was/were not given verbally and or produced physically.
12.
13. 3. At the time of the alleged offence, till the present McDade under color oflaw, was/is held in
14 . actual or constructive aggravated imprisonment. Although he objected to the assumed
15 . jurisdiction, those who kept him aggravatedly imprisoned under color of law did not respond to
16 · any of his demands and requests for proof of jurisdiction or for discharge of the action against
17 · him and the reinstatement of his liberty. They continued to assume the jurisdiction without proo
18 . of jurisdiction or any attempt at proof of jurisdiction. McDade continues to be subject, under
19. color of law, to the assumed jurisdiction of the Infringers.
20.
21.
22.
23.
24.
1
25. Imprison: To confine a person or restrain his liberty in any way. Black's Law Dictionary, 5th Edition
Imprisonment: .. .it may be in a locality used only for the specific occasion; or it may take place without the actual
26. application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of
available force. Black's Law Dictionary, 5th Edition
27. 2
Duly: ... according to law in both form and substance. Black's Law Dictionary, 5th Edition
Page 2 ofl5
FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE
1.
2. JURISDICTION
3.
4· 4. On examination of all available information, McDade is able to ascertain that Infringers
5. had/have no lawful jurisdiction to commit their acts.
6.
7. 5. Therefore, on information and belief, McDade alleges that Infringers do/did not have any
8. jurisdiction and may not extrajudicially proceed. 3
9.
10 . 6. McDade demands that Infringers submit to the court proof of jurisdiction, if any they have.
11.
12 · 7. If no proof of jurisdiction is submitted to the court, McDade requests that the above-entitled
13 . court of record find that Infringers are without jurisdiction, that the McDade be discharged from
14. matters stated in Citation Number(s) 14092560, 14092561 without delay, and that the Inferior
15 . Court may not proceed.
16.
17.
18.
3
"However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the
19. United States, it must be considered and decided, before any court can move one further step in the cause; as any
movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject
20. matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question
is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law,
21.
to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a
22. judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with
which is the right ofthe case, is judicial action, by hearing and determining it. 6 Peters, 709; 4 Russell, 415; 3
23. Peters, 203-7" Cited by STATE OF RHODE ISLAND v. COM. OF MASSACHUSETTS, 37 U.S. 657,718 (1838)
"Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its
24.
decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if it
25. act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and
form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; an
26. all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliott v
Peirsol, I Pet. 328,340,26 U.S. 328,340, 7L.Ed. 164 (1828)
27.
Page 3 ofl5
FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE
1.
2.
SECOND CAUSE OF ACTION
3.
4.
TRESPASS
5.
J
6. JURISDICTION
7.
8. 8. Paragaphs 1 through 7 are incorporated by reference'as though fully stated herein.
9.
10. 9. Each Infringer acted in such a way, or failed to act in such a way, that McDade is deprived of
11. his liberty. Each Infringer acted to deprive McDade of his liberty; or each Infringer failed to act
12. to prevent the loss by McDade of his liberty. Further, each Infringer is a willing participant in
13. concert with each of the remaining Infringers.
14.
15 . 10. At all times mentioned in this action each Infringer is the agent of the other, and in doing the
16 . acts alleged in this action, each is acting within the course and scope of said agency.
17.
18.
19.
Facts of Incident
20.
21.
22.
1. McDade was stopped on or about the 8th day of October, 2014 at approximately 8:17am by
23.
person identified as a "City of Austin Municipal "Police Officers."
24.
25. 2. The person(s) who seized, accosted, and unlawfully Aggravatedly Imprisoned McDade hav
26.
been identified only as "Officer Knouse Badge # 5931" hereinafter, Knouse # 5931 and hi
27.
Page 4 of15
FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE
'
1. "Supervisor" hereinafter Supervisor and "Second Officer" hereinafter known as "Unkno
2. Officer" (all hereinafter collectively "Infringers");
3.
3. At the time of the "traffic/transportation stop," McDade was "arrested" which amounted t
4.
McDade being seized, accosted, and unlawfully imprisoned by the Infringers upon the initiatio
5.
of the stop for the purpose of issuing Citation Number(s) 14092560, 14092561. This fact i
6. attested to by the Infringers admittance of such at the time of "traffic/transportation stop.'
7• McDade was forcibly issued Citation Number(s) 14092560, 14092561 under threat, duress, an
8. coercion by the Infringers.
9.
4. At the time of the "traffic/transportation stop", and unlawful imprisonment
10.
requested to speak to the Knouse# 5931 's Supervisor (name to be determined), during whic
11. time another officer "Unknown Officer" arrived; when Knouse # 5931 's Supervisor arrive
12. McDade informed the Supervisor of the situation and the Supervisor and other "Unkno
13. Officer" all of the above identified officers took part in and allowed the unlawful imprisonmen
14. to continue until forcibly issued Citation Number(s) 14092560, 14092561 were completed.
