¹ THE STATE OF TEXAS, § In the SUPERIOR COURT OF TEXAS 1 Plaintiff, § OF PUBLIC RECORD 2 .. v. § AUSTIN, TEXAS, 3. § TRAVIS COUNTY, Texas2 David Kent McDade, §

⁴ Respondent § 5. § Date: 1104/2015 David Kent McDade, § 6. counterplaintiff, § v. § 7. §

⁸ THE STATE OF TEXAS, § Sherry M. Statman,

⁹ "Officer Knouse Badge # 5931 ,""Supervisor," and

¹⁰ "Second Officer" ... counterdefendants § 11. § 12. 13. FIRST CAUSE OF ACTION 14.

¹⁵ TRESPASS 16. 17. 18. 1. David Kent McDade, (hereinafter "McDade") is one of the people of Texas and in this court 19. of record complains of each of the following: 20. 21. THE STATE OF TEXAS "STATE", People vs. David Kent McDade, Citation 22. Number(s) 14092560, 14092561 (hereinafter "Inferior Court"); and Sherry M. 23. 1 Only cases have numbers. There being no charging instrument filed, much less served, there is no case, here, by any number. Until STATE proves standing on the record this is a non-case, Austin v. New Hampshire, 420 U.S. 656, 24. 668 (1975) (Blackmun, J., dissent); Deposit Guaranty Nat'/ Bank v. Roper, 445 U.S. at 353 (Powell, J., and Stewart, J., dissent); Williams v. Vermont, 472 U.S. at 36 (dissent) (citing Austin), i.e., civil, until STATE proves standing. A 25. common number associated with this matter is yet to be established to the knowledge of Respondent. 2 26. The above style is mostly guess work, however, comfortably presumed are the Plaintiff and the County. The proper name and capacity of both the Plaintiff and the court are all still unknown. There has never been timely or 27. proper service on McDade of any charging instrument or anything at all identifying all parties and proper service information for same. Page I of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. Statman, "Officer Knouse Badge# 5931," "Supervisor," and "Second Officer" 2. (hereinafter "Infringers"); (all hereinafter collectively "Infringers"); 3. 4. 5. 6. who are each summoned to answer the said counterplaintiti in a plea of trespass and trespass on 7. the case, to wit: 8. 9. BACKGROUND 10. 11 . 2. Each of the Infringers exceeded his jurisdiction by either directly, through an agent, or in 12. concert with another did cause counterplaintiffMcDade to be aggravatedly unlawfully 13 . imprisoned3 against his will, without jurisdiction. Preceding the imprisonment counterplaintiff 14. McDade was dull engaged in good faith exercising his unalienable, substantive right to Travel 15. freely and unencumbered. Said Infringers interrupted said Travel, then unlawfully, aggravatedly 16. imprisoned counterplaintiffMcDade. During this unlawful, aggravated imprisonment under, 17. threat, duress, coercion, and against his will Infringers subjected counterplaintiffMcDade to 18 . multiple threats of further charges and or incarceration if certain requested information and or 19 · papers was/were not given verbally and or produced physically. 20. 21. 3. At the time of the alleged offence, till the present counterplaintiffMcDade under color oflaw, 22 . was held in actual or constructive aggravated unlawful imprisonment. Although he objected to 23 · the assumed jurisdiction, those who kept him aggravatedly, imprisoned under color of law did 24. 3 25. Imprison: To confine a person or restrain his liberty in any way. Black's Law Dictionary, 5th Edition Imprisonment: .. .it may be in a locality used only for the specific occasion; or it may take place without the actual 26. application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Black's Law Dictionary, 5th Edition 27. 4 Duly: ... according to law in both form and substance. Black's Law Dictionary, 5th Edition Page 2 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. not respond to any of his demands and requests for proof of jurisdiction or for discharge of the 2. action against him and the reinstatement of his liberty. They continued to assume the jurisdictio 3. without proof of jurisdiction or any attempt at proof of jurisdiction. Counterplaintiff McDade 4. continues to be subject, under color oflaw, to the assumed jurisdiction of the Infringers. 5. 6. 7. JURISDICTION 8. 9. 4. On examination of all available information, counterplaintiff is able to ascertain that 10. counterdefendants had/have no lawful jurisdiction to commit their acts. 11. 12. 5. Therefore, on information and belief, counterplaintiffMcDade alleges thatinfringers do/did· 13. not have any jurisdiction and may not extrajudicially proceed. 5 14. 15 · 6. Counterplaintiff demands that Infringers submit to the court proof of jurisdiction, if any they 16. have. 17. 18. 5 "However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the 19. United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject 20. matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question 21. is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a 22. judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action, by hearing and determining it. 6 Peters, 709; 4 Russell, 415; 3 23. Peters, 203-7" Cited by STATE OF RHODE ISLAND v. COM. OF MASSACHUSETTS, 37 U.S. 657,718 (1838) "Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its 24. decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if it 25. act· without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; an 26. all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliott v Peirsol, l Pet. 328,340,26 U.S. 328,340, 7L.Ed. 164 (1828) 27. Page 3 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1· 7. If no proof of jurisdiction is submitted to the court, counterplaintiff demands that the above- 2. entitled court of record find that Infringers are without jurisdiction, that the counterplaintiff be 3. discharged from above stated matters stated in Citation Number(s) 14092560, 14092561 without 4. delay, and that the Inferior Court may not proceed. 5. 6. SECOND CAUSE OF ACTION 7. 8. TRESPASS 9. 10. JURISDICTION 11. 12 . 8. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein. 13. 14. 9. Each counterdefendant acted in such a way, or failed to act in such a way, that 15. counterplaintiff McDade is deprived of his liberty. Each counterdefendant acted to deprive 16. counterplaintiff McDade of his liberty; or each counterdefendant failed to act to prevent the loss 17. by counterplaintiff McDade of his liberty. Further, each counterdefendant is a willing 18. participant in concert with each of the remaining counterdefendants. 19. 20 . 10. At all times mentioned in this action each counterdefendant is the agent of the other, and in 21 . doing the acts alleged in this action, each is acting within the course and scope of said agency. 22. 23. 24. Facts of Incident 25. Counterplaintiff McDade hereby makes the following statements of fact under penalty of perjury 26. and asserts that they are true and correct. 27. Page 4 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. 1. Counterplaintiff McDade was stopped on or about the 8th day of October, 2014 a 2. approximately 8:17am by a person(s) identifying themselves as "City of Austin Municipa 3. "Police Officers." 4. 2. The person(s) who seized, accosted, and unlawfully Aggravatedly Imprisone 5. counterplaintiff McDade has been identified only as "Officer Knouse Badge # 5931' 6. hereinafter, Knouse # 5931 and his "Supervisor" hereinafter Supervisor and "Secon 7. Officer" hereinafter known as "Unknown Officer" (all hereinafter collectively "Infringers"); 8. 3. At the time of the "traffic/transportation stop," counterplaintiff McDade was "arrested' 9. which amounted to counterplaintiff McDade being seized, accosted, and unlawfully, 10. aggravatedly imprisoned by the Infringers upon the initiation of the stop for the purpose o 11. issuing Citation Number(s) 14092560, 14092561. This fact is attested to by the Infringer 12. admittance of such at the time of "traffic/transportation stop". counterplaintiff McDade wa 13. forcibly issued Citation Number(s) 14092560, 14092561 under threat, duress, and coercion b 14. the Infringers. 15. 4. At the time of the "traffic/transportation stop", and unlawful Aggravated Imprisonmen 16. counterplaintiff McDade requested to speak to the Knouse # 5931 's Supervisor (name to b 17. determined), during which time another officer "Unknown Officer" arrived; when Knouse 18. 5931 's Supervisor arrived counterplaintiff McDade informed the Supervisor of the situation an 19. the Supervisor and other "Unknown Officer" all of the above identified officers took part in an allowed the unlawful Aggravated Imprisonment to continue until forcibly issued Citatio 20. Number(s) 14092560, 14092561 were completed. 21. 22. 5. At the time of the "traffic/transportation stop", and unlawful, aggravated Imprisonmen 23. counterplaintiff McDade was traveling viatically upon the public right-of-way in a privat 24. conveyance for his own private business and pleasure while utilizing due diligence. and care t 25·. ensure that his actions did not cause harm to other person( s) or property and no such harm ha taken place. 26. 27. Page 5 of31 ----------------------------------------------------------- COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. 6. Counterplaintiff McDade was not engaged in causing harm to any person, property, or thing, 2. nor was counterplaintiff McDade providing the Infringers with any probable cause to believe tha 3. counterplaintiffMcDade was engaging in any actions to cause harm to any person(s) or property or thing but, counterplaintiff McDade was still stopped, seized, accosted, and unlawfully 4. aggravatedly imprisoned by the Infringers without any apparent probable cause to believe sue 5. activities were taking place. 6. 7. 7. Counterplaintiff McDade asserts that at the time of the "traffic/transportation stop" he was not causing harm to any person or property or being violent in any way. McDade asserts that 8. he is/was doing nothing more than exercising a unalienable, substantive Right and liberty to Travel freely and unencumbered and the use of his private property for Private Travel. 9. 10. 11. THIRD CAUSE OF ACTION 12. TRESPASS 13. 14. JURISDICTION 15. 16. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein. 17. 18. DISCUSSION 19. 20. 11. ISSUE: Does the court have personal jurisdiction over counterplaintiffMcDade 21. 22. in the instant matter? 23. 24. Overview: The systemic problem with Notice. 25. For there to be personal jurisdiction, there must first be proper Notice. 26. 27. Page 6 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. Notice requires both filing and serving the paperwork. 2. Murphy Bros., Inc. (timing and sequence matter regarding filing and serving); Lloyd, 5 3. U.S. at 366 ("A citation not served is as no citation."). It may help to mention in this context tha 4. an "administrative citation" (a "ticket") and a "complaint," Art. 45.018(b), are two entirel 5. different things. 6. Thus, it doesn't matter, yet, whether this is characterized as civil or criminal, becaus 7. 8. Notice will have the same requirements, either way. And, there is, to date, no Notice. 9. 10. Notice previously required the filing and serving of two documents. 11. In a generic misdemeanor matter, Notice used to require the filing and serving of tw 12. different documents: (I) a "complaint," which is a sworn statement, and (2) a pleading, 13. commonly known and referred to as an Information. Arts. 2.04, 21.20, 21.21, 21.22. 14. 15. Art. 2.04. [28] [34] [35] Shall draw complaints 16. Upon complaint being made before a district or county attorney that an offense has been committed in his 17. district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by 18. the complainant, and it shall be duly attested by said 19. attorney. Art. 2.04 (emphasis added). 20. 21. Art. 2.05. [29] [35] [36] When complaint is made 22. If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such 23. complaint and file the same in the court having jurisdiction; provided, that in counties having no county 24. attorney, misdemeanor cases may be tried upon complaint 25. alone, without an information, provided, however, in counties having one or more criminal district courts an 26. information must be filed in each misdemeanor case . ... 27. Art. 2. 05 (Thomson/West 2005) (emphasis added). Page 7 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. Art. 21.20. [413] [477] [465] "Information" 2. An "Information" is a written statement filed and presented in behalf of the State by the district or 3. county attorney, charging the defendant with an offense which may by law be so prosecuted. 4. Art. 21.20 (emphasis added}. 5. 6. Art. 21.21. [414] [478] [466] Requisites of an information [District/County Court] 7. An information is sufficient if it has the following requisites: 8. 1. It shall commence, "In the name and by authority of 9. the State of Texas"; 10. 2. That it appear to have been presented in a court having jurisdiction of the offense set forth; 11. 3. That it appear to have been presented by the proper 12. officer; 13. 4. That it contain the name of the accused, or state that his name is unknown and give a reasonably accurate 14. description of him; 15. 5. It must appear that the place where the offense is charged to have been committed is within the jurisdiction 16. of the court where the information is filed; 17. 6. That the time mentioned be some date anterior to the filing of the information, and that the offense does not 18. appear to be barred by limitation; 19. 7. That the offense be set forth in plain and intelligible words; 20. 8. That it conclude, "Against the peace and dignity of 21. the State"; and 22. 9. It must be signed by the district or county attorney, officially. 23. Art. 21.21 (emphasis added). 24. Art. 21.22. [4)5] [479] [467] Information based upon 25. complaint 26. [District/County Court] No information shall be presented until affidavit has 27. been made by some credible person charging the defendant Page 8 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or 2. county attorney who, for that purpose, shall have power 3. to administer the oath, or it may be made before any officer authorized by law to administer oaths. 4. Art. 21.22 (emphasis added). 5. Art. 27. 01. [ 504] [ 568] [ 557] Indictment or information 6. The primary pleading in a criminal action on the part of 7. the State is the indictment or information. 8. Art. 27.01 (emphasis added). 9. 10. Without both of those documents, two key problems existed. 11. THE "LACK OF ATTORNEY SIGNATURE" PROBLEM. 12. To examine into the pleading first, STATE OF TEXAS is, in actuality, a corporate entity 13. a commercial enterprise, doing business in "this state" via the benefit of a tax exemptio 14. certificate. To date, most who read that think that the author of such a thought has complete} 15. lost his mind. So, rather than proving that point at this early stage, it's still the case that all wh 16. 17. are faced with the question eventually realize that whether it's a commercial enterprise, o 18. something governmental, it's still an artificial entity. No artificial entity may appear in co 19. without authorized signature. For a misdemeanor case, that authorized signature exists if there' 20. a pleading. For a misdemeanor, the pleading is the Information. 21. 22. No PLEADING FILED?-No NOTICE. 23. [TEX. CONST. Art. 5, § 12]; Arts. 2.04, 21.20, 21.21, 21.22, 27.01; Rowland, 506 U.S. a 24. 201-03 (all artificial entities must have counsel-federal); TEX. R: Civ. P. 7 (corporations mus 25. have counsel-state); Kuntoplast of Am., Inc. (same); Computize, Inc. (same); Moore (same)· 26. Dell Dev. Corp. (same); Globe Leasing, Inc., 43.7 S.W.2d at 45-46 (same); ABA MODEL RULE 27. Page 9 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. OF PROF'L CONDUCT R. 3.7 (material witness can't also be attorney of Record); TEX. 2. DISCIPLINARY RS. PROF'L CONDUCT R. 3.08, 5.05 (same, plus facilitating unauthorized practice)· 3. Garcetti v. Ceballos (ethics still matter; "whistleblower" lawyer who testifies against client i 4. fortunate still to have license, much less job); Tex. Dept. of Parks & Wildlife v. Mirand 5. (standing, burden on plaintiff, requires "actual grievance"-state). r 6. 7. 8. 9. No PLEADING SERVED?-No NOTICE. 10. A pleading has meaning sometime after it's been filed, not before. See Murphy Bros. 11. Inc .. A pleading has meaning sometime after it's been served, not before. Lloyd, 5 U.S. at 36 12. ("A citation not served is as no citation."). 13. 14. IN SUM, No PLEADING?-No NOTICE. 15. Thus, without a pleading, there simply was no Notice, thus no case. 16. 17. THE ''LACKOFWITNESSSTATEMENT" PROBLEM. No "administrative citation" ("'ticket") has ever been a "complaint." A "complaint" is 18. 19. sworn statement. See Arts. 2.04, 21.22, 45.018, and 45.019. 20. IN SVM, NO COMPLAINT AND NO PLEADING?-NO NOTICE. 21. Thus, it used to be that without the filing and serving of both a "complaint" and a 22. Information, there simply was no Notice. 23. 24. When the Money became "funny money," almost everything changed. 25. See, e.g., Schinzing ("complaint" is an adequate charging instrument). 26. 27. Page 10 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. The relationship with Art. 45.019- a "ticket" is not a "complaint." 2. A "ticket" is not a "complaint." How do we know? First, Art. 45.019 informs us that 3. "complaint" is something that is, among other things, (1) sworn to, (2) started with certai 4. language, and (3) ended with certain language. No "ticket" satisfies all of those elements. 5. Art. 45.019. [883] [973] [938] Requisites Of Complaint 6. [Municipal Court] (a) A complaint is sufficient, without regard to its 7. form, if it substantially satisfies the following 8. requisites: (1) it must be in writing; 9. (2) it must commence "In the name and by the authority 10. of the State of Texas"; 11. (3) it must state the name of the accused, if known, or if unknown, must include a reasonably definite 12. description of the accused; 13. (4) it must show that the accused has committed an offense against the law of this state, or state that 14. the affiant has good reason to believe and does 15. believe that the accused has committed an offense against the law of this state; 16. ( 5) it must state the date the offense was committed 17. as definitely as the affiant is able to provide; (6) it must bear the signature or mark of the affiant; 18. and 19. (7) it must conclude with the words "Against the peace 20. and dignity of the State" and, if the offense charged is an offense only under a municipal ordinance, it may 21. also conclude with the words "Contrary to the said ordinance". 22. (b) A complaint filed in justice court must allege that 23. the offense was committed in the county in which the complaint is made. 24. (c) A complaint filed in municipal court must allege that 25. the offense was committed in the territorial limits of the municipality in which the complaint is made. 26. (d) A complaint may be sworn to before any officer 27. authorized to administer oaths. Page 11 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. (e) A complaint in municipal court may be sworn to before: 2. (1) the municipal judge; 3. ( 2) the clerk of the court or a deputy clerk; 4. (3) the city secretary; or 5. (4) the city attorney or a deputy city attorney. 6. (f) If the defendant does not object to a defect, error, or irregularity of form or substance in a charging 7. instrument before the date on which the trial on the merits commences, the defendant waives and forfeits the 8. right to object to the defect, error, or irregularity. 9. Nothing in this article prohibits a trial court from requiring that an objection to a charging instrument be 10. made at an earlier time. 11. Art 45.019 (emphasis added). 12. But cf Art. 21.21 (attorney signature required). See also TEX. TRANSP. CODE ANN. 13. 708.105 (regarding the "Notice of surcharges" statement typesetting requirements and th 14. citations non-compliance with same). 15. Thus, the Information is no longer required, which means that STATE doesn't appear vi 16. signature of authorized counsel anymore. That failure renders Service of documents such as thi 17. 18. next to impossible, but when STATE wants to correct that oversight, the legislature will compe 19 . inclusion of an authorized signature along with a name and address on the complaints so tha .20. defendants in courts of Record may serve the documents that are "required" to file. 21. The reason why there's no need for a pleading, any more, is that the forum isn't the sam 22. type forum as used to exist. Some people go into orbit hearing this, but it's still the case that th 23. gold fringe on the flags proclaims the maritime-law nature of the fundamental "choice of law" i 24. operation. Thus, what used to be a judicial forum is now an executive, maritime forum. This i 25. 26. why there is no more need for STATE to appear via pleading, i.e., via authorized signature. 27. Whatever may be the paperwork, Notice is still required. Page 12 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. Art. 45.018. Complaint [Justice and Municipal Courts] 2. (a) For purposes of this chapter, a complaint is a sworn allegation charging the accused with the commission of an 3. offense. 4. (b) A defendant is entitled to notice of a complaint against the defendant not later than the day before the 5. date of any proceeding in the prosecution of the 6. defendant under the complaint. The defendant may waive the right to notice granted by this subsection. 7. Art. 45.018 (emphasis added). 8. Where this provision is not satisfied, there is no Notice. To date, this provision remain 9. unsatisfied. 10. 11. Where this provision is not satisfied, a statutorily defined right belonging to McDade ha 12. been violated. Art. 45.018(b) creates a statutory right that declares McDade "is entitled to' 13. Notice of a complaint at least one day prior to any prosecutorial proceeding related to tha 14. complaint. 15. This phrase is defined in§ 311.016(4), Gov. Code. 16. Sec. 311.016). "MAY," "SHALL," "MUST," ETC. The following 17. constructions apply unless the context in which the word or phrase appears necessarily requires a different 18. construction or unless a different construction is 19. expressly provided by statute: 20. ( 1) "May" creates discretionary authority or grants permission or a power. 21. (2), "Shall" imposes a duty. 22. (3) "Must" creates or recognizes a condition precedent. 23. (4) "Is entitled to" creates or recognizes a right. 24. ( 5)"May not" imposes a prohibition and is synonymous with "shall not." 25. (6) "Is not entitled to" negates a right. 26. (7) "Is not required to" negates a duty or condition precedent. 27. Page 13 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. As this phrase establishes a reference to either an already existing and recognized right, 2. or, a right created by statute, it is a right that cannot be taken away or ignored unless it is waive 3. by counterplaintiff McDade or removed by due process of law. Counterplaintiff McDade has no 4. and will not waive this right, and, does in fact object to the failure of both the STATE and th 5. court to ensure that counterplaintiffMcDade's right is fully protected and complied with.Neithe 6. 7. has counterplaintiff McDade been convicted of anything that could work to remove this righ 8. from his access. 9. In short, where we 're headed, at light speed, is toward a void judgment. 10. The court must have personal jurisdiction. See Milliken (the Wyoming judgment wa 11. valid because service was valid; hence, the Wyoming court did have personal jurisdiction). 12. 13. [I}t has been settled, that a judgment depending upon proceedings in personam can have no force as to one on whom there has been no service of process, actual or 14. constructive; who has had no day in court, and no notice of any proceeding against him. That with respect to such a person, such a judgment is absolutely void .... 15. Harris, 55 U.S. at 339 (cited in Commercial Equip., 678 S.W.2d at 918, which holds tha 16. even a default judgment is void where there is no service). See also Peralta (even "'meritoriou 17. 18. defense" issue is irrelevant to question of Notice); Lloyd ("'A citation not served is as n 19. citation."); Hamdi (habeas proceeding, which is, of course, a CIVIL proceeding); Internal' 20. Shoe; Mullane; Armstrong, 380 U.S. at 552; Sniadach; Boddie; Fuentes v. Shevin; N Ga. 21. Finishing; and Jones. 22. The "arraignment" is "any proceeding." Cf Rothgery v. Gillespie County, Texas, 55 23. U.S. 191 (2008). There beirig no notice of any complaint at least a day before the arraignment 24. 25. there is no Notice. 26. 27. Page 14 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. No matter what is delivered to a defendant, where there is no case number, no cou 2. name, and no contact information provided for service of defense pleadings, motions, and briefs 3. it follows that no original pleading has been filed, much less served. 4. 5. 6. 7. No NOTICE?--NO PERSONAL JlJRISDICTION. 8. ISSUE: Does this court have subjeCt matter jurisdiction? 9. Where there is no personal jurisdiction, the matter is a non-case. All cases are non-cases 10. Cf Austin (Blackmun, J., dissent); Deposit Guaranty Nat 'I Bank, 445 U.S. at 353 (Powell, J., an 11. 12. Stewart, J., dissent); Williams, 472 U.S. at 36 (dissent) (citing Austin), i.e., civil, until STAT 13. proves standing. Some matters, just like this one, never stop being non-cases. Cf Rockwell Int' 14. Corp (the final pre-trial order confirmed that this was a non-case). 15. This is a "criminal case only" forum. Non-cases are civil in nature. This court has n 16. subject matter jurisdiction over any "civil" (non-case) matter. 17. 18. Statutory Challenges. 19. 20. ISSUE: Does Art. 25.04 violate Due Process? 21. Given Art. 45.018(b) , counterplaintiff McDade doubts that Art. 25.04 is in any wa 22. relevant to this matter. However, should Art. 25.04 be relevant, counterplaintiff McDade object 23. to Art. 25.04 as repugnant to Due Process. 24. Art. 25.04. 25. In misdemeanors, it shall not be necessary before trial 26. to furnish the accused with a copy of the indictment or 27. Page 15 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. information; but he or his counsel may demand a copy, which shall be given as early as possible. 2. 3. 4. 5. Art. 25.04. 6. This language purports to give STATE a pass on its Due Process duty to serve Notice. ( 7. This language pretends that a court, especially a court of "criminal case only" jurisdiction, rna 8. proceed without affirmative proof of Notice. To the exact opposite result, no such court ha 9. jurisdiction of any kind unless and until STATE has filed its original pleading, by whateve 10. name, e.g., a "complaint", and then served it (timely). 11. Cf Murphy Bros. Inc. (sequence matters regarding filing and serving the ongma 12. 13. pleading). 6 See also Lloyd, 5 U.S. at 366 ("A citation not served is as no citation."). 14. To date, counterplaintiff McDade has received nothing that tells him that STATE ha 15. filed anything. Service would tell counterplaintiff McDade what the case number is, in whic 16. court any case has been filed, and on whom he should serve his filings. The case style used in th 17. documents to date is largely guesswork. The guesses are included so that what he files may fin 18. its way, eventually, to the right destination. If STATE had served its original pleading, the 19. 20. McDade would not be guessing, at all. In short, counterplaintiff McDade has no Notice that an 21. "case or controversy" exists. 22. There is no legislative enactment or judicial procedural rule that lawfully relieves STAT 23. of its duty to provide meaningful Notice. A competent, Due-Process minded statute/plan wil 24. 25. 6 Murphy Bros. is a civil case, but all cases are non-cases, i.e., civil, until the plaintiff, here STATE, proves standing. 26. It's impossible for STATE to prove standing for a criminal case where there is no charging instrument even filed, much less served. The authority to determine authority is civil. Marbury v. Madison. Civil authority is inherent. C.f 27. United Mine Workers. STATE must prove standing in the criminal context before there's anything even remotely possible to label as criminal. Page 16 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. place the burdens properly. First, STATE files its original pleading. Then, STATE Serves it 2. original pleading. Once the Record shows return of competent service on the defendant o 3. STATE's original pleading, then an Arraignment may/can be scheduled. Until then, it's not eve 4. a case; it's a non-case, i.e., a civil matter. 5. 6. "Hearing" the charge read in no way constitutes meaningful Notice. 7. In "this state," we deal with a world of very insidious, clever but insidious, semantics 8. 9. Some of those semantics are in the terms, themselves. No code or statutory plan/scheme is mor 10. semantics-driven, semantics-dependent than any STATE's "transportation" code (and/or 11. "vehicles and traffic" code). Responding verbally to a verbal presentation of those semantics i 12. humanly possible (although, as discussed next, compelling an "instant" response is repugnant t 13. Due Process). But some of the semantics on which the systems in "this state" depend aren' 14. discemable until detected visually via the presentation of the words on the page. For this reason 15. 16. it's 100% legally impossible for anyone to have any idea, at all, whatsoever, of what STATE' 17. case is about unless and until the written word is delivered by means consistent with Du 18. Process. "Hearing" the words read aloud will never be legally equivalent to "reading" them 19. "[T]his state" is just too semantics-driven, too semantics-dependent, for "hearing" to replac 20. "seeing". 