Johnny Partain v. State of Texas

ACCEPTED 15-25-00005-CV FIFTEENTH COURT OF APPEALS AUSTIN, TEXAS 3/25/2025 2:57 PM CHRISTOPHER A. PRINE No. 15-25-00005-CV CLERK FILED IN 15th COURT OF APPEALS AUSTIN, TEXAS 3/25/2025 2:57:25 PM CHRISTOPHER A. PRINE In The Clerk Fifteenth Court Of Appeals JOHNNY PARTAIN Appellant v. STATE OF TEXAS Appellee Appellant’s Brief JOHNNY R. PARTAIN 7020 N 16th Street McAllen, Texas 78504 956-240-1821 No. 15-25-00005-CV In The Fifteenth Court Of Appeals JOHNNY PARTAIN Appellant v. STATE OF TEXAS Appellee Appellant’s Brief TO THE HONORABLE JUSTICES OF THIS COURT: COMES NOW JOHNNY PARTAIN, Appellant in the above styled and numbered cause and files his Appellant’s Brief, and respectfully shows unto the Court the following. ii IDENTITY OF PARTIES AND COUNSEL Appellant: · JOHNNY PARTAIN, individually, residing at 7020 N 16th Street, McAllen, Texas 78504; phone 956-240-1821. Appellee: · STATE OF TEXAS, through Attorney General Kenneth Paxton, represented by Assistant Attorney General Ali Thorburn, P.O. Box 12548, Austin, Texas, 78711-2548; phone 512-475-4392. iii TABLE OF CONTENTS Page INTRODUCTION ……………. ii IDENTITY OF PARTIES AND COUNSEL ……………. iii TABLE OF CONTENTS ……………. iv INDEX OF AUTHORITIES ……………. v STATEMENT OF THE CASE ……………. 1 ISSUES PRESENTED ……………. 3 STATEMENT OF FACTS ……………. 4 SUMMARY OF THE ARGUMENT ……………. 10 ARGUMENT ……………. 13 The State of Texas lacks authority to deprive Partain his ……………. 13 civil right to just and adequate compensation. Texas had no standing to complain and the District Court ……………. 28 had no jurisdiction. Partain’s Due Process Rights Were Denied. ……………. 35 PRAYER ……………. 40 CERTIFICATE OF COMPLIANCE ……………. 41 CERTIFICATE OF SERVICE ……………. 41 iv INDEX OF AUTHORITIES CASELAW Page Alden v. Maine, 527 U.S. 706, 754–755 (1999) (The ……………… 16 constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution.) Ableman v. Booth, 62 U.S. 506 (1858) (state courts cannot issue ……………… 29 rulings that contradict the decisions of federal courts). Boyce's Executors v. Grundy, 28 U.S. 210 (1830) (The law, ……………… 26 which abhors fraud, does not permit it to purchase indulgence, dispensation, or absolution.; "Fraud vitiates the most solemn contracts, documents and even judgments.") Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001) (The common- ……………… 30 law rules governing standing require "a real controversy between the parties) Browning, 165 S.W.3d 346 ……………… 33 Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999) ……………… 36 Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 ……………… 34 U.S. 226 (1897) (“It must be observed that the prohibitions of the [Fourteenth] amendment refer to all the instrumentalities of the state,—to its legislative, executive, and judicial authorities, —and, therefore, whoever by virtue of public position under a state government deprives another of any right protected by that amendment against deprivation by the state, ‘violates the constitutional inhibition) v City of Beaumont v. Bouillion, 896 S.W.2d 149 (Tex. 1995) (A ……………… 17 law conflicting with rights guaranteed by the Texas Bill of Rights is void "because the Bill of Rights is a limit on State power.") City of Dallas v Mitchell, 245 S.W. 944 (To take away all ……………… 21 remedy for the enforcement of a right is to take away the right itself. But that is not within the power of the State.) Daimler Chrysler Corp. v. Inman, 252 S.W.3d 299, 304 ……………… 30 (Tex.2008) (if injury is only hypothetical, there is no real controversy.) Daryl J. Levinson, Rights Essentialism and Remedial ……………… 17 Equilibration, 99 CoLum. L. REV. 857, 914 (1999) Devillier v. Texas , 601 U.S. 285 (2024) ……………… 15, 20 Directv, Inc. v. Imburgia, 577 U.S. 47, 53 (2015) “U.S. Const., ……………… 28 Art. VI, cl. 2 ([T]he Judges in every State shall be bound" by "the Laws of the United States) Dolan v. City of Tigard, 512 U.S. 374, 383 (1994) ……………… 34 E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d ……………… 36, 37 549, 558 (Tex. 1995) (A judge abuses his discretion by acting "without reference to any guiding rules or principles" or by acting arbitrarily or unreasonably) Edgar v. MITE Corp., 457 U.S. 624 (1982) (the Supreme Court ……………… 29 ruled: "A state statute is void to the extent that it actually conflicts with a valid Federal statute) Ex parte Spaulding, 687 S.W.2d at 745 (Teague, J.,concurring). ……………… 7 Ex parte Virginia, 100 U.S. 339, 346 (1880). (A State acts by its ……………… 20 legislative, its executive, or its judicial authorities...and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.) vi First English Evangelical Lutheran Church v. Los Angeles ……………… 20, 22 County, 482 U.S. 304 (1987) (A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment.) Heckman v. Williamson Cnty, 369 S.W.3d 137 (Tex. 2012) ……………… 34 (requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted.) Hemphill v. Watson, 60 Tex. 679, 681 (1884) (When a law ……………… 31 conflicts with rights guaranteed by Article 1, the Constitution declares that such acts are void because the Bill of Rights is a limit on State power) Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 741 (Tex. ……………… 36 2018) (When contested fact issues must be resolved before equitable relief can be determined, a party is entitled to have that resolution made by a jury.) Jacobs v. United States 290 U.S. 13 (1933) (the right to just ……………… 14, 19 compensation could not be taken away by statute or qualified by the omission of a provision for interest where such an allowance was appropriate in order to make the compensation adequate) King Ranch, 118 S.W.3d 752 (Tex. 2003) (Extrinsic fraud is ……………… 37 fraud that denied a party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted) Levinson, supra note 2, at 858 (describing rights and remedies ……………… 17, 18 as "inextricably intertwined" and noting that rights rely on remedies "for their scope, shape, and very existence”) Manning v. Mining & Mins. Div. of the Energy, Min. & Nat’l ……………… 20 Res. Dep’t, 144 P.3d 87, 90–91 (N.M. 2006) (citing First English as holding that the “compensation remedy is required by the Constitution”) vii Marbury v. Madison, 5 U.S. 137 (1803) (“every right, when ……………… 18 withheld, must have a remedy”) Michael Coenen, Right-Remedy Equilibration and the ……………… 17 Asymmetric Entrenchment of Legal Entitlements, 61 B.C. L. RENT. 129, 139 (2020) (defining "legal entitlement" to mean "remedy made available in response to a particular violation of a substantive right" (emphasis omitted)) Miranda v. Arizona, 384 U.S. 426, 491; 86 S. Ct. 1603, (Where ……………… 17, 37 rights secured by the Constitution are involved, there can be no 'rule making' or legislation which would abrogate them.” “The claim and exercise of a constitutional right cannot be converted into a crime.) ……………… 34 Nollan v. California Coastal Commission, 483 U.S. 825 (1987) O'Meara v. O'Meara, 181 S.W.2d 891 (Tex. Civ. App. 1944) ……………… 37 Penn Central Transp. Co. v. New York City, 438 U.S. 104, 122 ……………… 34 (1978) Pennoyer v. Neff, 95 U. S. 714, 732-733 (1878) (A judgment ……………… 26 rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.) PNS Stores, Inc. v. Rivera ex rel. Rivera 55 Tex. Sup. Ct. J. ……………… 33 1400 (Tex. 2012) (We have described a judgment as void when the court rendering judgment had no jurisdiction to enter the particular judgment.) Republican Party of Texas v. Dietz, 940 SW 2d 86 (1997) (the ……………… 16, 31 provisions in section 29 excepting everything in the Bill of Rights “out of the general powers of government” and providing that “all laws” contrary to the Bill of Rights shall be void demonstrates that the Bill of Rights serves as a shield against the powers and laws of government) viii SDDS, Inc. v. State, 650 N.W.2d 1, 9 (S.D. 2002) (recognizing ……………… 20 that First English means “the [compensation] remedy does not depend on statutory facilitation) Seaboard Airline R. Co. v US, 261 U.S. 299 (The requirement ……………… 14, 31 that ‘just compensation’ be paid is comprehensive and includes all elements and no specific command to include is necessary when interest or its equivalent is a part of such compensation) State Dep’t of Highways & Pub. Transp. v. Gonzalez 82 S.W.3d ……………… 35 322, 327 (Tex. 2002) (Whether a trial court has subject-matter jurisdiction is a question of law for the court, requiring de novo review) State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995) ……………… 7 (A Party Affected by VOID Judicial Action Need Not APPEAL) Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980) (The ……………… 23 constitutional remedy of compensation is mandatory. [T]he Constitution itself is . . . a waiver of governmental immunity for the taking, damaging or destruction of property.) Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., ……………… 19 560 U.S. 702, 740–41 (2010) (Kennedy & Sotomayor, JJ., concurring in part) ([T]he Court subsequently held that the Takings Clause requires the availability of a suit for compensation against the States [in] First English[.]) Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) ……………… 33 Travelers' Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007 ……………… 17, 32 (Tex.1934), (we stated that the Bill of Rights "consists of express limitations of power" on the legislature, executive officers, and the judiciary.) ix Williams v. New Orleans Public Service, Inc., 728 F.2d 730, 735 ……………… 37 (5th Cir. 1984) (A judgment "is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.) Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) ……………… 36 Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940) ([I]f ……………… 22 the authorized action ... does constitute a taking of property for which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has afforded a remedy for its recover) TEXAS CIVIL PRACTICE & REMEDY CODE TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.003 ……………… 30 TEX. CIV. PRAC. & REM. CODE ANN. §§ 65.001 ……………… 12, 30 TEX. CIV. PRAC. & REM. CODE ANN. §§ 65.011 ……………… 30 TEXAS BUSINESS AND COMMERCE CODE Texas Business and Commerce Code Sec. 9.336 ……………… 18 Texas Business and Commerce Code section 9.5185 ……………… 1, 4, 17, 27, 28, 29, 31, 36 TEXAS CONSTITUTION Tx. Const. Art. 1, Sec. 3 ……………… 22 Tx. Const. Art. 1, Sec. 9 ……………… 22 Tx. Const. Art. 1, Sec. 13 ……………… 22 Tx. Const. Art. 1, Sec. 15 ……………… 36 Tx. Const. Art. 1, Sec. 17 ……………… 1, 4, 5, 8, 11, 14, 22, 28, 29, 30, 31, 32, 34, 38 x Tx. Const. Art. 1, Sec. 13 ……………… 22, 29, 38 Tx. Const. Art. 1, Sec. 29 ……………… 1, 14, 15, 16, 17, 24, 28, 29, 31, 34, 44 Tx. Const. Art. III Sec. 49 (a)(3) ……………… 19 Tx.Const. Art. V, Sec. 10 ……………… 36 UNITED STATED CODE 18 USC § 242 ……………… 25 UNITED STATES CONSTITUTION Supremacy Clause, Art. VI, Cl. 2, of the US Constitution ……………… 28, 29, 30, 34 US Const. Amd. 4 ……………… 4 US Const. Amd. 5 ……………… 1, 7, 11, 18, 22, 28, 30, 38 US Const. Amd. 9 ……………… 22 US Const. Amd. 14 ……………… 22 U.S. Const. amend. XIV, § 1 ……………… 7, 35 xi STATEMENT OF THE CASE Travis Count District Court case no. D-1-GN-24-002560 was filed on April 24, 2024 in the 126th District Court for the State of Texas (Appellee) through Attorney General Kenneth Paxton’s petition seeking declaratory and injunctive relief pursuant to Texas Business and Commerce Code section 9.5185. Texas argued that, to its best belief, Johnny Partain (Appellant), who exercised his civil rights under United States Constitution Amendment 5 and Texas Constitution Art. 1, Sec. 17, and collected approximately $340 million in compensation from Texas, had intentionally or knowingly filed a financing statement claim (UCC-1) with the Texas Secretary of State that contained a material false statement, or was groundless. Partain disagreed because his property was taken, used, and destroyed without compensation, creating the inviolate debt interests which had to be compensated (mandatory per the US and Texas Constitutions), and that he could not be deprived of said rights by Texas through a statute or a declaration. Basically, Texas stole Partain’s property and Partain took it back. Partain filed his plea to the jurisdiction and motion to dismiss pursuant to Texas Constitution Art. 1, Sec. 29 on August 21, 2024. 