No. 04-0499-CV
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Ronald F. Avery |
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In the District Court |
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Vs. |
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William E. West Jr.; David Welsch |
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25th Judicial District |
Plaintiff’s Brief on Immunity
In Support of Response to
Defendants’ Special Exceptions
TO THE HONORABLE JUDGE OF SAID COURT:
Now comes the Plaintiff, Ronald F. Avery, with his Brief on Immunity in support of his Response to Defendants’ Motion for Special Exceptions and shows this court the following:
Table of Contents
1. Court’s Power to Find and Apply the
True Doctrine of Immunity
2. Perception of the Source of
Sovereign Immunity
2.1. The King or State of Monarchy
2.1.1. The King Can Do No Wrong
2.1.2. King Lost Immunity to the extent
he granted property
2.2.1. The Opposite is true in the
formation of the United States
2.2.2. Eternal End of Civil Government
based upon Property
2.2.3. Root of Discretion and Prerogative
2.2.4. Limits of Governmental Power
2.2.5. Legislature cannot grant itself
Sovereign Immunity to harm
2.2.6. Abuse and misuse of Public Trust
2.2.7. Final Descent of Monarchy
2.2.8. Rise of Property Rights &
Limited Authority
2.2.9. The Great End and Purpose of Civil
Government
2.2.10. People possess Sovereignty forever
in United States and Texas
2.3. The State –
Oligarchy/Democracy/Collectivism v. Republic
3. Possession, Loss, and Waiver of
Sovereign Immunity
3.1. Possession and Loss of Sovereign
Immunity
3.3. Example & Sole Purpose of
Immunity
3.3.1. Immunity Protects Good Acts from
the Jealous
3.3.2. Immunity Protects Official from
mitigating the law
3.4. Sole
Purpose of Prerogative, Discretion & Immunity
3.5. Waiver of Immunity is foolishness
3.6. Sovereign Immunity & King’s
Prerogative unlawful
3.7. Governmental Immunity is only
available for good
3.8. Governments cannot legislate
sovereignty or immunity
3.8.1. Example of attempt to Seize
Sovereignty and Immunity
3.8.2. Result of attempt to steal
sovereignty and immunity to invade property
4. Decaying Governments adopt King’s
Prerogative & call it Immunity
4.1.1. Discretion under Prerogative
4.1.2. Purpose of Prerogative and Immunity
is to mitigate law
4.1.4. All Prerogative Discretion &
Immunity available only for good
4.1.5. Sovereign Immunity or State
Prerogative to Harm is Irrational
5. Government does what its officers,
officials and agents do
6. “Government can do no wrong”
violates all of history
7. If Power of Government Harms, Power
of Government must Restore
The Plaintiff would like to show the court the theory of recovery
which his claims rest upon in substantive law so that the Defendants can
prepare their defenses. To determine the extent of immunity afforded government
we must consider how the concept or doctrine of immunity is derived and what it
rests upon and how far it can extend and still remain lawful[1].
Therefore we are seeking the fundamental, essential law of immunity not the present
The original source of the idea of sovereign immunity sprang from the perception of a sovereign king that owned all property and all rights that accompany that ownership of that property. Hence, the notion of “the King can do no wrong.” He could do no wrong because no one else had any property or property rights that he could invade. This was considered to be absolute sovereignty. However, King John in 1215 signed the Magna Carta or Great Charter where he granted property and property rights to God, the Church of England and to the subjects. This act laid the foundation for the English constitutional body of law. After the signing of the Magna Carta it was then perceived that King John had limited sovereignty in that he could now do wrong when he invaded the property he had granted to God, the Church and to the subjects. This was also viewed as a waiver of immunity. If the King invaded the granted rights he would now be liable under the waiver of immunity. This began a slow but complete loss of sovereignty wherein the King granted more and more property and property rights to others.
The King can do no wrong[2]
and therefore the King is immune to all claims against him. The source of
property rights of man and men in
“Magna Carta: The
great charter. The name of a charter (or constitutional enactment) granted by
King John of
After King John signed the Magna Carta, an infringement by the King upon a property right he had granted in the said document became a royal waiver of immunity from the tort he committed. Prior to King John’s granting of rights to others he had absolute power and therefore could not invade the property of another for no one else had a property right. In England Property Rights and the Power that attends it, was a privilege granted to men by the King wherein the King agreed to waive immunity upon his infringement of those rights he granted.
“Preamble: John, by the grace of God, king of England, lord of Ireland, duke of Normandy and Aquitaine, and count of Anjou, to the archbishop, bishops, abbots, earls, barons, justiciaries, foresters, sheriffs, stewards, servants, and to all his bailiffs and liege subjects, greetings. Know that, having regard to God and for the salvation of our soul, and those of all our ancestors and heirs, and unto the honor of God and the advancement of his holy Church and for the rectifying of our realm, we have granted as underwritten by advice of our venerable fathers, Stephen, archbishop of Canterbury, primate of all England and cardinal of the holy Roman Church, Henry, archbishop of Dublin, William of London, Peter of Winchester, Jocelyn of Bath and Glastonbury, Hugh of Lincoln, Walter of Worcester, William of Coventry, Benedict of Rochester, bishops; of Master Pandulf, subdeacon and member of the household of our lord the Pope, of brother Aymeric (master of the Knights of the Temple in England), and of the illustrious men William Marshal, earl of Pembroke, William, earl of Salisbury, William, earl of Warenne, William, earl of Arundel, Alan of Galloway (constable of Scotland), Waren Fitz Gerold, Peter Fitz Herbert, Hubert De Burgh (seneschal of Poitou), Hugh de Neville, Matthew Fitz Herbert, Thomas Basset, Alan Basset, Philip d'Aubigny, Robert of Roppesley, John Marshal, John Fitz Hugh, and others, our liegemen.