21. How does a defendant obtain a copy of STATE's original pleading so as to be able t 22. read it? Either the defendant waives Notice and does STATE's work for STATE, finding th 23. 24. information on his own, or else the defendant compels STATE to satisfy its duty under Du 25. Process to serve at a meaningful time, in a meaningful manner, on the defendant a copy of wha 26. STATE has filed. 27. Page 17 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to 2. apprise interested parties of the pendency of the action and afford them the 3. opportunity to present their objections. 4. Mullane, 339 U.S. at 314. A failure of Notice violates "the most rudimentary demands of du 5. process of law." Armstrong, 380 U.S. at 550 (Notice, meaningful time, meaningful manner. 38 6. U.S. at 552). 7. See also Milliken (Notice, opportunity to be heard, fair play, substantial justice); 8. Internat'l Shoe (Notice, opportunity to be heard); Sniadach (Notice, opportunity to be heard)· 9. Fuentes v. Shevin (Notice, meaningful time); N Ga. Finishing (Notice, opportunity to be heard, 10. even for corporations (i.e., the shareholders)); Burns (Notice, opportunity to be heard, o 11. 12. upward departure); Hamdi (denial of access and of opportunity to be heard); Jones (Notice 13. opportunity to be heard). 14. 15. To compel an instant response is to offend Due Process. 16. If Due Process in/for "this state" allowed "hearing" (a non-filed complaint?) to substitut 17. for "reading/seeing" the filed original pleading, it's still the reality that a system that demand 18. that a defendant respond immediately to any presentation of charges against him, whether verba 19. or in writing, is a system that offends Due Process. There's nothing "meaningful" about "Notice' 20. 21. that allows absolutely no time to study into the matter.. 22. In general, even in criminal matters, which this one isn't but pretends to want to be 23. STATE must give Notice. Cf O'Grady. 24. Under the applicable federal standards, the duty is on STATE to provide Notice. The du 25. is not placed on the defendant to demand it. It's placed on STATE to provide it. This statut 26. purports to reverse that burden, to relieve STATE of its duty to provide meaningful Notice, at 27. Page 18 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. meaningful time in a meaningful manner. Therefore, this statute facially defies and offends Du 2. Process. 3. 4. ISSUE: What does· "person" mean? 5. TRANSP. CODE§§ 541.001(4) 6. Defined- "person" means: an individual, firm, partnership, association, or 7. corporation. 8. Translation: "commercial legal entity" 9. 10. Application of statutory algebra: If no "person" then no "transportation" or 11. If no "transportation" then no "person," 12. Conclusion: If no "person" then No statue violated. 13. 14. ISSUE: What does "transportation" mean? 15. Not defined in the Transp. Code. 16. What is the Transp. Code about? The "transportation" code nowhere define 17. 18. "transportation." It's not that we can't come up with a definition. It's that when wedo, we fin 19. that "transportation" is "commercial." Thus, where there's no definition, there's vagueness. But, 20. there is a definition, if we look long and hard enough. 21. 22. Defined. 23. "Transportation" means removing people and/or property from here to there for profit o 24. hire under the choice of law of the "place" called "this state." 25. 26. Removing People and/or Property. 27. Page 19 of31 --------------------------------~~------------------------- COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. Transp. Act of 1940, 54 Stat. 898, 929, 49 U.S.C. § 902(i)(l ), in particular § 302(i)(l) . 2. Cornell Steam-boat, 321 U.S. at 641-42 (Frankfurter, J., dissent). 3. 4. From Here To There. 5. Cf Maynard (context: unlawful "transportation" of intoxicating liquor). 6. 7. For Profit or Hire. 8. St. Clair Cnty, 192 U.S. at 456-57 (allegations regarding operating a ferry without 9. 10. license). See also Cosio, 182 S.W. at 85. 11. 12. Under the Choice of Law of the "Place" Called "this State." 13. The entirety of STATE's regulatory authority, for anything, is limited to that "place' 14. where circulating "funny money" is not flat out fraud, i.e., to the "place" called "this state." Cf 15. 7; Graham (special maritime and territorial jurisdiction). 16. 17. The Generic Concept of "use." 18. If use were irrelevant, it'd be "fraud" to deny a mileage deduction, e.g., Sched. A., fo 19. "personal use" of the car. Because "personal use" is not deductible, it follows that use determine 20. 21. "personal v. commercial" treatment and that "personal use" is not commercial in any context 22. Obviously, personal (non-commercial) use (i.e., travel) needs no "license." 23. 24. "Use" and the TenyStop. 25. . The ticketing officer never even tried to establish "transportation" use. He asked nothin 26. about any passenger manifest or any bill of lading. The executive has to have authority t 27. Page 20 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. determine his/its authority, and police always have authority to protect themselves. Terry. Th 2. car has a license plate. 3. But, that's where the Terry authority ended, because counterplaintiff McDade was no 4. engaged in "transportation," at the time of the stop. 5. 6. 7. Deliberate indifference. 8• This officer had nor been taught that "transportation" regulation has limits. In the exac 9. same way that Rap1os and Compean were never taught about "this state" and the limits of thei 10. authority at the border, this officer was not taught the limits of "transportation" regulation. "[A] i 11. violation of federal rights may be a highly predictable consequence of a failure to equip la 12. enforcement officers with specific tools to handle recurring situations." Brown, 520 U.S. at 409. 13. 14. ISSUE: What does "vehicle" mean? 15. TRANSP. CODE§§ 502.001(25), 541.201(23), 621.001(9), Sec. 750.003(a). 16. Translation: a conveyance used for "transportation" purposes. 17. 18. Application of statutory algebra: If no '"transportation," then no "vehicle." 19. 20. ISSUE: What does "motor vehicle" mean? 21. TRANSP. CODE §§ 501.002(17), 502.001(25), 522.003(21), 541.201(11), 601.002(5) 22. 642.001(1), 647.001(4), 683.001(4), 728.001(2). 23. Translation: "Vehicle" with a motor. 24. Application of statutory algebra: If no "transportation," then no "vehicle;" if n 25. "vehicle," then no "motor vehicle." 26. 27. Page 21 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. ISSUE: What does "drive" mean? 2. TRANSP. CODE§ 522.003(11). 3. The sole definition for "drive" m the entire "transportation" code 1s found m 4. "commercial driver's license" chapter, Ch. 522. 5. Translation: In the disciplined "transportation" code, "drive" means being behind th 6. 7. wheel of a "vehicle." In the TRANSP. CODE, "drive" means being behind the wheel of a "moto 8. vehicle." 9. Application of statutory algebra: If no "transportation," then no "vehicle;" if n 10. "vehicle," then no "motor vehicle;" if no "motor vehicle," then no "driving;: hence, no "driver." 11. 12. ISSUE: What does "operator" mean? 13. TRANSP. CODE§ 541.001(1). 14. This "definition" is very confused. "Drives," which has meaning only with respect to 15. "motor vehicle," is juxtaposed with the concept of "physical control of a vehicle." Ultimately, i 16. 17. doesn't matter, here, but which is it: "vehicle" or "motor vehicle?" 7 18. Translation: In the disciplined "transportation" code, "operator" is the one behind th 19. wheel of a "motor vehicle." In the Transp. Code, "operator" is the one behind the wheel of eithe 20. a "vehicle" or a "motor vehicle." 21. Application of statutory algebra: No "transportation?"-no "vehicle;" no "vehicle?"-n 22. "motor vehicle;" no "(motor) vehicle?"-no "operator.". 23. 24. ISSUE: What does "this state" mean? 25. 26. 7 27. See also§§ 601.002(8) ("motor vehicle"), 642.00 1(2) (same), 647.001(5) (same);§ 724.00 1(11) (looks to a "motor vehicle" or watercraft, i.e., "transportation" activity); § 24.013(f)(2) (regarding aircraft). Page 22 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. Contrary to popular belief, "this state" isn't really a "place." It's a "choice of law." Th 2. "place" called "this state" is a "federal area" or a "federal zone," a "Constitution-free, maritime 3. commercial zone," associated with the "funny money" found in the 48 contiguous states, Alaska 4. Hawaii, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, the Virgin Islands 5. and all the rest of the territories and protectorates. The capital of "this state" is DC. 6. 7. Without "this state," running the present "funny money" scam would be criminal. Thus 8. the fundamental "choice of law" to which "this state" refers is the Law of the Sea, to b 9. distinguished from the "choice of law" associated with an honest system of weights an 10. measures, Lev. 19:35-36, which is the Law of the Land. The Law of the Sea doesn't just apply; i 11. applies only if there's an agreement that includes that choice oflaw. Ogden. Cf § 7; Graham. 12. In application of these terms. 13. There was never any "transportation" at issue. Since counterplaintiff McDade was no 14. 15. engaged in "transportation " there was no "vehicle " no "driver " no "motor vehicle " and n ' ' ' ' 16. "operator." Therefore, there was never any authority to issue any "ticket", or "citation". 17. 18. ISSUE: Does this court even really exist as a court ofRecord? '19. The procedures set out in GOV'T CODE§ 30.00003 have not been followed. 20. The name may or may not be fatally material, but the naming protocol for a municipa 21. court of record set out by statute has not been applied or followed. More to the point, th 22. ordinances simply do not create a court of Record. 23. To label the court one way, i.e., as a court of Record, but to have its existence be something else 24. entirely, i.e., as a generic municipal court, shows up most prominently in the appellate process. 25. The mismatch can produce an effective denial of access problem. Cf Harbury 26. 27. Page 23 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. 2. THIRD CAUSE OF ACTION 3. 4. TRESPASS ON THE CASE 5. 6. JURISDICTION 7. 8. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein. 9. 10. To: State Commission on Judicial Conduct 11. The issue of the most recent Judicial Misconduct by Mrs. Statman is detailed as follows: 12. CounterplaintiffMcDade received a traffic citation from the City of Austin Police Dept., 13. counterplaintiff McDade filed documents in the Austin Municipal Court in answer to said 14. citation in the form of a Special Appearance Challenging Personal and Subject matter Jurisdiction and Venue I motion to dismiss, a Declination to Plea and an Affidavit of not 15. Engaged in Transportation, to show on the record that the court/ Plaintiff had no lawful 16. jurisdiction over the matter or counterplaintiff McDade. 17. There was never any proper and timely notice to counterplaintiff McDade by the court at the time of the filing of counterplaintiff McDade's documents, as can be proven by the attached 18. docket call print out from the court website; of ether a Complaint pursuant to Tx. CCP. Art. 2.05, 19. 15.04,5 or an Information that still to this day does not exist (the primary pleading ofthe STATE) pursuant to Tx. CCP 1.03(5), 1.04,1.05, 27.01, U.S. of A. Const. Amend VI, Tex. 20. Const. Art. 1 Sec 10; which vacated irreparably any personal jurisdiction by lack of proper and 21. timely action by the court (latches). 22. The court and /or Plaintiff do not have any proof of subject matter jurisdiction in the form of fact, law, and evidence on the record that counterplaintiff McDade was engaged in the 23. regulatible Commercial activity of Transportation, which the lack of vacates subject matter 24. jurisdiction. For the/them to prove subject matter jurisdiction they have to prove that the statue gives them jurisdiction in this particular offence and prove every element as to what grants them 25. jurisdiction over counterplaintiffMcDade. The Affidavit Not in Transportation proves 26. conclusively the court/Plaintiff does not have such evidence. (No probable cause determination hearing) 27. Page 24 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. The Special Appearance/ motion to dismiss addresses both the lack of notice issue and the lack of subject matter /evidence issue, so you can see the validity of counterplaintiffMcDade's 2. challenge to both instances of jurisdiction; and my reason to decline to plea to a court lacking not 3. only jurisdiction but also standing. At the present time the court/ Plaintiff is moving forward absent any lawful jurisdiction (as usual). 4. 5. 6. Jurisdiction is not accomplished simply by physicality as presumed by Mrs. Statman in her order; this assertion ofjurisdictionjust by physicality claim is (really lame) just ajudicial 7. avoidance tactic (that is taught in law school), to avoid on point the true lack of jurisdiction 8• issue. CounterplaintiffMcDade is quite sure the arguments in the (attached) documents that counterplaintiffMcDade filed properly and completely address ilie critical issues. They are there 9. for the whole world to see. 10. Mrs. Statsman apparently does not understand (really?) that a challenge to jurisdiction and 11. determination of jurisdiction is always a civil matter, that in and of itself is never criminal; which is a sad state for a presiding judge (or just a ploy to trick me into general appearance). 12. A special appearance to challenge jurisdiction of the court is proper until jurisdiction is proven 13. on the record, and as is well known even to a laky like counterplaintiff McDade is the fact 14. subject matter can be challenged at any time even on appeal. Counterplaintiff McDade realize that just the fact of challenging jurisdiction does not negate its 15. existence, however when challenged the court is absolutely obligated to stop all proceedings, meet the challenge with fact, law, and evidence on the record conclusively and substantively 16. before continuing not just give it lip service. 17. The challenge is civil, once jurisdiction has been properly established in the record as due 18. process demands then and only then can the judge lawfully make the assertion that a special appearance is no longer valid. 19. Even Mrs. Statman Should be perfectly aware that the moment that an individual makes a 20. general appearance in-personam jurisdiction has been waved, only by the making of a special 21. appearance may a challenge to jurisdiction including in-personam jurisdiction be maintained by the accused. 22. Mrs. Statman states in her (attached) order that there are no valid pretrial actions or issues that 23. have been raised. CounterplaintiffMcDade did/does rebut and reject that presumption/assertion 24. with fact, law, and evidence on the record under oath, as counterplaintiff McDade does all Presumptions that come from the Austin Municipal Court. Another attempt to deny the truth, 25. facts, and evidence and in turn counterplaintiff McDade's rights. 26. 27. Page 25 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. CounterplaintiffMcDade has a different viewpoint; counterplaintiffMcDade believes that a challenge to jurisdiction is a critically valid issue in any action, against me or anyone for that 2. matter especially a supposed criminal one. 3. Counterplaintiff McDade also has never received from the court either a Tx. CCP Art. 15.17 4. magistration or a Tx. CCP. Art 16.01 Examining Trial, both very important due process violation issues. 5. As for the judicial notice issue found in paragraph 1, of Mrs. Statman' s order counterplaintiff 6. McDade would beg to differ again. A judicial notice is not an action taken by ajudge, but by a 7. court as you can see in this definition from Blacks Law 9th Ed. Judicial notice: A court's acceptance, for purposes of convenience and without requiring a 8. party's proof, of a well-known and indisputable fact. 9. A judge is not a court! Again defined in Black's as Court: In international law: The person and Suite of the sovereign; the place where the sovereign sojourns with his regal retinue. wherever 10. that may be. 11. 12. CounterplaintiffMcDade believes and does believe that instead of the issues In Mrs. Statman's order being valid issues, counterplaintiff McDade believes they are just more judicial avoidance 13. tactics and also a cunning way of intimidating someone (witness tampering) who is raising 14. extremely valid issues before the court; ones the court/ Plaintiff must prove on the record before moving forward to merits: which by the way I have never seen the court/Plaintiff do, they just 15. gloss over the necessary elements as if they are secondary in nature or as stated in the order, one 16. of physicality. 17. This is not the first time counterplaintiff McDade has had this type of experience with Mrs. 18. Statman, counterplaintiff McDade has included documents including a transcript from an earlier due process and substantive rights violation encounter 7/26/2012. 19. In this encounter counterplaintiff McDade had filed similar documents with the Austin 20. Municipal Court on an alleged traffic violation. On my second "visit" to the court counterplaintiff McDade was brought into an empty courtroom with only Mrs. Statman, the 21. prosecutor, the clerk, and the court reporter (private trial). 22. Counterplaintiff McDade was immediately verbally abused and threatened by Mrs. Statman; it 23. was not a "hearing" as much as it was a verbal thrashing. No one else spoke once Mrs. Statman started including the prosecutor, it was very much a one sided affair. Then Mrs. Statman 24. immediately left the courtroom, although she came quickly back when she was told that counterplaintiffMcDade had a recorder and then verbally threatened counterplaintiffMcDade 25. again. This was before counterplaintiffMcDade really knew what was supposed to happen in a hearing, along with being taken aback by Mrs. Statman's behavior; counterplaintiffMcDade was 26. stunned to the degree that counterplaintiff McDade did not even object to the occurrence, 27. Page 26 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. although couriterplaintiff McDade knew at the time my rights had been violated counterplaintiff McDade was not learned enough to defend himself. This is no longer the situation. 2. 3. CounterplaintiffMcDade has reason to believe and does believe that not only is this another 4. instance of judicial misconduct, and of witness tampering, by threat, duress, and coercion. Counterplaintiff McDade believes it to be clearly a case of Malicious prosecution 5. Counterplaintiff McDade is actually truly concerned for his safety in this court, over a silly alleged class C misdemeanor. It's not like counterplaintiffMcDade has harmed someone. 6. Actually to speak the truth in this matter counterplaintiff McDade is the one who is really and 7. constructively being harmed. The court and prosecution have a duty not to violate counterplaintiffMcDade's unalienable, substantive rights, they have breached that duty which is 8. causing counterplaintiffMcDade immediate and direct harm by not only a loss ofliberty, also a loss of financial gain from time off work, and time to prepare for this action against him plus· 9. costs. 10. 12. Because of the ~ctions committed with actual and implied force counterplaintiffMcDade was 11. immediately and directly injured and suffered loss of liberty, and was Aggravatedly imprisoned, 12. and is being maliciously prosecuted under color of law. 13. 14. 13. Counterdefendants had/have a duty to not cause counterplaintiff McDade to be Aggravated! 15. imprisoned, and be maliciously prosecuted under color of law, and to not cause loss of liberty. 16. Further, counterdefendants had/have a duty to prove jurisdiction when objection to jurisdiction is 17. asserted. 18. 19. 14. Counterdefendants have breached that duty. 20. 21. 15. The damages for the injury caused by counterdefendants' actions are $500.000 for unlawful 22. constructive and actual aggravated imprisonment and malicious prosecution. 23. 24. 25. 26. 27. Page 27 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. LAW OF THE CASE 2. 3. 16. Exhibit "A" is incorporated by reference as though fully stated herein. 4. 5. REQUEST FOR RELIEF 6. 7. 17. For that cause of action therefore Plaintiff brings his suit. 8. 9. 18. WHEREFORE, Counterplaintiff McDade requests relief and judgment against 10. Counterdefendants as follows: 11. 12. On all causes of action: 13. 14. 19. For general damages in the sum of$500,000 for constructive and actual imprisonment; 15. 16. 20. For loss of earnings according to proof; 17. 18. 21. That the court enter a declaratory judgment that counterdefendants have acted arbitrarily and 19. capriciously, have abused their discretion and have acted not in accordance with law, but under 20. color of law; 21. 22. 22. That the court enter a declaratory judgment that counterdefendants have acted contrary to 23. constitutional right, power or privilege. 24. 25. 23. That the court enter a declaratory judgment that counterdefendants' actions were in excess of 26. statutory jurisdiction, authority and short of statutory right. 27. Page 28 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE . 1. 2. 24. That the court enter a declaratory judgment that permanently enjoins counterdefendants' and 3. STATE from interfering in any way with counterplaintiff McDade's lawful right to Travel freel 4• and unencumbered; 5. 6. 24. That the court permanently enjoin counterdefendants from interfering in any way with 7. counterplaintiff McDade's lawful right to Travel freely and unencumbered; 8. 9. 25. That the court enter a declaratory judgment that the records of the court not of record are 'J 10 . impeached for want of jurisdiction in the Court or judicial officers, for collusion between the 11 . parties, and/or for fraud in the parties offering the record, in respect to the proceedings; 12 . 26. That the court grant counterplaintiff McDade his attorneys fees; 13 . 27. That the court grant counterplaintiff McDade such other and further relief as the court deems 14. proper; 15 . 29. For interest as allowed by law; and 16. 30. For costs of suit incurred. 17. 31. I have read and am aware of the foregoing writing. I have personal knowledge of the 18. foregoing facts and am competent to testify as to the truth of those facts if called as a witness. I 19. declare under penalty of perjury that the foregoing facts are true and correct, and that this 20. affidavit was executed in Austin, Texas on 2/3/2015 21. 22. /s/ - - - - - - - - 23. 24. David Kent McDade 25. 26. 27. Page 29 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. COUNTERPLAINTIFF'S CONTACT INFORMATION 2. Contact information for Counterplaintiff McDade is as follows: 3. David Kent McDade 4. 310 E. Brenham St. 5. Elgin, Texas 6. 7• VERIFICATION 8. 32. STATE OF TEXAS § ss KNOW ALL MEN BY THESE PRESENTS 9. COUNTY OF TRAVIS § 10. Before me, the undersigned Notary, personally appeared David Kent McDade in this matter, whc 11. satisfied me as to his identity, and who, upon administration of oath or affirmation by me, declared anc deposed as follows: 12. I, David Kent McDade. I am at least 21 years of age, and I am competent to make this Affidavit. have personal knowledge of these facts and attest under penalty of perjury the facts stated in thi~ 13. document are true and correct. 14. I, one of the People of Texas, Assert and Reserve all my unalienable rights, privileges and immunitie~ at Natural Law, Common Law and Maritime Law and all my respective commercial rights relevant t< 15. a place called "this state." Affiant does not consent to nor in any way waive any of my rights in who!€ or in part, nor does Affiant authorize or consent to any violation of those rights by any of Affiant'• 16. public servants or any other Corporate Entities. 17. The facts stated in this motion, are true and correct. 18. Further, Affiant sayeth not. David KenfMcDade, Affiant 19. 20. Notal)' Stamp Signed and Affirmed to before me on this the 51\ j day of 21. ~~ (month)20 )'£ (year) 22. for which witness my seal and signature. 23. ' Signature:~ ~Vljo"--' ' 24. Notary 25. 26. 27. Page 30 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE 1. 2. CERTIFICATE OF SERVICE 3. By my signature below, I certify that on this the 29th day ofJanuary, 2015, I have no idea who shoul 4. be served with a true and correct copy of this document, because there is no competent chargin instrument, much less one showing a name or address for service of such documents on the Plaintiff b 5. McDade In other words, no one has made any Appearance on the Plaintiff's behalf. Therefore, it i delivered by hand to the court clerk to whoever shows up on the Plaintiff's behalf J.f that is no one, the 6. there is nothing served as of this date. 7. 8. 9. David Kent McDade, Affiant 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. Page 31 of31 COUNTERCLAIM FOR TRESPASS AND TRESPASS ON THE CASE EXHIBIT A 1. I. LAW OF THE CASE 2. The law of the case is decreed as follows: 3. 4. Justice and judgment are the habitation of thy throne Mercy and truth shall go before thy face. - Psa 89: 14 5. 6. Yahshua said: If you abide in My word, of a truth My disciples are ye, You shall know the truth and the truth shall make you free. -Jn. 8:31,32 7. Do justice to the afflicted and the needy. Psa. 82:3 8. 9. COMMON LAW GOVERNS. The rule of procedure in any particular state of case which may 10. arise, the rules of the common law shall be applied and govern 11. Superior Court 12. 13. To constitute a court a superior court as to arty class of action within the common - law meaning of that term; its 14. jurisdiction of such 'actions must be unconditional, so that the only thing 'requisite to enable the court to take cognizance 15. of them is the acquisition of jurisdiction of the 16. gs := persons of the parties. Simons v. De Bare, 4 Bosw., N.Y. ~~J .~i}~T. ; e p~~ sojourn~ with his c::> 17. 'd suit of the sovereign; the place where the sovereign 18. 1 reg~l_:· ;bin_tte, w}ie~ved ·' ·:· I that may be. [Black's Law Dictionary, 5th Edition, page 318.] . 19. ~3 : ;; ::~ 20. COURT. Afl. ag~)ley ~Ethe sovereign created by it directly or indirectly under its authority, t_/J __ ; - consisting~f Olt1~ or J:l:'mre officers, established and maintained for the purpose of hearing and 21. determining issues of law and fact regarding legal rights and alleged violations thereof, and of 22. applying the sanctions of the law, authorized to exercise its powers in the course of law at times and places previously determined by lawful authority. [Isbill v. Stovall, Tex.Civ.App., 92 S.W.2d 1067, 1070; Black's Law Dictionary, 4th Edition, page 425] 25. COURT OF RECORD. To be a court of record a court must have four characteristics, and may have a fifth. They are: 2 6. 27. Page 1 of30 EXHIBIT A -- LAW OF THE CASE 1. A. A judicial tribunal having attributes and exercising functions independently of 2. the person of the magistrate designated generally to hold it [Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per 3. Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 4. 689][Black's Law Dictionary, 4th Ed., 425, 426] 5. 6. 7. B. Proceeding according to the course of common law [Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per 8. Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 9. 689][Black's Law Dictionary, 4th Ed., 425, 426] 10. C. Its acts and judicial proceedings are enrolled, or recorded, for a perpetual 11. memory and testimony. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas 12. Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. U.S., 13. D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229,231] 14. 15. D. Has power to fme or imprison for contempt. [3 Bl. Comm. 24; 3 Steph. Comm. (X) z 16. c::J38Ji=The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal225; r7};~: '·~~~ ~E~.·!:~~.. \.TJf- (r.::;20$,, 1~7 ,S., D.C.Ga., 37 F. 4~8, 2 L.~·~· 229; Heininger v. Davis, 96 Ohio St. .E. 229, 23l.][Black sLaw Dtct10nary, 4th Ed., 425, 426] ..., __ -1 18 . \'. f:l 1~/ .•.•• -<.:..:.· . :;- . ··~ f': 19. c::JE. Qe~_er~y possesses a seal. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The t=Thpiri~ ·····' Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal 225; Erwin v. 20. ; ~- ;·~U.S~, D.Goa., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 ("...J ~-- - 21. N.E. 229, 23l.][Black's Law Dictionary, 4th Ed., 425, 426] 22. Henceforth the writ which is called Praecipe shall not be served on any one for any holding so as 23. to cause a free man to lose his court. [Magna Carta, Article 34]. 24. A statutory or constitutional court (whether it be an appellate or supreme court) may not second 25. guess the judgment of a common law court of record. The Supreme Court of the USA acknowledges the common law as supreme: "The judgment of a court of record whose 26. jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is 27. as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, Page 2 of30 EXHIBIT A -- LAW OF THE CASE 1. by deciding it." Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218,255 (1973)] 2. 3. 4. 5. Sovereignty 6. ... at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of 7. the country, but they are sovereigns without subjects ... with none to govern but themselves ..... [CHISHOLM v. GEORGIA (US) 2 Dall419, 454, 1 LEd 440,455 @DALL (1793) pp471-472 8. 9. 10. The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 11. L.Ed. 826, 19 Ann.Cas. 1047 12. 