McDade, David Kent

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]

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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.

WRIT OF HABEAS CORPUS Page 12 of27

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

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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,

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