“1. In the first place we have granted to God, and by this our present charter confirmed for us and our heirs forever that the English Church shall be free, and shall have her rights entire, and her liberties inviolate; and we will that it be thus observed; which is apparent from this that the freedom of elections, which is reckoned most important and very essential to the English Church, we, of our pure and unconstrained will, did grant, and did by our charter confirm and did obtain the ratification of the same from our lord, Pope Innocent III, before the quarrel arose between us and our barons: and this we will observe, and our will is that it be observed in good faith by our heirs forever. We have also granted to all freemen of our kingdom, for us and our heirs forever, all the underwritten liberties, to be had and held by them and their heirs, of us and our heirs forever.”[4]
As we can well see, even God and the church were granted freedom and rights from King John on June 15, 1215. Immunity then is perceived by men to arise from the possession of property and property right. King John began the monarchial descent from absolute power over all property and its associated immunity to stages of partial property rights and partial immunity. This descent flowed from his granting of rights to others which he could no longer infringe upon, thereby losing immunity. We see that where there is a want of property right and authority there is a want of immunity. When one lacks authority or right for his actions he is in want of immunity.
However, the very opposite is true in
“IF man in the state of nature be so free, as has been said; if he be absolute lord of his own person and possessions, equal to the greatest, and subject to no body, why will he part with his freedom? why will he give up this empire, and subject himself to the dominion and controul of any other power? To which it is obvious to answer, that though in the state of nature he hath such a right, yet the enjoyment of it is very uncertain, and constantly exposed to the invasion of others: for all being kings as much as he, every man his equal, and the greater part no strict observers of equity and justice, the enjoyment of the property he has in this state is very unsafe, very unsecure. This makes him willing to quit a condition, which, however free, is full of fears and continual dangers: and it is not without reason, that he seeks out, and is willing to join in society with others, who are already united, or have a mind to unite, for the mutual preservation of their lives, liberties and estates, which I call by the general name, property.”
“The great and chief end, therefore, of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property. To which in the state of nature there are many things wanting”[5]
John Locke perfected the law that establishes the sole purpose of government flowing from the property of mankind to be the protection of the lives, liberties and possessions of every member of the society governed and conversely that without this protection of life, liberty and possessions is to be in a state of nature without government at all.
“But whatever flatterers may talk to amuse people's understandings, it hinders not men from feeling; and when they perceive, that any man, in what station soever, is out of the bounds of the civil society which they are of, and that they have no appeal on earth against any harm, they may receive from him, they are apt to think themselves in the state of nature, in respect of him whom they find to be so; and to take care, as soon as they can, to have that safety and security in civil society, for which it was first instituted, and for which only they entered into it. And therefore, though perhaps at first, (as shall be shewed more at large hereafter in the following part of this discourse) some one good and excellent man having got a pre-eminency amongst the rest, had this deference paid to his goodness and virtue, as to a kind of natural authority, that the chief rule, with arbitration of their differences, by a tacit consent devolved into his hands, without any other caution, but the assurance they had of his uprightness and wisdom; yet when time, giving authority, and (as some men would persuade us) sacredness of customs, which the negligent, and unforeseeing innocence of the first ages began, had brought in successors of another stamp, the people finding their properties not secure under the government, as then it was, (whereas government has no other end but the preservation of * property) could never be safe nor at rest, nor think themselves in civil society, till the legislature was placed in collective bodies of men, call them senate, parliament, or what you please. By which means every single person became subject, equally with other the meanest men, to those laws, which he himself, as part of the legislative, had established; nor could any one, by his own authority; avoid the force of the law, when once made; nor by any pretence of superiority plead exemption, thereby to license his own, or the miscarriages of any of his dependents.** No man in civil society can be exempted from the laws of it: for if any man may do what he thinks fit, and there be no appeal on earth, for redress or security against any harm he shall do; I ask, whether he be not perfectly still in the state of nature, and so can be no part or member of that civil society; unless any one will say, the state of nature and civil society are one and the same thing, which I have never yet found any one so great a patron of anarchy as to affirm.”[6]
Government cannot legislate government immunity to invade
property rights of others. The Texas Legislature cannot declare their own
sovereign immunity for the invasion of the property rights of others. The Texas
Tort Claims Act and the
We see above that Locke is referring to the discretion given to
men of virtue in the beginning of civil societies to do good for the people.