13. The sovereignty of the United States resides in the people, and Congress cannot invoke the sovereignty of the people to override their will as declared in the Constitution. P. 294 U. S. 353. 14. Perry v. United States 294 U.S. 330 (1935) 15. 16. CC) ~ c:::> 1-- 'l.) I- ~"'S(ly~ig1y' me.ans that the decree_ of soverei_gn makes law, and foreign courts ~c~[:¢o emn mfluences persuadmg sovereign to make the decree." Moscow rire..Il}~- C . of Moscow, Russia v. Bank ofNew York & Trust Co., 294 N.Y.S. . /~-.~-/ -· . I . 19. :r- ··--·~ :·· I . 648, 662, 161 MI~C. 903. . c:::JThe pe.opl~ of this State, as the successors of Its former sovereign, are entitled to 20. ~ll the rJglit~ which formerly belonged to the King by his prerogative. [Lansing v. Lc;.SmHh;4 W:end. 9 (N.Y.) (1829), 21 Am.Dec. 89 10C Const. Law Sec. 298; 18 C 21. ~::'3 Etrt~Donf:Sec. 3, 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves 22. Sec. 3, 7.] 23. A consequence of this prerogative is the legal ubiquity of the king. His majesty in the eye of the law is always present in all his courts, though he cannot personally 24. distribute justice. (Fortesc.c.8. 2Inst.186) His judges are the mirror by which the king's image is reflected. 1 Blackstone's Commentaries, 270, Chapter 7, Section 25. 379. 26. 27. Page 3 of30 EXHIBIT A -- LAW OF THE CASE 1. RESERVATION OF SOVEREIGNTY: "Even if the Tribe's power to tax were derive solely from its power to exclude non-Indians from the reservation, the Tribe has th 2. authority to impose the severance tax. Non-Indians who lawfully enter tribal lands remai 3. subject to a tribe's power to exclude them, which power includes the lesser power to tax o place other conditions on the non-Indian's conduct or continued presence on the reservation. 4. The Tribe's role as commercial partner with petitioners should not be confused with its rol as sovereign. It is one thing to find that the Tribe has agreed to sell the right to use the ian 5. and take valuable minerals from it, and quite another to find that the Tribe has abandone its sovereign powers simply because it has not expressly reserved them through a contract. 6. To presume that a sovereign forever waives the right to exercise one of its powers unless i 7. expressly reserves the right to exercise that power in a commercial agreement turns th concept of sovereignty on its head. Merrion v. Jicarilla Apache Tribe; Amoco Productio 8. Company v. Jicarilla Apache Indian Tribe, 455 U.S. 130, 131, 102 S.Ct. 894, 71 L.Ed.2d 21 (1981) 9. Government: Republican Government. One in which the powers of sovereignty are vested i 10. the people and are exercised by the people, either directly, or through representatives chose by the people, to whom those powers are specially delegated. In re Duncan, 139 U.S. 449 11. 11 S.Ct. 573, 35 L.Ed. 219; Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627 12. Black's Law Dictionary, Fifth Edition, p. 626 13. Bond v. U.S. SCOTUS recognizes personal sovereignty, June 16, 2011 14. Notice and Choice of Law The Fift~ixt~and Seventh Amendments to the Constitution of the United States of America 15 · 16 ...~~es ~ pn)~ei ~·n the course of the common law to the American people, which necessarily 17 _,.,;~~es ~ rig~ta'.? al by jury. See Wayman v. Southard, 23 U.S. 1, 6 L.Ed. 253, 10 Wheat 1 (182'5). ~- :: ! / ~-.' :;-- "- P.. ! 18. f c:o :·: : ,, (.') 19. Thereforoou::ar~ihefeby provided notice that as a precaution, I am invoking the saving to 20. suitors c~se~(2:·u~.C. § 1333(1)) in order to secure and proceed in the course of the common C'·..J ;,.,,_ law in the event that there is controversy within special maritime and territorial jurisdiction of 21. the United States. 22. 23. Under rules of common law procedure, acquiescence to stipulations of fact and law set forth in attending fact, claim and/or complaint affidavits, along with conclusions of law included or 24. incorporated by reference in conditional acceptance, protest and/or rebuttal documents, will have the effect of a common law Retraxit by Tacit Procuration, whether for purposes of administrative 25. or judicial due process remedies. In the event of acquiescence, stipulations secured by tacit procuration may constitute the basis for counter-claims and other appropriate remedies. 26. 27. Page 4 of30 EXHIBIT A -- LAW OF THE CASE 1. CREATORS LAW 2. TORAH 3. "You shall not steal.. 4. "You shall not give false testimony against your neighbor. 5. "You shall not covet your neighbor's house. You shall not covet your neighbor's wife, or his 6. male or female servant, his ox or donkey, or anything that belongs to your ~eighbor." Exodos 20 7. In England in 1215, the right of life, liberty, property, and the express right of travel wer 8. enshrined in Article 42 of Magna Carta to ensure that King John knew without qualificatio where the authority to prevent the exercise of those rights was to be constrained: 9. It shall be lawful to any person, for the future,· to go out of our kingdom, and to return, 10. safely and securely, by land or by water, saving his allegiance to us, unless it be in time 11. of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war 12. against us, and Merchants who shall be treated as it is said above. 13. This right was carried forward in the Constitution for the United States of America within the Bill of Rights. 14.· Republican government. One in which the powers of sovereignty are vested in the 15. people and are exercised by the people, either directly, or through representatives 16. chosen by the people, to whom those powers are specially delegated. [In re D81Jcan;::139 U.S. 449, 11 S.Ct. 573,35 L.Ed. 219; Minor v. Happersett, 88 U.S. 17. {R ~1\:2 162,22 L.Ed. 627." Black's Law Dictionary, Fifth Edition, p. 626.] C) ::JCC: ,-{ ~~ ;::) 18. fE ~~ ~ Rights 19. :.. . . No'j~~ s~all convert a liberty into a lice~se, and charge a fee therefore." 20. c::l ·•~ : ~ u) Murdock v. Pennsylvania, 319,\U.S. 105 · 21. ::= ::~ ~~ ~~ "'I:{!'e claim an'9 exercise of a Constitutional right cannot be converted into a crime" ... t ___ ;l :~ - 22. "'·--' - "a aenial of them would be a denial of due process of law". Simmons v. United States, 390 U.S. 377 (1968) 23. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; 24. and all Treaties made, or which shall be made, under the Authority ofthe United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in 25. the Constitution or Laws of any State to the Contrary notwithstanding. [Constitution for the 26. United States of America, Article VI, Clause 2.] 27. The rights of property Page 5 of30 EXHIBIT A -- LAW OF THE CASE 1. 1866 constitution 2. SEC. 20. The rights of property and of action, which have been acquired under the Constitution 3. and laws of the Republic ofTexas, shall not be divested; nor shall any rights or actions, which have been divested, barred, or declared null and void, by the Constitution and laws of the 4. Republic of Texas, be reinvested, revived, or reinstated, by this Constitution; but the same shall remain precisely in the situation which they were before the adoption of this Constitution. 5. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparag 6. others retained by the people." [The Constitution ofthe United States of America, Amend. IX.] 7. (b) The Constitution created a Federal Government of supreme, but limited, powers. The 8. sovereign powers not granted to the Federal Government are reserved to the people or to the States, unless prohibited to the states by the Constitution. 9. (d) The people of the States are at liberty, subject only to the limitations in the Constitution itsel or in Federal law, to define the moral, political, and legal character of their lives. 10. Executive Order 13083- Federalism 11. May 14, /998 12. Specifically the rights to due process in the fourth, fifth, and sixth amendments. 13. The right of the pe(Jple to be secure in their persons, houses, papers and effects against 14. unreasonable searches and seizures shall not be violated and no warrant shall issue but upon 15. probable cause supported by oath or affirmation and particularly describing the place to be g; ~ searched and the person to be seized. 16. Cf) 1- ~ hi1her d~ty r:sts upon this. Co_urt than to exert i~s ~11 authority to prevent 0 ::..:. all v10lat10ns of the pnnc1ples of the ConstitutiOn." : : -.·,. I >- :.:-.:! -·-. ····· Downs v. Bidwell, 182 U.S. 244 (1901) (11 :·': ~.-~· : (F) 19. It is t~j,ublic~{ioJA~y of this state that public agencies exist to aid in the conduct of the 20. people'~\'>usil\~s<s.. ~fhe people of this state do not yield their sovereignty to the agencies ~::'3 which serve them. [California Government Code, Section 11120.] 21. In enacting this chapter, the Legislature fmds and declares that the public commissions, 22. boards and councils and the other public agencies in this State exist to aid in the conduct 23. of the people's business .... The people of this State do not yield their sovereignty to the agencies which serve them. [California Government Code Section 54950.] 24. 25. A written law is that which is promulgated in writing, and of which a record is in existence. [California Code of Civil Procedure, Section 1896] 26. 27. The organic law is the Constitution of Government, and is altogether written. Other Page 6 of30 EXHIBIT A-- LAW OF THE CASE 1. written laws are denominated statutes. The written law of this State is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States. 2. [California Code of Civil Procedure, Section 1897] 3. Any judicial record may be impeached by evidence of a want of jurisdiction in the Court 4. or judicial officer, of collusion between the parties, or of fraud in the party offering the record, in respect to the proceedings. [California Code of Civil Procedure, Section 1916] 5. 6. McDade has Birthrights, Inherent, unalienable, and statutorily granted rights. The Texa 7. Const. enumerates only a select few of McDade's unalienable rights and does nothing t 8. affect or take away those rights not enumerated, nor could it and/or does it allow for an department of government, or its various officers and agencies, to do so. Similarly, the Cod 9. of Crim. Proc. specifically grants certain procedural rights, and the courts of this State rna 10. not act in any manner or with the intended purpose of depriving McDade of those rights o 11. the procedures implemented by legislative enactments to protect them: 12. 13. "No one, under any circumstances, should be deprived of any right given him by the laws of this state, and, if any provision of our [CCP] has been overlooked or disregarded, if, in 14. the remotest degree, it could have been hurtful or harmful to the person on trial, the verdict should be set aside. He has a right to be tried in accordance with the rules and 15. form of law, and if this sort of trial is not accorded him he has the right to complain, and 16. to thi@m$lint we will always give an attentive ear." 17 . ;~.;.;k~. s;r. 41 s.w.2d r./) 1- 934,937 (Tex.App.-Houston [l".DistJI988, pet. Ref'd) 18 · Th~,proc~~dural::JVles f t)le Texas Code of Cnm. Proc. are as bmdmg upon the courts as an _.-c ,_.' ~~ • I 19 · statutory p_B)vis!o~?.o.~e~ted by the legislature: · 20. ~~~ :·::J ~~~ <: '··" ~~ .~. 1- "Pro~ural;:rule~ave the same force and effect as statutes. [T]hey should be interpreted 2L and construed under the rules applicable to legislative enactments." 22. Reese v. State, 772 S. W2d 288, 290 (Tex.App.-Waco 1989, pet. Ref'd). 23. The enumeration of certain rights within the provisions of the Bill of Rights in Article 1, Tex 24. Const., and the codification of those rights in the provisions of Arts. 1.04 through 1.27, Tex 25. Code of Crim. Proc. makes it axiomatic that "A court cannot enact a procedural rule whic 26. conflicts with a constitutional provision." Reese v. State, ibid. 27. Page 7 of30 EXHIBIT A -- LAW OF THE CASE 1. 2. THE TEXAS CONSTITUTION 3. PREAMBLE 4. . .. the people of the State of Texas, do ordain and establish this Constitution. 5. Sec. 2. INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT. All 6. political power is inherent in the people, and all free governments are founded on their authority, 7. 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 8. all times the inalienable right to alter, reform or abolish their government in such manner as they 9. may think expedient. 10. 11. Sec. 4. RELIGIOUS TESTS. No religious test shall ever be required as a qualificatio 12. to any office, or public trust, in this State; nor shall any one be exchided from holding office o 13. account of his religious sentiments, provided he acknowledge the existence ofa Supreme Being. 14. Sec. 6. FREEDOM OF WORSHIP ...... No human authority ought, in any case whatever, to 15. control or interfere with the rights of conscience in matters of religion, ..... . 16. en ~ Rights as~ecl~~ in the Declaration of Independence of the United States for America :: : · .·w?l8Id ~se ~is t~ be sel~-evident, .that all men are created equal, tha~ they are endowed by their,~reator w~~f~rtarn unalienable Rights that among these are Life, Liberty and the pursmt o 19. Happmess.. :; :: : I Amendment 9 - ,. · w C::J . -" . _; 20. ~ :- ..~ ~. ~ <: Rights secwed~~ndei:::the Texas Constitution 21. ;·..;; ~-···.J -··» , __ :7;;: 22. Sec. 3. EQUAL RIGHTS. All free men, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but 23. in consideration of public services. 24. "The court is to protect against allY encroachment of constitutionally secured liberty." 25. Boyd vs. US, 116 US 616 26. "By the 'law of the land' is most clearly intended the general law [common law]; 27. a law which hears before it condemns; which proceeds upon inquiry, and renders Page 8 of30 EXHIBIT A -- LAW OF THE CASE 1. judgment 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 2. society. Everything which passes under the form of an enactment is not, therefore, 3. to be considered the law of the land. See the meaning of the term "law of the land" fully discussed. Huntsman v. State, 12 Cr.R. 619. The legislature cannot 4. condemn a particular act as an indictable offense, and then empower the courts in the prosecution of such an offense, to substitute in the indictment and proof, an 5. altogether different act, not prohibited. Nor can it dispense with the essential allegations and proofs, even in offenses mala prohibita." 6. Hewitt v. State (1860) 25 T. 722; State v. Wilburn (1860) 25 T. 738; State v. 7. Duke (1875) 42 T. 455; Williams v. State (1882) 12 Cr.R. 395; Huntsman v. State (1882) 12 Cr.R. 619 8. The state cannot diminish rights ofthe people. [Hertado v. California, 100 US 516.] 9. 10. "If a law has no other purpose than to chill assertions of Constitutional rights by penalizing those who choose to exercise them it is patently unconstitutional." 11. Shapiro vs Thompson 394 US 618 12. Ci) ...__ 13. C) 1- "'7~ 14 ../ " ' An &ibon~~iWtioial act is not law; it confers no rights; it imposes no duties; affords no ~- ) -\pf~ti~ it ~~s o office; it is in legal contemplation, as inoperative as though it had never 15. · '_./.,> ::r -__ ~: I passed." Norton vs Shelby County, 118 US 425 .. c ·- I 16. en .. · -·_, i..lJ TM assertjorr~f federal rights, when plainly and reasonably made, is not to be defeated 17. :~~ iliider the name oflocal practice. [Davis v. Wechsler, 263 US 22, 24.] t-=:.=' ("',_J ,~ :-· w..... :z: 18. Where rights secured by the Constitution are involved, there can be no rule making 19. or legislation which would abrogate them. [Miranda v. Arizona, 384 US 436, 491.] 20. There can be no sanction or penalty imposed upon one because of this exercise of constitutional rights. [Sherer v. Cullen, 481 F 946.] 21. 22. "If the state converts a liberty into a privilege the citizen can engage in the right with impunity,.' Shuttlesworth vs. Birmingham, 3 73 US Report 262 23. 24. "Constitutional provisions for the security of person and property are to be liberally construed, 25. and "it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments thereon." 26. Byars v. U.S., 273 U.S. 28. 27. Color of Law Page 9 of30 EXHIBIT A -- LAW OF THE CASE 1. "Color of Law" means "The appearance or semblance, without the substance, of 2. legal right. Misuse of power, possessed by virtue of state law and made possible 3. only because wrongdoer is clothed with authority of state is action taken under 'color oflaw."' Atkins v. Lanning. D.C.Okl., 415 F. Supp. 186, 188. 4. 5. 6. WILLFULNESS 7. Claimant must produce evidence regarding "willfulness". 8. Defined willfulness as an evil motive or intent to avoid a known duty or tax under the law with a 9. moral certainty. U.S. v. Bishop, 412 US 34 10. 11. "Element of willfulness involves a specific wrongful intent, namely, actual knowledge of existence of legal obligation and intent to evade that obligation." 12. U.S. v. Thompson, 230 F.Supp. 530,338 F.2d 997 (D.C.Conn. 1964). 13. 14. NO INJURED PARTY 15. NO STANDING 16. ()") c.:::> - ~ i 17. 0') z <=J 1-- ~~ DEPRAVATION OF RIGHTS <l.::) ;3 F"" LJ...O (r o (..) :~o :;.~~ sh 11 convert a liberty into a license, and charge a fee therefore." Murdock v. Pennsylvania, 319 U.S. 105 21. 22 .· = ,~6 ~;~ ~ co I Jj ,--< ~-73 •• -· ::.:.. .::../) _J 1: •!:fo bahat statute which would deprive a citizen of the Rights of person or 23. property without a regular trial, according to the course and usage of common law, would not be the law of the land." 24. Hoke v. Henderson, 15 N.C. 15, 25 AM. Dec. 677. 25. "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. 26. 27. Page 17 of30 EXHIBIT A -- LAW OF THE CASE 1. "Statutes that violate the plain and obvious principles of common right and common reason are null and void." 2. Bennett v. Boggs, 1 Baldw 60 3. "Officers of the court have no immunity, when violating a Constitutional right, from liability. 4. For they are deemed to know the law." 5. Owen v. Independence, 100 S.C.R. 1398,445 US 622 6. State officers may be held personally liable for damages under 1983 based upon actions taken in their official capacities. Pp. 3-10. HAFER v. MELO, 502 U.S. 21 (1991) 502 U.S. 21 7. 8. "A departure by a court from those recognized and established requirements oflaw, however close apparent adherence to mere form in method of procedure, which has the effect of depriving 9. one of a constitutional right, is an excess of jurisdiction." Wuest v. Wuest, 127 P2d 934,937. 10. 11. "Whenever a judge acts where he/she does not have jurisdiction to act, the judge is engaged in an act or acts oftreason." 12. U.S. v. Will, 449 U.S. 200,216, 101 S.Ct. 471,66 L.Ed.2d 392,406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264,404,5 L.Ed 257 (1821) 13. 14. "Officers of the Court have no immunity, when violating a constitutional right, from liability, for they are deemed to know the law." 15. Owens v. City oflndependence, 445 US 621, 100 S. Ct. 1398 Maine v. Thiboutot, 448 US 1, 100 S. Ct. 2502 16. Hafer v. Melo, 502 US 21 CT.) ~ 17. Con~ra~ ~ainst rights: If two or more persons conspire to injure, oppress, threaten, or ~ti~te~}Sper~on in any State, Territory, Commonwealth, Possession, or District in the free 19. . ~~ercCfSe or~~~fyrient of any right or privilege secured to him by the Constitution or laws of the lJniteaStates;'or ~ecause of his having so exercised the same; or If two or more persons go in 20. disg~~ on.th~ hfghway, or on the premises of another, with intent to prevent or hinder his free •· ,~. ···-' < 21. exer~~e otcerijo)tiDent of any right or privilege so secured - They shall be fined under this title or 22. imprl~ned:not more than ten 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 23. sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be 24. fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced 25. to death. [18, USC 241] 26. Deprivation of rights under color of law: Whoever, under color of any law, statute, ordinance, 27. regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Page 18 of30 EXHIBIT A -- LAW OF THE CASE 1. Possession, or District to the deprivation of any rights, privileges, or immunities secured or 2. protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are 3. prescribed for the punishment of citizens, shall be fmed under this title or imprisoned not more 4. than one year, or both; and if bodily injury results from the acts committed in violation of this 5. section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; 6. and if death results from the acts committed in violation of this section or if such acts include 7• kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravate 8. sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death. [18, USC 242] 9. 10. Property rights of citizens: All citizens of the United States shall have the same right, in every 11. State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. [42 USC 1982] 12. 13. Civil action for deprivation of rights: Every person who, under color of any statute, ordinance, 14. regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction 15. thereofto the deprivation of any rights, privileges, or immunities secured by the Constitution and 16. laws, shall be liable to the party injured in an action at law, suit in equity, or other proper 17. proceeding for redress, except that in any action brought against a judicial officer for an act or orn.ission;:taken in such officer's judicial capacity, injunctive relief shall not be granted unless a 18 · de~atJi}rtaecree _,_, 0:: was violated or declaratory relief was unavailable. For the purposes of this "'<~9-...,\, seci@n, ~~Act of Congress applicable exclusively to the District of Columbia shall be 2 d~ ,../ .·pon~der~ !<?be a statute of the District of Columbia. [42 USC 1983] :' :;- ·~~ (i ·~ 21. I C~piracyfto'-futerfere with civil rights: Depriving persons of rights or privileges: If two or 22. mq~ pet~oif~ ~any State or Territory conspire or go in disguise on the highway or on the 23. pr~ise~~~~f an~her, for the purpose of depriving, either directly or indirectly, any person or clas of persons of the equal protection of the laws, or of equal privileges and immunities under the 24. laws; or for the purpose of preventing or hindering the constituted authorities of any State or 25. Territory from giving or securing to all persons within such State or Territory the equal 26. protection of the laws; or if two or more persons 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 27. Page 19 of30 EXHIBIT A -- LAW OF THE CASE 1. manner, toward or in favor of the election of any lawfully qualified person as an elector for 2. President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy 3. set forth in this section, if one or more persons engaged therein do, or cause to be done, any act 4. in furtherance of the object of such conspiracy, whereby another is injured in his person or 5. property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages 6. occasioned by such injury or deprivation, against any one or more of the conspirators. [42 USC 7. 1985(3)] 8. Action for neglect to prevent: Every person who, having knowledge that any of the wrongs 9. conspired to be done, and mentioned in section 1985 ofthis title, are about to be committed, and 10. having power to prevent or aid in preventing the commission of the same, neglects or refuses so 11. to do, if such wrongful act be committed, shall be liable to the party injured, or his legal representatives, for all damages caused by such wrongful act, which such person by reasonable 12. diligence could have prevented; and such damages may be recovered in an action on the case; 13. and any number of persons guilty of such wrongful neglect or refusal may be joined as 14. defendants in the action; and if the death of any party be caused by any such wrongful act and neglect, the legal representatives of the deceased shall have such action therefor, and may 15. recover not exceeding $5,000 damages therein, for the benefit of the widow of the deceased, if 16. there be one, and ifthere be no widow, then for the benefit of the next of kin of the deceased. 17. But n<£iPti~ under the provisions of this section shall be sustained which is not commenced withi;e ~rr the cause of action has accrued. [42 usc 1986] 19 .. :.r- .. !: i 20 .. c::l -. -, ·--~ U) TABLE OF AUTHORITIES LW __ ~---·· -··~. __, _, :_.___ ~~-:! <"'' 21. LU ~;: _ _j ··-- 23. RIGHTS OF ACCUSED. In all criminal prosecutions the accused shall have a speedy public trial by an impartial jury. He shall have the right to demand the nature and cause of the · 24. accusation against him, and to have a copy thereof. He shall not be compelled to give evidence 25. against himself. He shall have the right of being heard by himself, or counsel, or both; shall be 26. confronted with the witnesses against him, and shall have compulsory process for obtaining witnesses in his favor. 27. Page 23 of30 EXHIBIT A -- LAW OF THE CASE 1. 2. RIGHT TO REPRESENTATION BY COUNSEL. (a) A defendant in a criminal matte is entitled to be represented by counsel in an adversarial judicial proceeding. The right to be 3. represented by counsel includes the right to consult in private with counsel sufficiently in 4. advance of a proceeding to allow adequate preparation for the proceeding. 5. A court shall presume that a pleading, motion, or other paper is filed in good faith. 6. Sanctions under this article may not be imposed except for good cause stated in the sanction 7. order. 8. RIGHT TO BAIL. All prisoners shall be bailable unless for capital offenses when the proof is evident. This provision shall not be so construed as to prevent bail after indictment 9. found upon examination of the evidence, in such manner as may be prescribed by law. 10. 11. HABEAS CORPUS. The writ of habeas corpus is a writ of right and shall never be 12. suspended. 13. WHAT WRIT IS. The writ ofhabeas corpus is the remedy to be used when any person 14. is restrained in his liberty. It is an order issued by a court or judge of competent jurisdiction, 15. directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody 16. or under restraint. 17 • 0 ,--1 z 24. CONFRONTED BY WITNESSES. The defendant, upon a trial, shall be confronted with the witnesses, except in certain cases provided for in this Code where depositions have been 25. taken. 26. 27. Page 25 of30 ----~---------------------------;-----------------~-------- EXHIBIT A-- LAW OF THE CASE 1. WORDS AND PHRASES. All words, phrases and terms used in this Code are to be 2. taken and understood in their usual acceptation in common language, except where specially defined. 3. 4. CONTEMPT OF COURT. 5. (b) The punishment for contempt of a court other than a justice court or municipal court is a fine of not more than $500 or confinement in the county jail for not more than six months, or 6. both such a fine and confinement in jail. 7. 8. SEARCHES AND SEIZURES. The people shall be secure in their persons, houses, papers and possessions from all unreasonable seizures or searches. No warrant to search any 9. place or to seize any person or thing shall issue without describing them as near as may be, nor 10. without probable cause supported by oath or affirmation. 11. 12. BY AGREEMENT. A criminal action may be continued by consent of the parties 13. thereto, in open court, at any time on a showing of good cause, but a continuance may be only 14. for as long as is necessary. 15. FOR SUFFICIENT CAUSE SHOWN. A criminal action may be continued on the 16. written motion upon sufficient cause shown; which cause shall be fully set forth in the motion. A continuance may be only for as long as is necessary. 17. 18. No p~on;:;=,nor shall be compelled in any criminal case to be a witness against himself, nor be 19 _. __:"___ . depri~d oJfl~ li;r~, or p~operty, withou~ due process of law; nor shall private property be :2°:--·- . Zl'akem:fur p~bij~ \~\ ..) . c::~ us without JUSt compensatiOn. \\ 21 :~.:- •,_, ---~· \ 22 : . JiigM~~ a tria[;bY}fY (71h amendment) . . In smft_at C(?~~law, where the value m controversy shall exceed twenty dollars, the nght of 23 · trial b)cjurY,:~:$li"ail ~ preserved, and no fact tried by a jury shall be otherwise reexamined in any t-::=> l~'..- - 24. court O'f'the United States, than according to the rules ofthe common law. 25. MOTION SWORN TO. All motions for continuance must be sworn to by a person 26. having personal knowledge of the facts relied on for the continuance. 27. Page 26 of30 EXHIBIT A -- LAW OF THE CASE 1. 2. CONTROVERTING MOTION. Any material fact stated, affecting diligence, in a motion for a continuance, may be denied in writing by the adverse party. The denial shall be 3. supported by the oath of some credible person, and filed as soon as practicable after the filing of 4. such motion. 5. WHEN DENIAL IS FILED. When such denial is filed, the issue shall be tried by the 6. judge; and he shall hear testimony by affidavits, and grant or refuse continuance, according to 7. the law and facts of the case. 8. 9. ARGUMENT. No argument shall be heard on a motion for a continuance, unless requested by the judge; and when argument is heard, the applicant shall have the right to open and conclude it. 10. 11. COMMON LAW GOVERNS. The rule of procedure in any particular state of case which may 12. arise, the rules of the common law shall be applied and govern. 13. WRITTEN PLEADINGS. All motions to set aside an indictment or information and all special 14. pleas and exceptions shall be in writing. 15. MOTION TRIED BY JUDGE. An issue of fact arising upon a motion to set aside an indictment _ or information shall be tried by the judge without a jury. 16. SHALL DRAW COMPLAINTS. Upon complaint being made before a district or county 17 · attorney that an offense has been committed in his district or county, he shall reduce the 18 . complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall b~ulE!lttested by said attorney. 