1 Texas filed an amended petition on November 4, 2024 and requested a hearing for a temporary restraining order against Partain from using his UCC-1. Since Partain had already collected his compensation, the complaint was moot. The injunction was actually meant to stop Partain from continuing to exert dominion over his property and to reverse-compensate him by declaring him a fraud. A hearing was set for December 17, 2024. Texas filed a brief in support of its motion for a temporary injunction on December 13, 2024, just before the hearing date, and then filed a response to Partain’s plea to the jurisdiction. Partain filed a hurried response to Texas’ brief while enroute from McAllen to Austin for hearing, which he filed on December 16, 2024. On December 17, 2024, visiting District Judge Scott McCown heard Partain’s plea to the jurisdiction, withheld his findings on Texas’ standing and the court’s jurisdiction, denied Partain’s application in open court for a jury - informing him that he was not entitled to a jury for an injunction, and then held a hearing on Texas’ motion for a temporary injunction. Before the hearing the judge requested Partain to accept the hearing as a final hearing for a permanent injunction. Partain refused and stated that he would not waive his right to a jury. At the end of hearing the judge declared he had general jurisdiction and that he would sign a permanent injunction, once 2 Texas wrote him a judgment, so that Partain could immediately appeal, if he agreed. The judge advised that if he did not agree that Partain would come back and they would just do the same thing again, that it would be a waste of time. Partain agreed to a permanent injunction under duress so he could appeal immediately, but Partain did not agree to a finding of fact on the cause of action since that still required a jury which was being denied. The final judgment being appealed was signed on December 19, 2024. It did not address any constitutional arguments raised by Partain and it has a finding of facts that Partain did not agree to. Jurisdiction, standing, and due are being appealed. ISSUES PRESENTED 1. The State of Texas lacks authority to deprive Partain his civil right to just and adequate compensation. 2. Texas had no standing to complain and the District Court had no jurisdiction. 3. Partain’s due process rights were denied. 3 STATEMENT OF FACT This is an appeal from a final court order (Rec. 201-205) in Travis County District Court, case no. D-1-GN-24-002560, filed on December 19, 2024, by a traveling judge, after a Temporary Restraining Order hearing (Rec. 21-22; 265) held on December 17, 2024. The hearing was held without a jury, despite Appellant’s (Partain) request for a jury in his answer and despite Partain’s application for a jury in open court at the hearing. The TRO hearing was immediately preceded by an alleged hearing on Partain’s plea to the jurisdiction (App. 1, Defendant’s Plea To The Jurisdiction and Motion To Dismiss) and motion to dismiss which ended without a ruling or a finding before starting the TRO hearing. Although a court reporter was present, the hearings are alleged to have no reporter record available per the Court Reporter, Kasi Chapman. Also, significant amounts of evidence were electronically filed1 in the court’s “Box” and not with the clerk as required by the court. It is not obvious how to retrieve the “Box” if there is no reporter record. The district case is not developed. 1 Partain was unaware of this process and was required by the Court to deposit his evidence in the “Box” during hearing. 4 The State of Texas (Texas) brings this case under Texas Business and Commerce Code section 9.5185, for a finding that Partain knowingly or intentionally filed a fraudulent financing statement so that Texas can reverse Partain’s exercise of his constitutional right to compensation under Tx. Const. Art. 1, Sec. 17 and challenge control his properties. Texas argues that there is no court approved debt or remedy owed to Partain since Texas courts have not approve any. (Rec. 49; “Partain has provided no Order from a Texas court with competent jurisdiction over the matter establishing that he has any right to relief of ANY kind from the State. Because of this, Partain fails to establish a legitimate “debt,””). Partain argues that there is no judicial remedy available since the courts claim sovereign immunity to the US and Texas Constitutions, and deny him due process. See App. 3. Letters To Governor and Attorney General. Texas has never actually challenged its debt owed to Partain pursuant to Tx. Const. Art. 1, Sec. 17. It has only claimed immunity to litigating the constitutional debt in its own courts. Texas made this argument after closing its courts to Partain for over 4 years (Rec. 142-200) after a Hidalgo County District Court received a mandate (Rec. 127-134) from the 13th Court of Appeals to take Partain to trial; and after the court failed to sign a technically unchallenged summary judgment 5 order for $250,000,000 against Texas for Partain. After Governor Abbott got involved, the District Court finally opened its doors. Texas claimed immunity2 to inverse condemnation, for the taking and destruction of Partain’s property, and to civil rights violation in it’s plea to the jurisdiction in Hidalgo County District Court in case no. C-0929-12-F (App. 2, Third Amended Petition; See also Rec. 155-168), in violation of the Opinion and Mandate (Rec. 246-252) from 13th Court of Appeals, case no. 13-13-00341-CV, which reversed the court’s earlier illegal order to dismiss.3 Partain attempted to appeal but the clerks originally refused to accept his Notice of Appeal. Partain then filed his appeal online. In response, Texas invented multiple fraudulent appeal cases (Partain was not a party), altered the court’s records, and then dismissed the multiple appeal cases through a singular order (Rec. 140-141)(the appeals court called them multiple final judgments) to destroy Partain’s due process rights to an appeal without Partain participating in 2 Texas mainly complained that Partain didn’t identify injuries against Texas in an inverse condemnation complaint, which shouldn’t be a surprise since that kind of complaint isn’t about injuries, its about compensation for property taken, used, or destroyed. Texas diddestroy Partain’s right to due process which destroyed his property rights. 3 The 13th Court of Appeals lost Partain’s first appeal, case no. 13-13-00341-CV, over the dismissal of his complaints on “the authority of the judge” and Partain had to request intervention from the Texas Supreme Court. Texas Supreme Court Chief Justice Nathan Hecht assigned retired Justice Don Wittig from the 14th Court of Appeals in 2015, to find out what was going on and Justice Wittig found completely for Partain, reversing the District Court’s dismissal and mandating conformance to his Opinion (Rec. 127-133). However, the District Court did not conform. 6 any of the fraudulent actions. Partain was made aware of the fraudulent appeal cases and the altered public records, and he informed the appeals court through a letter to the appeals clerk that he had not filed them and would not participate in the multiple cases, to take his name off the cases. Rec. 241-244. The appeals court did not remove Partain’s name from the fraudulent cases filed by Texas, and instead used the fraudulent cases to maleffect Partain’s significant property rights, violating Partain’s due process4 and apparently protecting the illegal, unconstitutional, and void declarations of immunity from the District Court filed on January 4, 2021. The 13th Court of Appeal refused to hear Partain’s actual appeal which was fully briefed in case no.13-21- 00037-CV. However, “A Party Affected by VOID Judicial Action Need Not APPEAL.” State ex. rel Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995). Such a judicial action is entitled to no respect whatsoever because it does not affect, impair, or create legal rights." Ex parte Spaulding, 687 S.W.2d at 745 (Teague, J.,concurring). Despite the fact 4 U.S. Const. amend. V ( “[N]or shall any person . . . be deprived of life, liberty, or property, without due process of law.” ). U.S. Const. amend. XIV, § 1 ( “[N]or shall any State deprive any person of life, liberty, or property, without due process of law.” ). 7 that Partain was denied due process or that a judge has no authority under the constitution to dispose of an inviolate debt, there is another fact which upsets a final judgment in case no. C-0929-12-F. There is still a Cameron County defendant persisting and unadjudicated in Hidalgo County case no. C-0929-12-F because the court failed to respond to Cameron County’s multiple requests for a hearing (Rec. 210). Concurrently, Partain was communicating with Governor Abbott and Attorney General Paxton that there was no judicial remedy since Texas refused to provide open courts or due process and since Texas has no process to remedy Tx. Const. Art. 1, Sec. 17. Partain informed the Governor and AG that they needed to provide adequate compensation, or a means thereto, or Partain would provide it. App. 3, Letters To Governor and Attorney General. Partain made an application to the Texas Comptroller for compensation. App. 6, Miscellaneous Claim Application with Response. The Governor and Attorney General eventually responded5 through the Comptroller’s attorney that Partain needed to sue to get a court to enforce his right to payment, even 5 This is the response from Comptroller’s attorney, not the Governor’s or AG’s attorney, approximately 3 months after Partain made a miscellaneous request for compensation from the Texas Comptroller. Partain had a lengthy and productive conversation with the Comptroller’s attorney. Partain requested the Comptroller’s attorney send Partain the letter documenting the Governor’s and AG’s position. The letter does not discuss the Comptroller’s opinion which is quite different. 8 though its officials claim immunity to suit. While it would have been nice to get a court to enforce Partain’s right to payment, years of due process violations and lawfare proved that it was improbable to get judicial enforcement even after he became a judgment creditor since the courts have demonstrated over and over that they don’t enforce their decrees.6 President Biden forced Governor Abbott to exercise Texas’ rights under the constitution as Governor Abbott stated in his January 24, 2024, Press Release. App. 8, Governor Abbott’s Press Release. Texas forced Partain to exercise his rights under the constitutions. Partain was able to collect approximately $340 million in compensation from Texas using different techniques, including recording his efforts through the UCC code, while also releasing tax liens on his property that had been illegally seized several times but never returned, repaired, or compensated as required by law. App. 4, Tranfer Statement.7 Partain became fully compensated, his preceding 6 Hidalgo County Court case no. CL-29,530-H was dismissed “for want of prosecution” approximately 14 years after a jury found for Partain and he became a judgment creditor for about $452,000. Partain had already executed an abstract of judgment 3 times and became a super-creditor in the debtor’s bankruptcy, but the courts refused to enforce their decrees and finally ordered the dismissal for want of prosecution after Partain refused to participate in brand new re-litigation of the same case 14 years later. (App. 7, County Case Summary, Certified). 