But as time went on this was not an adequate safety to their properties and
this discretionary power was abused by those who later assumed princely roles
and office who were of a purpose contrary to the protection of the property of
those under their watch. We see that if property is not protected and a means
for redress of grievances against those in and out of government and government
itself is not provided for, that these property owners are not in a civil
society at all but in a state of nature devoid of government entirely. This
abandons the injured to an appeal only unto heaven for they have none on earth.
This concept applies to this 25th District Court in
“for men being all the workmanship of one omnipotent, and infinitely wise maker; all the servants of one sovereign master, sent into the world by his order, and about his business; they are his property, whose workmanship they are, made to last during his, not one another's pleasure: and being furnished with like faculties, sharing all in one community of nature, there cannot be supposed any such subordination among us, that may authorize us to destroy one another, as if we were made for one another's uses, as the inferior ranks of creatures are for our's. Every one, as he is bound to preserve himself, and not to quit his station wilfully, so by the like reason, when his own preservation comes not in competition, ought he, as much as he can, to preserve the rest of mankind, and may not, unless it be to do justice on an offender, take away, or impair the life, or what tends to the preservation of the life, the liberty, health, limb, or goods of another.”[7]
The source of governmental authority and immunity is by delegation only of each man’s unalienable right to accomplish the end[8] of which they create government. A government and its legislature cannot obtain more power than is held in each man by himself. A large group of men have no more authority than one man but it is their collection that creates the government. A group of men cannot delegate more right or power than is held in any one of the members. The state and federal legislature is limited in its authority and cannot make rules that exceed its delegated authority resident in the people.
“First, It is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people: for it being but the joint power of every member of the society given up to that person, or assembly, which is legislator; it can be no more than those persons had in a state of nature before they entered into society, and gave up to the community: for no body can transfer to another more power than he has in himself; and no body has an absolute arbitrary power over himself, or over any other, to destroy his own life, or take away the life or property of another. A man, as has been proved, cannot subject himself to the arbitrary power of another; and having in the state of nature no arbitrary power over the life, liberty, or possession of another, but only so much as the law of nature gave him for the preservation of himself, and the rest of mankind; this is all he doth, or can give up to the common-wealth, and by it to the legislative power, so that the legislative can have no more than this. Their power, in the utmost bounds of it, is limited to the public good of the society. It is a power, that hath no other end but preservation, and therefore can never* have a right to destroy, enslave, or designedly to impoverish the subjects. The obligations of the law of nature cease not in society, but only in many cases are drawn closer, and have by human laws known penalties annexed to them, to inforce their observation. Thus the law of nature stands as an eternal rule to all men, legislators as well as others. The rules that they make for other men's actions, must, as well as their own and other men's actions, be conformable to the law of nature, i.e. to the will of God, of which that is a declaration, and the fundamental law of nature being the preservation of mankind, no human sanction can be good, or valid against it.”[9]
Therefore Plaintiff cannot subject himself to the arbitrary power of the state legislature without power and its self appropriation of “sovereign immunity” to damage Plaintiff’s property without recourse.
A government that violates its ends and exceeds its delegated authority stands in want of immunity and waiver is not a question. Laws and Acts passed by a legislature that contradict the end for which governments and legislatures were formed are void and without substance and the courts are not bound to follow these procedures, rules and remedies that return men to the state of nature without an appeal.
“The legislative, or supreme authority, cannot assume to its self a power to rule by extemporary arbitrary decrees, but is bound to dispense justice, and decide the rights of the subject by promulgated standing laws, and known authorized judges: for the law of nature being unwritten, and so no where to be found but in the minds of men, they who through passion or interest shall miscite, or misapply it, cannot so easily be convinced of their mistake where there is no established judge: and so it serves not, as it ought, to determine the rights, and fence the properties of those that live under it, especially where every one is judge, interpreter, and executioner of it too, and that in his own case: and he that has right on his side, having ordinarily but his own single strength, hath not force enough to defend himself from injuries, or to punish delinquents. To avoid these inconveniences, which disorder men's properties in the state of nature, men unite into societies, that they may have the united strength of the whole society to secure and defend their properties, and may have standing rules to bound it, by which every one may know what is his. To this end it is that men give up all their natural power to the society which they enter into, and the community put the legislative power into such hands as they think fit, with this trust, that they shall be governed by declared laws, or else their peace, quiet, and property will still be at the same uncertainty, as it was in the state of nature.”[10]
This is what was meant by the Plaintiff’s claim against the
Defendants. The Defendants had misused the quasi public trust that was placed in GBRA by the sovereign people of the state
of
The Monarchial descent from sovereign ownership, power and
immunity ended on the acceptance of the perception that property rights do not
flow from the King down to God, Church and subjects as in
John Locke also showed that no man can delegate to another more rights then he holds in himself. He further showed that no man has a right to invade another’s property which he said consisted in their life, liberty and possessions. Therefore it followed that no man could delegate to another the power to invade anyone in their life, liberty or possessions. Therefore civil government cannot obtain a right to harm anyone in their life, liberty or possessions. Government was then limited to its end to protect property by that power that each man held in himself. Government can not orchestrate great visions and plans in contradiction to its end.
John Locke then showed beyond question that civil government cannot execute, legislate or adjudicate matters that are contradictory to the great end for which it was instituted. He then also showed that since the times before kings and monarchs that the only reason that men have ever entered into a civil society was for the protection of each member’s property of life, liberty and possessions. Therefore, all civil governments have only one real purpose and that is to protect the life, liberty and possessions of each of its members.