19. rl ~~-- ~- ~HE~O!\l?~*T IS MADE. Ifthe offense be a misdemeanor, the attorney shall forthwith 20~-.;-~' -p~ar~ itif,.o@laf n based upon such complaint and file the same in the court having ·-j~~diclton; ·pr<?,:yid , that in counties having no county attorney, misdemeanor cases may be 21 • tri:t;!a upoo cqij:lplain alone, without an information, provided, however, in counties having one 22. or mortt-Srimi~~Ldi_s_trict courts an i~formation must b_e file~ in each misdemeanor case. If the offense,-be a f<d9.DY;:?he shall forthwtth file the complamt wtth a magistrate of the county. 23 • :;: ~~·-i _;:-. f= COMPI§i.!Ntt. (a) R>r purposes of this action, a complaint is a sworn allegation charging the 24 · accused with the commission of an offense.(b) A defendant is entitled to notice of a complaint against the defendant not later than the day before the date of any proceeding in the prosecution 25 · of the defendant under the complaint. The defendant may waive the right to notice granted by 26. this subsection. 2 7. Texas Constitution, Article 5, Section 12: Page 27 of30 EXHIBIT A -- LAW OF THE CASE 1. "(b) An indictment is a written instrument presented to a court by a grand jury charging a person with the commission of an offense. An information is a written instrument presented to a court 2. by an attorney for the State charging a person with the commission of an offense. The practice 3. and procedures relating to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment of an 4. indictment or iriformation to a court invests the court with jurisdiction ofthe cause." (Amended Aug. 11, 1891, and Nov. 5, 1985.)[emphasis added] · 5. 6. 7. "INFORMATION". An "Information" is a written statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may by 8. law be so prosecuted. 9. REQUISITES OF AN INFORMATION. An information is sufficient if it has the following requisites: 1. It shall commence, "In the name and by authority of the State of Texas"; 2. That it 10. appear to have been presented in a court having jurisdiction of the offense set forth; 3. That it 11. appear to have been presented by the proper officer; 4. That it contain the name of the accused, or state that his name is unknown and give a reasonably accurate description of him; 5. It must 12. appear that the place where the offense is charged to have been committed is within the jurisdiction of the court where the information is filed; 6. That the time mentioned be some date 13. anterior to the filing of the information, and that the offense does not appear to be barred by limitation; 7. That the offense be set forth in plain and intelligible words; 8. That it conclude, 14. "Against the peace and dignity of the State"; and 9. It must be signed by the district or county 15. attorney, officially. 16. INFORMATION BASED UPON COMPLAINT. No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The 17. affidavi!;yhal:l-:be filed with the information. It may be sworn to before the district or county 18. attorneyivh~;;fgr that purpose, shall have power to administer the oath, or it may be made before : , y offii?~r a:w:l~riz1d by law to administer oaths. ~~LE§"t:As ~o~diCTMENT 19. APPLY TO INFORMATION. The rules with respect to 20. .a~J~gations ir(aP.:inc$ctment and the certainty required apply also to an information. .... · ! CO : -~: U) 21. WHAMHOUED:;BE STATED. Everything should be stated in an indictment which is 22. neces~y tdje~pr~ed. s c··....J ;·,- z 23. CERTAIN FORMS OF INDICTMENTS. The following form of indictments is sufficient: 24. "In the name and by authority of the State ofTexas: The grand jury of ............ County, State of Texas, duly organized at the ............ term, A.D ............. , of the district court of said county, in 25. said court at said term, do present that ............ (defendant) on the .......... day of ............ A.D . 26. ............ , in said county and State, did ............ (description of offense) against the peace and dignity of the State. 27. Page 28 of30 EXHIBIT A -- LAW OF THE CASE 1. ............ ,Foreman of the grand jury." 2. 3. 4. "Article 5 JUDICIAL DEPARTMENT Sec. 12. JUDGES TO BE CONSERVATORS OF THE 5. PEACE; INDICTMENTS AND INFORMATION. (a) All judges of courts of this State, by virtue of their office, are conservators of the peace throughout the State. (b) An indictment is a 6. written instr~ment presented to a court by a grand jury charging a person with the commission 7. ofan offense. An information is a written instrument presented to a court by an attorney for the State charging a person with the commission ofan offense. The practice and procedures relating 8. to the use of indictments and informations, including their contents, amendment, sufficiency, and requisites, are as provided by law. The presentment ofan indictment or information to a court 9. invests the court with jurisdiction of the cause.{emphasis added] 10. 11. If any claim, statement, fact, or portion in this action is held inapplicable or not valid, such 12. decision does not affect the validity of any other portion of this action. 13. The singular includes the plural and the plural the singular. 14. 15 . The present tense includes the past and future tenses; and the future the present, and the past the present. 16. 17. The masculine gender includes the feminine and neuter. 18. 19 E o:: Objection to use of private law 20. '· />> ::r -·~· n.,~ 1 -) . I 21. h9bject Jo (lp.d do not consent to the use of unpublished cases. A cite to "WL" an ;--:--' -~ =~· :;-:;! 22. "Lexis",~i_§ a r~rJ-'eri~~ to materials not publicly accessible. For such references even to begin t ~~::~ ~;= :7:: 23. be meaningful, a full copy of the opinion for each "WL" or "Lexis" reference must be attached. 24. 25. 26. 27. Page 29 of30 EXHIBIT A -- LAW OF THE CASE 1. OBJECTION TO NON-JUDICIAL DECISION-MAKING 2. McDade objects to and does not consent to any assignment or any referral of this case, in any 3. part, to any decision-maker other than a duly elected or properly appointed judicial officer 4. exercising full authority of a municipal court judge and who has an active and current oath of office on file. Gonzalez v. United States, 553 U.S. 242 (12 May 2008) ("lfthe parties consent") 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. C> z ....--1 i- 16. (/) 1- 0 ::::.~ 0::: I r-{ ,...__ •..::.:.1: =.> r.::_ iJ_ 0 cc <::)C'> 18. /<.: . . . -- _, ··- .-·· ·- .. ····• r• I j 19. co ... ·--- . {_.1) w...J ....! '. ~ c~ -~··J ....- 20. L ...;"J ' ...: - r- ......... ..... _J 21. c:::. r·· •...J i ..<;._ -·- -~ 22. 23. 24. 25. 26. 27. Page 30 of30 EXHIBIT A -- LAW OF THE CASE DIL SUPERIOR COURT OF TEXAS, TRAVIS COUNTY One of the people ofTexas David Kent McDade Coram Ipso Rege: INDEX NO. 00000001 MAGISTRATE_ _ _ _ _ __ Coram NobisS: -a- AUSTIN MUNICIPAL COURT DECREED 10 THE STATE OF TEXAS, Sherry M. Statman, "Officer Knouse Badge# 5931," "Supervisor," and "Second Officer" counterdefendants WRIT OF PROHIBITIONtts As is custom in these Peoples' courts of Justice judges2, as tht;!y have been cunningly educated to perf9rm;zillegally initiate equity law in place of common law3, which is fraud on the court. Expeiren~ shown that these inferior courts are obstinate in their seizing of jurisdiction and ~ theretJ.y o~t j tice, thus we find it necessary to redress the issue beforehand, preventing the .:c;t'"'J,·~-·~. ,. ela;s!f_j~fj, ~eans ?~thi~ extraor~ary writ of prohibition cl~ly 20 stating -··::,.':? bstliiinn~.wu /fo ,: . amst NISI PnusS, that IS to say "We the people resists the first encroachment" ,'::'>. /c d ·-- <. . AJ :r :; ?:: • --- proceed accotd to the supreme6 common law of the land7, Coram NobiS . co --· -~· () 8. LW Cl 5 ~ Th~re~S!!Frior Court ofRecord9 prohibits the inferior court not of record from assuiii}nggmisdii!ion in this matter over which it has no control or legitimate authority.10 And its judge is to function as Magistrate 1125 . (see law of the case) Signed by ORDER and on behalf of the SUPERIOR COURT OF TEXAS ~rivalus 1 h is only issued in cases of extreme necessity where the grievance cannot be redressed by ordinary proceedings at law, orin equity, or by appeal. Niagara FaDs Power Co. v. Halpin, 45 N.Y.S2d 421, 424, 181 Misc. 13; State ex rei. Levy v. Savord, 143 Ohio St. 451, 55 N.E2d 735, 736.; An extraordinary judicial writ issuing out of a court of superior jurisdiction, directed to an inferior Page 1 of3 court or tribunal exercising judicial powers, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not lawfully vested, State v. Stanfield, 11 Ql(l.Cr. 147, 143 P. 519, 522; from assuming or exercising jurisdiction over · matters beyond its cognizance, Jackson v. Calhoun, 156 Ga. 756, 120 S.E. 114, 115; or from exceeding its jurisdiction in matters of which it has cognizance. Jackson v. Calhoun, 156 Ga. 756, 120 S.E. 114, 115; The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. Code Civ.Ptoc.Cal. § 1102. State v. Packard, 32 N.D. 301, 155 N.W. 666,667. iohnston v. Hunter, 50 W.Va. 52,40 S.E. 448. State v. Evans, 88 Wis. 255, 60 N.W. 433. 2 CHANCELLOR. In American law, this is the name given in some states to the judge (or the presidingjudge) of a court of · chancery.; COURT OF CHANCERY. A court having the jurisdiction of a chancellor; a court administering equity and proceeding according to the forms and principles of equity. In England, prior to the judicature acts, the style of the court possessing the largest equitable powers and jurisdiction w~ the "high court of chancery." In some of the United States, the title "court of chancery" is applied to a court possessing general equity powers, distinct from the courts of common law. Parmeter v. Bourne, 8.Wash. 45,35 P. 586; Bull v. International Power Co., 84 N.J.Eq. 209,93 A. 86, 88. The terms "equity" and "chancery," "court of equity'~d "Cfiurt of chancery," are constantly used as synonymous in the United States. It is presumed that this custom arise(;; " from t~irciiih~ce t the equity jurisdiction which is exercised by the courts of the various states is assimilated .::·:.:::--~ tha g<:::: .}~z "'~. se~ bY-th · h courts of chancery. Indeed, in some of the states it is made identical therewith by statute, ·::;. sO' far as '- ~ .· ---1C'~nfonhable~t9 cf titutions. Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E. 397, 401. ... .-- !~:~~~~~~sLaw 4th edition, ,1891- As distinguished from equity law, it is a body of rules and unwrilten, ~cftar~ffixed and immutable authority, and which must be applied to controversies rigorously and in th err·~ .-:=> -J -- - . z entire'ir, anJL-c annorbe modified to suit the peculiarities of a specific case, or colored by any judicial discretion, and which rests con-fessedly upon custom or statute, as distinguished from any claim to ethical superiority. [Klever v. Seawall, C.C.A.Ohio, 65 F. 395, 12 C.C.A. 661). OBSTA PRINCIPDS. Lat. Withstand begin-nings; resist the first approaches or encroach-ments. Bradley, J., Boyd v. U. S., 116 U.S. 635, 6 Sup.Ct. 535, 29 L.Ed. 746. 5 NISI PRIUS COURT "Nisi prius" is a Latin tenn (Black's 5th) "Prius" means "first." "Nisi" means "unless." A "nisi prius" procedure ' is a procedure to which a party FIRST agrees UNLESS he objects. A rule of procedure in courts is that if a party fails to object to something, then it means he agrees to it A nisi procedure is a procedure to which a person has failed to object A "nisi prius court" is a court which wiU proceed unless a party objects. The agreement to proceed is obtained from the parties first. 6 Supremacy Clause- This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the cont:nuy notwithstanding. Page 2 of3 ------ Article VI 7 "Law of the land," "due course oflaw," and "due process of law" are synonymous. People v. Skinner, Cal., 110 P.2d 41, 45; State v. Rossi, 71 R..L 284, 43 A.2d 323, 326; Direct Plmnbing Supply Co. v. City of Dayton, 138 Ohio St. 540, 38 N.E.2d 70, 72, 137 A.L.R.. 1058; Stoner v. Higginson, 316 Pa. 481, 175 A. 527, 531. 8 [Blacks Law] Before us ourselves, (the king, i.e., in the Icing's or queen's bench.) [tribunal pre-trial] CORAM NOBIS. [Blacks Law] Before us ourselves, (the king, i.e., in the king's or queen's bench.) Applied to writs of error directed to another braJ:Jch of the same court, e. g.• from the full bench to the court at nisi prius. 1 Archb. Pr. K. B. 234. See Writ of Error. 9 The decisions of an inferior court are subject to collateral attack. In other words, in a superior court one may sue an inferior court directly, rather than resort to appeal to an appellate court. Decision of a court of record may not be appealed. It is binding on ALL other courts. However, no statutory or constitutional court (whether it be an appellate or supreme court) can second guess the judgment of a coiut of record. "The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it" [Ex parte Watkins, 3 Pet, at 202-203. [cited by SCHNECKL01H v. BUSTAMONTE, 412 u.s. 218,255 (1973)]. I0 An extraordinary writ, issued by a superior court to an inferior court to prevent the latter fiom exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction in a matter over which it has no control, or from going beyond its legitimate powers in a matter of which it ha'sjurisdiction. State v. Medler, 19N.M. 252, 142 P. 376,377. II "A Court of Record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled fora perpetual memorial". Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688,689. 4 l..J') :r co r== a: Page3of3 ATIACHMENTD Ticket Number: 14092560 Cause Number: 8171190 Violation Code: 01310 DO NOT ENTER INTERSECTION- POSTED SIGN THE STATE OF TEXAS § IN THE MUNICIPAL COURT vs § CITY OF AUSTIN, TEXAS David McDade § COMPLAINT THE STATE OF TEXAS § IN THE NAME AND § BY THE AUTHORITY OF CITY OF AUSTIN § THE STATE OF TEXAS I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of this complaint, within the territorial limits of the City of Austin, Texas, Did operate a motor vehicle on a public street: NORTH lli 35 SERVICE ROAD and tum said vehicle and enter onto another public street, to-wit: EAST 53RD STREET when official signs were in place at the intersection of said public streets prohibiting the movement, stating: do not enter, Against the Peace and Dignity of the State. 12/2/14 Diane Montoya, Affiant Sworn to and subscribed before me by affiant on this day Deputy Clerk, for and on behalf of The Clerk of the Municipal Court, City of Austin, Texas COMPLAINT /Diane Montoya Ticket Number: 14092560 Cause Number: 8171191 Violation Code: 20510 INSPECTION STICKER- EXPIRED THE STATE OF TEXAS § IN THE MUNICIPAL COURT vs § CITY OF AUSTIN, TEXAS David McDade § COMPLAINT THE STATE OF TEXAS § IN THE NAME AND § BY THE AUTHORITY OF CITY OF AUSTIN § THE STATE OF TEXAS I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of this complaint, within the territorial limits of the City of Austin,.Texas, Did operate a motor vehicle registered in Texas, on a public street, to wit: NORTH IH 35 SERVICE ROAD AT EAST 53RD STREET, after the fifth day after the date of expiration of the period designated for inspection, which failed to display a current inspection certificate, Against the Peace .and Dignity of the State. 12/2/14 Diane Montoya, Affiant Sworn to and subscnbed before me by affiant on this day ~~e(b;J_J2 Deputy Clerk, for and on behalf of The Clerk of the Municipal Court, City of Austin, Texas COMPLAINT /Diane Montoya Ticket Number: 14092560 Cause Number: 8171192 Violation Code: 26310 FAILED TO DISPLAY DRIVER LICENSE THE STATE OF TEXAS § IN THE MUNICIPAL COURT vs § CITY OF AUSTIN, TEXAS David McDade § COMPLAINT THE STATE OF TEXAS § IN THE NAME AND § BY THE AUTHORITY OF CITY OF AUSTIN § THE STATE OF TEXAS I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of this complaint, within the territorial limits of the City of A~stin, Texas, Did then and there operate a motor vehicle on a public street, at a time when he did not have in his possession a driver's license appropriate for the type of vehicle operated and did fail to display the license upon the demand of a peace officer, Against the Peace and Dignity of the State. 12/2/14 Diane Montoya, Affiant Sworn to and subscnbed before me by affiant on this day M~rzf6;},r£ Deputy Clerk, for and on behalf of The Clerk of the Municipal Court, City of Austin, Texas COMPLAINT /Diane Montoya Ticket Number: 14092561 Cause Number: 8171200 Violation Code: 04920 FAILED TO MAINTAIN FINANCIAL RESPONSffiiLITY THE STATE OF TEXAS § IN THE MUNICIPAL COURT vs § CITY OF AUSTIN, TEXAS David McDade § COMPLAINT THE STATE OF TEXAS § IN THE NAME AND § BY THE AUTHORITY OF CITY OF AUSTIN § THE STATE OF TEXAS I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of this complaint, within the territorial limits of the City of Austin, Texas, Did operate a motor vehicle without maintaining financial responsibility in the minimum amount required by law and operator was asked to provide evidence of financial responsibility by a peace officer or a person involved in an accident with said defendant and which the defendant did not produce, Against the Peace and Dignity of the State. 12/2/14 Diane Montoya, Affiant Sworn to and subscribed before me by affiant on this day Deputy Clerk, for and on behalf of The Clerk of the Municipal Court, City of Austin, Texas COMPLAINI' !Diane Montoya Ticket Number: 14092561 Cause Number: 8171201 Violation Code: 60910 FAILED/REFUSED TO IDENTIFY THE STATE OF TEXAS § IN THE MUNICIPAL COURT vs § CITY OF AUSTIN, TEXAS David McDade § COMPLAINT THE STATE OF TEXAS § IN THE NAME AND § BY THE AUTHORITY OF CITY OF AUSTIN § THE STATE OF TEXAS I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of this complaint, within the territorial limits ofthe City of Austin, Texas, Did th~n and there intentionally refuse to give his NAME to a peace officer, to-wit: OFFICER KNOUSE , who had lawfully arrested the said defendant and requested the information, said defendant knowing that the person requesting the information was a peace officer, Against the Peace and Dignity of the State. 12/2/14 fJ~ lfiJ--ctt Diane Montoya, Affiant Sworn to and subscribed before me by affiant on this day WJ~ef6;}_JZ Deputy Clerk, for and on behalf of The Clerk of the Municipal Court, City of Austin, Texas COMPLAINT /Diane Montnya Ticket Number: 14092561 Cause Number: 8263463 Violation Code: 60910 FAILED/REFUSED TO IDENTIFY THE STATE OF TEXAS § IN THE MUNICIPAL COURT vs § CITY OF AUSTIN, TEXAS David McDade § COMPLAINT THE STATE OF TEXAS § IN THE NAME AND § BY THE AUmORITY OF CITY OF AUSTIN § THE STATE OF TEXAS I, the undersigned affiant, do solemnly swear that I have good reason to believe and do believe that one David McDade on or about Wednesday, October 8, 2014 and before the making and filing of this complaint, within the territorial limits of the City of Austin, Texas, Did then and there intentionally refuse to give DATE OF BIRTH to·a peace officer, to-wit: OFFICER KNOUSE, who had lawfully arrested the said defendant and requested the information, said defendant knowing that the person requesting the information was a peace officer, · Against the Peace and Dignity of the State. 4/27115 14.~ Ryan Zapata, Affiant Sworn to and subscribed before me by affiant on this day Deputy Clerk, for and on behalf of The Clerk of the Municipal Court, City of Austin, Texas COMPLAINT /Ryan Zapata ATIACHMENTE ORDER FOR CONTINUANCE STATE OF TEXAS IN THE MUNICIPAL COURT CITY OF AUSTIN,TEXAS vs. David K McDade CASE NUMBER: 8171190 ORDER On this the December 3, 2014, came to be filed a Motion for Continuance for the Jury Trial on Thursday, December 18, 2014 at 8:30 AM. The Court having considered said motion is of the opinion that the Motion for Continuance is GRANTED. Judge Municipal Court City of Austin Date: December 4, 2014 Judge's notes: Defendant David K McDade 310 E Brenham ST Elgin, TX 786213017 Phone: (512) 587-7748 Phone: Def. Attorney: Phone: Phone: Witness: Phone: Phone: Officer: Lee Knouse Deputy Clerk processing motion Orcong- mitsol CAUSE N<Ys Xl71190,8l7l191 :8171192,Xl711200, 81711201 STATE OF TEXAS IN THE MUNICIPAL COURT v CITY OF AUSTIN, TEXAS DAVID KENT MCDADE TRAVIS, COUNTY 'fEXAS ORDER OF THE COURT The defendant had tendered three documents, none of which arc a valid pre-trial motion. I. Affidavit(s) and .Judicial Notice of David Kent McDade The alleged vio'lations arc class c misdemeanors and this is a criminal court. l>re-filcd testimony (i.e. atlidavits) are not accepted in this court. "Judicial notice" refers to a doctrine of evidence and is an action taken by a judgc..The argument that the defendant is a corporation and only subject to the Uniform Commercial Code and exempt from all traffic rules is asinine. II. Special Appearance and formal notice of Declination to Plea Special Appearance motions arc made in civil cases to challenge venue. Generally, they arc made by companies sued in a venue in which they have limited business contact. Sec International Shoe Co V Wushington. Again, this is a class c misdemeanor and inappropriate. The oflenses alleged are class c misdemeanors alleged to have been committed in the city limits of Austin Texas and the Austin Muf1idpal Court has jurisdiction. The Defendant has the right to refuse to cnkr a plea. This is addressed by Tex. Code Criminal Procedure Art. 45.024: "The juslil:c or judge shall enter a plea of not guilty if the defendant refuses to plead.'" Ill. Order BE IT HEREBY ORDERED that no valid pre-trial a~:tions or issues have been raised and no pre-trial hearing shall be set. It is further ordered that the cases enumerated above shall be set l(lr a trial hy JURY. Defendant is·further ADMQNISllED that the filing of pleadings or other doctnnents that are false, groundless or for the purposes of delay or harasstnent shall result in sanctions per Texas Rules of Criminal Procedure 1.052(e) Signed this the // f{-t day of ..d_fl:V , 2014. Presiding Judge City of Austin Municipal Court ~ u City of Austin Municipal Court 700 East 7th Street P.O. Box 2135 Austin Texas 78768 Phone: (512) 974-4800 ORDERS OF THE COURT This Order applies to 5 cases (s) with fines totaling$_ _ _ _ __ Hearing as to lndigency: Finding: ( J Indigent [ ] Not Indigent EXTENSIONTOPAY:$ Today; S_ _ _ _ _ by(date) _ _ _ _ _ __ $ every week/month beginning ( d a t e ) - - - - - - - and due on or before the same day of each succeeding week/month until paid in fu11. COMMUNITY SERVICE: Defendant is ordered to perform _ _ _ hours of community service at o All community service hours must be completed by ( d a t e ) - - - - - - 0 The Defendant shall perform _ _ _ hours of community service by _ _ ___.· then, _ _ _ hours per week/month beginning {date) and such proof Is due every week/month thereafter on or before the same day of each succeeding week/month until total hours are completed. Tum In proof at Municipal Court, And the court having further found that the worldng of more than 15 houn of community service per~ (will) (w#H not} worlc a ltanlship on the Defendant. Appearance set for AM PM on (date) Courtroom# Bond:$ _ _ _ _ _ by ( d a t e ) - - - - - Personal Bond _ __ REVOKE DEFERRAL/ DEFENSIVE DRIVING:-------- and enter judgment EXTENSION TO COMPLETE DEFERRAL or DEFENSIVE DRIVING BY ( d a t e ) - - - - - TO TURN IN PROOF BY ( d a t e ) - - - - - - - - - · JURY WAIVER: I waive my right to trial by jury in the above-referenced cause numbers. Date Signature of Defendant Order Notes: Date: CAUSENO. 8J112QQ, 817/~0/ 811/lc:rO, '817Jt9i/ t:g/7/19~ STATE OF TEXAS IN THE MUNICIPAL COURT v CITY OF AUSTrN, TEXAS TRAVIS, COUNTY TEXAS ORDER OF THE COURT All motions/documents tendered by the Defendant arc hereby DEN lED. Defendant does not have leave of court per local rule 7.2 for any additional Pre-Trial hearings. I Defendant is further ADMONISHED that the filing of pleadings or other documents that arc false, groundless or for the purposes of delay or harassment shall result in sanctions per Texas Rules of Criminal Procedure 1.052(c) Sherry M. Statman Presiding Judge City of Austin Municipal Court ORDER FOR CONTINUANCE STATE OF TEXAS IN THE MUNICIPAL COURT CITY OF AUSTIN,TEXAS r vs. David K McDade . CASE NUMBER: 8171190 ORDER On this the March 3, 2015, came to be filed a Motion for Continuance .for the Jury Trial on Thursday, March 12, 2015 at 1:15 PM. The Court having considered said motion is of the opinion that the Motion for Continuance is GRANTED. Judge Municipal Court City of Austin Date: March 3, 2015 Judge's notes: Defendant David K McDade 310 E Brenham ST Elgin, TX 78621-3017 Phone: (512) 587-7748 Phone: . Def. Attorney: Phone: Phone: Witness: Phone: Phone: Officer: Lee Knouse ~~uWW~ Deputy Clerk processing motion Orcong- stevig -.-------------------- 700 East 7tr. Street Clty~of Austin Municipal c'iurt _ ,State oJ_Texas~. · P.O. Box 2135 Austin. Texas 78768 D~VI d 11 C ()~e ORDERS OF THE This Order applies to ~ cases (s) with fines totaling $ l Jlt.b I" JQ Hearing as to lndigency: Finding: [ ] Indigent [ 1Not Indigent EXTENSION T£-PAY: $ Today; $ by(date) S [DO everyw~to~t~ · ~ ... ing (date) ? - { )""-/) and due on or before the same day of each succeeding ., -?~h~; paid in full. COMMUNITY SERVICE: Defendant is ordered to perfonn - hours of community service at 0 All community service hours must be compfeted by (date) - The Defendant shall perfonn hours of community service by ·then, hours per week/month beginning (date) and such proof is due every week/month ther-eafter on or before the same day of each succeeding week/month until total hours are completed. Tum in proof at Municipal Court. And the courl having furlher found that the working of more than 16 hours of community service per week (will) (will not) worlr a hiiTdship on the Defendant. SET APPEARANCE AND NOTIFY DEFENDANT/ATTORNEY FOR: DOCKET Appearance set for AM PM on (date} Courtroom# ' Bond:$ by (date) Personal Bond REVOKE DEFERRAL I DEFENSIVE DRMNG: and enter judgment. EXTENSION TO COMPLETE DEFERRAL or DEFENSIVE DRIVING BY (date) ' TO TURN IN PROOF BY (date) . JURY WAIVER: I waive my right to trial by jury in the above--referenced cause numbers. Date Signature of Defendant Order Notes: I Date: ~-312!S ~CJkJ! Judge of the Municipal C'ourt Failure to c::omply with the above orders may result In the denial of the renewal of your drivers . ' 110811Se and additional administrative fees. 0512 ATIACHMENTF THE STATE OF TEXAS, § In the CITY OF AUSTIN MUNICIPAL COURT1 Plaintiff, § OF (public) RECORD v. § AUSTIN, TEXAS, § TRAVIS COUNTY, Texas 2 David Kent McDade § § § Date: 11/05/2014 MCDADE'S SPECIAL APPEARANCE TO THE SAID COURT: COMES NOW David Kent McDade, in his Proper Capacity, and in his FEDERAL CAPACITY, as DAVID KENT MCDADE, by which latter capacity he confirms his waiver of his objection to the debts of the United States so that this court may both "see" him and "hear" him in this matter, who asserts as follows: ASSERTION OF RIGHTS David Kent McDade, ("McDade") asserts his Birthrights, and all his Inherent, unalienable rights, privileges and immunities at Natural Law, and Common Law, and all his commercial rights relevant to ''this state." 1 Only cases have numbers. There being no charging instrument(s) filed, much less served, there is no case, here, by any number. Until STATE proves standing on the record this is a non-case, Austin v. New Hampshire, 420 U.S. 656, 668 (1975) (Blackmun, J., dissent); Deposit Guaranty Nat 'I Bank v. Roper, 445 U.S. at 353 (Powell, J., and Stewart, J., dissent); Williams v. Vermont, 472 U.S. at 36 (dissent) (citing Austin), i.e., civil, until STATE proves standing. A common number associated with this matter is yet to be established to the knowledge of Respondent. 2 The above style is mostly guess work, however, comfortably presumed are the Plaintiff and the County. The proper name and capacity ofboth the Plaintiff and the court are all still unknown. There has never been timely or proper service on McDade of any charging instrument or anything at all identifying all parties and proper service information for same. Page 1 of 28 McDade does not consent to nor in any way waive any of McDade's rights in whole or in part, nor does McDade authorize or consent to any violation of those rights by any of his public servants, or any other Corporate Entities SPECIAL APPEARANCE McDade asserts his special appearance, objecting to the court's subject matter jurisdiction, personal jurisdiction, and venue. OBJECTION TO NON-JUDICIAL DECISION-MAKING McDade objects to and does not consent to any assignment or any referral of this case, in any part, to any decision-maker other than a duly elected or properly appointed judicial officer exercising full authority of a municipal court judge and who has an active and current oath of office on file. Gonzalez v. United States, 553 U.S. 242 (12 May 2008) ("If the parties consent") (construing 28 U.S.C. § 636(b)). OBJECTION TO USE OF PRIVATE LAW McDade objects to the use of unpublished cases. A cite to "WL" and "Lexis" is a reference to materials not publicly accessible. For such references even to begin to be meaningful, a full copy of the opinion for each "WL" or "Lexis" reference must be attached. Page 2 of 28 MCDADE'S CONTACT INFORMATION Contact information for McDade is as follows: Mailing Address: 310 E. Brenham St. Elgin, Tx. TABLE OF CONTENTS McDade's Special Appearance ....................................................................................................... 1 Assertion of Rights ......................................................................................................................... 1 Special Appearance ......................................................................................................................... 1 Objection to Non-judicial Decision-making ................................................................................... 