7 This example of the use of the transfer statement removes liens that were placed on the property by Hidalgo County and City of Mcallen the year after they seized the property from Partain. Partain recovered the property but could not use it because of the damages to the structure and could not sell it because of the liens. The county and the city continue to attempt to seize the property through a 13 year 9 judicial complaints became moot, and the 25+ year feckless attempts at litigation were over. Then Texas sued Partain under the color of law pursuant to an irrelevant statute to override the constitution[s], to reverse Partain’s just and adequate compensation through Travis County case no. D-1-GN-24-002560, the underlying case to this appeal. Rec. 8-20. Texas sought to subvert Partain’s rights again through declaration on a moot issue, to seize his property through an illegal injunction, but not really to litigate the issues with actual due process. (Rec. 201-205). The law does not support the State of Texas in any way. It does however side with Partain 100 percent and thats a fact. SUMMARY OF ARGUMENT 1. The State of Texas lacks authority to deprive Partain his civil right to just and adequate compensation. Partain filed an accurate UCC-1 financing statement on October 6, 2023 at 10:56am. This case is based on what Partain knew or intended when he filed the UCC-1. Partain knew he had the constitutional right to just and adequate compensation long tax suit for ad valorem taxes, and for costs and fines for maintaining the property while under their control. They only added Partain as the owner recently. 10 when his property is taken, used, or destroyed by Texas or its agents. The constitution[s] fully empower citizens to protect their own rights by voiding Texas’ authority to act against them. The constitution[s] do not prevent citizens from exercising rights extra-judicially; the remedy does not qualify the right. US Const. Amd. 5 and Tx. Const. Art. 1, Sec. 17 do not require a judicial remedy since the remedy is already provided in the constitutions as just and adequate compensation. Texas lacks any authority to violate this right through civil or criminal statutes, or even fraud, since the constitutions are controlling. Texas’ denial, deflection, diffusion, obfuscation, fraud, gamesmanship, and lawfare are all illegitimate means to avoid just and adequate compensation to Partain and have no effect, except to keep Texas in continuing violation of the constitutions – which Texas calls a debt, an increasing debt. Since states cannot violate the constitutions, Texas lacks authority to deprive Partain his civil right to just or adequate compensation through this case. 11 2. Texas had no standing to complain and the District Court had no jurisdiction. Texas acts unconstitutionally by using a state statute to violate Partain’s civil right under the constitutions and caselaw. Texas lacks authority to violate the law. Texas cannot put up roadblocks to exercising a right to compensation or to continue, to revert back, to violating Partain’s civil rights. It has no authority at all. Even the injunction issued in this district court case is specifically unavailable under TEX. CIV. PRAC. & REM. CODE ANN. §§ 65.001 because it violates the law and is based on fraud. Texas’ actions to uncompensate Partain voids the state’s authority to complain and destroys its standing. Texas can’t allege an actual injury. Its like a thief complaining that they are the victim when the owner repossesses their property from the thief. The district court lacks jurisdiction because Texas lacks authority, lacks standing, and because there is no order the district court could issue that wouldn’t violate Partain’s right to just and adequate compensation that he has already collected. Texas had no standing to complain and the District Court had no jurisdiction. 12 3. Partain’s Due Process Rights Were Denied. Due process or due course of law ensures that individuals are treated fairly and that legal matters are resolved according to established rules and principles. The district case included no discovery, no dispositive motions (except Partain’s plea to the jurisdiction), no notice of a final hearing, no jury as requested by Partain, and no findings of jurisdiction based on Partain’s constitutionally based plea to the jurisdiction. The case is based on Partain’s exercise of his constitutional rights to compensation as stated in his financing statement. Partain raised a constitutional defense and yet there is no response at all from the court or Texas regarding the constitition[s] and how they do or don’t apply. Partain’s due process rights were denied. ARGUMENTS 1. The State of Texas lacks authority to deprive Partain his civil right to just and adequate compensation. 13 On October 6, 2023, at 10:56am, Johnny Partain recorded his UCC Financing Statement, document no. 23-0043292984 (UCC-1), with the Texas Secretary of State. Partain stated in his UCC-1 that “Payment and record is authorized and required by the Debtor's herein pursuant to Tex. Const. Art. 1, Sec. 17, and protected without exception under Sec. 29.” That’s accurate. This is what Partain intended and this is what Partain knows. Art. 1, Sec. 17, authorizes expenditures of state assets. Seaboard Airline R. Co. v US, 261 U.S. 299 (The requirement that ‘just compensation’ be paid is comprehensive and includes all elements and no specific command to include is necessary when interest or its equivalent is a part of such compensation). One of the elements incontrovertible to this case is an interest in the state’s assets based on the debt as made clear through the use of the words “just” compensation and “adequate” compensation in US Const. Amd. 5 and Tx. Const. Art. 1, Sec. 17, to reach said compensation. “Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay.” Jacobs v. United States 290 U.S. 13 (1933) (the right to just compensation could not be taken away by statute or qualified by the omission of a provision for interest where such an 14 allowance was appropriate in order to make the compensation adequate). “We (US Supreme Court) should not “assume the States will refuse to honor the Constitution,” including the Takings Clause, because “States and their officers are [also] bound by obligation imposed by the Constitution.” DeVillier v. Texas, 601 U.S. 285 (2024) (Texas Solicitor General Aaron Nielson explains to the U.S. Supreme Court that when compensation is not paid at the instance of a taking that a debt is created and the state is in constant violation of the constitution until the debt is paid); see also App. 5, R.R.p47:2-p48:24. Tx. Const. Art. III Sec. 49 (a)(3) confirms that such a debt may be created by the constitution. Tx. Const. Art. 1, Sec. 29, protects the right to compensation. Tx. Const. Art. 1 Sec. 29. PROVISIONS OF BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT; TO FOREVER REMAIN INVIOLATE - To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general 15 powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void. The US Supreme Court has often recognized that the US Constitution applies to States: “The constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution.” Alden v. Maine, 527 U.S. 706, 754–755 (1999); Republican Party of Texas v. Dietz, 940 SW 2d 86 (1997) -TEX. CONST. art. I, § 29. The first clause of section 29 establishes that the purpose of the Texas Bill of Rights is to "guard against transgressions of the high powers" delegated to the state government by the Texas Constitution. Nowhere does the Texas Constitution contain similar language indicating an intent to have the Bill of Rights generally guard against transgressions by individuals. Further, the provisions in section 29 excepting everything in the Bill of Rights "out of the general powers of government" and providing that "all laws" contrary to the Bill of Rights 16 shall be void demonstrates that the Bill of Rights serves as a shield against the powers and laws of government. Therefore, statutory law cannot restrain the constitution[s] or Partain’s civil right to compensation, including through Section 9.5185(a) of the Texas Business and Commerce Code, even if Congress, Governor, or Judiciary wanted to. Travelers' Ins. Co. v. Marshall, 124 Tex. 45, 76 S.W.2d 1007 (Tex.1934), “we stated that the Bill of Rights "consists of express limitations of power" on the legislature, executive officers, and the judiciary.” A law conflicting with rights guaranteed by the Texas Bill of Rights is void "because the Bill of Rights is a limit on State power." City of Beaumont v. Bouillion, 896 S.W.2d 149 (Tex. 1995); Miranda v. Arizona, 384 U.S. 426, 491; 86 S. Ct. 1603, "Where rights secured by the Constitution are involved, there can be no 'rule making' or legislation which would abrogate them.” “The claim and exercise of a constitutional right cannot be converted into a crime.”; Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 CoLum. L. REV. 857, 914 (1999) ("[R]ights and remedies operate as part of a single package."); Michael Coenen, Right-Remedy Equilibration and the 17 Asymmetric Entrenchment of Legal Entitlements, 61 B.C. L. RENT. 129, 139 (2020) (defining "legal entitlement" to mean "remedy made available in response to a particular violation of a substantive right" (emphasis omitted)). Levinson, supra note 2, at 858 (describing rights and remedies as "inextricably intertwined" and noting that rights rely on remedies "for their scope, shape, and very existence"). Marbury v. Madison, 5 U.S. 137 (1803) (“every right, when withheld, must have a remedy”). At this time on October 6, 2023, at 10:56am, Partain also recorded in his UCC-1 that his assets were probably commingled with the Debtors’ assets ( Texas Business and Commerce Code Sec. 9.336) since Partain’s assets had been taken without the required compensation, and there was no evidence that Partain’s compensation or his assets had been segregated from the debtors assets. Not that Partain needed another security interest because statutes do not control, but its there anyways. This is what Partain knows. 18 At this same time on October 6, 2023, at 10:56am, Partain had already sued for inverse condemnation, civil rights violations, and RICO8, in Hidalgo County case no. C-0929-12-F, to enforce the remedy to compensate him for his property that was taken and destroyed. But the South Texas judiciary and District Attorney had already made it blatantly obvious through targeted lawfare (see App. 2, Third Amended Petition) against Partain and through protection of criminal acts against Partain that they would not enforce or honor the remedy required by the constitution[s] to compensate Partain. Jacobs v. United States, 290 U.S. 13 (1933) - Jacobs makes clear that, no matter what sort of procedures the government puts in place to remedy a taking, a property owner is entitled to compensation as soon as the government takes his property without paying for it. The constitutional remedy of compensation is mandatory. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 8 The State of Texas was used as a RICO enterprise to interfere with an interstate motorcoach company owned by Partain which killed 23 people after a court took control of his company causing Partain to be served with over a billion dollars in claims from the victim’s families. Then Partain was placed under a gag order and threatened, including through incarceration for 72 days until suing out a habeas corpus in federal court, to quiet liability. The families had to settle for a single $5 million insurance payout. Partain’s company was destroyed, and Partain was also not compensated. 19 740–41 (2010) (Kennedy & Sotomayor, JJ., concurring in part) (“[T]he Court subsequently held that the Takings Clause requires the availability of a suit for compensation against the States [in] First English[.]”); accord Manning v. Mining & Mins. Div. of the Energy, Min. & Nat’l Res. Dep’t, 144 P.3d 87, 90–91 (N.M. 2006) (citing First English as holding that the “compensation remedy is required by the Constitution”); SDDS, Inc. v. State, 650 N.W.2d 1, 9 (S.D. 2002) (recognizing that First English means “the [compensation] remedy does not depend on statutory facilitation”); The Texas Constitution requires Texas to pay its debts, no ifs, ands, or buts. App. 5, Certified Transcript in Devillier v. Texas , 601 U.S. 285 (2024) (App. 5, R.R.p38:19-25; R.R.p39:2-3,9-11; R.R.p40:11-12,15-19; R.R.p47:2-25; R.R.p48:18-25; R.R.p49:1-p68:4). Further, even if the state never provided a procedure for remedy, “the form of the remedy does not qualify the right.” First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987). The constitution does not preclude extra-judicial acts to collect a constitutional debt against the state, and Congress could never write 20 a law forbidding it. Ex parte Virginia, 100 U.S. 339, 346 (1880). “A State acts by its legislative, its executive, or its judicial authorities. It can act in no other way. The constitutional provision, therefore, must mean that no agency of the State, or of the officers or agents by whom its powers are exerted, shall deny to any person within its jurisdiction the equal protection of the laws. Whoever, by virtue of public position under a State government, deprives another of property, life, or liberty, without due process of law, or denies or takes away the equal protection of the laws, violates the constitutional inhibition; and as he acts in the name and for the State, and is clothed with the State’s power, his act is that of the State.” Texas refused to provide Partain with any recourse at all for the taking and destroying of his property, and for the years of lawfare against Partain and his property in other cases, many where he wasn’t even a party. Any final remedy required by the constitution[s] would have required just and adequate compensation, or be void per the constitution[s], since the debt accrued was inviolate. City of Dallas v Mitchell, 245 S.W. 944 “To take away all remedy for the enforcement of a 21 right is to take away the right itself. But that is not within the power of the State.” The Constitution itself recognizes the remedy which is thus “self-executing.” See Yearsley v. W.A. Ross Constr. Co., 309 U.S. 18, 21 (1940) (“[I]f the authorized action ... does constitute a taking of property for which there must be just compensation under the Fifth Amendment, the Government has impliedly promised to pay that compensation and has afforded a remedy for its recovery….”). This is what Partain knows. At this same time on October 6, 2023, at 10:56am, Texas was in violation of Partain’s civil rights under US Const. Amd. 4, 5, 9, 14, and Tx. Const. 3, 9, 13, 17, and 19.9 US Const. Amend. 5 and Tx. Const. Art. 1, Sec. 17 provided the remedies of just and adequate compensation. First English Evangelical Lutheran Church v. Los Angeles County, 482 U.S. 304 (1987) "The suits were based on the right to recover just 9 Amendments 4 (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated), 5 (nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation), 9 (that United States citizens have far more rights than those currently listed and that their absence doesn’t diminish their importance), and 14 (due process), of the United States Constitution. Article 1 of the Texas Constitution has associated sections which the Defendants violated including 3 (equal rights), 9 (unreasonable seizures), 13 (remedy by due course of law), 17 (right to compensation for property taken, used, or destroyed), 19 (no deprivation, or in any manner disfranchised). 22 compensation for property taken by the United States for public use in the exercise of its power of eminent domain. That right was guaranteed by the Constitution. The fact that condemnation proceedings were not instituted and that the right was asserted in suits by the owners did not change the essential nature of the claim. The form of the remedy did not qualify the right. It rested upon the Fifth Amendment. Statutory recognition was not necessary. A promise to pay was not necessary. Such a promise was implied because of the duty to pay imposed by the Amendment. The suits were thus founded upon the Constitution of the United States." The constitutional remedy of compensation is mandatory. [T]he Constitution itself is . . . a waiver of governmental immunity for the taking, damaging or destruction of property." Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980). The constitution[s] did not require judicial review or blessings, but they did specify “just” and “adequate” which included all elements necessary to achieve compensation. A security interest in Texas’ assets became necessary elements of just and reasonable in current law to achieve the 23 compensation due to Partain and to place Texas in a lawful condition pursuant to the constitutions. This is what Partain knows. At this same time on October 6, 2023, at 10:56am, the debtors, Texas and its political subdivisions, failed to challenge the debt or to compromise in any way. The doctrine of laches imposes an equitable time limit to challenge the debt, therefore vindicating the debt when the debtor is silent. It is understood that Texas not only claims immunity to civil right violations, but that Texas also excuses itself from the doctrine of laches to challenge its interests decades into the future. However, this case is not about Texas now or in the future, it is about Partain on October 6, 2023, at 10:56am. It is about what Partain knew at the time he recorded his UCC-1. That Texas had taken and destroyed his property and that Texas was compelled by the constitution to compensate him, and that Partain had the constitutional right to compensation; or the debt as Texas calls it. Texas itself acknowledges that taking, using, and destroying a person’s property creates an “inviolate” debt. Tx. Const. Art. 1, Sec. 29; App. 5, Transcript. Texas did not challenge, negotiate, or in any way mitigate the debt, it 24 only claimed immunity to the law, which has been resolutely determine to be illegal and void in the previously cited caselaw. This is what Partain knows. At this same time on October 6, 2023, at 10:56am, Partain had already made multiple contacts with Texas Governor Abbott, Attorney General Paxton, and the Texas Comptroller’s office for compensation for his property that was taken and destroyed. App. 3, Letter to the Governor and Attorney General. Partain had already communicated to Governor Abbott and AG Paxton that their was no judicial remedy – although there still was a specific constitutional remedy. Texas Governor Abbot and Attorney General Paxton responded that they refused to provide Partain compensation, claiming that Partain needed to sue Texas again even though they claimed immunity to suit. The Governor and AG made a color of law argument violating Partain’s rights under criminal code 18 USC § 242. This is what Partain knows. At this same time on October 6, 2023, at 10:56am, citizen Partain had already petitioned each and every member of the Texas Legislature (App. 9, Petition to Texas Legislature) for compensation (twice) for his 25 property that was taken and destroyed. Only 3 members of the Texas Legislature responded to citizen Partain’s petition for relief, claiming they were too busy to provide relief at the time - but at least they responded. This is what Partain knows. At this same time on October 6, 2023, at 10:56am, Texas had engaged in fraud against Partain in its own courts to prevent Partain from appealing any illegal orders pursuant to his right compensation through due process, and destroyed any opportunity Partain might use to reach a final remedy through the judiciary. (Boyce's Executors v. Grundy, 28 U.S. 210 (1830) (The law, which abhors fraud, does not permit it to purchase indulgence, dispensation, or absolution.; "Fraud vitiates the most solemn contracts, documents and even judgments.")). Texas ultimately destroyed Partain’s property rights through fraud and due process violation. “A judgment rendered in violation of due process is void in the rendering State and is not entitled to full faith and credit elsewhere.” Pennoyer v. Neff, 95 U. S. 714, 732-733 (1878). This is what Partain knows. 26 Partain knows that the law fully supports his increasingly aggressive efforts to enforce the remedy provided by the constitution[s], and he is certain a jury would agree. Texas’ willingness to engage in unethical, unconstitutional, and even criminal acts against Partain to escape its debts will never lay. Unlawful declarations, manhandling, and threats of violence from the Texas Attorney General are just plain embarrassing to the state. Partain demonstrates what he knows pursuant to Texas’ complaint under 9.5185 of the Texas Business and Commerce Code, not because he is showing compliance with the UCC code, but because he is showing how Texas’ complaint is so irrelevant against the backdrop of its malfeasance and dirty hands. Partain could have filed a complete fabrication with the Secretary of State and it wouldn’t have mattered if it was necessary to collect compensation from the state. There can be no law abrogating constitutional rights. The State of Texas lacks authority to deprive Partain his civil rights to just and adequate compensation. 27 2. Texas had no standing to complain and the District Court had no jurisdiction. Texas had no standing to complain and the District Court had no jurisdiction. Texas’ complaint against Partain pursuant to 9.5185 of the Texas Business and Commerce Code is not only a frivolous complaint, but is an unconstitutional act by Texas to usurp the Supremacy Clause10, Art. VI, Cl. 2, of the US Constitution to violate Partain’s exercise of his constitutional rights under US Constitution, Amendment 5, and Texas Constitution, Art. 1, Sec. 17, which is also protected by Art. 1, Sec 29. Texas seeks to reverse the constitution[s] mandated compensation that Partain collected by impeaching his UCC-1 as fraud to challenge the title to his properties and to seize them, without compensation, per Texas’ own admissions in the US District Court, Southern District of Texas, case no.7:24-CV-00528.11 Even duly enacted 10 The 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. 11 Federal District Court case no. 7:24-CV-00528 is Partain’s complaint against AG Ken Paxton and Land Commissioner Dawn Buckingham, officially and individually, pursuant to 42 U.S.C §1983 and made actionable (Ex Parte Young) through years of recorded civil rights abuses by the State of Texas. 