Locke’s work published in 1689 influenced the Declaration of Independence, the fifth and fourteenth amendments to the U.S. Constitution and the whole idea of property rights, better understood in the beginning of our nation, as well as the general idea of the limitation of governmental power permeating the whole of the federal and state constitutions.
“The
Section 1 - FREEDOM AND SOVEREIGNTY OF STATE
Section 2 - INHERENT POLITICAL POWER; REPUBLICAN FORM OF GOVERNMENT.
All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit. The faith of the people of Texas stands pledged to the preservation of a republican form of government, and, subject to this limitation only, they have at all times the inalienable right to alter, reform or abolish their government in such manner as they may think expedient”[11]
The “sovereignty of the state” spoken of in Section 1 above is in
relation to all other governments not the people of
Since John Locke has fallen from popularity and is no longer
taught in American public schools and therefore the fundamental principles of
civil government are almost unknown in America, our public servants have
reverted to the idea that sovereign immunity and power and property springs
from and rests in government or the state and that its root sprang from the
idea that “The King can do no wrong.” Now the federal and state legislatures
pass laws that grant themselves sovereign immunity and waive it and limit it as
they chose. This came about with the rise of the notions of the collectivist
doctrine which claim that it is the duty of government to do the greater good
for the greater number of people in society even if a few individuals have to
suffer property infringement, injury and loss in the process. All forms of
collectivism stand in contradiction to the Christian fundamentals of civil
government which remain the true foundation of the state and federal
governments of
The possessor of sovereign immunity cannot lose it. The perceived loss of sovereign immunity arises only from a misconception of what sovereign immunity is. Sovereign immunity arises from God and goes to each man in the world. Men then can use this sovereignty to create civil government. But they do not pass their sovereignty to the government but only authority to act for them. Government is the agent of the sovereign people. It is government’s job to maintain what the people formed with their sovereign will, not to form itself into some tool to be used by the clever. The reason that it appears that the monarchs lost sovereign immunity is not because they granted rights to others but it was that, ultimately, they never possessed sovereignty. The people possessed it from the beginning and reclaimed what was theirs from the monarchs and they cannot waive or lose it as summed up by Samuel Adams the father of the American Revolution:
“In short, it is the greatest absurdity to suppose it in the power of one, or any number of men, at the entering into society, to renounce their essential natural rights, or the means of preserving those rights; when the grand end of civil government, from the very nature of its institution, is for the support, protection, and defense of those very rights; the principal of which, as is before observed, are Life, Liberty, and Property. If men, through fear, fraud, or mistake, should in terms renounce or give up any essential natural right, the eternal law of reason and the grand end of society would absolutely vacate such renunciation. The right to freedom being the gift of God Almighty, it is not in the power of man to alienate this gift and voluntarily become a slave.”[12]
It is most obvious that Samuel Adams had read Locke and that it influenced his thinking profoundly. And based upon this recognition the Plaintiff prays that this court stand upon substance and reason and vacate the Texas Tort Claims Act and its Civil Practice and Remedy Code and insist that Plaintiff be made whole from the government invasion of his property.
Since no one or no government or official has a right to invade the property of another, immunity cannot exist that would protect those entities from liability when the property of another is invaded. The government and all in its seats lack property right and authority and harmony with the great end of government to invade property of another. The question has been raised, “Is there a real use of immunity for government or for those in the seat of government?” It has been said that, “immunity is only available when it is not needed, unless it presumes negligence.”[13] The question and the statement arise from a misunderstanding about the source and use of immunity.
The answer to the question and statement above and the misunderstanding can be cured with an example of the proper role of immunity in civil government. It is true that the sole purpose of immunity is to do good for society or an individual or group in society in a way that does not harm others. And it is true that there is no immunity for invasion of another’s property. Then where is immunity useful? The need for sovereign immunity has been in human nature since the beginning and Christ Jesus gave a direct parable on the issue of sovereign immunity and its proper perception in the parable of the “laborers of the vineyard” (Matthew 20:1-16):
“1. For the kingdom of heaven is like unto a man that is an householder, which went out early in the morning to hire labourers into his vineyard.
2. And when he had agreed with the labourers for a penny a day, he sent them into his vineyard.
3. And he went out about the third hour, and saw others standing idle in the marketplace,
4. And said unto them; Go ye also into the vineyard, and whatsoever is right I will give you. And they went their way.
5. Again he went out about the sixth and ninth hour, and did likewise.
6. And about the eleventh hour he went out, and found others standing idle, and saith unto them, Why stand ye here all the day idle?
7. They say unto him, Because no man hath hired us. He saith unto them, Go ye also into the vineyard; and whatsoever is right, that shall ye receive.
8. So when even was come, the lord of the vineyard saith unto his steward, Call the labourers, and give them their hire, beginning from the last unto the first.
9. And when they came that were hired about the eleventh hour, they received every man a penny.
10. But when the first came, they supposed that they should have received more; and they likewise received every man a penny.