2 Objection to use of private law ..............................................................._........................................ 2 McDade's Contact information ....................................................................................................... 3 Table of Contep.ts ............................................................................................................................ 3 Table of Authorities ........................................................................................................................ 4 Discussion ....................................................................................................................................... 6 Due order of pleadings ............................................................................................................ 6 Reservation of additional objections....................................................................................... 7 ISSUE: Does the court have personal jurisdiction over McDade in the instant matter? ...... 7 Overview: The systemic problem with Notice ....................................................................... 7 Notice requires both filing and serving the paperwork........................................................... 7 Notice previously required the filing and serving of two documents ..................................... 8 Without both of those documents, two key problems existed.............................................. 10 ISSUE: Does this court have subject matter jurisdiction? .................................................. 16 Statutory Challenges ............................................................................................................. 16 ISSUE: Does Art. 25.04 violate Due Process? ................................................................... 16 "Hearing" the charge read in no way constitutes meaningful Notice ................................... 18 Page 3 of 28 To compel an instant response is to offend Due Process...................................................... 19 ISSUE: What does "person" mean? ..................................................................................... 20 ISSUE: What does "transportation" mean?············:··························································· 20 Defined ................................................................................................... 21 Removing People and/or Property........................................................................................ 21 From Here To There ............................................................................................................. 21 For Profit or Hire .................................................................................................................. 21 Under the Choice of Law of the "Place" Called "this State." ............................................... 21 The Generic Concept of"use." ............................................................................................. 22 "Use" and the Terry Stop ...................................................................................................... 22 Deliberate indifference.......................................................................................................... 22 ISSUE: What does "vehicle" mean? ................................................................................... 22 ISSUE: What does "motor vehicle" mean? ......................................................................... 23 ISSUE: What does "drive" mean? ...................................................................................... 23 ISSUE: What does "operator" mean? ................................................................................. 23 ISSUE: What does "this state" mean? ................................................................................ 24 ISSUE: Does this court even really exist as a court of Record? ......................................... 25 Request for Relief ......................................................................................................................... 25 Verification ............. ....................................................................... Error! Bookmark not def"med. Certificate of Service .................................................................................................................... 26 ORDER ......................................................................................................................................... 28 TABLE OF AUTHORITIES Cases Armstrongv. Manzo, 380 U.S. 545 (1965) ................................................................................... 17 Armstrong v. Manzo, 380 U.S. 545, (1965) .................................................................................. 14 Austin v. New Hampshire, 420 U.S. 656, 668 (1975) (Blackmun, J., dissent) ......................... I, 15 Bd. of County Comm'rs v. Brown, 520 U.S. 397 (1997) ............................................................... 20 Boddie v. Connecticut, 401 U.S. 371 (1971) ................................................................................ 14 Chicago, R. l & G. Ry. Co. v. Cosio, Seventh District, 182 S. W., 83 ........................................ 19 Christopher v. Harbury, 536 U.S. 403 (2002) .............................................................................. 23 Computize, Inc., v. NHS Comm. Group, Inc., 992 S.W.2d 608 (Tex. App.-Texarkana 1999, no. pet) .............................................................................................................................................. 9 Cornell Steamboat Co. v. United States, 321 U.S. 634, 641 (1944) (Frankfurther, J., dissent) ... 19 Dell Dev. Corp. v. Best Indus. Unif. Supply Co., Inc., 743 S.W.2d 302 (Tex. App.- Houston [14th Dist.] 1987, writ denied) .................................................................................................... 9 Page 4 of 28 Deposit Guaranty Nat '1 Bank v. Roper, 445 U.S. 326, 344 (1980) (Powell, J ., and Stewart, J., dissent) .................................................................................................................................. 1, 15 Fuentes v. Shevin, 407 U.S. 67 (1972) .................................................................................... 14, 17 Garcetti v. Ceballos, 547 U.S. 410 (2006) ..................................................................................... 9 Globe Leasing, Inc. v. Engine Supply & Mach. Serv., 437 S.W.2d 43 (Tex. Civ. App.-Houston [1st Dist.] 1969, no writ) ............................................................................................................. 9 Gonzalez v. United States, 553 U.S. 242 (12 May 2008) ............................................................... 2 Graham v. Lappin, 255 F.3d 906 (7th Cir. 2001) ................................................................... 19,22 Hamdi v. Rumsfeld, 542 U.S. 507 (2004) ............................................................................... 14, 17 Harris v. Hardeman, 55 U.S. (14 How.) 334 (1852) .................................................................... 14 Internat'l Shoe Co. v. Washington, 326 U.S. 310,322 (1945) (opinion by Black, J.) ........... 14, 17 Jones v. Flowers, 547 U.S. 220 (2006) ................................................................................... 14, 17 Kuntoplast ofAm., Inc. v. Formosa Plastics Corp. USA, 937 S.W.2d 455 (Tex. 1996) .... :........... 9 Lloyd v. Alexander, 5 U.S. (1 Cranch) 365 (1803) ....................................................... 6, 10, 14, 16 Marburyv. Madison, 5 U.S. (1 Cranch) 137 (1803) .................................................................... 16 Maynardv. Texas, 249 S.W. 473 (Tex. Crim. App. 1923) ........................................................... 19 Milliken v. Meyer, 311 U.S. 457 (1940) ................................................................................. 14, 17 Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324 (Tex. App.-El Paso 1994, writ denied) ......................................................................................................................................... 9 Mullane v. Cent. Hanover Trust Co., 339 U.S. 306 (1950) .................................................... 14, 17 Murphy Bros., Inc. v. Michetti Pipe Stringing, Inc., 526 U.S. 344 (1999) ......................... 6, 10, ~6 N Ga. Finishing, Inc. v. Di-Chem, Inc., 419 U.S. 601 (1975) ............................................... 14, 17 Ogden v. Saunders, 25 U.S. (12 Wheat.) 213 (1827) ................................................................... 22 Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80 (1988) ................................................................ 14 Rockwell Int'l Corp. v. United States, 549 U.S. 457 (2007) ......................................................... 15 Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008) .......................................................... 14 Rowlandv. California Men's Colony, 506 U.S. 194 (1993) ........................................................... 9 Schinzing v. State, 234 S.W.3d 208 (Tex. App.- Waco 2007, no pet.) ....................................... 10 Smith v. O'Grady, 312 U.S. 329 (1941) ............................................................................ ,........... 18 Sniadach v. Family Finance Corp., 395 U.S. 337 (1969) ...................................................... 14, 17 St. Clair Cnty v. Interstate Sand & Car Transfer Co., 192 U.S. 454 (1904) ................................ 19 Terry v. Ohio, 392 U.S. 1 (1968) .................................................................................................. 20 Tex. Dept. ofParks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) ..................................... 9 United States v. United Mine Workers ofAmerica, 330 U.S. 258 (1947) .................................... 16 Williams v. Vermont, 472 U.S. 14,28 (1985) (dissent) ............................................................ 1, 15 Rules of Criminal Procedure TEX. CRIM. PROC. CODE ANN. Art. 2.04 (Thomson/West 2011) .......................................... 7, 9, 10 TEx. CRIM. PROC. CODE ANN. Art. 2.05 (Thomson/West 2011) .................................................... 7 TEX. CRIM. PROC. CODE ANN. Art. 21.20 (Thomson/West 2011) .............................................. 7, 9 TEX. CRIM. PROC. CODE ANN. Art. 21.21 (Thomson/West 2011) ........................................ 7, 9, 12 TEX. CRIM. PROC. CODE ANN. Art. 21.22 (Thomson/West 2011) .................................... 7, 8, 9, 10 TEX. CRIM. PROC. CODE ANN. Art. 25.04 (Thomson/West 2011) ................................................ 15 TEX. CRIM. PROC. CODE ANN. Art. 27.01 (Thomson/West 2011) .............................................. 8, 9 TEX. CRIM. PROC. CODE ANN. Art. 45.018 (Thomson/West 2011) .................................. 10, 12, 15 Page 5 of 28 TEX. CRIM. PROC. CODE ANN. Art. 45.018(b) (Thomson/West 2011) ................................. ~ ...•...... 6 TEX. CRIM. PROC: CODE ANN. Art. 45.019 (Thomson/West 2011) .............................................. 10 Statutes 49 u.s.c. § 302(i)(1) ...................................................................................................... :....... :..... 19 49 u.s.c. § 902(i)(1) .................................................................................................................... 19 TEX. CONST. ART. 5, § 12 ............................................................................................................ 10 TEX. Gov. CODE ANN. Sec. 311.016 (Thomson/West 2011) ........................................................ 13 TEX. Gov'T. CODE ANN. Sec. 30.00003 (Thomson/West 2011) .................................................. 23 TEX. R. CIV. P. 7 ............................................................................................................................ 10 TEX. TRANSP. CODE ANN. Art. 708.105 (Thomson/West 2011) ........ ~·········································· 12 TEX. TRANSP. CODE ANN. Ch. 522 (Thomson/West 2011) .......................................................... 21 TEX. TRANSP. CODE ANN. Sec. 501.002(17) (Thomson/West 2011) ............................................ 21 TEX. TRANSP. CODE ANN. Sec. 502.001(25) (Thomson/West 2011) ............................................ 23 TEX. TRANSP. CODE ANN. Sec. 522.003(11) (Thomson/West 2011) ............................................ 21 TEX. TRANSP. CODE ANN. Sec. 522.003(21) (Thomson/West 2011) ............................................ 21 TEX. TRANSP. CODE ANN. Sec. 541.001 (1) (Thomson!West 2011 ) .................................... 23 TEX. TRANSP. CODE ANN. Sec. 541.001(4) (Thomson/West 2011) .............................................. 20 TEX. TRANSP. CODE ANN. Sec. 541.201(11) (Thomson/West 2011) ............................................ 21 TEX. TRANSP. CODE ANN. Sec. 541.201 (23) (Thomson!West 2011 ) ............................................ 21 TEX. TRANSP. CODE ANN. Sec. 601.002(5) (Thomson/West 2011) .............................................. 21 TEX. TRANSP. CODE ANN. Sec. 621.001(9) (Thomson/West 2011) .............................................. 21 TEX. TRANSP. CO[)E ANN. Sec. 642.001(1) (Thomson/West 2011) .............................................. 21 TEX. TRANSP. CODE ANN. Sec. 647.001(4) (Thomson/West 2011) .............................................. 21 TEX. TRANSP. CODE ANN. Sec. 683.001(4) (Thomson/West 2011) .............................................. 21 . TEX. TRANSP. CODE ANN. Sec. 728.001(2) (Thomson/West 2011) .............................................. 21 TEX. TRANSP. CODE ANN. Sec. 750.003(a) (Thomson/West 20l 1) .............................................. 21 Professional Responsibility ABA MODEL RULES OF PROF'L CONDUCT R. 3. 7 .......................................................................... 10 TEX. DISCIPLINARY Rs. PROF'L CONDlJCT R. 3.08, reprinted in 3A TEX. Gov'T CODE ANN. pp.296-97, 327 (title 2, subtitle G. app. A (after§ 84) (Thomson/West 2011) (Tex. State Bar R. art. X,§ 9)) :·························································································································· 10 Tex. Disciplinary Rs. Prori Conduct R. 5.05, reprinted in 3A TEX. Gov'T CODE ANN. pp.296-97, 327 (title 2, subtitle G. app. A (after§ 84) (Thomson/West 2011) (Tex. State BarR. art. X,§ 9)) ......................................... :.................................................................................................... 10 DISCUSSION Due order of pleadings. Page 6 of.28 This Special Appearance is accompanied by McDade's Formal Declination to Plea, and his Objection to Round-Robin Processing. While a ruling on "due order of pleadings" would be helpful, sufficient is the fact that in the event this one must be considered filed first, it is submitted with the other "first filings" in this case. Reservation of additional objections. Should a "complaint" ever exist, and should STATE ever satisfy its Due Process burden by serving such "complaint," McDade reserves the right to supplement this motion should there be defect, error, or irregularity with such "complaint." ISSUE: Does the court have personal jurisdiction over Respondent in the instant matter? Overview: The systemic problem with Notice. For there t9 be personal jurisdiction, there must first be proper Notice. Notice requires both filing and serving the paperwork. Murphy Bros., Inc. (timing and sequence matter regarding filing and serving); Lloyd, 5 U.S. at 366 ("A citation not served is as no citation."). It may help to mention in this context that an "administrative citation" (a ''ticket") and a "complaint," Art. 45.018(b), are two entirely different things. Thus, it doesn't matter, yet, whether this is characterized as civil or criminal, because Notice will have the same requirements, either way. And, there is, to date, no Notice. Page 7 of 28 Notice previously required the filing and serving of two documents. In a generic misdemeanor matter, Notice used to require the filing and serving of two different documents: (1) a "complaint," which is a sworn statement, and (2) a pleading, commonly known and referred to as an Information. Arts. 2.04, 21.20, 21.21, 21.22. Art. 2.04. [28] [34] [35] Sba22 draw comp2aints Upon complaint being made before a district or county attorney that an offense has been committed in his district or county, he shall reduce the complaint to writing and cause the same to be signed and sworn to by the complainant, and it shall be duly attested by said attorney. Art. 2.04 (emphasis added). Art. 2.05. [29] [35] [36] When c~2aint is made If the offense be a misdemeanor, the attorney shall forthwith prepare an information based upon such complaint and file the same in the court having jurisdiction; provided, that in counties having no county attorney, · misdemeanor cases· may be tried upon complaint alone, without an information, provided, however, in counties having one or more criminal district courts an information must be filed in each misdemeanor case . ... Art. 2.05 (Thomson/West 2005) (emphasis added). Art. 21.20. [413] [477] [465] "Information" An "Information" is a written· statement filed and presented in behalf of the State by the district or county attorney, charging the defendant with an offense which may by law be so prosecuted. Art. 21.20 (emphasis added). Page 8 of 28 Art. 21.21. [414] [478] [466] Requisites of an information [District/County Court] An information is sufficient if it has the following requisites: 1. It shall commence, "In the name and by authority of the State of Texas"; 2. That it appear to have been presented in a court having jurisdiction of the offense set forth; 3. That it appear to have been presented by the proper officer; 4. That it contain the name of the accused, or state that his name is unknown and give a reasonably accurate description of him; 5. It must appear that the place where the offense is charged to have been committed is within the jurisdiction of the court where the information is filed; 6. That the time mentioned be some date anterior to the filing of the information, and that the offense does not appear to be barred by limitation; 7. That the offense be set forth in plain and intelligible words; 8. That it conclude, "Against the peace and dignity of the State"; and 9. It must be signed by the district or county attorney, officially. Art. 21.21 (emphasis added). Art. 21.22. [415] [479] [467] Information based upon complaint [District/County Court] No information shall be presented until affidavit has been made by some credible person charging the defendant with an offense. The affidavit shall be filed with the information. It may be sworn to before the district or county attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths. Art. 21.22 (emphasis added). Page 9 of 28 Art. 27.01. [504] [568] [557] Indictment or information The primary pleading in a criminal action on the part of the State is the indictment or in£or.mation. Art. 27.01 (emphasis added). Without both of those documents, two key problems existed. THE "LACK OF ATTORNEY SIGNATURE" PROBLEM. To examine into the pleading first, STATE OF TEXAS is, in actuality, a corporate entity, a commercial enterprise, doing business in "this state" via the benefit of a tax exemption certificate. To date, most who read that think that the author of such a thought has completely lost his mind. So, rather than proving that point at this early stage, it's still the case that all who are faced with the question eventually realize that whether it's a commercial enterprise, or something governmental, it's still an artificial entity. No artificial entity may appear in court without authorized signature. For a misdemeanor case, that authorized signature exists if there's a pleading. For a misdemeanor, the pleading is the Information. No PLEADING FILED?-NO NOTICE. [TEX. CONST. Art. 5, § 12]; Arts. 2.04, 21.20, 21.21, 21.22, 27,01; Rowland, 506 U.S. at 201-03 (all artificial entities must have counsel-federal); TEX. R. CIV. P. 7 (corporations must have counsel-state); Kuntoplast of Am., Inc. (same); Computize, Inc. (same); Moore (same); Dell Dev. Corp. (same); Globe Leasing, Inc., 437 S.W.2d at 45-46 (same); ABA MODEL RULES OF PROF'L CONDUCT R. 3.7 (material witness can't also be attorney of Record); TEX. DISCIPLINARY Rs. PROF'L CONDUCT R. 3.08, 5.05 (same, plus facilitating unauthorized practice); Garcetti v. Ceballos (ethics still matter; "whistleblower" lawyer who testifies against client is Page 10 of 28 fortunate still to have license, much less job); Tex. Dept. of Parks & Wildlife v. Miranda (standing, burden on plaintiff, requires "actual grievance"-state). No PLEADING SERVED?-No NOTICE. A pleading has meaning sometime after it's been filed, not before. See Murphy Bros., Inc .. A pleading has meaning sometime after it's been served, not before. Lloyd, 5 U.S. at 366 ("A citation not served is as no citation."). IN SUM, No PLEADING?-No NOTICE. Thus, without a pleading, there simply was no Notice, thus no case. THE "LACK OF WITNESS STATEMENT" PROBLEM. No "administrative citation" (''ticket") has ever been a "complaint." A "complaint" is a sworn statement. See Arts. 2.04, 21.22, 45.018, and 45.019. IN SUM, NO COMPLAINT AND NO PLEADING?-NO NOTICE. Thus, it used to be that without the filing and serving of both a "complaint" and an Information, there simply was no Notice. When the Money became "funny money," almost everything changed. See, e.g., Schinzing ("complaint" is an adequate charging instrument). Page 11 of 28 The relationship with Art. 45.019- a "ticket" is not a "complaint." A "ticket" is not a "complaint." How do we know? First, Art. 45.019 informs us that a · "complaint" is something that is, among other things, (1) sworn to, (2) started with certain language, and (3) ended with certain language. No "ticket" satisfies all of those elements. Art. 45.019. [883] [973] [938] Requisites Of Complaint [Municipal Court] (a) A complaint is sufficient, without regard to its form, if it substantially satisfies the following requisites: (1) it must be in writing; (2) it must commence "In the name and by the authority of the State of Texas"; ( 3) it .must state the name of the accused, if known, or if unknown, must include a reasonably definite description of the accused; (4) ·it must show that the accused has committed an offense against the .law of this state, or state that the affiant has good reason , to believe and does believe that the accused has committed an offense against the law of this state; (5) it must state the date the offense was committed as definitely as the affiant is able to provide; (6} it must bear the signature or mark of the affiant; and (7) it must conclude with the words "Against the peace and dignity of the State" and, if the offense charged is an offense only under a municipal ordinance, it may also conclude with the words "Contrary to the said ordinance". (b) A complaint filed in justice court must allege that the offense was committed in the county in which the complaint is made. (c) A complaint filed in municipal court must allege that the offense was committed in the t·erri torial limits of the municipality in which the complaint is made. Page 12 of 28 (d) A complaint may be sworn to before any officer authorized to administer oaths. (e) A complaint in municipal court may be sworn to before: (1) the municipal judge; ( 2) the clerk of the court or a deputy clerk; ( 3) the city secretary; or (4) the city attorney or a deputy city attorney. (f) If the defendant does not object to a defect, error, or irregularity of form or substance in a charging instrument before the date on which the trial on the merits commences, the defendant waives and forfeits the right to object to the defect, error, or irregularity. Nothing in this article prohibits a trial court from requiring that an objection to a charging instrument be made at an earlier time. Art 45.019 (emphasis added). But cf Art. 21.21 (attorney signature required). See also TEX. TRANSP. CODE ANN. § 708.105 (regarding the "Notice of surcharges" statement typesetting requirements and the citations non-compliance with same). Thus, the Information is no longer required, which means that STATE doesn't appear via signature of authorized counsel anymore. That failure renders Service of documents such as this next to impossible, but when STATE wants to correct that oversight, the legislature will compel inclusion of an authorized signature along with a name and address on the complaints so that defendants in courts of Record may serve the documents that are "required" to file. The reason why there's no need for a pleading, any more, is that the forum isn't the same type forum as used to exist. Some people go into orbit hearing this, but it's still the case that the gold fringe on the flags proclaims the maritime-law nature of the fundamental "choice of law" in Page 13 of 28 operation. Thus, what used to be a judicial forum is now an executive, maritime forum. This is why there is no more need for STATE to appear via pleading, i.e., via authorized signature. Whatever may be the paperwork, Notice is still required. Art. 45.018. C~~aint [Justice and MUnicipa~ Courts] (a) For purposes of this chapter, a co~~aint is a sworn allegation charg~ng the accused with the commission of an offense. (b) A defendant is entit~ed to notice of a c~~aint against the defendant not ~ater than the day before the date of any proceeding in the prosecution of the defendant under the c~~aint. The defendant may waive the right to notice granted by this subsection. Art. 45.018 (emphasis added). \ Where this provision is not satisfied, there is no Notice. To date, this provision remains unsatisfied. Where this provision is not satisfied, a statutorily defined right belonging to McDade has been violated. Art. 45.018(b) creates a statutory right that declares McDade "is entitled to" Notice of a complaint at least one day prior to any prosecutorial proceeding related to that complaint. This phrase is defined in § 311.0 16(4 ), Gov. Code. Sec. 311.016). "MAY," "SHALL," "MUST," ETC. The following constructions apply unless the context in which the word or phrase appears necessarily requires a different construction or unless a different construction is expressly provided by statute: (1) "May" creates discretionary authority or grants permission or a power. (2) "Shall" imposes a duty. (3) "Must" creates or recognizes a condition precedent. (4) "Is entit~ed to" creates or recognizes a right. Page 14 of 28 ( 5) "May not" imposes a prohibition and is synonymous with "shall not." (6) "Is not entitled to" negates a right. (7) "Is not required to" negates a duty or condition precedent. As this phrase establishes a reference to either an already existing and recognized right, or, a right created by statute, it is a right that cannot be taken away or ignored unless it is waived by McDade or removed by due process of law. McDade has not and will not waive this right, and, does in fact object to the failure of both the STATE and the court to ensure that McDade's right is fully protected and complied with. Neither has McDade been convicted of anything that could work to remove this right from his access. In short, where we're headed, at light speed, is toward a void judgment. The court must have personal jurisdiction. See Milliken (the Wyoming judgment was valid because service was valid; hence, the Wyoming court did have personal jurisdiction). [I]t has been settled, that a judgment depending· upon proceedings in personam can have no force as to one on whom there has been no service of process, actual or constructive; who has had no day in court, and no notice of any proceeding against him. That with respect to such a person, such a judgment is absolutely void .... Harris, 55 U.S. at 339 (cited in Commercial Equip., 678 S.W.2d at 918, which holds that even a default judgment is void where there is no service). See also Peralta (even "meritorious defense" issue is irrelevant to question of Notice); Lloyd ("A citation not served is as no citation."); Hamdi (habeas proceeding, which is, of course, a CIVIL proceeding); Internat'l Shoe; Mullane; Armstrong, 380 U.S. at 552; Sniadach; Boddie; Fuentes v. Shevin; N Ga. Finishing; and Jones. Page 15 of 28 The "arraignment" is "any proceeding." Cf Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008). There being no notice of any complaint at least a day before the arraignment, there is no Notice. No matter what is delivered to a defendant, where there is no case number, no court name, and no contact information provided for service of defense pleadings, motions, and briefs, it follows that no original pleading has been filed, much less served. NO NOTICE?