28 statutes do not supply rules of decision for courts to the extent that the statutes become unconstitutional. “U.S. Const., Art. VI, cl. 2 ("[T]he Judges in every State shall be bound" by "the Laws of the United States")” Directv, Inc. v. Imburgia, 577 U.S. 47, 53 (2015). Ableman v. Booth, 62 U.S. 506 (1858) (state courts cannot issue rulings that contradict the decisions of federal courts). In Edgar v. MITE Corp., 457 U.S. 624 (1982), the Supreme Court ruled: "A state statute is void to the extent that it actually conflicts with a valid Federal statute". This means that a state law will be found to violate the Supremacy Clause when either of the following two conditions (or both) exist: 1.Compliance with both the Federal and State laws is impossible 2."State law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" Consequently, Tx. Bus. & Com. Code 9.5185 violates the Supremacy Clause because it is being used by Texas to adversely effect Partain’s rights to compensation and due process under the US Constitution. Tx. Bus. & Com. Code 9.5185 is also void under Texas law when used to 29 obstruct Art 1. Sec 13, 17, and 29 of the Texas Constitution. Texas had no standing to complain and the District Court had no jurisdiction. Texas also sought an injunction pursuant to Tx. Bus. & Com. Code 9.5185 arguing that TEX. CIV. PRAC. & REM. CODE ANN. §§ 37.003, 65.011 was controlling. This is false since TEX. CIV. PRAC. & REM. CODE ANN. §§ 65.001 specifically restrains injunctive relief to that which does not violate Chapter 65, or other laws, including civil rights under the constitutions. The order appealed herein violates TEX. CIV. PRAC. & REM. CODE ANN. §§ 65.001, Tx. Const. Art. 1, Sec. 17, US Const. Amd. 5, and The Supremacy Clause. Texas has no standing and the Court has no jurisdiction. To have standing, a party must allege an actual injury. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001); Daimler Chrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.2008). The state cannot evade its duty to pay an inviolate debt and then claim to be a victim of injury when it is forced to conform to the law, to pay its bills. Its like a thief complaining to be a victim because there is no security agreement, when the owner collects his property from the thief. Texas lacks authority to violate the 30 law, and therefore, to petition to evade its debt, to use its powers of government, or to use a court’s authority (even through a mistake) to destroy an inviolate debt that the state accrues under Tx. Const. Art. 1, Sec. 17 and the 5th Amendment of the US Constitution. It lacks authority because Tx. Const. Art. 1, Sec. 29 also explicitly says so. Sec. 29. states, “BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.” Section 29 has been interpreted to mean that any provision of the Bill of Rights is self executing to the extent that anything done in violation of it is void. Hemphill v. Watson, 60 Tex. 679, 681 (1884).12 Additionally, 12 Republican Party of Texas v. Dietz, 940 SW 2d 86 (1997) -TEX. CONST. art. I, § 29. The first clause of section 29 establishes that the purpose of the Texas Bill of Rights is to "guard against transgressions of the high powers" delegated to the state government by the Texas Constitution. Nowhere does the Texas Constitution contain similar language indicating an intent to have the Bill of Rights generally guard against transgressions by individuals. Further, the provisions in section 29 excepting everything in the Bill of Rights "out of the general powers of government" and providing that "all laws" contrary to the Bill of Rights shall be void demonstrates that the Bill of Rights serves as a shield against the powers and laws of government. 31 the remedy compelled by the Fifth Amendment “cannot be taken away by statute.” Seaboard Air Line Railway Co. v. United States, 261 U.S. 299, 304 (1923). Texas’ abuse of Tx. Bus. & Com. Code 9.5185 is about taking the remedy away mandated by the Fifth Amendment and Sec. 17 from Partain. That is illegal. Texas has no standing and the Court has no jurisdiction.13 There is no order, except dismissal that a district court can issue under Texas’ petition that wouldn’t violate Partain’s civil rights under the US and Texas Constitutions. The order appealed in this case is an excellent example. After getting past the conspicuous fraud which alleges Partain gave up his rights and agreed to no due process or jury prior to a TRO hearing, the order blows past any constitutional issues Partain raised, ad nauseum, and lands its conclusions, its authority, on the fiction that it (the UCC-1) is “not predicated on a security interest”. Technically, Texas UCC financing statements generally do not contain a grant of the security interest and generally are not signed or otherwise authenticated by the Debtor and therefore would not satisfy the 13 Travelers' Ins. Co. v. Marshall,124 Tex. 45, 76 S.W.2d 1007 (Tex.1934), we stated that the Bill of Rights "consists of express limitations of power" on the legislature, executive officers, and the judiciary. 32 requirement of a security agreement anyways. So it doesn’t matter, expecially from a constitutional point of view. Even if the law or financing statement format changed to support Texas’ argument (that a mandatory debt created under Tx. Const. Art. 1, Sec. 17, doesn’t create any interest or a security agreement), it would still be irrelevant because Texas’ complaint is an effort to use inferior statutory law to violate the constitutions. There is little Texas can do to squash the exercise of a constitutional right, especially one with an attached remedy, except pay its debt. Why doesn’t Texas just pay its debt? Fortunately, Partain has already collected the debt so the issue is moot. Texas’ complaint is moot. Texas cannot put up roadblocks to prevent compensating a citizen pursuant to the constitutions, even if it uses statutes to pursue alleged crimes. Texas must conform to the law. Otherwise its actions are void, just like the order appealed in this case. PNS Stores, Inc. v. Rivera ex rel. Rivera 55 Tex. Sup. Ct. J. 1400 (Tex. 2012) (We [Texas Supreme Court] have described a judgment as void when “the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the 33 particular judgment, or no capacity to act.” Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex.2010) (quoting Browning, 165 S.W.3d 346)). Texas has no standing and the Court has no jurisdiction. The standing inquiry "requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Heckman v. Williamson Cnty, 369 S.W.3d 137. Texas’ petition is solely designed to violate Johnny Partain’s right to compensation under Texas Constitution, Art. 1, Sec. 17 and 29, and to put the Texas back into the position of violating Partain’s civil rights. Court’s have no authority to violate the law. Chicago, Burlington & Quincy Railroad Co. v. Chicago, 166 U.S. 226 (1897) (“It must be observed that the prohibitions of the [Fourteenth] amendment refer to all the instrumentalities of the state,— to its legislative, executive, and judicial authorities, —and, therefore, whoever by virtue of public position under a state government deprives another of any right protected by that amendment against deprivation by the state, ‘violates the constitutional inhibition’ … This must be so, or, as we [SCOTUS] have often said, the constitutional prohibition has no 34 meaning[.]) See Dolan v. City of Tigard, 512 U.S. 374, 383 (1994); Penn Central Transp. Co. v. New York City, 438 U.S. 104, 122 (1978); Nollan, 483 U.S. 827. Texas can’t sue to violate Partain’s right to compensation because that power is excepted by Sec. 29 of the constitution and the Supremacy Clause. Whether a trial court has subject-matter jurisdiction is a question of law for the court, requiring de novo review. State Dep’t of Highways & Pub. Transp. v. Gonzalez 82 S.W.3d 322, 327 (Tex. 2002). Texas had no standing to complain and the District Court had no jurisdiction. 3. Partain’s Due Process Rights Were Denied Partain’s due process rights were denied. The Texas Constitution’s due-course-of-law guarantee provides that “[n]o citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” TEX. CONST. art. I, § 19. It is nearly identical to the Fourteenth Amendment’s due-process clause, which provides that “[n]o State shall make or enforce any law which shall abridge the privileges or 35 immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law. . . .” U.S. CONST. amend. XIV, § 1. The judge misrepresented to Partain that he was not entitled to a jury trial as he applied for a jury in open court, and then deprived Partain his due process of law. TEX.CONST. art.I, § 15 (“The right of trial by jury shall remain inviolate.”); TEX.CONST. art. V, § 10 (“In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury.”). “When contested fact issues must be resolved before equitable relief can be determined, a party is entitled to have that resolution made by a jury.” Hill v. Shamoun & Norman, LLP, 544 S.W.3d 724, 741 (Tex. 2018) (quoting Burrow v. Arce, 997 S.W.2d 229, 245 (Tex. 1999)). In arguendo that Texas could complain, what Partain knew or intended pursuant to Texas Business and Commerce Code section 9.5185 when he filed his UCC-1 on October 6, 2023, at 10:56am, requires a finding of fact. A judge abuses his discretion by acting "without reference to any guiding rules or principles" or by acting arbitrarily or unreasonably. E.I. 36 du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The judge abused his discretion. The judge went further by signing a fraudulent order, provided by the State of Texas after the TRO hearing, claiming that Partain waived his due process right prior to a full hearing on the merits. This is fraud on the court, extrinsic fraud in fact. There is no evidence this happened, because it did not. Extrinsic fraud is conduct that prevents a real trial upon the issues involved. O'Meara v. O'Meara, 181 S.W.2d 891 (Tex. Civ. App. 1944). Extrinsic fraud denies a litigant the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. King Ranch, 118 S.W.3d 752 (Tex. 2003). Partain has never even appeared in court for a trial. He did appear for a TRO and was told he wasn’t entitle to a jury since it was only for a temporary injunction. Extrensic fraud denies due process. Denial of due process makes a judgment void. “A judgment "is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due 37 process of law."” Williams v. New Orleans Public Service, Inc., 728 F.2d 730, 735 (5th Cir. 1984). The district case included no discovery, no dispositive motions (except Partain’s plea to the jurisdiction which is still not fully adjudicated on the constitutional issues14), no notice of a final hearing, nor even responses to any constitutional claims on which the case is actually based. The judge acted "without reference to any guiding rules or principles." Id. E.I. du Pont de Nemours. Finally, the judge signed the fraudulent order declaring that the State of Texas does not owe the inviolate debt alleged in the Financing Statement. How does he know? He doesn’t. Where does he have the authority to make that order? He doesn’t. The debt alleged has never been litigated or even challenged by Texas – remember, this case is about what Partain knew or intended on October 6, 2023, at 10:56am. Litigation over the debt owed to Partain has been avoided on Texas’ claims of sovereign immunity and by denying Partain due process. Just A court has no authority to move onto a TRO hearing without first affirmatively 14 determining its jurisdiction. Bland Indep. Sch. Dist., 34 S.W.3d 554; Miranda, 133 S.W.3d at 226, 229; Austin & N.W.R. Co. v. Cluck, 97 Tex. 172, 77 S.W. 403, 405 (1903) (“[T]here can be no doubt that the courts of Texas must look to the Constitution of this state, the enactments of the Legislature, and the common law for their authority to proceed .