11. And when they had received it, they murmured against the goodman of the house,
12. Saying, These last have wrought but one hour, and thou hast made them equal unto us, which have borne the burden and heat of the day.
13. But he answered one of them, and said, Friend, I do thee no wrong: didst not thou agree with me for a penny?
14. Take that thine is, and go thy way: I will give unto this last, even as unto thee.
15. Is it not lawful for me to do what I will with mine own? Is thine eye evil, because I am good?
16. So the last shall be first, and the first last: for many be called, but few chosen.”
This parable shows all the elements of immunity and its use and where it comes from. It comes from owning property, real and personal which the good man of the house had. He contracted with all the laborers and decided (using his rights, discretion and prerogative) to do good towards all the workers in a way that did not violate his contract with any of them. Some got jealous and filed a complaint claiming that the good man of the house had violated their sense of fairness. The good man was judged by some of the workers because he did good to others instead of applying only the letter of the law. If the good man of the house had only paid what was due to all, only the workers of the full day would have eaten. But all ate and were satisfied. The good man of the house applied sovereign immunity to do good for society. But if the man of the house had taken what belonged to the one and given to the other he would have no immunity at all and would be liable to the one who suffered the loss. It is a fact that some people will attack someone for doing good and that is why some public servants need immunity.
Again we have another example of the use of immunity, discretion and prerogative when Jesus violates the Sabbath Law (Matthew 12:10-14):
“10. And, behold, there was a man which had his hand withered. And they asked him, saying, Is it lawful to heal on the sabbath days? that they might accuse him.
11. And he said unto them, What man shall there be among you, that shall have one sheep, and if it fall into a pit on the sabbath day, will he not lay hold on it, and lift it out?
12. How much then is a man better than a sheep? Wherefore it is lawful to do well on the sabbath days.
13. Then saith he to the man, Stretch forth thine hand. And he stretched it forth; and it was restored whole, like as the other.
14. Then the Pharisees went out, and held a council against him, how they might destroy him.”
Here we see that the Pharisees want to put the sovereign on trial for violating all these Sabbath Statutes by going around saving the people and restoring them to health and peace of mind by the exercise of immunity, discretion and prerogative as the owner of all things. But we have not progressed much in 2000 years because Jesus would not be much better off with the Texas Civil Practice and Remedy Code. He certainly could not sue his torturers because they were whipping him intentionally rather than just negligently or accidentally driving a chariot or ox cart over his foot. Under the Texas Tort Claims Act and its CPRC, the crucifixion was a mere act of discretion in the area of law enforcement, and area of responsibility given to the civil authority.
Immunity is delegated to government by the people to the extent that it secures the end of government. A wrong that violates the end of government cannot have immunity. It has been said, by those who do not perceive the true nature of immunity, that immunity is only available where it is not needed.[14] This statement is implying the misuse of immunity. This statement assumes that immunity is only needed after government and its officers have injured someone. And if that were the case, the paradoxical statement is absolutely true. But is not immunity available for an official to bend or violate a statute or rule to help society or someone in it? In this case it is available to the officer and the government but it is not available to harm society or anyone in it. An immunity to harm society or those in it is no more than the government becoming the enemy of the people. No legislature can enact an unlawful license for government to do what it cannot lawfully do and should not allow or permit others to do, namely, invade property rights. Statutory rules that establish an unlawful license for government to invade and harm property of its citizens is irrational and counter to its Ends and constitutes a declaration of war upon the citizens.
The concept of “waiver of immunity” is evidence that the one seeking to waive his immunity does not perceive what immunity is or its application. One who magnanimously grants waiver of immunity for themselves wants now to be held liable for doing good to society. There is no other purpose for immunity other than protection from the jealous who are angry as a result of a good work performed for a person or group that does not injure the rest. There is no such thing as “immunity” for government, officials or individuals to invade another’s property. That immunity is available when no one has been harmed and others are deceived into thinking they have suffered when they have not. But all immunity is lost when government or those in its seats invade the property of anyone or group in that society.
No government or any King ever held sovereign power or immunity. Authority and immunity is delegated to both only to do good to society and all in it. Therefore true immunity is the same as true Official Discretion and true Royal Prerogative and it is only available when these entities come under condemnation for doing good for society without harming anyone. John Locke summarized the royal prerogative and sovereign immunity definition as “nothing but the power of doing public good without a rule.”
“Upon this is founded that saying, That the reigns of good princes have been always most dangerous to the liberties of their people: for when their successors, managing the government with different thoughts, would draw the actions of those good rulers into precedent, and make them the standard of their prerogative, as if what had been done only for the good of the people was a right in them to do, for the harm of the people, if they so pleased; it has often occasioned contest, and sometimes public disorders, before the people could recover their original right, and get that to be declared not to be prerogative, which truly was never so; since it is impossible that any body in the society should ever have a right to do the people harm; though it be very possible, and reasonable, that the people should not go about to set any bounds to the prerogative of those kings, or rulers, who themselves transgressed not the bounds of the public good: for prerogative is nothing but the power of doing public good without a rule.”[15]
For no one has the authority to invade another’s property therefore, they cannot delegate it to their representative, or authority to make laws that permit them to invade. Therefore the only use of immunity is to protect government from those who are angry for some good the government did for another. The Plaintiff herein has not sued the government or those in its seats for a good they did to someone else in which Plaintiff is jealous but for a direct invasion of his own property. Therefore governmental immunity does not apply.