--NO PERSONAL JURISDICTION. ISSUE: Does this court have subject matter jurisdiction? Where there is no personal jurisdiction, the matter is a non-case. All cases are non-cases, Cf Austin (Blackmun, J., dissent); Deposit Guaranty Nat'! Bank, 445 U.S. at 353 (Powell, J., and Stewart, J., dissent); Williams, 472 U.S. at 36 (dissent) (citing Austin), i.e., civil, until STATE proves standing. Some matters, just like this one, never stop being non-cases. Cf Rockwell Int 'I Corp (the fmal pre-trial order confirmed that this was a non-case). This is a "criminal case only" forum. Non-cases are civil in nature. This court has no subject matter jurisdiction over any "civil" (non-case) matter. Statutory Challenges. ISSUE: Does Art. 25.04 violate Due Process? Page 16 of 28 Given Art. 45.018(b) , McDade doubts that Art. 25.04 is in any way relevant to this matter. However, should Art. 25.04 be relevant, McDade objects to Art. 25.04 as repugnant to Due Process. Art. 25.04. In misdemeanors, it shall not be necessary before trial to furnish the accused with a copy of the indictment or information; but he or his counsel may demand a copy, which shall be given as early as possible. Art. 25.04. This language purports to give STATE a pass on its Due Process duty to serve Notice. This language pretends that a court, especially a court of "criminal case only" jurisdiction, may proceed without affirmative proof of Notice. To the exact opposite result, no such court has jurisdiction of any kind unless and until STATE has filed its original pleading, by whatever name, e.g., a "complaint", and then served it (timely). Cf Murphy Bros. Inc. (sequence matters regarding filing and servmg the original pleading). 3 See also Lloyd, 5 U.S. at 366 .("A citation not served is as no citation."). To date, McDade has received nothing that tells him that STATE has filed anything. Service would tell McDade what the case number is, in which court any case has been filed, and on whom he should serve his filings. The case style used in the documents to date is largely guesswork. The guesses are included so that what he files may find its way, eventually, to the right destination. If STATE had served its original pleading, then McDade would not be guessing, at all. In short, McDade has no Notice that any "case or controversy" exists. 3 Murphy Bros. is a civil case, but all cases are non-cases, i.e., civil, until the plaintiff, here STATE, proves standing. It's impossible for STATE to prove standing for a criminal case where there is no charging instrument even filed, much less served. The authority to determine authority is civil. Marbury v. Madison. Civil authority is inherent. Cf United Mine Workers. STATE must prove standing in the criminal context before there's anything even remotely possible to label as criminal. Page 17 of 28 There is no legislative enactment or judicial procedural rule that lawfully relieves STATE of its duty to provide meaningful Notice. A competent, Due-Process minded statute/plan will place the burdens properly. First, STATE files its original pleading. Then,· STATE Serves its original pleading. Once the Record shows return of competent service on the defendant of STATE's original pleading, then an Arraignment may/can be scheduled. Until then, it's not even a case; it's a non-case, i.e., a civil matter. "Hearing" the charge read in no way constitutes meaningful Notice. In "this state," we deal with a world of very insidious, clever but insidious, semantics. Some of those semantics are in the terms, themselves. No code or statutory plan/scheme is more semantics-driven, semantics-dependent than any STATE's "transportation" code (and/or a "vehicles and traffic" code). Responding verbally to a verbal presentation of those semantics is humanly possible (although, as discussed next, compelling an "instant" response is repugnant to Due Process). But some of the semantics on which the systems in "this state" depend aren't · discemable until detected visually via the presentation of the words on the page. For this reason, it's 100% legally impossible for anyone to have any idea, at all, whatsoever, of what STATE's case is about unless and until the written word is delivered by means consistent with Due Process. "Hearing" the words read aloud will never be legally equivalent to "reading" them. "[T]his state" is just too semantics-driven, too semantics-dependent, for "hearing" to replace "seeing". How does a defendant obtain a copy of STATE's original pleading so as to be able to read it? Either the defendant waives Notice and does STATE's work for STATE, finding the information on his own, or else the defendant compels STATE to satisfy its duty under Due Page 18 of 28 Process to serve at a meaningful time, in a meaningful manner, on the defendant a copy of what STATE has filed. An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Mullane, 339 U.S. at 314. A failure of Notice violates "the most rudimentary demands of due process of law." Armstrong, 380 U.S. at 550 (Notice, meaningful time, meaningful manner. 380 U.S. at 552). , See also Milliken (Notice, opportunity to be heard, fair play, substantial justice); Internat 'l Shoe (Notice, opportunity to be heard); Sniadach (Notice, opportunity to be heard); Fuentes v. Shevin (Notice, meaningful time); N. Ga. Finishing (Notice, opportunity to be heard, even for corporations (i.e., the shareholders)); Burns (Notice, opportunity to be heard, on upward departure); Hamdi (denial of access and of opportunity to be heard); Jones (Notice, opportunity to be heard). To compel an instant response is to offend Due Process. If Due Process in/for "this state" allowed "hearing" (a non-filed complaint?) to substitute for "reading/seeing" the filed original pleading, it's still the reality that a system that demands that a defendant respond immediately to any presentation of charges against him, whether verbal or in writing, is a system that offends Due Process. There's nothing "meaningful" about ''Notice" that allows absolutely no time to study into the matter. In general, even in criminal matters, which this one isn't but pretends to want to be, STATE must give Notice. Cf O'Grady. Page 19 of 28 Under the applicable federal standards, the duty is on STATE to provide Notice. The duty is not placed on the defendant to demand it. It's placed on STATE to provide it. This statute purports to reverse that burden, to relieve STATE of its duty to provide meaningful Notice, at a meaningful time in a meaningful manner. Therefore, this statute facially defies and offends Due Process. ISSUE: What does 'person" mean? TRANSP. CODE§§ 541.001(4) Defined- "person" means: an individual, firm, partnership, association, or corporation. Translation: "commercial legal entity" Application of statutory algebra: If no "person." then no "transportation," or If no ".transportation" then no "person," ISSUE: What does "transportation" mean? Not defined in the Transp. Code. What is the Transp. Code about? The "transportation" code nowhere defines "transportation." It's not that we can't come up with a definition. It's that when we do, we find that "transportation" is "commercial." Thus, where there's no definition, there's vagueness. But, there is a definition, if we look long and hard enough. Page20of 28 Def'med. "Transportation" means removing people and/or property from ~ere to there for profit or hire under the choice oflaw of the "place" called ''this state." Removing People and/or Property. Transp. Act of 1940, 54 Stat. 898, 929, 49 U.S.C. § 902(i)(1), in particular§ 302(i)(l) . Cornell Steam-boat, 321 U.S. at 641-42 (Frankfurter, J., dissent). From Here To There. Cf Maynard (context: unlawful "transportation" of intoxicating liquor). For Profit or Hire. St. Clair Cnty, 192 U.S. at 456-57 (allegations regarding operating a ferry without a license). See also Cosio, 182 S.W. at 85. Under the Choice of Law of the "Place" Called "this State." The entirety of STATE's regulatory authority, for anything, is limited to that "place" where circulating "funny money" is not flat out fraud, i.e., to the "place" called "this state." Cf § 7; Graham (special maritime and territorial jurisdiction). Page 21 of 28 The Generic Concept of "use." If use were irrelevant, it'd be "fraud" to deny a mileage deduction, e.g., Sched. A., for "personal use" of the car. Because "personal use" is not deductible, it follows that use determines "personal v. commercial" treatment and that "personal use" is not commercial in any context. Obviously, personal (non-commercial) use (i.e., travel) needs no "license." "Use" and the TerryStop. The ticketing officer never even tried to establish "transportation" use. He asked nothing about any passenger manifest or any bill of lading. The executive has to have authority to determine his/its authority, and police always have authority to protect themselves. Terry. The car has a license plate. But, that's where the Terry authority ended, because McDade was not engaged m "transportation," at the time of the stop. Deliberate indifference. This officer had not been taught that "transportation" regulation has limits. In the exact same way that Ramos and Compean were never taught about "this state" and the limits of their authority at the border, this officer was not taught the limits of "transportation" regulation. "[A] violation of federal rights may be a highly predictable consequence of a failure to equip law enforcement officers with specific tools to handle recurring situations." Brown, 520 U.S. at 409. ISSUE: What does "vehicle" mean? TRANSP. CODE§§ 502.001(25), 541.201(23), 621.001(9), Sec. 750.003(a). Translation: a conveyance used for "transportation" purposes. Page 22 of 28 Application of statutory algebra: If no ''transportation," then no "vehicle." ISSUE: What does "motor vehicle" mean? TRANSP. CODE §§ 501.002(17), 502.001(25), 522.003(21), 541.201(11), 601.002(5), 642.001(1), 647.001(4), 683.001(4), 728.001(2). Translation: "Vehicle" with a motor. Application of statutory algebra: If no "transportation," then no "vehicle;" if no "vehicle," then no "motor vehicle." ISSUE: What does "drive" mean? TRANSP. CODE§ 522.003(11). The sole definition for "drive" in the entire "transportation" code is found in the "commercial driver's license" chapter, Ch. 522. Translation: In the disciplined "transportation" code, "drive" means being behind the wheel of a "vehicle." In the TRANSP. CODE, "drive" means being behind the wheel ( of a "motor vehicle." Application of statutory algebra: If no "transportation," then no "vehicle;" if no "vehicle," then no "motor vehicle;" if no "motor vehicle," then no "driving;: hence, no "driver." ISSUE: What does "operator" mean? TRANSP. CODE§ 541.001(1). Page23 of 28 This "definition" is very confused. "Drives," which has meaning only with respect to a "motor vehicle," is juxtaposed with the concept of "physical control of a vehicle." Ultimately, it doesn't matter, here, but which is it: "vehicle" or "motor vehicle?" 4 Translation: In the disciplined "transportation" code, "operator" is the one behind the wheel of a "motor vehicle." In the Transp. Code, "operator" is the one behind the wheel of either a "vehicle" or a "motor vehicle." Application of statutory algebra: No "transportation?"-no "vehicle;" no ''vehicle?"-no "motor vehicle;" no "(motor) vehicle?"-no "operator." ISSUE: What does "this state" mean? Contrary to popular belief, ''this state" isn't really a "place." It's a "choice of law." The "place" called "this state" is a "federal area" or a "federal zone," a "Constitution-free, maritime, commercial zone," associated with the "funny money" found in the 48 contiguous states, Alaska, Hawaii, American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, the Virgin Islands, and all the rest of the territories and protectorates. The capital of "this state" is DC. Without "this state," running the present "funny money" scam would be criminal. Thus, the fundamental "choice of law" to which "this state" refers is the Law of the Sea, to be distinguished from the "choice of law" associated with an honest system of weights and measures, Lev. 19:35-36, which is the Law ofthe Land. The Law ofthe Sea doesn't just apply; it applies only if there's an agreement that includes that choice oflaw. Ogden. Cf § 7; Graham. In application of these terms. 4 See also§§ 601.002(8) ("motor vehicle"), 642.001(2) (same), 647.001(5) (same);§ 724.001(11) (looks to a "motor vehicle" or watercraft, i.e., ''transportation" activity); § 24.013(t)(2) (regarding aircraft). Page 24 of 28 There was never any "transportation" at issue. Since McDade was not engaged in ''transportation," there was no "vehicle," no "driver," no "motor vehicle," and no "operator." Therefore, there was never any authority to issue any "ticket", or "citation". ISSUE: Does this court even really exist as a court of Record? The procedures set out in GOV'T CODE § 30.00003 have not been followed. The name may or may not be fatally material, but the naming protocol for a municipal ' court. of record set out by statute has not been applied or followed. More to the point, the \ ordinances simply do not create a court of Record. To label the court one way, i.e., as a court of Record, but to have its existence be something else entirely, i.e., as a generic municipal court, shows up most prominently in the appellate process. The mismatch can produce an effective denial of access problem. Cf Harbury. REQUEST FOR RELIEF Therefore, McDade requests that this court grant his special appearance and dismiss this case. Respectfully Submitted David Kent McDade Page 25 of 28 VERIFICATION STATE OF TEXAS § ss KNOW ALL MEN BY THESE PRESENTS COUNTY OF TRAVIS § Before me, the undersigned Notary, personally appeared David Kent McDade in this matter, who satisfied me as to his identity, and who, upon administration of oath or affirmation by me, declared and deposed as follows: I am David Kent McDade. I am at least 21 years of age, and I am competent to make this Motion. I have personal knowledge of these facts and attest under penalty of petjury the facts stated in this document are true and correct. I assert all my Birthrights and all my Inherent, unalienable rights, privileges and immunities at Natural Law, and Common Law and all my respective commercial rights relevant to a place called "this state." Affiant does not consent to nor in any way waive any of my rights in whole or in part, nor does Affiant authorize or consent to any violation of those rights by any of Affiant's public servants or any other Corporate Entities. Further, Affiant sayeth not. Is/ David Kent McDade Affiant Notary Stamp Signed and Affirmed to before me on this the _ _ _ day of _ _ _ _ _ _ _ _ _ _ _ _ (monili)20 ~e~) for which witness my seal and signature. Notary Signature: - - - - - - - - - - - - - - - CERTIFICATE OF SERVICE By my signature below, I certifY that on this the 6th day of November, 2014, I have no idea who should be served with a true and correct copy of this document, because there is no competent charging instrument, much less one showing a name or address for service of such documents on the Plaintiff by McDade In other words, no one has made any Appearance on the Plaintiffs behalf. Therefore, it is delivered by hand in open court to whoever shows up on the Plaintiffs behalf. If that is no one, then there is nothing served as of this date. ragt: .Zu ur .Zo David Kent McDade Page27'of 28 CAUSE NO(s). 14092560, 14092561 In the CITY OF AUSTIN MUNICIPAL COURT THE STATE OF TEXAS, § (of) RECORD Plaintiff, § AUSTIN, TEXAS v. § TRAVIS COUNTY, Texas § DAVID KENT MCDADE, § Respondent. § § Date: 11106/2014 ORDER ON THIS the day of , 20_ _, came on to be heard the foregoing RESPONDENT'S SPECIAL APPEARANCE, and after consideration of {CHOOSE APPROPRIATE STATEMENT) ___ (A) the response, the Court hereby ___ (B) the response, and the evidence on file, the Court hereby ___ (C) the response, the evidence on file, and arguments of counsel, the Court hereby ___ (D) the response, and arguments of counsel, the Court hereby ___ (E) the response, and arguments of counsel, and after receiving evidence in open court, the Court hereby ___ DENIES the motion, to which Respondent excepted. ___ GRANTS the motion to dismiss _ _ with prejudice/ _ _ without prejudice. COMMENTS: ----------------------------------------------------- SIGNEDon 20 --------~ PRESIDING JUDGE Page 28 of 28 STATE OF TEXAS, § in the SUPERIOR COURT OF TEXAS Plaintiff, § OF PUBLIC RECORD v. § AUSTIN, TEXAS David Kent McDade, § TRAVIS COUNTY, Texas Respondent, § --------------------------------------------------------------- David Kent McDade, § AFFIDAVIT: NOT ENGAGED Counterplaintiff § IN COMMERCE § OR TRANSPORTATION v. § § (VERIFIED) "Officer Knouse Badge # 5931 ," "Supervisor," § "Second Officer," Sherry M. Statman, Barbara § Date: March 2, 2015 L. Garcia, Devin Rourke, § § Counterdefendants § § ________________________________________________________________ J§ __________________________________________ ~----------------· Affidavit of David Kent McDade - Not Engaged in Commerce or "Transportation" TO THE SAID COURT: COMES NOW David Kent McDade, hereinafter ("McDade") one of the people of Texas, who asserts as follows: McDade, requests the court to discharge Plaintiff's cause(s) of action for lack of in personam jurisdiction and subject matter jurisdiction for causes stated herein. Assertion of Rights 1. McDade Asserts and Reserves all his unalienable rights including but not limited to his, rights, privileges, and immunities at Natural Law, Common Law, and Maritime Law and all his respective commercial rights relevant to ''this state." Tx. Const. Art. 1 Sec. 2 Page 1 of 6 AFFIDAVIT NOT ENGAGED IN COMMERCE· McDade does not consent to nor in any way waive any of McDade's rights in whole or in part, nor does McDade authorize or consent to any violation of those rights by any of his public servants, or any other Corporate Entities. Objection to use of private law McDade objects to the use of unpublished cases. A cite to "WL" and "Lexis" is a reference to materials not publicly accessible. For such references even to begin to be . meaningful, a full copy of the opinion for each "WL" or "Lexis" reference must be attached; Objection to Use of Undefined Terms and Phrases McDade moves the court to direct and so order whomever is purporting to act as the "Attorney for the State" that, unless the prosecution is both willing and does provide the complete legal definitions and usages of Terms and Phrases relating to the regulatible activity oftransportation.to McDade in open court, then, the terms and phrases are not to be used or alluded to at any point in the proceedings against McDade. Such usage would include but not be limited to jury voir dire, opening statements, direct or cross-examination, closing statements or as a response given in testimony by any witness for THE STATE OF TEXAS, hereinafter "the State". Facts McDade hereby makes the following statements of fact under penalty of perjury and asserts that they are true and correct. Page 2of 6 AFFIDAVIT NOT ENGAGED IN COMMERCE McDade was stopped on or about the 8th day of October, 2014 at approximately 8:17am by a person identified as a "City of AustinMunicipal "Police Officer." The person who aggravatedly, unlawfully imprisoned McDade has been identified only as "Officer Knouse Badge # 5931" hereinafter, Knouse # 5931. At the time of the ''traffic/transportation stop," McDade was unlawfully imprisoned by Knouse # 5931 upon the initiation of the stop for the purpose of issuing citation #s 14092560; 14092561. This fact is attested to by Knouse # 5931 admittance of such at the time of "traffic/transportation stop". At the time of the "traffic/transportation stop" and unlawful imprisonment McDade was traveling viatically upon the public right-of-way in a private conveyance for his own private business and pleasure while utilizing due diligence and care to ensure that his actions did not cause harm to other person(s) or property and no such harm had taken place. McDade was not engaged in causing harm to any person, property, or thing, nor was McDade providing Knouse # 5931 with atiy probable cause to believe that McDade was engaging in any use of the highways that would make McDade subject to the regulatory provisions of the Transp. Code, but, McDade was still stopped and unlawfully imprisoned by Knouse # 5931 without any apparent probable cause to believe such activities were taking place. A~ the time of the ''traffic/transportation stop" and unlawful imprisonment McDade was not acting in the capacity of a public, private, or common "carrier" for the purpose of "transporting" any "person(s)," "goods," or "property" from one place to another upon the highways of ''this state" for compensation or hire. At the time of the "traffic/transportation stop" and unlawful imprisonment McDade was not "operating" or "driving," or any of the grammatical variations of those terms, a "motor vehicle" or ''vehicle" upon the highway for the purpose of transporting any "person(s)," "goods," Page 3 of 6 AFFIDAVIT NOT ENGAGED IN COMMERCE or "property" from one place to another for compensation or hire while acting in the capacity of a public, private, or common "carrier" in "this state." At the time of the "traffic/transportation stop" and unlawful imprisonment McDade was not "transporting" any "person(s)" or "passenger(s)" for compensation or hire. At the time of the ''traffic/transportation stop" and unlawful imprisonment McDade was not transporting any "goods" or "property" for compensation or hire. At the time of the "traffic/transportation stop" and unlawful imprisonment McDade was not engaged/engaging in any commercial acts whatsoever upon the highways that could be mistakenly construed as engaging in ''transportation." At the time of the "traffic/transportation stop" and unlawful imprisonment McDade informed Knouse # 5931 that McDade was not acting as a "carrier" nor engaging in any acts of ''transportation." At the time of the ''traffic/transportation stop" and unlawful imprisonment Knouse # 5931 made no effort to determine if McDade was in possession of a passenger manifest proving the "transporting" of "persons" or "passengers" for compensation or hire. At the time of the ''traffic/transportation stop" and unlawful imprisonment Knouse # 5931 made no effort to determine if McDade was in possession of a bill of lading proving the "transporting" of "goods" or "property" for compensation or hire. At the time of the "traffic/transportation stop" and unlawful imprisonment Knouse # 5931 made no effort at all to determine McDade's actual capacity or to collect any evidence proving that McDade was engaging in "transportation" upon the highways of"this state". At the time of the "traffic/transportation stop" and unlawful imprisonment Knouse # 5931 proceeded against McDade as if it were a foregone legal conclusion that an individual's act of Page 4 of 6 AFFIDAVIT NOT ENGAGED IN COMMERCE privately traveling upon the public right-of-way automatically constituted I "transportation." McDade asserts for the record that he absolutely was not engaging in any privileged activity(s) or act(s) constituting "transportation," especially those pertaining to any form of commercial use of the highways, nor to McDade's knowledge is "the State" in possession of any physical evidence that could or would prove the contrary. McDade was traveling viatically upon the highways in a private personal conveyance for personal business and/or pleasure and was not engaged/engaging in any commercial activity whatsoever, including any and all of those activities codified within the Transp. Code and/or Title 49 of the United States Code. I \. McDade maintains that, at the time of the "traffic" stop and unlawful imprisonment, McDade absolutely was not engaged/engaging in any act(s) of "transportation" upon the highway that might create a legal and binding duty upon McDade to comply with any such r regulatory authority codified in the Transp. Code. McDade absolutely was not engaged/engaging in any act(s) of a coirunercial nature that might be consistent with the legal meaning and application of the term "transportation" and that could/would create a legal and binding duty upon McDade to comply with any such commercial regulatory authority. McDade asserts that McDade is/was doing nothing more than exercising an unalienable Right to liberty and the use his private property for Private Travel. Respectfully submitted Seal_______________ David Kent McDade Page 5 of 6 · AFFIDAVIT NOT ENGAGED IN COMMERCE Verification STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS COUNTY OF TRAVIS § Before me, the undersigned Notary, personally appeared David Kent McDade, the Affiant in this matter, who satisfied me as to his identity, and who, upon administration of oath or affirmation by me, declared and deposed as follows: I am David Kent McDade. I am at least 21 years of age, and I am competent to make this Affidavit. I have personal knowledge of these facts and attest under penalty of perjury the facts stated in this document are true and correct. I, one of the people of Texas, Assert, and Reserve all my unalienable Rights, privileges and immunities at Natural Law, Common Law and Maritime Law, and all my respective commercial rights relevant to a place called "this state. " Affiant does not consent to nor in any way waive any of my rights in whole or in part, nor does Affiant authorize or consent to any violation of those rights by any ofAffiant's public servants or any other Corporate Entities. Further, Affiant sayeth not. Seal David Kent McDade, Affiant Notary Stamp Signed and Affirmed to before me on this the _ _ _ day of - - - - - - - - - - - - ( m o n t h ) 20 (year) for which witness my seal and signature. Notary Signature: ----------~---- Certificate of Service By my signature below, I certify that on this the 2nd day of March, 2015, I have no idea who should be served with a true and correct copy of this document, because there is no competent charging instrument, much less one showing a name or address for service of such documents on the Plaintiff by the Affiant In other words, no one has made any Appearance on the Plaintiff's behalf. Therefore, it is delivered by hand to the Court Clerk for whoever shows up on the Plaintiff's behalf. If that is no one, then there is nothing served as of this date. David Kent McDade, Affiant Page 6 of 6 AFFIDAVIT NOT ENGAGED IN COMMERCE ATIACHMENTG CAUSENO. 1'/-:J35J9J STATE OF TEXAS IN THE MUNICIPAL COURT v CITY OF AUSTIN, TEXAS TRAVIS, COUNTY TEXAS ORDER OF THE COURT All motions/documents tendered by the Defendant are hereby DENIED. 1 Defendant does not have leave of court per local rule 7.2 for any additional Pre-Trial hearings. Defendant is further ADMONISHED that the filing of pleadings or other docwnents that are false, groundless or for the purposes of delay or harassment shall result in sanctions per Texas Rules of Criminal Procedure 1.052(e) Signed this the ~fit day of~'(! '2012. Sherry M. Statman Associate Judge City of Austin Municipal Court 1 A motion granting all discoverable items the Defendlmt is entitled to as a matter oflaw is entered under a separate title. Page: 1 of 7 1 REPORTER'S RECORD VOLUME 1 OF 1 VOL.UME CAUSE NO. 7723513 STATE OF TEXAS IN THE MUNICIPAL COURT vs. OF AUSTIN DAVID K. MCDADE TRAVIS COUNTY, TEXAS STATEMENT OF FACTS On the 26TH day of July, 2012, the following proceedings came on to be held in the above-titled and numbered cause before the Honorable Judge Sherry Statman, Judge Presiding, held in Austin, Travis County, Texas. Proceedings reported by computerized stenotype machine. MARY LOU TAYLOR, CSR, AUSTIN, TEXAS, 25 512-658-0354; [email protected] Paqe: 2 of 7 1 APPEARANCES 2 Ms. Sherry Statman, Judge Presiding 3 Witness: Mr. David K. McDade TABLE OF CONTENTS PAGE: Appearances. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Page: 3 of 7 PROCEEDINGS THE COURT: Case No. 7723513, titled the State of Texas versus David K. McDade. The parties are present. First and foremost, I'm going to go over a few things. The law requires me to treat a person proceeding Pro Se the same as a licensed attorney. You are held to the same rules and same standards as an attorney. When you sign and submit a motion or document to this Court, you are asserting, first of all, that you have read the motion. Second, that you understand it, and that you believe that it contains valid legal arguments. In this case, multiple documents have been submitted to the Court. Some of them are repetitive, contain the same things, they are nonsensical, they do not in any way, shape or form resemble a legitimate motion. You site noncontrolling and nonadvisory law, you site incorrect or inapplicable statutes, and these contain very little legal argument. Mostly it is a rant about what you think the law is and your interpretation of it, if you in fact wrote any of this, I doubt highly. I have seen these motions multiple times Page: 4 of 7 1 before with different names on them, same font, 2 same grammatical errors, et cetera, et cetera. ·3 What is here is ~pecious at best. A motion has to state, first of all, it actually is a motion. Second, it must present a coherent legal argument, and third, it must ask the Court to take action that the Court has the authority to take. These motion don't do any of that. What they do, other than waste the time of the Court and everybody here, is present arguments such as you have to be charged with an indictment for a Class C Misdemeanor which is incorrect, that you must be magistrated even though you were not arrested, which is incorrect, and that the whole case is invalid because of the font on the ticket, also incorrect. All the motions are denied. According to our Court rules, you have waived any other things that you did not bring up by this proceeding, so any other pretrial matters are waived. You do not have leave of Court for another pretrial. This case is going to proceed to a jury trial. You're going to get an order of the Court that all the motions are denied. There's a subsequent order granting Page: 5 of 7 discovery of all tangible items, so anything that you would be entitled to discover by law, you will receive, the prosecutor will supply those to you. And with that, my court clerk is going to get you copies of these motions and we are off the record and that's all for today. (Off the record.