…). 38 because the Texas judiciary refuses to provide an open court or a process to support the remedy (a simple inverse condemnation claim) required by the constitutions doesn’t mean the debt goes away. Tx. Const. Art. 1 sec. 13 - Excessive Bail or Fines; Cruel and Unusual Punishment; Remedy by Due Course of Law, “All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.”; Texas Const. Art. 1 sec. 19 - Deprivation of Life, Liberty, Etc.; Due Course of Law, “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” The debt alleged is an inviolate debt per US Const. Amd. 5 and Tx. Const. Art. 1, Sec. 17, beyond the authority of the Court, excepted out of the general powers of government, and forever remaining inviolate. Tx. Const. Art. 1, Sec. 29. A judicial, executive, or even legislated order to affect the inviolate debt is void. Partain’s due process rights were denied. 39 PRAYER WHEREFROM PREMISES CONSIDERED, Appellant Johnny Partain prays the 15th Court of Appeals strikes down the District Court’s Order Granting Permanent Injunction And Other Relief for being illegal and void, and declares any actions taken under the color of law from the order or on basis of the state’s claim are also Void. Johnny Partain prays the 15th Court of Appeals dismisses the State of Texas’ lawsuit in D-1-GN-24-002560 with prejudice for violating the restraints of the US Constitution and the Texas Constitution. Johnny Partain prays for all other relief in equity and law he may be entitled. Respectfully Submitted, ______________________________ JOHNNY R. PARTAIN 7020 N 16th Street McAllen, Texas 78504 956-240-1821 40 CERTIFICATE OF COMPLIANCE I, Johnny Partain, do hereby certify this Appellant’s Brief that pursuant to TRAP 9.4 (i) (3), the number of words in this document as provided by the LibreOffice Writer is 7292 words. CERTIFICATE OF SERVICE I hereby certify that I have caused to be delivered a true and correct copy of the Appellant’s Brief and Appendix on this March 25, 2025, pursuant to the Texas Rules of Appellant Procedure to: ZACHARY L. RHINES Assistant Attorney General General Litigation Division, Zachary.Rhines@oag.texas.gov and to ALI THORBURN Assistant Attorney General General Litigation Division, Ali.Thorburn@oag.texas.gov. 41 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Envelope ID: 98867869 Filing Code Description: Brief Not Requesting Oral Argument Filing Description: Appellant's Brief with Separate Appendix Status as of 3/25/2025 4:17 PM CST Associated Case Party: State of Texas Name BarNumber Email TimestampSubmitted Status Ali Thorburn Ali.Thorburn@oag.texas.gov 3/25/2025 2:57:25 PM SENT No. 15-25-00005-CV In The Fifteenth Court Of Appeals • JOHNNY PARTAIN Appellant v. STATE OF TEXAS Appellee • Appellant’s Brief Appendix • JOHNNY R. PARTAIN 7020 N 16th Street McAllen, Texas 78504 956-240-1821 APPENDIX 1. Defendant’s Plea To The Jurisdiction and Motion To Dismiss 2. Third Amended Petition, case no. C-0929-12-F 3. Letters To Governor and Attorney General 4. Transfer Statement 5. Certified Transcript in Devillier v. Texas, 601 U.S. 285 (2024) 6. Miscellaneous Claim Application With Response 7. Hidalgo County Court case no. CL-29,530-H, Summary (Certified) 8. Governor Abbott’s Press Release 9. Petition To Texas Legislature 1. Defendant’s Plea To The Jurisdiction and Motion To Dismiss CAUSE NO. D-1-GN-24-002560 STATE OF TEXAS § IN THE DISTRICT COURT Plaintiff § § § 126TH JUDICIAL DISTRICT v. § § § TRAVIS COUNTY,TEXAS JOHNNY PARTAIN § Defendant § DEFENDANT’S PLEA TO THE JURISDICTION AND MOTION TO DISMISS TO THE JUDGE OF THIS COURT COMES NOW JOHNNY PARTAIN, Defendant, in the above styled and numbered cause and brings his Defendant’s Plea To The Jurisdiction and Motion To Dismiss, and in support thereof shows unto the Court the following. INTRODUCTION 1. The State of Texas brought this pointless suit pursuant to an inferior Texas subchapter of the UUC statute to violate and control Johnny Partain’s exercise of his constitutional rights under US Constitution, Amendment 5, and Texas Constitution, Art. 1, Sec. 17, protected by Sec 29. Texas seeks to reverse compensating and to unpay Johnny Partain as part of their decades long gamesmanship of Texas laws. 2. Johnny Partain sued the State of Texas and its officers in Hidalgo County District case no. C-0929-12-F, for Inverse Condemnation, US 5th Amendment violations, and RICO, seeking $250,000,000.00 sum certain, plus interest. Exhibit 1, Petition (only). The case was dismissed on the “authority of the judge.” The dismissal was reversed and the case remanded with a mandate (case no. 13-13-00341-CV) from the 13th Court of Appeals, written by a justice out of the 14th Court of appeals assigned by the Chief Justice of the Texas Supreme Court, to take Johnny Partain to trial and to pay his legal costs. Exhibit 2, Mandate. The lower court resisted. 1 3. Johnny Partain motioned for a $250,000,000 summary judgment against the State of Texas. Texas failed to provide a written response but argued against the motion in summary judgment hearing. Instead of awarding Johnny Partain summary judgment as required, the court refused to entertain any hearings in the case for over 4 years until Johnny Partain contacted Texas Governor Greg Abbott and Attorney General Kenneth Paxton for payment. Johnny Partain pointed out the Texas Constitution already provided a self-executing compensation remedy which didn’t require a court’s opinion and never required a lawsuit in the first place. Exhibit 3, Certified Letters. Also note that Texas doesn’t have an inverse condemnation statute or any administrative process for paying compensation pursuant to USCA 5 or Tx. Const. Art. 1, Sec. 17. 4. Within approximately a week, Johnny Partain was informed by the Texas State Commission on Judicial Conduct that an investigation against four district judges for bank fraud, money laundering, RICO, official abuse, bribery, and other offenses had been started. Ironically the investigations were dismissed in form letters from the Texas State Commission on Judicial Conduct claiming that it does not have jurisdiction over judges.?. - so there was no investigation. Approximately, two weeks after the investigation was supposed to start a hearing was scheduled in the court, case no. C-0929-12-F – the same court that had refused to have a hearing for over 4 years. 5. At the hearing the Attorney General’s office argued that “someone needed to pay that man”, referring to Johnny Partain, but he also argued Texas was immune to suit. The other public defendants pointed fingers at one and another, arguing who was liable, while also claiming immunity to suit. Finally, the district judge acknowledged that he had a mandate to take Johnny Partain to trial but that if there were no defendants there could be no trial. The district judge gifted the State of Texas with a general order of immunity. He also gifted the other defendants with general orders of immunity. The merits of the case were never reviewed. Johnny Partain was not allowed to appeal although he tried. 6. Johnny Partain again communicated to Texas Governor Greg Abbott and Attorney General Kenneth Paxton that he had sued the State of Texas for $250,000,000, sum certain debt, which was self-executing, providing a remedy, under Texas Constitution, Art. 1, Sec. 17, and inviolate against any state actions to adversely effect the debt as 2 strictly stated under Texas Constitution, Art. 1, Sec. 29. Johnny Partain communicated that the court refused it duty to entertain any constitutional recourse as provided under its own case law which left the Governor and Attorney General responsible to pay the state’s $250,000,000 – since the governor and attorney general were not empowered to substitute their own opinions in for a court’s opinion. Johnny Partain respectfully requested payment and cautioned the Governor and Attorney General that he would collect if they failed to abide by the law. About 2 weeks, Johnny Partain’s business was audited by the Texas Comptroller’s office which is still ongoing to this day. 7. Approximately 8 months later Johnny Partain informed Governor Abbott and Attorney General Paxton that it appeared they would not pay him. Johnny Partain made a formal request to the Texas Comptroller for payment which was neither accepted or denied until nearly 4 months later when Johnny Partain spoke to the Texas Comptroller’s attorney who claimed that Governor Abbott and Attorney General Paxton objected to paying Johnny Partain. The attorney claimed that Governor Abbott and Attorney General Paxton required Johnny Partain to sue the State of Texas - which the the officials also claimed was immune to suit. Johnny Partain made criminal complaints against Greg Abbott and Kenneth Paxton to United States Attorney General Attorney Merrick Garland for using the color of law under 18 U.S. Code § 242 to violate his constitutional rights. Johnny Partain advised AG Merrick Garland that he was collecting compensation against the state and welcomed any information they may provide to avoid collecting against federal interests. Johnny Partain then collected his adequate compensation through different methods within the restraints of US Constitution and Texas Constitution, as he cautioned the Governor and Attorney General that he would. The debt has been mostly collected, and should be completely collected within September of 2024. 8. There are no statutory remedies or pleas in equity available for judicial discretion to overturn a constitutional mandate or to unpay the compensation required by the US Constitution and Texas Constitution. In law, the powers of government are excepted from violating civil rights of its citizens through the voiding of its actions. The State of Texas brought this pointless suit through an inferior Texas subchapter of the UUC statute to violate and control Johnny Partain’s exercise of his constitutional rights under US Constitution, Amendment 5, and Texas Constitution, Art. 1, Sec. 17, protected by Sec 29. 3 STANDARD OF REVIEW 9. A plea to the jurisdiction is a procedural device used to challenge a court’s subject- matter jurisdiction over a given claim. Tex. Dep’t. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 232 (Tex. 2004). Whether a trial court has subject-matter jurisdiction is a question of law for the court, requiring de novo review. State Dep’t of Highways & Pub. Transp. v. Gonzalez 82 S.W.3d 322, 327 (Tex. 2002). While reviewing a plea to the jurisdiction, a court should limit itself to the jurisdictional issue at hand and avoid considering the merits of claims made by the plaintiff. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). During a court’s review of its jurisdiction over a given claim, it is the plaintiff who has the burden to allege facts affirmatively demonstrating that the trial court has subject matter jurisdiction. State Dep’t of Highways at 446. If a trial court determines that it lacks subject-matter jurisdiction over a given claim, it should dismiss the case with prejudice. See, Daimler-Chrysler Corp v. Inman, 252 S.W.3d 299, 304 (Tex. 2008). BASIS FOR DISMISSAL Even if this Court takes as true all of Plaintiff’s allegations against Defendants, as it must for the purposes of this Plea, this Court must grant Defendant’s Plea for the following reasons: 10. The Plaintiff lacks standing to complain. Plaintiff alleges that Defendant filed a UCC Financing Statement to collect a constitutionally imposed debt accruing under Tex. Const. Art. 1, Sec. 17, and protected, without exception, by Art. 1, Sec. 29. It says so on the financing statement provided in the Plaintiff’s Petition Exhibit 1. The debt cannot be legally ignored by the Plaintiff and is protected by res judicata through litigation in Hidalgo County District Court case no. C-0929-12-F. The Plaintiff cannot be injured by having its debt collected. The Plaintiff cannot use any any inferior state statute to breach Defendant’s 4 constitutional right to compensation. The Plaintiff lacks standing to complain. 