# McDade, David Kent > Court of Appeals of Texas · August 19, 2015 URL: https://www.frixlaw.com/law-library/cases/4066336 ## Case - **Court:** Court of Appeals of Texas - **Decided:** August 19, 2015 - **Precedential status:** Published - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4066336 ## Opinion text 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 ), WRIT OF HABEAS CORPUS Page 4 of27 4. Scope of Writ. The writ of habeas corpus is intended to be applicable to all such cases of confinement and restraint, where there is no lawful right in the person exercising the power, or where, though the power in fact exists, it is exercised in a manner or degree not sanctioned by law. [Tex. CCP ChapllArt. 11.23] Constructive Custody. The availability of the writ of habeas corpus does not depend on the actual detention of petitioner in prison. It is also available where petitioner is constructively in custody and subject to restraint [Tex. CCP Chap11Art. 11.21, 22,23] [Ex parte Canada, 754 S.W.2d 660,666 (Tex.Crim.App.1988)] [Ex parte Robinson, 641S. W.2d 552,553] (In re Petersen(1958)51 Cal2d 177,181,331 P2d24). 5. This habeas corpus is prosecuted because the taking of the People into custody was without due process. The respondent's court acted as a nisi prius court, except that the jurisdiction was fraudulently acquired without David Kent McDade's volunteering or knowingly agreeing to the proceeding. Gonzalez v. United States, 553 U.S. 242 (12 May 2008) ("If the parties consent") (construing 28 U.S.C. § 636(b)). 6. The nisi prius court is in fact a nisi prius court falsa because respondent has taken unlawful dominion of McDade so as to deprive him of his court. McDade should be immediately released so that he may return to the jurisdiction of his own court. 7. McDade is subject to unlawful constructive custody and restraint. McDade is thus petitioning for a writ of habeas corpus. Restraint. By "restraint" is meant the kind of control which one person exercises over another, not to confine him within certain limits, but to subject him to the general authority and power of the person claiming such right. [Tex. CCP Chapl1Art. 11.22] WRITOFHABEASCORPUS Page 5 of27 Because No Jurisdictional Basis For Custody Has Been Proffered Or Stated A Writ Of Habeas Corpus Should Issue. 8. Broad Meaning of Jurisdiction on Habeas Corpus. For purposes of the writ of habeas corpus, as for purposes of prohibition or certiorari, the term "jurisdiction" is not limited to its fundamental meaning, and in such proceedings judicial acts may be restrained or annulled if they are determined to be in excess of the court's powers as defined by constitutional provision, statute, or rules developed by courts (In re Zerbe (1964) 60 Cal2d 666, 667-668, 36 CalRptr 286, 388 P2d 192). 9. The liberty of the People is restrained by the Custodians: A. McDade is in constructive custody by color of the authority of the State of Texas and/or the Custodians, and was committed for trial before some court thereof; [28 USC 2241(c)(l)] B. McDade is in custody in violation of the Constitution or laws of the United States; [28 USC 2241(c) (3)] 10. Although the true cause of custody ofMcDade is unknown, McDade on information believes that the claim or authority is under color of law in violation of the Constitutions for the Republic of Texas and the United States of America. The true basis for jurisdiction by the Custodians has never been proffered or stated. McDade, as one of the People, has never knowingly or voluntarily agreed to such jurisdiction. McDade has disputed and disputes any factual allegation that he has so agreed. WRIT OF HABEAS CORPUS Page 6 of27 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 WRIT OF HABEAS CORPUS Page 8 of27 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. WRIT OF HABEAS CORPUS Page 9 of27 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. ~TOFHABEASCORPUS Page 10 of27 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 WRIT OF HABEAS CORPUS Page 11 of27 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. WRIT OF HABEAS CORPUS Page 14 of27 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. WRIT OF HABEAS CORPUS Page 15 of27 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. WRIT OF HABEAS CORPUS Page 16 of27 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 acc [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4066336. Public record. Not legal advice.