} THE COURT: Back on the record. I've just been informed that you recorded this, that is against the Court rules. I do not consent for you to use my voice, my image, or any other thing regarding this proceeding in any public way. If you want a copy of the transcript, you will contact the court reporter. These little rules and the -- you know, these statutes and things that apply, they're not a joke. Because this is your first time here, I am not going to hold you in contempt for violating a Court rule, but I am going to admonish you, take this seriously, and if you do come to court and you do have recording devices and you have been told that you are not to do that, that is posted outside, that is a rule of this Court, you are subjecting yourself to contempt, which means you can be fined money or Page: 6 of 7 you can be taken and arrested and held up for 24 hours for these cases, so let's not do that. These orders also contain an admonishment about the effect of filing frivolous proceedings, you can be sanctioned for that as well. With that, we're off the record. (Proceedings concluded.) Page: 7 of 7 STATE OF TEXAS COUNTY OF TRAVIS I, Mary Lou Taylor, Deputy Official Court Reporter in and for the MunicipalCourt, City of Austin, Travis County, Texas, do hereby certify that the above and foregoing contains a true and correct transcription of all portions of evidence and other proceedings requested for the parties to be included in this volume of the Reporter's Record, in the above-styled and numbered cause, all of which occurred in open court or in chambers and were reported by me. I further certify that this Reporter's Record of the proceedings truly and correctly reflects the exhibits, if any, offered by the respective parties. I further certify that the total cost for the preparation of this Reporter's Record is $25 and was paid by Mr. David McDade. WITNESS MY HAND on this the 6th day of August, 2012. Mary Lou Taylor, CSR No., 2215 Expiration Date: 12/31/12 22 Certified Shorthand Reporter Municipal Court, City of Austin 23 Travis County,.Texas [email protected] 24 512-658-0354 25 ATIACHMENTH 1. STATE OF TEXAS, § in the SUPERIOR COURT OF TEXAS 2. Plaintiff, § OF PUBLIC RECORD 3. V. § AUSTIN, TEXAS David Kent McDade, § TRAVIS COUNTY, Texas 4. Respondent, § " ------------------------------------------------------------- § FIRST AMENDED ACTION 5. David Kent McDade, § FOR TRESPASS AND 6. Counterplaintiff § TRESPASS ON THE CASE V. § 7. § Citation Number(s) 14092560, 14092561 "Officer Knouse Badge # 5931 ," § 8. "Supervisor," "Second Officer," Sherry M. § (VERIFIED~ Statman, Barbara L. Garcia, Devin Rourke, § 9. § Date: March 2, 2015 10. Counterdefendants § - _______________________________________________________________§__________________________________________________________ . 11. 12. FIRST CAUSE OF ACTION 13. 14. TRESPASS 15. This First Amended Action amends by entire substitution the action filed January 4th, 2015 in 16. the above entitled court. 17. CAUSE OF ACTION 18. 19. 1. David Kent McDade, counterplaintiff (hereinafter "McDade") is one of the people of Texas 20. and in this court of record complains of each of the following: 21. 22. "Officer Knouse Badge # 5931 ," "Supervisor," and "Second Officer," Sherry M. 23. Statman, Barbara L. Garcia, Devin Rourke, (hereinafter "Infringers"); (all 24. hereinafter collectively "Infringers"); 25. 26. who are each summoned to answer McDade in a plea of trespass and trespass on ,the case, to wit: 27. Page 1 of 15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. 2. BACKGROUND 3. 4· 2. Each ofthe Infringers exceeded his jurisdiction by either directly, through an agent, or in 5. concert with another did cause McDade to be aggravatedly unlawfully imprisoned 1 against his 6. will, without jurisdiction. Preceding the unlawful imprisonment McDade was duly2 engaged in 7. good faith exercising his unalienable, substantive Right to Travel freely and unencumbered. 8· Said Infringers interrupted said Travel, and then unlawfully imprisoned McDade. During this 9. unlawful imprisonment under, threat, duress, coercion, and against his will Infringers subjected 10 . McDade to multiple threats of further charges and or incarceration if certain requested 11 · information and or papers was/were not given verbally and or produced physically. 12. 13. 3. At the time of the alleged offence, till the present McDade under color oflaw, was/is held in 14 . actual or constructive aggravated imprisonment. Although he objected to the assumed 15 . jurisdiction, those who kept him aggravatedly imprisoned under color of law did not respond to 16 · any of his demands and requests for proof of jurisdiction or for discharge of the action against 17 · him and the reinstatement of his liberty. They continued to assume the jurisdiction without proo 18 . of jurisdiction or any attempt at proof of jurisdiction. McDade continues to be subject, under 19. color of law, to the assumed jurisdiction of the Infringers. 20. 21. 22. 23. 24. 1 25. Imprison: To confine a person or restrain his liberty in any way. Black's Law Dictionary, 5th Edition Imprisonment: .. .it may be in a locality used only for the specific occasion; or it may take place without the actual 26. application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Black's Law Dictionary, 5th Edition 27. 2 Duly: ... according to law in both form and substance. Black's Law Dictionary, 5th Edition Page 2 ofl5 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. 2. JURISDICTION 3. 4· 4. On examination of all available information, McDade is able to ascertain that Infringers 5. had/have no lawful jurisdiction to commit their acts. 6. 7. 5. Therefore, on information and belief, McDade alleges that Infringers do/did not have any 8. jurisdiction and may not extrajudicially proceed. 3 9. 10 . 6. McDade demands that Infringers submit to the court proof of jurisdiction, if any they have. 11. 12 · 7. If no proof of jurisdiction is submitted to the court, McDade requests that the above-entitled 13 . court of record find that Infringers are without jurisdiction, that the McDade be discharged from 14. matters stated in Citation Number(s) 14092560, 14092561 without delay, and that the Inferior 15 . Court may not proceed. 16. 17. 18. 3 "However late this objection has been made, or may be made in any cause, in an inferior or appellate court of the 19. United States, it must be considered and decided, before any court can move one further step in the cause; as any movement is necessarily the exercise of jurisdiction. Jurisdiction is the power to hear and determine the subject 20. matter in controversy between parties to a suit, to adjudicate or exercise any judicial power over them; the question is, whether on the case before a court, their action is judicial or extra-judicial; with or without the authority of law, 21. to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a 22. judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with which is the right ofthe case, is judicial action, by hearing and determining it. 6 Peters, 709; 4 Russell, 415; 3 23. Peters, 203-7" Cited by STATE OF RHODE ISLAND v. COM. OF MASSACHUSETTS, 37 U.S. 657,718 (1838) "Where a Court has jurisdiction, it has a right to decide every question which occurs in the cause; and whether its 24. decision be correct or otherwise, its judgment, until reversed, is regarded as binding in every other Court. But, if it 25. act without authority, its judgments and orders are regarded as nullities. They are not voidable, but simply void; and form no bar to a recovery sought, even prior to a reversal, in opposition to them. They constitute no justification; an 26. all persons concerned in executing such judgments or sentences, are considered, in law, as trespassers." Elliott v Peirsol, I Pet. 328,340,26 U.S. 328,340, 7L.Ed. 164 (1828) 27. Page 3 ofl5 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. 2. SECOND CAUSE OF ACTION 3. 4. TRESPASS 5. J 6. JURISDICTION 7. 8. 8. Paragaphs 1 through 7 are incorporated by reference'as though fully stated herein. 9. 10. 9. Each Infringer acted in such a way, or failed to act in such a way, that McDade is deprived of 11. his liberty. Each Infringer acted to deprive McDade of his liberty; or each Infringer failed to act 12. to prevent the loss by McDade of his liberty. Further, each Infringer is a willing participant in 13. concert with each of the remaining Infringers. 14. 15 . 10. At all times mentioned in this action each Infringer is the agent of the other, and in doing the 16 . acts alleged in this action, each is acting within the course and scope of said agency. 17. 18. 19. Facts of Incident 20. 21. 22. 1. McDade was stopped on or about the 8th day of October, 2014 at approximately 8:17am by 23. person identified as a "City of Austin Municipal "Police Officers." 24. 25. 2. The person(s) who seized, accosted, and unlawfully Aggravatedly Imprisoned McDade hav 26. been identified only as "Officer Knouse Badge # 5931" hereinafter, Knouse # 5931 and hi 27. Page 4 of15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE ' 1. "Supervisor" hereinafter Supervisor and "Second Officer" hereinafter known as "Unkno 2. Officer" (all hereinafter collectively "Infringers"); 3. 3. At the time of the "traffic/transportation stop," McDade was "arrested" which amounted t 4. McDade being seized, accosted, and unlawfully imprisoned by the Infringers upon the initiatio 5. of the stop for the purpose of issuing Citation Number(s) 14092560, 14092561. This fact i 6. attested to by the Infringers admittance of such at the time of "traffic/transportation stop.' 7• McDade was forcibly issued Citation Number(s) 14092560, 14092561 under threat, duress, an 8. coercion by the Infringers. 9. 4. At the time of the "traffic/transportation stop", and unlawful imprisonment 10. requested to speak to the Knouse# 5931 's Supervisor (name to be determined), during whic 11. time another officer "Unknown Officer" arrived; when Knouse # 5931 's Supervisor arrive 12. McDade informed the Supervisor of the situation and the Supervisor and other "Unkno 13. Officer" all of the above identified officers took part in and allowed the unlawful imprisonmen 14. to continue until forcibly issued Citation Number(s) 14092560, 14092561 were completed. 15. 5. At the time of the "traffic/transportation stop", and unlawful imprisonment McDade wa 16. traveling viatically upon the public right-of-way in a private conveyance for his own privat 17. business and pleasure while utilizing due diligence and care to ensure that his actions did no 18. cause harm to other person(s) or property and no such harm had taken place. 19. 6. McDade was not engaged in causing harm to any person, property, or thing, nor was McDad 20. providing the Infringers with any probable cause to believe that McDade was'' engaging in an 21. actions to cause harm to any person(s) or property, or thing but, McDade was still stopped 22. seized, accosted, and unlawfully imprisoned by the Infringers without any apparent probabl 23. cause to believe such activities were taking place. 24. 7. McDade asserts that at the time of the "traffic/transportation stop" he was not causing harm 25. to any person or property or being violent in any way. McDade asserts that he is/was doing 26. nothing more than exercising a unalienable, substantive Right and liberty to Travel freely an 27. unencumbered and the use of his private property for Private Travel. Page 5 of15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. THIRD CAUSE OF ACTION 2. TRESPASS 3. 4. JURISDICTION 5. 6. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein. 7. 8. 9. Facts of Incident 10. The issue of the acts of Judicial Misconduct by Mrs. Sherry M. Statman is detailed as follows: 11. McDade received a traffic citation from the City of Austin Police Dept., McDade filed documents in the Austin Municipal Court in answer to said citation in the form of a Special 12. Appearance Challenging Personal and Subject matter Jurisdiction and Venue I motion to 13. dismiss, a Declination to Plea and an Affidavit of not Engaged in Transportation, to show on the record that the court nor STATE had any lawful jurisdiction over the matter or McDade. 14. There was never any proper and timely notice to McDade by the court at the time of the filing o 15. McDade's documents, as can be proven by the attached docket call print out from the court 16. website; of an Information that still to this day does not exist (the primary pleading of the STATE) pursuant to U.S. Const. Amend VI, Tex. Const. Art. 1 Sec 10; which vacated 17. irreparably any personal jurisdiction by lack of proper and timely action by the court (latches). 18. The court and /or Plaintiff do not have any proof of subject matter jurisdiction in the form of 19. fact, law, and evidence on the record that McDade was engaged in the regulatible Commercial activity of Transportation, which the lack of vacates subject matter jurisdiction. For the/them to 20. prove subject matter jurisdiction they have to prove that the statue gives them jurisdiction in this 21. particular alleged offence and prove every element as to what grants them jurisdiction over McDade. The Affidavit Not in Transportation proves conclusively that neither the court nor 22. Plaintiff has such evidence. 23. The Special Appearance/ motion to dismiss addresses both the lack of notice issue and the lack 24. of subject matter /evidence issue, so you can see the validity of McDade's challenge to both 25. instances of jurisdiction; and my reason to decline to plea to a court lacking not only jurisdiction but also standing. At the present time the court and the Plaintiff are moving forward absent any 26. lawful jurisdiction. 27. Page 6 of15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. After filing papers in this matter Mrs. Sherry M. Statman sent an order to McDade in the mail addressing his filings in a rude and threatening manner. 2. 3. Jurisdiction is not accomplished simply by physicality as presumed by Mrs. Sherry M. Statman in her order; this assertion of jurisdiction just by physicality claim is just a judicial avoidance 4. tactic, to avoid on point the true lack of jurisdiction issue. McDade is quite sure the arguments in 5. the (attached) documents that McDade filed, properly and completely address the critical issues. They are there for the whole world to see. 6. Mrs. Sherry M. Statman apparently does not understand that a challenge to jurisdiction and 7. determination of jurisdiction is always a civil matter, that in and of itself is never criminal; which 8. is a sad state for a presiding judge (or just a ploy to trick me into general appearance). 9. A special appearance to challenge jurisdiction of the court is proper until jurisdiction is proven on the record, and as is well known even to a laky like McDade is the fact subject matter can be 10. challenged at any time even on appeal. 11. McDade realizes that just the fact of challenging jurisdiction does not negate its existence, 12. however when challenged in fact, law, and evidence the court is absolutely obligated to stop all proceedings, meet the challenge with fact, law, and evidence on the record conclusively and 13. substantively before continuing not just give it lip service. 14. The challenge is civil, once jurisdiction has been properly established in the record as due process demands then and only then can the judge lawfully make the assertion that a special 15. appearance is no longer valid. 16. Mrs. Sherry M. Statman, especially as the presiding judge should be perfectly aware that the 17. moment that an individual makes a general appearance in-personam jurisdiction has been waved, 18. only by the making of a special appearance may a challenge to jurisdiction including in- personam jurisdiction be maintained by the accuse<!. 19. Mrs. Sherry M. Statman states in her (attached) order that there are no valid pretrial actions or 20. issues that have been raised. McDade did/does rebut and reject that presumption/assertion with 21. fact, law, and evidence on the record under oath. Another attempt to deny the truth, facts, and evidence and in turn McDade's rights. 22. McDade has a different viewpoint; McDade believes that a challenge to jurisdiction is a critically 23. valid issue in any action, against him or anyone for that matter especially a supposed criminal 24. one. 25. McDade also has never received from the court either a Magistration or an Examining Trial, bo very important probable cause determination proceedings, both due process violation issues. 26. 27. Page 7 ofl5 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. 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 2. someone (witness tampering) who is raising extremely valid issues before the court; ones the 3. court and Plaintiff must prove on the record before moving forward to merits: which by the way McDade has never seen the court and Plaintiff do, they just gloss over the necessary elements as 4. if they are secondary in nature or as stated in the order, one of physicality. 5. 6. This is not the first time McDade has had this type of experience with Mrs. Sherry M. Statman, McDade has included documents including a transcript from an earlier due process and 7. substantive rights violation encounter 7/26/2012. In this encounter McDade had filed similar documents with the Austin Municipal Court on an 8• alleged traffic violation. On McDade's second "visit" to the court McDade was brought into an 9. empty courtroom with only Mrs. Sherry M. Statman, the prosecutor, the clerk, and the court reporter (private hearing). 10. McDade was immediately verbally abused and threatened by Mrs. Sherry M. Statman; it was not 11. 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 12. M. Statman immediately left the courtroom, although she came quickly back when she was told 13. 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 b 14. 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 15. McDade was not learned enough to defend himself. 16. McDade believes that not only is this another instance of judicial misconduct, and ofwitness 17. tampering, by threat, duress, and coercion. McDade also believes it to be clearly a case of Malicious Abuse of Legal Process. 18. McDade is actually truly concerned for his safety in this court, over a silly alleged class C 19. misdemeanor. It's not like McDade has harmed someone. Actually to speak the truth in this 20. 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 21. breached that duty which is causing McDade immediate and direct harm by loss of liberty, emotional distress, loss of financial gain from time off work, and time to prepare for this action 22. against him plus costs. 23. 24. 25. 26. 27. Page 8 of 15 . . ----------------------------------------------------------- FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. FOURTH CAUSE OF ACTION 2. TRESPASS 3. 4. ON THE CASE 5. 6. JURISDICTION 7• 8. Paragaphs 1 through 7 are incorporated by reference as though fully stated herein. 9. 10. Facts of Incident 11. 12. The issue of Conspiratorial Treason and Conspiracy against Rights, Malicious Abuse of Legal 13. Process, Judicial Misconduct, and Contempt of Court by Judge Barbara L Garcia and. the 14. prosecutor Mrs. Devin Rourke is detailed as follows: 15. 16. McDade went to court on 02/04/2015 to file a common law Counterclaim for Trespass and Trespass on the Case in the Superior Court of Texas, concerning the traffic citation actions 17. against McDade, and go to a pre-trial hearing. 18. McDade filed the Counterclaim and also a Writ of Prohibition which explicitly states in no 19. 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- 20. motions in the action against him. 21. McDade "visited" the hearing by Special Appearance Challenging Jurisdiction. 22. As stated in the Counterclaim, McDade filed suit against Mrs. Sherry M. Statman, "Officer 23. Knouse Badge # 5931 ," "Supervisor," and "Second Officer". 24. 25. McDade verbally announced the presence of the Superior Court and that it was in session at the 26. beginning of the hearing. 27. McDade verbally accepted the oaths of all the officers of the court and bound them to it. Page 9 of15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. Mrs. Barbara L Garcia continued in the proceeding absent any lawful authority, committing fraud upon the court. 2. 3. 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. 4. Counterplaintiff was present in personam, and Counterdefendants, though absent, were represented by counsel. 5. The record shows (audio record, witness testimony, and Order of court) that the magistrate did 6. not conduct the hearing in accordance with the foundation rules of a court of record (Law of 7. 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 8. lawful rules of court, she imposed her own rules and at other points rules of another jurisdiction foreign to this court. 9. Further, without proper authority, the magistrate stepped out of her function as a magistrate and, 10. by her actions and statements, figuratively assumed the cloak of a tribunal. 11. The genius of a court of record is not to be undermined. It is the birthright of every American to 12. settle issues in a court of record, if he so chooses. 13. Throughout the audio record, the record shows that the rules of the court were not followed, that 14. the magistrate attempted to function as a tribtinal, and that the court was ineffective in furthering the goal of justice for all. These failures to follow the prescribed procedures are sufficiently 15. disruptive to the goal of providing fair justice to the degree that the court finds it necessary to 16. issue a writ of error quae coram nobis residant. 17. 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 18. complaints and the unlawful order. 19. When Mrs. Barbara L Garcia made a "order" at the hearing in the presence of the Superior Court 20. before witnesses she acted outside of her lawful capacity', under the color of law and committed an act of Treason by violating her oath of office, Judicial Misconduct, by acting as a "judge" in a 21. Superior Court ofRecord and was in contempt of The Superior Court. 22. The order McDade referred to in the previous paragraph was an order to not allow any motions 23. except discovery, Mrs. Barbara L Garcia stated in the order that all discovery was handed over to McDade, which is not factual. 24. 25. The Discovery motion requests multiple other pieces of evidence that Plaintiff did not provide, and of the one they did provide, the CD with the video ofthe "traffic stop" it is missing the video 26. or is defective. 27. Page 10 of 15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. McDade had also filed a motion for nature and cause, which is his substantive right, Plaintiff only provided McDade with a copy of each of the complaints, a complaint is not nature and 2. cause in the form of an Information pursuant to the U.S Const. Amend. VI and Texas 3. Constitution Art.1 Sec. 10. 4. Mrs. Barbara L Garcia and the prosecutor Mrs. Devin Rourke worked in concert to accomplish 5. these felony acts of Conspiratorial Treason, Conspiracy against The Superior Court and Conspiracy against McDade's substantive Rights, Judicial Misconduct, Fraud upon the court, 6. and Contempt all under the color of law. Title 18 USC. 241, 242. 7. Mrs. Barbara L Garcia and prosecutor Mrs. Devin Rourke failed to even so much as look at 8. McDade's filings or simply chose to ignore them at their own peril, before committing these acts; they also failed to object to any of McDade's filings on the record. As the record shows. 9. (Latches) 10. Mrs. Barbara L Garcia and the prosecutor Mrs. Devin Rourke also worked in concert to continue 11. the Malicious Abuse of Legal Process, heretofore being perpetrated against McDade. 12. 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, 13. which the Plaintiff and the ·court have lacked and have yet to prove with facts, law and evidence 14. on the record, from the moment the "traffic stop" was initiated. 15. According to the common law there can be no crime without an injured party claiming palpable harm, no such party exists in this matter, also in the common law is the prohibition of any 16. official being a complaining party or a witness for an alleged crime against a free man. 17. (Magna Carta) 18. 19. 11. Because of the actions committed with actual and implied force McDade was immediately 20. and directly injured and suffered loss ofliberty, and was Aggravatedly imprisoned, and is being 21. prosecuted under color of law. 22. 23. 12. Counterdefendants had/have a duty to not cause McDade to be Aggravatedly imprisoned, 24. and be prosecuted under color oflaw, and to not cause loss ofliberty. Further, counterdefendants 25. had/have a duty to prove jurisdiction when objection to jurisdiction is asserted. 26. 27. 13. Counterdefendants have breached these duties. Page 11 of 15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. 2. 14. The damages for the injury caused by counterdefendants' actions are $5,000.00 per day for 3. unlawful constructive and actual, unlawful, aggravated imprisonment, violation of due process 4• rights, violation of rights to liberty, multiple threats and acts of coercion. 5. 6. 7. LAW OF THE CASE 8. 9. 10. 15. Exhibit "A" is incorporated by reference as though fully stated herein. 11. 12. 13. 14. 15. 16. REQUEST FOR RELIEF 17. 18 . 16. For that cause of action therefore McDade brings his suit. 19. 20 . 17. WHEREFORE, McDade requests relief and judgment against Counterdefendants as follows: 21. 22. On all causes of action: 23. 2 4. 18. For general damages in the sum of$5,000.00 per day for constructive and actual unlawful, 25 . aggravated imprisonment, violation of due process rights, violation of rights to liberty, multiple 26. threats and acts of coercion, and for having to contend with this frivolous matter. 27. Page 12 of 15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1· 19. For loss of earnings according to proof; 2. 3· 20. That the court enter a declaratory judgment that counterdefendants have acted arbitrarily and 4• capriciously, have abused their discretion and have acted not in accordance with law, but under 5. color of law; 6. 7· 21. That the court enter a declaratory judgment that counterdefendants have acted contrary to 8. constitutionally protected right, power or privilege. 9. 10 . 22. That the court enter a declaratory judgment that counterdefendants' actions were in excess of 11 · statutory jurisdiction, authority and short of statutory right. 12. 13 · 23. That the court enter a declaratory judgment that permanently enjoins counterdefendants' and 14 · THE STATE OF TEXAS from interfering in any way with McDade's lawful right to Travel 15 . freely and unencumbered; 16 · 24. That the court permanently enjoin counterdefendants from interfering in any way with 17. McDade's lawful right to Travel freely and unencumbered; 18. 19 · 25. That the court enter a declaratory judgment that the records of the court not of record are 20 . impeached for want of jurisdiction in the Court or judicial officers, for collusion between the 21 . parties, and/or for fraud in the parties offering the record, in respect to the proceedings; 22 . 26. That the court grant McDade his-attorneys fees; 23 . 27. That the court grant McDade such other and further relief as the court deems proper; 24 • 29. For interest as allowed by law; and 2 5. 30. For costs of suit incurred. 26. 27. Page 13 of15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1· 31. I have read and am aware of the foregoing writing. I have personal knowledge of the 2· foregoing facts and am competent to testify as to the truth of those facts if called as a witness. 3. 4. 5. Seal.______________ 6. 7. David Kent McDade 8. 9. 10. MCDADE'S CONTACT INFORMATION 11. Contact information for McDade is as follows: 12. David Kent McDade 13. 310 E. Brenham St. 14. Elgin, Texas 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. Page 14 of 15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. VERIFICATION 2. 32. STATE OF TEXAS § § KNOW ALL MEN BY THESE PRESENTS 3. COUNTY OF TRAVIS § 4. Before me, the undersigned Notary, personally appeared David Kent McDade in this matter, wh 5. satisfied me as to his identity, and who, upon administration of oath or affirmation by me, declared an deposed as follows: 6. I, David Kent McDade. I am at least 21 years of age, and I am competent to make this Affidavit. have personal knowledge of these facts and attest under penalty of perjury the facts stated in thi 7. document are true and correct. 8. I, one of the People ofTexas, Assert and Reserve all my unalienable rights, privileges and immunitie at Natural Law, Common Law and Maritime Law and all my respective commercial rights relevant t 9. a place called ''this state." Affiant does not consent to nor in any way waive any of my rights in whol or in part, nor does Affiant authorize or consent to any violation of those rights by any of Affiant' 10. public servants or any other Corporate Entities. 11. The facts stat~d in this motion, are true and correct. 12. Further, Affiant sayeth not. David Kent McDade, Affiant 13. Notary Stamp 14. Signed and Affirmed to before me on this the _ _ _ day of 15. _ _ _ _ _ _ _ _ _ _ _ _ _ (monili)20 rye~) 16 • for which witness my seal and signature. 17. 