Sovereignty always remains in the people and the most government can acquire is the authority to act for the sovereign people to secure the end they desired in the institution with the limited power the people can delegate to their representatives from what they hold in themselves. When government invades the property of another they stand in want of authority, immunity and lawful statutes while they are always in want of sovereignty in regard to the citizen.
As we have seen a Biblical example of the sole purpose of immunity we also find an example of an attempt to seize Sovereign Power and the Immunity that comes with it in the parable of the Householder (Matthew 21:33-44):
“33. Hear another parable: There was a certain householder, which planted a vineyard, and hedged it round about, and digged a winepress in it, and built a tower, and let it out to husbandmen, and went into a far country:
34. And when the time of the fruit drew near, he sent his servants to the husbandmen, that they might receive the fruits of it.
35. And the husbandmen took his servants, and beat one, and killed another, and stoned another.
36. Again, he sent other servants more than the first: and they did unto them likewise.
37. But last of all he sent unto them his son, saying, They will reverence my son.
38. But when the husbandmen saw the son, they said among themselves, This is the heir; come, let us kill him, and let us seize on his inheritance.
39. And they caught him, and cast him out of the vineyard, and slew him.
40. When the lord therefore of the vineyard cometh, what will he do unto those husbandmen?
41. They say unto him, He will miserably destroy those wicked men, and will let out his vineyard unto other husbandmen, which shall render him the fruits in their seasons.
42. Jesus saith unto them, Did ye never read in the scriptures, The stone which the builders rejected, the same is become the head of the corner: this is the Lord's doing, and it is marvellous in our eyes?
43. Therefore say I unto you, The
44. And whosoever shall fall on this stone shall be broken: but on whomsoever it shall fall, it will grind him to powder.”
Notice that the Householder is the owner of the property and the Sovereign one with Sovereign Power and Immunity. The Owner granted authority to the Husbandmen to take care of his property. This is the government which the people authorized to oversee their properties. But the government began to have its own interest foreign to that of the Owner and the Owner sent servants to correct the government but the government ignored the limit of their authority and the duty they had to perform for the Owner and did as they pleased with the Owner’s servants and ministers. Then they even had designs upon the sovereign to take ownership from the heir (the people, from Christ, from God). Now notice that even the Husbandmen (government) knew their crime and the penalty for it. They pronounced and declared their own penalty to be destruction for their wickedness. They also lost the property they were entrusted with and it was given to others who would obey the Sovereign Owner or the people and render proper service. This is the right to abolish and create a new Kingdom of God on Earth. This is what Samuel Adams recognized and stated before the group at the signing of the Declaration of Independence in 1776:
“We have this day restored the Sovereign to Whom all men ought to be obedient. He reigns in Heaven and from the rising to the setting of the sun, let His Kingdom come.”[16]
Our forefather’s were taking back the sovereignty that belonged
to God and that God had granted to them through Christ and setting up a new
government that would serve the sovereign people to the glory of God. Think not
that this thing God cannot ordain again in the
The word immunity is not used by those that led the glorious
revolution against the absolute prerogative[17]
power of the monarchy in
We shall now see what the real distinctions are between prerogative
and tyranny from a man that lived under a monarch and showed all monarchies to
be without merit and not a form of civil government at all. The ideas of Locke
eventually dismantled the monarchs throughout
The first idea we encounter is discretion and its proper use.
“WHERE the legislative and executive power are in distinct hands, (as they are in all moderated monarchies, and well-framed governments) there the good of the society requires, that several things should be left to the discretion of him that has the executive power: for the legislators not being able to foresee, and provide by laws, for all that may be useful to the community, the executor of the laws having the power in his hands, has by the common law of nature a right to make use of it for the good of the society, in many cases, where the municipal law has given no direction, till the legislative can conveniently be assembled to provide for it. Many things there are, which the law can by no means provide for; and those must necessarily be left to the discretion of him that has the executive power in his hands, to be ordered by him as the public good and advantage shall require: nay, it is fit that the laws themselves should in some cases give way to the executive power, or rather to this fundamental law of nature and government, viz. That as much as may be, all the members of the society are to be preserved: for since many accidents may happen, wherein a strict and rigid observation of the laws may do harm; (as not to pull down an innocent man's house to stop the fire, when the next to it is burning) and a man may come sometimes within the reach of the law, which makes no distinction of persons, by an action that may deserve reward and pardon; 'tis fit the ruler should have a power, in many cases, to mitigate the severity of the law, and pardon some offenders: for the end of government being the preservation of all, as much as may be, even the guilty are to be spared, where it can prove no prejudice to the innocent.”[20]
It is plain to see that the purpose of prerogative and discretion is to mitigate the effect of the law on the people to work for the good of the people and to preserve all the people. But even our schools teach our children and politicians tell us daily that the purpose of a good executive is to determine what the greater good of the greater number of citizens is and then do what is necessary to bring that policy into being even if it costs the property rights of a few of those citizens.