11. This case is beyond the jurisdiction of the Court. The Court lacks jurisdiction because the Plaintiff lacks standing. Also, there is no order the Court can issue on the Plaintiff’s petition that would not violate the Defendant’s civil rights under the US and Texas Constitutions since the Plaintiff’s petition is solely designed to violate Johnny Partain’s right to compensation under Texas Constitution, Art. 1, Sec. 17 and 29, and to put the Plaintiff back into the position of violating the Defendant civil rights. Any order supporting the Plaintiff’s petition would be void. This case is beyond the jurisdiction of the Court. ARGUMENTS & AUTHORITIES 12. Texas has no standing. The State of Texas lacks authority to petition to evade its debt, to use its powers of government, or to use this court’s authority to destroy an inviolate debt that the state accrues under Tx. Const. Art. 1, Sec. 17 and the 5 th Amendment of the US Constitution. It lacks authority because under Tx. Const. Art. 1, Sec. 29 explicitly says so. Sec. 29. states, “BILL OF RIGHTS EXCEPTED FROM POWERS OF GOVERNMENT AND INVIOLATE. To guard against transgressions of the high powers herein delegated, we declare that everything in this "Bill of Rights" is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void. Section 29 has been interpreted to mean that any provision of the Bill of Rights is self- executing to the extent that anything done in violation of it is void. Hemphill v. Watson, 60 Tex. 679, 681 (1884).1 Additionally, the remedy compelled by the Fifth Amendment 1. Republican Party of Texas v. Dietz, 940 SW 2d 86 (1997) -TEX. CONST. art. I, § 29. The first clause of section 29 establishes that the purpose of the Texas Bill of Rights is to "guard against transgressions of the high powers" delegated to the state government by the Texas Constitution. Nowhere does the Texas Constitution contain similar language indicating an intent to have the Bill of Rights generally guard against transgressions by individuals. Further, the provisions in section 29 excepting everything in the Bill of 5 “cannot be taken away by statute.” Seaboard Air Line Railway Co. v. United States, 261 U.S. 299, 304 (1923). Texas has no standing.2 13. Texas has no standing. To have standing, a party must allege an actual injury. Brown v. Todd, 53 S.W.3d 297, 305 (Tex. 2001). The state cannot evade its duty to pay its debts and then claim to be a victim of injury when it is forced to conform to the law. Texas’ constitutionally impose debt is the nexus of the state’s complaint. But Texas has had no review of the merits of its debt to Johnny Partain to support its complaint. Instead, Texas’ gamesmanship creates a paradox were the state has already pled immunity to suit - which certainly doesn’t exist under the law3 - to evade review of the merits of its debt – a debt which is inviolate under the constitution (see Sec. 29) - in a prior district court case, giving rise to the restraints of res judicata to reopen a case to review something that the State could have reasonably litigated already, and was prevented from being appealed – by the state. Texas’ petition is disingenuous and baits this Court into a minefield of constitutional violations, misapplications of law, and malfeasance just to reach the nexus – where the law is 100% on Johnny Partain’s side. In the end Jacobs v. United States, 290 U. S. 13 (1933) would control. Jacobs makes clear that, no matter what sort of procedures the government puts in place to remedy a taking, a property owner is entitled to compensation as soon as the government takes his property without paying for it. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 740–41 (2010) (Kennedy & Sotomayor, JJ., concurring in part) (“[T]he Court subsequently held that the Takings Clause requires the availability of a suit for compensation against the States [in] First English[.]”); accord Manning v. Mining & Mins. Div. of the Energy, Min. & Nat’l Res. Dep’t, 144 P.3d 87, 90–91 (N.M. 2006) (citing First English as holding that the “compensation remedy is required by the Constitution”); SDDS, Inc. v. State, 650 N.W.2d 1, 9 (S.D. 2002) (recognizing that First Rights "out of the general powers of government" and providing that "all laws" contrary to the Bill of Rights shall be void demonstrates that the Bill of Rights serves as a shield against the powers and laws of government. 2. Travelers' Ins. Co. v. Marshall,124 Tex. 45, 76 S.W.2d 1007 (Tex.1934), we stated that the Bill of Rights "consists of express limitations of power" on the legislature, executive officers, and the judiciary. 3 The US Supreme Court has often recognized that the Constitution applies to States: “The constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution.”52 Alden v. Maine, 527 U.S. 706, 754–755 (1999). 6 English means “the [compensation] remedy does not depend on statutory facilitation”). The Texas Constitution requires Texas to pay its debts, no ifs, ands, or buts. Exhibit 4, Brief For Respondent (State of Texas) to the US Supreme Court, page 1-3, in Devillier v. Texas , 601 U.S. 285 (2024) (The State of Texas takes property rights extremely seriously. Indeed, the Texas Constitution goes beyond the U.S. Constitution by providing that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” Tex. Const. art. I, §17 (emphasis added). Texas courts also decide takings claims and award full compensation under both the U.S. Constitution and the more protective Texas Constitution.); See also the attached Exhibit 5, Certified Transcript in Devillier v. Texas , 601 U.S. 285 (2024) (Texas Solicitor General Aaron Nielson discussing conformance to constitutional requirement and a rogue state hypothesis)(R.R.p38:19-25; R.R.p39:2-3,9- 11; R.R.p40:11-12,15-19; R.R.p47:2-25; R.R.p48:18-25; R.R.p49:1-p68:4). Further, even if the state never provided a procedure for remedy, the constitution does not preclude extra-judicial acts to collect a constitutional debt against the state, and Congress could never write a law forbidding it. The Plaintiff lacks standing to complain. 14. This case is beyond the authority of the Court. If a plaintiff lacks standing to assert one of his claims, the court lacks jurisdiction over that claim and must dismiss it. Daimler Chrysler Corp. v. Inman, 252 S.W.3d 299, 304 (Tex.2008). The standing inquiry "requires careful judicial examination of a complaint's allegations to ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims asserted." Heckman v. Williamson Cnty, 369 S.W.3d 137. Texas Officials are required to enforce the Constitution - they can’t sue to violate it because that power is excepted by Sec. 29 of the constitution. “It must be observed that the prohibitions of the [Fourteenth] amendment refer to all the instrumentalities of the state,—to its legislative, executive, and judicial authorities, —and, therefore, whoever by virtue of public position under a state government deprives another of any right protected by that amendment against deprivation by the state, ‘violates the constitutional inhibition’ … This must be so, or, as we [SCOTUS] have often said, the constitutional prohibition has no meaning[.] See Dolan v. City of Tigard, 512 U.S. 374, 383 (1994); Penn Central Transp. Co. v. New 7 York City, 438 U.S. 104, 122 (1978); Nollan, 483 U.S. at 827; Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot., 560 U.S. 702, 717 (2010). Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 535 U.S. 302, 306 n.1 (2002) (The Just Compensation Clause “applies to the States as well as the Federal Government.”). There is no order the court could issue to relieve the Plaintiff its duty to pay it debts without putting the State of Texas in the position again of violating Johnny Partain’s civil rights under the US and Texas Constitutions. This case is beyond the authority of the Court. 15. WHEREFORE PREMISES CONSIDERED, the Defendant moves the Court to dismiss this lawsuit. Respectfully submitted by, ________________________ JOHNNY PARTAIN 7020 N. 16th Street McAllen, Texas 78504 956-687-4966 partain@atlastechnologies.biz CERTIFICATE OF SERVICE This certifies that a true and correct copy Defendant’s Plea To The Jurisdiction and Motion To Dismiss, has been serviced by email to ZACHARY L. RHINES Assistant Attorney General General Litigation Division, Zachary.Rhines@oag.texas.gov and to ALI THORBURN Assistant Attorney General General Litigation Division, Ali.Thorburn@oag.texas.gov on this August 20, 2024. ___________________________ Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz 956-240-1821 8 EXHIBIT 121F LED - O'CLOCK NOV 0 9 2015 LAURA HINOJOSA, ERK CAUSE NO. C-0929-12-F District my BY Deputylt3D JOHNNY PARTAIN § IN THE 332 DISTRICT COURT Plaintiff OF HIDALGO COUNTY, TEXAS VS. CONSTABLE J.E. "EDDIE" GUERRA, § HIDALGO COUNTY PRECINCT 4 in his § Official Capacity, and JAMES H. MAPLES § Defendants PLAINTIFF'S SECOND AMENDED ORIGINAL PETITION CONSOLIDATING SEC. 1983 CIVIL RIGHTS VIOLATIONS, RICO COMPLAINTS,AND "TAKINGS CLAUSE' TO THE JUDGE OF THIS COURT 1. COMES NOW JOHNNY PARTAIN, Plaintiff in the above filed and numbered cause and files his Plaintiff's Second Amended Petition Consolidating Sec. 1983 Civil Rights Violations, Rico Complaints, and "Taking Clause" respectfully shows unto the Court as follows. DISCOVERY Plaintiff intends that discovery be conducted under Level 3. PARTIES A. Plaintiff, JOHNNY PARTAIN may be contacted at 7020 N 16th Street, McAllen, Texas 78504; phone 956-240-1821; B. Defendant, STATE OF TEXAS, through KEN PAXTON, OFFICE OF THE ATTORNEY GENERAL, and may be served at 300 W. 15th Street, P.O. Box 12548, Austin, TX 78701; (512) 463-2100; C. Defendant, HIDALGO COUNTY SHERIFF/CONSTABLE J.E."EDDIE" GUERRA, HIDALGO COUNTY PRECINCT 4, in his official position and individually, and may. be served at 711 El Cibolo Road, Edinburg, TX 78541; phone (956) 383-8114; D. Defendant, DEPUTY CONSTABLE CARLOS GONZALEZ, HIDALGO COUNTY PRECINCT 4, in his official position and individually, and may be served at 2418 S. Business Hwy. 281, Edinburg, Texas 78539; phone 956-383-8560; E. Defendant, JUSTICE OF THE PEACE HOMER JASSO SR., in his official position and individually, and may be served at his office at 224 N. 12th Edinburg, TX 78539; (956) 383-0921; F. Defendant, DISTRICT JUDGE (RETIRED) ALEX W. GABERT, in his official position and individually, and may be served at his office at 502 N Britton Ave., Rio Grande City, 78582; G. Defendant, DISTRICT JUDGE JOSE MANUEL BANALES, in his official position and individually, may be served at One Shoreline Plaza, 800 N. Shoreline Blvd., Suite 302 South Tower, P.O. Box 2412, Corpus Christi, Texas 78403; (361)726-9430; H. Defendant, SENIOR DISTRICT JUDGE ROBERT MAX BLACKMON, in his official position and individually, and may be served at 101 N. Shoreline, Suite 350, Corpus Christi, Texas 78401; I. Defendant; COUNTY JUDGE SERGIO VALDEZ, in his official position and individually, and may be served at Hidalgo County Court At Law Number No. 7, 100 N. Closner Blvd., Edinburg, TX 78539; J. Defendant, DISTRICT ATTORNEY RENE GUERRA, in his official position and individually, and may be served at his office 100 N Closner