18. Notary Signature: - - - - - - - - - - - - - - - - - - 19. CERTIFICATE OF SERVICE 20. By my signature belaw, I certify that on this the 2nd day of March, 2015, 1 have no idea who shoul 21. be served with a true and correct copy of this document, because there is no competent chargin instrument, much less one showing a name or address for service of such documents on the Plaintiff b 22. McDade In other words, no one has made any Appearance on the Plaintiff's behalf. Therefore, it i delivered by hand to the court clerk to whoever shows up on the Plaintiff's behalf. If that is no one, the 23. there is nothing served as of this date. 24. 25. 26. David Kent McDade, Affiant 27. Page 15 of 15 FIRST AMENDED ACTION FOR TRESPASS AND TRESPASS ON THE CASE 1. I. LAW OF THE CASE 2. The law of the case is decreed as follows: 3. 4. Justice and judgment are the habitation of thy throne Mercy and truth shall go before thy face. - Psa 89:14 5. Do justice tq the afflicted and the needy. Psa. 82:3 6. 7. 8. SUPERIOR COURT 9. Origin of the term "superior court". 10. In common law systems, a superior court is a court of general competence which typically has 11. unlimited jurisdiction with regard to civil and criminal legal cases. A superior court is "superior" 12. relative to a court with limited jurisdiction, which is restricted to civil cases involving monetary amounts with a specific limit, or criminal cases involving offenses of a less serious nature. A 13. superior court may hear appeals from lower courts. 14 .. The term "superior court" has its origins in the English court system. The royal courts were the highest courts in the country, with what would now be termed supervisory jurisdiction over 15. baronial and local courts. Decisions of those courts could be reviewed by the royal courts, as part 16. of the Crown's role as the ultimate fountain of justice. The royal courts became known as the "superior courts", while lower courts whose decisions could be reviewed by the royal courts 17. became known as "inferior courts". The decision~ of the superior courts were not reviewable or appealable, unless an appeal was created by statute. 18. 19. To constitute a court a superior court as to any class of action within the common -law meaning of that term; its jurisdiction of such actions must be unconditional, so that the only thing requisit 20. to enable the court to take cognizance of them is the acquisition of jurisdiction of the persons of the parties. Simons v. De Bare, 4 Bosw., N .. Y. 21. A statutory or constitutional court (whether it be an appellate or supreme court) may not second 22. guess the judgment of a common law court of record. The Supreme Court of the USA 23. acknowledges the common law as supreme: "The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is 24. as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, 25. by deciding it." Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. .BUSTAMONTE, 412 U.S. 218, 255 (1973)] 26. "Henceforth the writ which is called Praecipe shall not be served on any one for any holding so 27. as to cause a free man to lose his court." [Magna Carta, Article 34]. Page 1 of31 EXHIBIT A-- LAW OF THE CASE 1. COURT. 1. The person and suit of the sovereign; the place where the sovereign sojourns with his 2. regal retinue, wherever that may be. [Black's Law Dictionary, 5th Edition, page 318.] 3. 2. An agency of the sovereign created by it directly or indirectly under its authority, consisting o 4. one or more officers, established and maintained for the purpose of hearing and determining issues of law and fact regarding legal rights and alleged violations thereof, and of applying the 5. sanctions of the law, authorized to exercise its powers in the course of law at times and places 6. previously determined by lawful authority. [Isbill v. Stovall, Tex.Civ.App., 92 S.W.2d 1067, 7. 1070; Black's Law Dictionary, 4th Edition, page 425] 8. COURT OF RECORD. To be a court of record a court must have four characteristics, and may 9. have a fifth. They are: 10. 1. A judicial tribunal having attributes and exercising functions independently of 11. the person of the magistrate designated generally to hold it [Jones v. Jones, 188 12. Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 13. 689][Black's Law Dictionary, 4th Ed., 425, 426] 14. 2. Proceeding according to the course of common law [Jones v. Jones, 188 15. Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per 16. Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 17. 689][Black's Law Dictionary, 4th Ed., 425, 426] 18. 19. 3. Its acts and judicial proceedings are enrolled, or recorded, for a perpetual 20. memory and testimony. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal225; Erwin v. U.S., 21. D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 22. 229,231] 23. 4. Has power to fine or imprison for contempt. [3 Bl. Comm. 24; 3 Steph. Comm. 24. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal225; 25. Erwin v. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 26. 205, 117 N.E. 229, 231.][Black's Law Dictionary, 4th Ed., 425, 426] / 27. 5. Generally possesses a seal. [3 Bl. Comm. 24; 3 Steph. Comm. 383; The Page 2 of31 EXHIBIT A -- LAW OF THE CASE 1. Thomas Fletcher, C.C.Ga., 24 F. 481; Ex parte Thistleton, 52 Cal225; Erwin v. 2. U.S., D.C.Ga., 37 F. 488, 2 L.R.A. 229; Heininger v. Davis, 96 Ohio St. 205, 117 N.E. 229, 231.][Black's Law Dictionary, 4th Ed., 425, 426] 3. 4. 5. 6. SOVEREIGNTY 7. Constitution for the United States of America 8. Preamble 9. We the people ... do ordain and establish this Constitution ... 10. 11. 12. The Texas Constitution 13. Preamble 14. Humbly invoking the blessings of Almighty God, the people of the State of Texas, d 15. ordain and establish this Constitution. 16. The Texas Constitution 17. Article 1. Bill of Rights 18. 19. Sec. 2. Inherant Political Power; Republican Form of Government. All political power i 20. inherent in the people, and all free governments are founded on their authority, and instituted fo 21. their benefit. The faith of the people of Texas stands pledged to the preservation of a republic I 22. form of government, and, subject to this limitation only, they have at all times the inalienabl 23. right to alter, reform or abolish their government in such manner as they may think expedient. 24. ... at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of 25. the country, but they are sovereigns without subjects ... with none to govern but themselves ..... 26. [CHISHOLM v. GEORGIA (US) 2 Dall419, 454, 1 LEd 440,455 @DALL (1793) pp471-472 27. The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American Page 3 of31 EXHIBIT A --LAW OF THE CASE 1. Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas. 1047 2. 3. The sovereignty ofthe United States resides in the people and Congress cannot invoke the sovereignty of the people to override their will as declared in the Constitution. P. 294 U.S. 353. 4. Perry v. United States 294 U.S. 330 (1935) 5. President's Executive Order 6. (b) The Constitution created a Federal Government of supreme, but limited, powers. The 7. sovereign powers not granted to the Federal Government are reserved to the people or to the 8• States, unless prohibited to the states by the Constitution. (d) The people ofthe States are at liberty, subject only to the limitations in the Constitution itsel 9. or in Federal law, to define the moral, political, and legal character of their lives. Executive Order 13083- Federalism 10. May 14,1998 11. Government: Republican Government. One in which the powers ofsovereignty are vested in the 12. people and are exercised by the people, either directly, or through representatives chosen by the people, to whom those powers are specially delegated. In re Duncan, 139 U.S. 449, 11 S.Ct. 573, 13. 35 L.Ed. 219; Minor v. Happersett, 88 U.S. (21 Wall.) 162, 22 L.Ed. 627. Black's Law Dictionary, Fifth Edition, p. 626 14. "'Sovereignty' means that the decree of sovereign makes law, and foreign courts cannot 15. condemn influences persuading sovereign to make the decree." Moscow Fire Ins. Co. of Moscow, Russia v. Bank ofNew York & Trust Co., 294 N.Y.S. 648,662, 161 Misc. 903. 16. The people of this State, as the successors of its former sovereign, are entitled to all the 17. rights 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, 18. 228; 37 C Nav.Wat. Sec. 219; Nuls Sec. 167; 48 C Wharves Sec. 3, 7.] 19. A consequence ofthis prerogative is the legal ubiquity of the king. His majesty in the eye 20 . of the law is always present in all his courts, though he cannot personally distribute justice. (Fortesc.c.8. 2Inst.186) His judges are the mirror by which the king's image is 21. reflected. 1 Blackstone's Commentaries, 270, Chapter 7, Section 379. 22. 23. RESERVATION OF SOVEREIGNTY: "Even if the Tribe's power to tax were derived solei from its power to exclude non-Indians from the reservation, the Tribe has the authority to impos 24. the severance tax. Non-Indians who lawfully enter tribal lands remain subject to a tribe's powe to exclude them, which power includes the lesser power to tax or place other conditions on th 25. non-Indian's conduct or continued presence on the reservation. The Tribe's role as commercia partner with petitioners should not be confused with its role as sovereign. It is one thing to fm 26. that the Tribe has agreed to sell the right to use the land and take valuable minerals from it, an 27. quite another to find that the Tribe has abandoned its sovereign powers simply because it has no Page 4 of31 EXHIBIT A - LAW OF THE CASE 1. expressly reserved themthrough a contract. To presume that a sovereign forever waives the righ to exercise one of its powers unless it expressly reserves the right to exercise that power in 2. commercial agreement turns the concept of sovereignty on its head. Merrion v. Jicarilla Apach 3. Tribe; Amoco Production Company v. Jicarilla Apache Indian Tribe, 455 U.S. 130, 131, 10 S.Ct. 894, 71 L.Ed.2d 21 (1981) 4. Bond v. U.S. SCOTUS recognizes personal sovereignty, June 16,2011 5. It is the public policy of this state that public agencies exist to aid in the conduct of the people's 6. business .... The people of this state do not yield their sovereignty to the agencies which serve them. [California Government Code, Section 11120.] 7. 8. In enacting this chapter, the Legislature finds and declares that the public commissions, boards and councils and the other public agencies in this State exist to aid in the conduct of the people's 9. business.... The people of this State do not yield their sovereignty to the agencies which serve them. [California Government Code Section 54950.] 10. 11. Limits of Government 12. THE Conventions of a number of States, having at the time of their adopting the Constitution, 13. expressed a desire, in order to prevent misconstruction or abuse of its powers that further declaratory and restrictive clauses should be added. U.S. Congress 1789- Bill of Rights. 14. Bill ofRights. 15. 16. Amendment IX. The enumeration in Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. 17. Amendment X. The powers not delegated to the United States by the Constitution, nor prohibite 18. by it to the States, are reserved to the States respectively, or to the people. 19. The Texas Constitution 20. Article 1. Bill of Rights 21. Sec. 2. Inherent Political Power; Republican Form of Government. All political power i 22. inherent in the people, and all free governments are founded on their authority, and instituted fo 23. 24. their benefit. The faith of the people of Texas stands pledged to the preservation of a republic 25. form of government, and, subject to this limitation only, they have at all times the inalienabl 26. right to alter, reform or abolish their government in such manner as they may think expedient. 27. Page 5 of31 EXIUBIT A --LAW OF THE CASE 1. 2. Notice and Choice of Law 3. The very meaning of 'sovereignty' is that the decree of the sovereign makes law. [American 4. Banana Co. v. United Fruit Co., 29 S.Ct. 511, 513, 213 U.S. 347, 53 L.Ed. 826, 19 Ann.Cas. 5. 1047 6. A written law is that which is promulgated in writing, and of which a record is in existence. 7. COMMON LAW GOVERNS. The rule of procedure in any particular state of case which may 8. arise, the rules of the common law shall be applied and govern, the common law drawn from the Magna Carta where applicable. 9. 10. Confirmatio Cartarum This document is a bridge between the Constitutional protection of one's access to the commo 11. law, and the Magna Carta. The modem value of the following is that it links the Magna Carta t 12. the Common Law. The U.S. Constitution guarantees one's access to the Common Law, i.e. th Magna Carta. (See the next to last line of the first paragraph.) 13. ... that they cause the foresaid charters to be published, and to declare to the people that we have 14. confirmed them in all points; (3) and that our justices, sheriffs, mayors, and other ministers, which under us have the laws of our land to guide, shall allow the said charters pleaded before 15. them in judgement in all their points, that is to wit, the Great Charter as the common law[*] and 16. ihe Charter of the forest, for the wealth of our realm. 17. [*] This reaffirms that the Magna Carta may be pleaded as the Common Law before a court. 18. In the Confirmation's second article, it is confirmed that 19. if any judgement be given from henceforth contrary to the points of the charters aforesaid by the 20. 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. r 21. 22. MAGNA CARTA 23. 24. 1. First of all have granted to EL, and, for us and for our 25. heirs forever, have confirmed, by this our present charter, that the English church shall be free and shall have its 26. rights intact and its liberties uninfringed upon. And thus we 27. will that it be observed. As is apparent from the fact that Page 6 of31 EXIDBIT A --LAW OF THE CASE 1. we, spontaneously and of our own free will, before discord broke out between ourselves and our barons, did grant and by 2. our charter confirm--and did cause the lord pope Innocent III, 3. to confirm--freedom of elections, which is considered most important and most necessary to the church of England. Which 4. charter both we ourselves shall observe, and we will that it be observed,with good faith by our heirs forever. We have also 5. granted to all free men of our realm, on the part of ourselves and our heirs forever, all the subjoined liberties, to have and 6. to hold, to them and to their heirs, from us and from our 7. heirs: 8. 20. A freeman shall only be amerced for a small offence according to the measure of that offence. And for a 9. great offence he shall be amerced according to the magnitude of the offence, saving his contenement; and a 10. merchant, in the same way, saving his merchandize. And a 11. villein, in the same way, if he fall under our mercy, shall be amerced saving his wainnage. And none of the 12. aforesaid fines shall be imposed save upon oath of upright men from the neighbourhood 13. 21. Earls and barons shall not be amerced save through, 14. their peers, and only according to the measure of the offence. 15. 24. No sheriff, constable, coroners, or other bailiffs of ours 16. shall hold the pleas of our crown. 17. 28. No constable or other bailiffof ours shall take the corn or other chattels of any one except he straightway give 18. money for them, or can be allowed a respite in that regard by 19. the will of the seller. 20. 30. No sheriff nor bailiff of ours, no any one else, shall take the horses or carts of any freeman for transport, unless 21. by the will of that freeman. 22. 31. Neither we nor our bailiffs shall take another's wood for 23. castles or for other private uses, unless by the will ofhim to whom the wood belongs. 24. 32. We shall not hold the lands of those convicted of felony 25. longer than a year and a day; and then the lands shall be 26. restored to the lords of the fiefs. 27. 34. Henceforth the writ which is called Praecipe shall not be Page 7 of31 EXHIBIT A -- LAW OF THE CASE 1. served on any one for any holding so as to cause a free man to lose his court. 2. 3. 36. Henceforth nothing shall be given or taken for a writ of inquest in a matter concerning life or limb; but it shall be 4. conceded gratis, and shall not be denied. 5. 38. No bailiff, on his own simple assertion, shall henceforth put any one to his law, without producing faithful witnesses 6. in evidence. 7. 39. No freeman shall be taken, or imprisoned, or disseized, 8. or outlawed, or exiled, or in any way harmed--nor will we go upon or send upon him--save by the lawful judgment of his peers 9. or by the law ofthe land 10. 40. To none will we sell, to none deny or delay, right or 11. justice. 12. 41. All merchants may safely and securely go out of England, and come into England, and delay and pass through England, as 13. well by land as by water, for the purpose of buying and selling, free from all evil taxes, subject to the ancient 14. and right customs--save in time of war, and if they are of 15. 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 16. 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 17. 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 18. be safe in our land. 19. 42. Henceforth any person, saving fealty to us, may go out 20. ofour realm and return to it, safely and securely, by land and by water, except perhaps for a briefperiod in time of war, 21. for the common good ofthe realm. But prisoners and outlaws are excepted according to the law of the realm; also people 22. of a land at war against us, and the merchants, with regard 23. to whom shall be done as we have said. 24. 45. We will not make men justices, constables, sheriffs, or bailiffs, unless they are such as know the law ofthe realm, 25. and are minded to observe it rightly. 26. 48. All evil customs concerning forests and warrens, and 27. concerning foresters and warreners, sheriffs and their Page 8 of31 EXIDBIT A -- LAW OF THE CASE 1. servants, river banks and their guardians, shall straightway be inquired into in each county, through twelve sworn knights 2. from that county, and shall be eradicated by them, entirely, 3. so that they shall never be renewed, within forty days after. the inquest has been made; in such manner that we shall frrst 4. know about them, or our justice if we be not in England. 5. 52. If anyone shall have been disseized by us, or removed, without a legal sentence ofhis peers, from his lands, castles, 6. liberties or lawful right, we shall straightway restore them to 7. him. And if a dispute shall arise concerning this matter it shall be settled according to the judgment of the twenty-five 8. barons who are mentioned below as sureties for the peace. But with regard to all those things of which any one was, by king 9. Henry our father or king Richard our brother, disseized or dispossessed without legal judgment of his peers, which we 10. have in our hand or which others hold, and for which we ought 11. to give a guarantee: We shall have respite until the common term for crusaders. Except With regard to those concerning 12. which a plea was moved, or an inquest made by our order, before we took the cross. But when we return from our pilgrimage, or THE COURT COMES NOW to review the facts, record, and process resulting in the ruling by Sherry M. Statman dated March 3, 2015_ The record shows (Order of court) (copy attached) that the magistrate of the City of Austin Municipal Court 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; after having been previously informed multiple times of her position as a magistrate in the Superior Court of Record through The Law of the Case, Writs of Error, and a Writs of Prohibition filed in the record. 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. 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. 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 as follows: THE COURT, HAVING REVIEWED THE FACTS, THE RECORD, AND THE PROCESS BY WHICH THE RULING WAS ISSUED, and finding that the magistrate absent any lawful Page 1 of2 WRIT OF ERROR jurisdiction rendered a ruling by applying rules from several jurisdictions foreign to this court without leave of court; and finding that the orderly decorum of the court was replaced by defective impromptu process and usurpation of legislative and court powers without leave of court, And, finding that the lower courts orders were in error. And, desiring that fair justice be served for all parties, Counterdefendants as well as Counterplaintiff, NOW THEREFORE, THE COURT issues this WRIT OF ERROR QUAE CORAM NOBIS RESIDANT, to wit: The court rescinds this ruling entered March 3, 2015. Further, the magistrate, counterplaintiff, and counterdefendants are invited to each file and serve on all other interested parties an answer to the First amended Action no later than March 12, 2015 Further, the court desires to inform all the magistrates of above said inferior court (City of Austin Municipal Court) that Counterplaintiffwas /is not a defendant in the inferior court, by the filing of the Counterclaim For Trespass and Trespass on the Case dated 1/4/2015 and later followed by the First Amended Action for Trespass and Trespass on the Case dated 3/2/2015, he is a Counterplaintiffin the Superior Court ofRecord. Further, the court desires to inform any and all of the magistrates including but not limited to Mrs. Sherry M. Statman of above said inferior court that if any further rulings are made by said magistrates they shall be found in contempt of the Superior Court and shall face sanctions according to the rules of the Superior Court of Record. (LAW OF THE CASE Pg. 26line 5, CONTEMPT OF COURT) Further, thy magistrate, counterplaintiff, and coimterdefendants are invited to each file and serve on all other interested parties a brief no later than March 12, 2015 to show cause to this court why this order should not take effect or should be modified. The court, mindful of the rights of the parties and the importance of fair play, will liberally construe the arguments presented. THE COURT David McDade WITNESS: the SEAL ofthe COURT 310 E. Brenham St. this Sixth day of March, 2015 Elgin, Texas Seal Attomatus Privatus --------------------------- David McDade Attomatus Privatus Page 2 of2 WRIT OF ERROR STATE OF TEXAS, § in the SUPERIOR COURT OF TEXAS Plaintiff, § OF PUBLIC RECORD v. § AUSTIN, TEXAS David Kent McDade, § TRAVIS COUNTY, Texas Respondent, § ·-------------------------------------------------------------- § David Kent McDade, Coram Ipso Rege § WRIT OF PROHffiiTION Coram Nobis5, § Counterplaintiff § DECREED V. § § CITATION NUMBER(s) 14092560, §14092561 "Officer Knouse Badge # 5931 ," § "Supervisor," "Second Officer," Sherry M. § Date: February 25, 2015 Statman, Barbara L. Garcia, Devin Rourke, § § Counterdefendants § -----------------------------------------------------------------§ ___________________________________________________________ . WRIT OF PROHIBITION11S As is custom in these Peoples' courts of Justice judges2, as they have been cunningly educated to perform, illegally initiate equity law in place of common law3, which is fraud on the court. Experience has shown that these inferior courts are obstinate in their seizing of jurisdiction and thereby obstruct justice, thus we fmd it necessary to redress the issue beforehand, preventing the delay of justice, by means of this extraordinary writ of prohibition clearly 20 stating ObstaPrincipiis4 against Nisi Prius5, that is to say "We the Jury resists the first encroachment" and proceed according to the supreme6 common law of the land7, Coram Nobis 8.Therefore this Superior Court ofRecord9 prohibits the inferior court not of record from assuming jurisdiction in this matter over which it has no control or legitimate authority.10'And its judge is to function as Magistrate 1125 . (see law of the case) Signed by ORDER and on behalf of the SUPERIOR COURT OF TEXAS. ·seal._________ David Kent McDade Attornatus Privatus Page 1 of3 WRIT OF PROHIBITION 1 It is only issued in cases of extreme necessity where the grievance cannot be redressed by ordinary proceedings at law, or in equity, or by appeal. Niagara Falls Power Co. v. Halpin, 45 N.Y.S.2d 421, 424, 181Misc. 13; State ex rei. Levy v. Savord, 143 Ohio St. 451,55 N.E.2d 735, 736.; An extraordinary judicial writ issuing out of a court of superior jurisdiction, directed to an inferior court or tribunal exercising judicial powers, for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not lawfully vested, State v. Stanfield, 11 Okl.Cr. 147, 143 P. 519, 522; from assuming or exercising jurisdiction over matters beyond its cognizance, Jackson v. Calhoun, 156 Ga. 756, 120 S.E. 114, 115; or from exceeding its jurisdiction in matters of which it has cognizance. Jackson v. Calhoun, 156 Ga. 756, 120 S.E. 114, 115; The writ of prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal, corporation, board, or person, when such proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board, or person. Code Civ.Proc.Cal. § 1102. State v. Packard, 32 N.D. 301, 155 N.W. 666,667. Johnston v. Hunter, 50 W.Va. 52,40 S.E. 448. State v. Evans, 88 Wis. 255, 60 N.W. 433. 2 CHANCELLOR. In American law, this is the name given in some states to the judge (or the presiding judge) of a court of chancery.; COURT OF CHANCERY. A court having the jurisdiction of a chancellor; a court administering equity and proceeding according to the forms and principles of equity. In England, prior to the judicature acts, the style of the court possessing the largest equitable powers and jurisdiction was the "high court of chancery." In some of the United States, the title "court of chancery" is applied to a court possessing general equity powers, distinct from the courts of common law. Parmeter v. Bourne, 8 Wash. 45, 35 P. 586; Bull v. International Power Co., 84 N.J.Eq. 209, 93 A. 86, 88. The terms "equity" and "chancery," "court of equity" and "court of chancery," are constantly used as synonymous in the United States. It is presumed that this custom arises from the circumstance that the equity jurisdiction which is exercised by the courts of the various states is assimilated to that possessed by the English courts of chancery. Indeed, in some of the states it is made identical therewith by statute, so far as conformable to our institutions. Wagner v. Armstrong, 93 Ohio St. 443, 113 N.E. 397, 401. 3 Common law Black's Law 4th edition, 1891 -As distinguished from equity law, it is a body of rules and principles, written or unwritten, which are of fixed and immutable authority, and which must be applied to controversies rigorously and in their entirety, and cannot be modified to suit the peculiarities of a specific case, or colored by any judicial discretion, and which rests con-fessedly upon custom or statute, as distinguished from any claim to ethical superiority. [Klever v. Seawall, C.C.A.Ohio, 65 F. 395, 12 C.C.A. 661]. 4 OBSTA PRINCIPIIS. Lat. Withstand begin-nings; resist the first approaches or encroach- ments. Bradley, J., Boyd v. U.S., 116 U.S. 635, 6 Sup.Ct. 535, 29 L.Ed. 746. 5 NISI PRIUS COURT "Nisi prius" is a Latin term (Black's 5th) "Prius" means "first." "Nisi" means "unless." A "nisi prius" procedure is a procedure to which a party FIRST agrees UNLESS he objects. A rule of procedure in courts is that if a party fails to object to something, then it means he agrees to it. A nisi procedure is a procedure to which a person has failed to object A Page 2 of3 WRIT OF PROHIBITION "nisi prius court" is a court which will proceed unless a party objects. The agreement to proceed is obtained from the parties first. 6 Supremacy Clause - This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding. Article VI 7 "Law of the land," "due course oflaw," and "due process oflaw" are synonymous. People v. Skinner, Cal., 110 P.2d 41, 45; State v. Rossi, 71 R.I. 284, 43 A.2d 323, 326; Direct Plumbing Supply Co. v. City of Dayton, 138 Ohio St. 540, 38 N.E.2d 70, 72, 137 A.L.R. 1058; Stonerv. Higginson, 316 Pa. 481, 175 A. 527,531. 8 [Blacks Law] Before us ourselves, (the king, i. e., in the king's or queen's bench.) [tribunal pre- trial] CORAM NOBIS. [Blacks Law] Before us ourselves, (the king, i.e., in the king's or queen's bench.) Applied to writs of error directed to another branch of · The same court, e. g., from the full bench to the court at nisi prius. 1 Archb. Pr. K. B. 234. See Writ of Error. · 9 The decisions of an inferior court are subject to collateral attack. In other words, in a superior court one may sue an inferior court directly, rather than resort to appeal to an appellate court. Decision of a court of record may not be appealed. It is binding· on ALL other courts. However, no statutory or constitutional court (whether it be an appellate or supreme court) can second guess the judgment of a court of record. "The judgment of a court of record whose jurisdiction is final, is as conclusive on all the world as the judgment of this court would be. It is as conclusive on this court as it is on other courts. It puts an end to inquiry concerning the fact, by deciding it." [Ex parte Watkins, 3 Pet., at 202-203. [cited by SCHNECKLOTH v. BUSTAMONTE, 412 U.S. 218,255 (1973)]. 10 An extraordinary writ, issued by a superior court to an inferior court to prevent the latter from exceeding its jurisdiction, either by prohibiting it from assuming jurisdiction in a matter over which it has no control, or from going beyond its legitimate powers in a matter of which it ha'sjurisdiction. State v. Medler, 19 N.M. 252, 142 P. 376,377. 11 "A Court of Record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial". Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229; Ex parte Gladhill, 8 Mete. Mass., 171, per Shaw, C.J. See, also, Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689. Page 3 of3 WRIT OF PROIDBITION