15.
5. At the time of the "traffic/transportation stop", and unlawful imprisonment McDade wa
16.
traveling viatically upon the public right-of-way in a private conveyance for his own privat
17. business and pleasure while utilizing due diligence and care to ensure that his actions did no
18. cause harm to other person(s) or property and no such harm had taken place.
19.
6. McDade was not engaged in causing harm to any person, property, or thing, nor was McDad
20.
providing the Infringers with any probable cause to believe that McDade was'' engaging in an
21.
actions to cause harm to any person(s) or property, or thing but, McDade was still stopped
22. seized, accosted, and unlawfully imprisoned by the Infringers without any apparent probabl
23. cause to believe such activities were taking place.
24.
7. McDade asserts that at the time of the "traffic/transportation stop" he was not causing harm
25.
to any person or property or being violent in any way. McDade asserts that he is/was doing
26.
nothing more than exercising a unalienable, substantive Right and liberty to Travel freely an
27. unencumbered and the use of his private property for Private Travel.
Page 5 of15
FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE
1. THIRD CAUSE OF ACTION
2.
TRESPASS
3.
4.
JURISDICTION
5.
6. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein.
7.
8.
9.
Facts of Incident
10. The issue of the acts of Judicial Misconduct by Mrs. Sherry M. Statman is detailed as follows:
11. McDade received a traffic citation from the City of Austin Police Dept., McDade filed
documents in the Austin Municipal Court in answer to said citation in the form of a Special
12.
Appearance Challenging Personal and Subject matter Jurisdiction and Venue I motion to
13. dismiss, a Declination to Plea and an Affidavit of not Engaged in Transportation, to show on the
record that the court nor STATE had any lawful jurisdiction over the matter or McDade.
14.
There was never any proper and timely notice to McDade by the court at the time of the filing o
15.
McDade's documents, as can be proven by the attached docket call print out from the court
16. website; of an Information that still to this day does not exist (the primary pleading of the
STATE) pursuant to U.S. Const. Amend VI, Tex. Const. Art. 1 Sec 10; which vacated
17.
irreparably any personal jurisdiction by lack of proper and timely action by the court (latches).
18.
The court and /or Plaintiff do not have any proof of subject matter jurisdiction in the form of
19. fact, law, and evidence on the record that McDade was engaged in the regulatible Commercial
activity of Transportation, which the lack of vacates subject matter jurisdiction. For the/them to
20.
prove subject matter jurisdiction they have to prove that the statue gives them jurisdiction in this
21. particular alleged offence and prove every element as to what grants them jurisdiction over
McDade. The Affidavit Not in Transportation proves conclusively that neither the court nor
22.
Plaintiff has such evidence.
23.
The Special Appearance/ motion to dismiss addresses both the lack of notice issue and the lack
24. of subject matter /evidence issue, so you can see the validity of McDade's challenge to both
25. instances of jurisdiction; and my reason to decline to plea to a court lacking not only jurisdiction
but also standing. At the present time the court and the Plaintiff are moving forward absent any
26. lawful jurisdiction.
27.
Page 6 of15
FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE
1. After filing papers in this matter Mrs. Sherry M. Statman sent an order to McDade in the mail
addressing his filings in a rude and threatening manner.
2.
3. Jurisdiction is not accomplished simply by physicality as presumed by Mrs. Sherry M. Statman
in her order; this assertion of jurisdiction just by physicality claim is just a judicial avoidance
4. tactic, to avoid on point the true lack of jurisdiction issue. McDade is quite sure the arguments in
5. the (attached) documents that McDade filed, properly and completely address the critical issues.
They are there for the whole world to see.
6.
Mrs. Sherry M. Statman apparently does not understand that a challenge to jurisdiction and
7. determination of jurisdiction is always a civil matter, that in and of itself is never criminal; which
8. is a sad state for a presiding judge (or just a ploy to trick me into general appearance).
9. A special appearance to challenge jurisdiction of the court is proper until jurisdiction is proven
on the record, and as is well known even to a laky like McDade is the fact subject matter can be
10. challenged at any time even on appeal.
11. McDade realizes that just the fact of challenging jurisdiction does not negate its existence,
12. however when challenged in fact, law, and evidence the court is absolutely obligated to stop all
proceedings, meet the challenge with fact, law, and evidence on the record conclusively and
13. substantively before continuing not just give it lip service.
14. The challenge is civil, once jurisdiction has been properly established in the record as due
process demands then and only then can the judge lawfully make the assertion that a special
15.
appearance is no longer valid.
16.
Mrs. Sherry M. Statman, especially as the presiding judge should be perfectly aware that the
17. moment that an individual makes a general appearance in-personam jurisdiction has been waved,
18. only by the making of a special appearance may a challenge to jurisdiction including in-
personam jurisdiction be maintained by the accuse