4.1.3. Decline of
Property Rights gives rise to Collectivism and idea that people are infringing
on government
Many will agree that if the people only had the inside knowledge the executive had they would be happy to sacrifice their property for the good of the whole. These are the views of collectivism, that the social engineers have sovereign immunity to plan the new age and invade the properties of the subjects to orchestrate the end they have for society for the greater good for the greater number. This concept is anti government and anti society and anti-property. When the government or its officers take steps to sacrifice someone’s property for the good of the whole, they have abandoned the great ends of the government’s reason to exist. History shows that people, as Plaintiff herein, get tired of that kind of hurtful and unlawful prerogative and discretion and move to have it placed back in their own hands and specified in law rather than left to the executive for his personal fancy.
“But when mistake or flattery prevailed with weak princes to make use of this power for private ends of their own, and not for the public good, the people were fain by express laws to get prerogative determined in those points wherein they found disadvantage from it: and thus declared limitations of prerogative were by the people found necessary in cases which they and their ancestors had left, in the utmost latitude, to the wisdom of those princes who made no other but a right use of it, that is, for the good of their people.
“And therefore they have a very wrong notion of government, who say, that the people have encroached upon the prerogative, when they have got any part of it to be defined by positive laws: for in so doing they have not pulled from the prince any thing that of right belonged to him, but only declared, that that power which they indefinitely left in his or his ancestors hands, to be exercised for their good, was not a thing which they intended him when he used it otherwise: for the end of government being the good of the community, whatsoever alterations are made in it, tending to that end, cannot be an encroachment upon any body, since no body in government can have a right tending to any other end: and those only are encroachments which prejudice or hinder the public good. Those who say otherwise, speak as if the prince had a distinct and separate interest from the good of the community, and was not made for it; the root and source from which spring almost all those evils and disorders which happen in kingly governments. And indeed, if that be so, the people under his government are not a society of rational creatures, entered into a community for their mutual good; they are not such as have set rulers over themselves, to guard, and promote that good; but are to be looked on as an herd of inferior creatures under the dominion of a master, who keeps them and works them for his own pleasure or profit. If men were so void of reason, and brutish, as to enter into society upon such terms, prerogative might indeed be, what some men would have it, an arbitrary power to do things hurtful to the people.”[21]
Locke’s logic is clear and complete, in that Prerogative, Discretion and Immunity are to be exercised for the good only of the community and when exercised against the property rights of any member, they are all lost for the government and all those in its offices. We see here that immunity may indeed be needed by those in government in certain cases but that is only to do good for all against what may be too severe in the law. Their immunity works against rule, procedure, and remedy not against the property rights of citizens. We are not void of reason and we are not inferior creatures and we do not build governments to exercise arbitrary power hurtful to people for the pleasure and profit of the supposed more superior among us.
“For as a good prince, who is mindful of the trust put into his hands, and careful of the good of his people, cannot have too much prerogative, that is, power to do good; so a weak and ill prince, who would claim that power which his predecessors exercised without the direction of the law, as a prerogative belonging to him by right of his office, which he may exercise at his pleasure, to make or promote an interest distinct from that of the public, gives the people an occasion to claim their right, and limit that power, which, whilst it was exercised for their good, they were content should be tacitly allowed.”[22]
Therefore, the Plaintiff herein, wishing to come out of his
imposed inferior irrational brutish state of nature is praying that this court
use their check upon exceeding usurpation in the legislature by denying the
Defendants’ Motion for Special Exceptions on the grounds that there can be no
legislative laws that bar suits against those that invade the property of the
citizens and still claim to have a civil government. The Plaintiff prays that
this court assist him in claiming his right and limit the power that would
destroy the property of his and those whom he shares society with. The Texas
Tort Claims Act and its resultant Civil Practice & Remedies Code is
contrary to the great end of
Now also we are asked by the defendants in this case to conclude
that a suit against officials and employees of a government entity is a suit
against the government (GBRA). And further that GBRA is immune from suit
because it has not waived immunity from intentional and various kinds of torts
committed by its employees and officials. One need only ask, “Did King John
become merely Mr. John when he had the head of an innocent peasant cut off or
did King John remain King John and he and his whole system of government become
liable for the invasion of the property right of another?” Is the government of
“No political truth is certainly of greater intrinsic value, or is stamped with the authority of more enlightened patrons of liberty, than that on which the objection is founded. The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny. Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. I persuade myself, however, that it will be made apparent to every one, that the charge cannot be supported, and that the maxim on which it relies has been totally misconceived and misapplied. In order to form correct ideas on this important subject, it will be proper to investigate the sense in which the preservation of liberty requires that the three great departments of power should be separate and distinct.” [23]
It is obvious now that the Texas Tort Claims Act and the
resultant Civil Practice and Remedy Code is an encroachment upon the sovereignty
of the people of
It is a negation of all known history to state that only good acts are those of government while bad acts perceived to be committed by government are merely the bad acts of individuals. Government cannot enjoy immunity when its officers under the color of authority attack property they are to protect. These acts of officials and employees contradict the purpose of their existence. But rather it is the government itself that assumes the responsibility for the torts committed by its employees and officials. Government also is responsible for the creation of a culture and environment of unlawful immunity as we see provided in the Texas CPRC.
If it is the wheels, gears, cogs and mechanisms of government that were used to invade the property rights of the injured then it is the wheels, gears, cogs and mechanisms of government that are to make the injured whole again. The only limitation that can be placed upon governmental liability is the extent to which the government damaged the injured and the extent to which the people want to send their servant a message. It is contempt of justice to merely hold the individuals in the government liable casting the damaged upon the meek salary of a handful to restore what the power of a whole government has done. The individuals lack the power of government and its public wealth to repair the damage the government mechanism did. This mocks the damaged Plaintiff and shocks the conscience. The excuse that government is protecting the taxpayer by limiting the recovery of those the government harmed is incongruent. We all know how the legislature protects the taxpayer and now they don’t want to restore those they injure directly because they will loss some revenue to blow on other abuses against the property of the people. If the courts and the people can anticipate and contemplate the use of punitive damages against a private person or corporation, they certainly can and more so have the same for principle reserved to exemplify the abuses of the body of government when it uses its power to harm the innocent. One Defendant has complained to Plaintiff via a friend that he does not have $6,000,000. Does that mean he did not cause $6,000,000 in damage? It was his power in office that caused the damage to that extent and it is the government that needs to cure that damage done by their official under the color of authority and law. It is a denial of remedy and justice to cast those injured by the wheels and machinery of government upon the meek salary of government officials.
|
Respectfully submitted, _______________________________________ Ronald F. Avery Pro Se 1955 830/372-5534 |
Certificate of Service
I hereby certify that a true and correct copy of the foregoing was forwarded by certified mail, return receipt requested # 7099 3220 0001 5083 3356, on this the ____ day of ___________, 2004 to the following:
William S. Helfand
Chamberlain, Hrdlicka, White, Williams & Smith
Attorneys at Law
___________________________
[1] Black’s Law Dictionary (6th ed.): Lawful: The principle distinction between the terms “lawful” and “legal” is that the former contemplates the substance of law, the latter the form of law. Further, the word “lawful” more clearly implies an ethical content than does “legal.” The latter goes no further than to denote compliance, with positive, technical, or formal rules; while the former usually imports a moral substance or ethical permissibility. Thus “legal fraud” is fraud implied or inferred by law, or made out by construction. “Lawful fraud” would be a contradiction in terms.
[2] 63C Am Jur 2d §305 Official immunity as distinguished from Sovereign immunity
[3] Black’s Law Dictionary (6th ed.) 952
[4] The Magna Carta: Preamble and first grant from King John Online:http://www.constitution.org/eng/magnacar.htm
[5] Peter Laslett Locke – Two Treatises of Government (Cambridge Texts in the History of Political Thought Cambridge University Press 40 West 20th Street, New York, NY 10011-4211, USA) 350
Online: http://www.constitution.org/jl/2ndtr09.htm
[6] Locke - 329 Online: http://www.constitution.org/jl/2ndtr07.htm
[7] Locke 271 Online: http://www.constitution.org/jl/2ndtr02.htm
[8] Black’s Law Dict,: End: Object; intent; goal; termination point. Things are construed according to the end.
[9] Locke – 357 Online: http://www.constitution.org/jl/2ndtr11.htm
[10] Locke - 358 Online: http://www.constitution.org/jl/2ndtr11.htm
[11]
Online: http://www.capitol.state.tx.us/txconst/sections/cn000100-000200.html
[12] Samuel Adams, The Christian History of the Constitution of the United States of America - Christian Self-Government ed., Verna M. Hall, (The Foundation for American Christian Education Box 27035, San Francisco, California 94127) 367
[13] 63C Am Jur 2d § 304 Necessity that Officers act within Scope of Authority for Official Immunity to Apply
[14] 63 Am Jur 2d § 304 Public Officers and Employees
[15] Peter Laslett Locke – Two Treatises of Government (Cambridge Texts in the History of Political Thought Cambridge University Press 40 West 20th Street, New York, NY 10011-4211, USA) 378
Online: http://www.constitution.org/jl/2ndtr14.htm
[16] Samuel Adams, One Nation Under God ed., Staff of Christian Defense Fund (The Christian Defense Fund,6564 Loisdale Court, Suite 320, Springfield Virginia, 22150, 1997) 7-8
[17] Black’s Law Dictionary: Prerogative: An exclusive or peculiar right or privilege. The special power, privilege, immunity, right or advantage vested in an official person, either generally, or in respect to the things of his office, or in an official body, as a court of legislature.
[18] Black’s
Law Dict.: Prerogative law: That part of the common law of
[19] Black’s
Law Dict: Sovereign power or sovereign prerogative: That power in a state to
which none other is superior or equal, and which includes all the specific
powers necessary to accomplish the legitimate ends and purposes of government.
Aetna Casualty & Surety Co. v.
[20] Locke – 375 Online: http://www.constitution.org/jl/2ndtr14.htm
[21] Locke – 376
[22] Locke - 377
[23] The Federalist Letters - Hamilton, Madison, Jay - Edited by Clinton Rossiter (Penguin Books USA Inc. 375 Hudson Street, New York, NY 10014, USA) 301 Online: http://www.constitution.org/fed/federa47.htm