Blvd, Edinburg, TX 78539. K. Defendant, COUNTY JUDGE RODOLFO GONZALEZ in his official position and individually, and may be served at his office at 100 N Closner Blvd, Edinburg, TX 78539; L. Defendant, HIDALOG COUNTY SHERIFF GUADALUPE "LUPE" TREV1140, in his official position and personally, and may be served with process at his office at 711 E. El Cibolo Road, Edinburg, Texas 78542; M. Defendant HIDALGO COUNTY, TEXAS, a local governmental entity, may be served with process by serving County Judge Ramon Garcia of said a local governmental entity, at 302 West University, Edinburg, TX 78539; N. Defendant, BBVA USA, INC., Waterway Plaza II 10001 Woodloch Forest The Woodlands, Texas, 77380, whose registered agent is Peter W. Paulsen Waterway Plaza II, 10001 Woodloch Forest Drive Ste 610, The Woodlands, Texas, 77380; known herein as Compass Bank. 0. Defendant, MCALLEN POLICE CHIEF VICTOR RODRIGUEZ, in his official position, and may be served with process at his office at 1601 N. Bicentennial Blvd., McAllen, TX 78501; P. Defendant, CITY OF MCALLEN, TEXAS, a municipal corporation, may be served with process by serving its mayor of said organization, JIM DARLING, at 1300 Houston Avenue, McAllen, TX 78501; Q. Defendant JAMES MAPLES divorced and may be served with process at 605 Wisteria, McAllen, Texas 78504; phone 956-827-5502. R. Defendant, COMPASS BANK, 15 South 20th Street, Birmingham, Alabama, 35233, whose registered agent is C T Corporation System, 350 N St. Paul Street, Dallas, Texas, 75201; S. Defendant, FARMERS INSURANCE, and may be served through FIRE INSURANCE EXCHANGE, P.O. Box 51196, Los Angeles, Ca. 90051-5496; T. Defendant, STATE BAR OF TEXAS, a public corporation and an administrative agency of the judicial department, may be served with process by serving Christine E. McKeeman, Executive Director & General Counsel, 1414 Colorado Street, Austin, Texas 78701. III. JURISDICTION 3. This Court has concurrent jurisdiction over 42 USC § 1983, Civil Action for Deprivation of Rights, and 18 U.S.C. 1964, Racketeer Influenced Corrupt Organization, pursuant to Article VI, Clause 2 of the United States Constitution. See Tafflin v. Levitt, 493 U.S. 455 (1990). This Court also has concurrent jurisdiction over eminent domain suits per Tx. Prop. Code § 21.001. IV. FACTS 4. Johnny Partain, Plaintiff herein, is a judgment creditor in Cause CL-29,530-[A] in 'Hidalgo County Court No. I pursuant to a Final Judgment dated July 24, 2002, for approximately $453,000 (App. 1, Final Judgment; App. 2. Abstract of Judgment) which was later modified to a Third Amended Judgment (App. 4, Third Amended Judgment) on February 23, 2003, through Judge Rudolfo Gonzalez : Judge Gonzalez allegedly reestablished the Court's plenary power after a writ of execution had been issued in CL-29,530-[A] on a TRCP 306 motion that the judgment Debtors did not have notice of the Final Judgment (see App. 3, 1 Attached Letter of Debtor's attorney describingfraudulent conveyance plan and acknowledging that the judge would make a determination by July 22, 2002). 5. The Debtors attempted to avoid their debt by encumbering or conveying all their assets to a corporation (App. 5, Special Warranty Deed) per their attorney's written instruction with the assistance of Compass Bank (aka Texas State Bank) and their neighbor Paul Moxley, President of Texas State Bank. Global Limo, Inc. (aka Atlas Transportation, Inc.) was originally a scam, a racketeering enterprise, designed by Debtors to control and to "fraudulently convey" assets away from satisfaction of judgment in case no. CL-29,530-A. It was implemented after Judge Gonzalez unlawfully seized back the plenary power his Court lost after Final Judgment was rendered against the judgment Debtors for approximately $453,000 on excuse that the Debtors knew nothing of the final order, although a document (see App. 3, Attached Letter of Debtor's attorney describingfraudulent conveyance) which appeared two years later demonstrates that everyone was given notice of the signing of the Final Judgment by Judge Gonzalez himself. Judge Gonzalez used his illegally extended plenary power to destroy Plaintiff's jury awards, causes of action, and jury findings to protect the judgment Debtors, which he expressed to Plaintiff, [sic] "should be accepted as a business loss." Debtors created Global Limo, Inc. to hide all their non-exempt assets and Compass Bank cross-collaterized assets as planned through their close relationship. Compass Bank refused to abide by court orders and specific requests from Plaintiff as the bank liquidated and transferred monies from existing business accounts to new accounts for the Debtors on basis of another illegal order issued in Judge Gonzalez' court which had been entered with the "forged" signature of the judge on or around February 2, 2005: Judge Gonzalez refused to void the illegal order, but did reverse it after the damage was done. One of these accounts established under Kathleen Maples was used to transfer FEMA funds earned by Global Limo, Inc. during hurricane Rita, for approximately $240,000, away from the corporation without report to the Debtors' bankruptcy or its owner, the Plaintiff. Compass Bank also made new written agreements with the Debtors to control Global Limo, Inc. after they receive orders from County Court no. 1 and a demand from the Plaintiff that the Debtors had no interests in the corporation. 6. Concurrently, Plaintiff was-able to obtain a turnover order on January 27, 2005, for all interests in the corporation, Global Limo, Inc. in an attempt to salvage any asset value and to offset damages through the corporation's operation. App. 6, Order (Original Turnover Order), Case no. CL-29,530-A, dated 1/27/2005. Plaintiff purchased a condo from the corporation on Jan. 27, 2005, and filed a Special Warranty Deed with the Hidalgo County Clerk approximately one week prior to Compass Bank filing a Deed of Trust on the same property. App. 7. Special Warranty Deed, dated 1/27/2005. The judgment Debtors then filed a Title 11 bankruptcy on or about February 17, 2005, In Re: James H. Maples and Virginia Kathleen Maples, case no. 05-bk-70128. They also filed a bankruptcy adversary case no. 05- bk-07009, Maples v. Partain, under the main bankruptcy wherefrom it was ordered that [sic] "Partain's Third Amended Judgment issued by the Hidalgo County Court at Law No. 1 in case CL 29,530-A is excepted from any discharge that may be granted in favor of James H. Maples in his bankruptcy case". The bankruptcy judge "avoided" the County Court's Order (Original Turnover Order) and the condo's purchase by the Plaintiff (which under bankruptcy law would have reverted title back to Global Limo, Inc. and reimburse Mr. Partain his payment). App. 8, Judgment, Maples v. Partain, Case no. 05-bk-07009, dated 4/27/2006: Note that the Texas corporation Global Limo, Inc. was never in bankruptcy, although it was treated like an asset instead of a legal entity in the adversary case by the bankruptcy court to evade the corporation's legal rights for the benefit of Compass Bank. 7. After the bankruptcy avoidance proceeding, Compass Bank returned to the main bankruptcy case and motioned the bankruptcy court to allow it to foreclose against Global Limo, Inc. and the condo since the Debtors actually had no interests in either,(an avoidance under bankruptcy requires an interest by bankruptcees that will add value to the estate). App. 10, Texas State Bank's Motion For Relief From The Automatic Stay, Bankruptcy Case no. 05-bk-70128, dated 05/16/2006. Bankruptcy Judge Schmidt allowed Texas State Bank to foreclose against the condo but didn't have jurisdiction to allow them to foreclose against Global Limo, Inc since it was not a party in bankruptcy. App. 9, Order Granting Texas State Bank's Motion For Relieffrom The Automatic Stay, Bankruptcy Case no. 05-bk-70128, dated 08/24/2007. 8. The Debtors' bankruptcy estate was dissolved on August 22, 2007 on approval of their plan to pay creditors, but the Debtors later refused to pay any creditors, except Compass Bank. App. 15, Creditor, Plaintiff's, Third Amended Complaint. Of Debtors' Default Of Plan Payment, case no. 05-70128, date 3/14/2008; App. 16, Final Docket Report, case no. 05- 70128. Bankruptcy court also refused to enforce the Debtors bankruptcy plan although Plaintiff made multiple and constant complaints, and accordingly, Plaintiff was directed by the bankruptcy court's to return to county courts to enforce his Third Amended Judgment since it was non-dischargeable and since he is a "super-creditor." 9. On August 18, 2008, Hidalgo County No. 1 trial court entered Turnover No. 5 (App. 11, Turnover Order No. 5, Case No. CL-29,530-A, dated 8/18/2008) to assist Plaintiff recover his assets (a condominium identified in App. 7, Special Warranty Deed, January 27, 2005, and identified hereafter as the "real property") and the corporation, Global Limo, Inc. that had been seized by the bankruptcy courts from the Plaintiff and controlled by the judgment Debtors and bankruptcy courts during the Debtors' Title 11 bankruptcy. The judgment Debtors challenged Turnover Order No. 5 in the 13th Court of Appeal through case number 13-08-00524-CV and in the Texas Supreme Court through case number 08-0882, and were denied. Turnover Order No. 5 became a final order. 10. On February 9, 2010, the Debtors removed Hidalgo County case no. CL-29,530-A to the federal courts, but the federal courts declined to hear the case and returned it on April 28, 2010. 11. On May 19, 2010, Plaintiff continued to enforce his judgment through contempt proceedings in case no. CL-29,530-A. The trial court entered Turnover No. 6. Appendix 18, Turnover Order No. 6, Case no. CL-29,530-A, dated 05/19/2010. However, the court has also refused to enforce Turnover Order No. 6. 12. On or about September 22, 2010, Debtors through their attorney, Kelly McKinnis, advised Judge Gonzalez that his clients could help pay off their judgment debt in case no. CL-29,530-A to Plaintiff if the Court would "lean" on Compass Bank to release a lien against Plaintiffs house. He proposed that the Court could use that credit to the Debtors' advantage. The Debtors represented that Compass Bank was afraid of Plaintiff's RICO (Racketeer Influenced Corrupt Organization) complaints against the bank and the Debtors, and that the bank would do "anything" to get away from his claim: App. 67, Affidavit. Judge Gonzalez asked Plaintiff if he approved and Plaintiff advised Judge Gonzalez that litigants do not come to court asking for equity with "dirty hands", admitting a crime, and then expecting the Court to involve itself with the offense to pay off their debt with the creditor's assets. The lien that the Debtors were referring was the illegal and unenforceable lien taken against Plaintiffs house to generate a debt whose partial value was laundered through Plaintiff's company, Global Limo, Inc. without Plaintiff's permission, to an escrow account under a trust in north Texas for the cash benefit of the Debtors just 2 weeks prior to the Debtors filing for bankruptcy. App. 81, Disbursement Authorization and Promissory Note (regardless of the documents' alleged dates, note that the documents were not ile with the Hidalgo County Clerk's Office until much later, after Plaintiff had already instructed the bank to put a hold on his corporate accounts and a week after Plaintiff had alreadyfiled a deed with the Hidalgo County Clerk's Officefor the same property). Judge Gonzalez called Vicky Skaggs with the Atlas & Hall LLP law firm who represented Compass Bank, and Compass Bank then released the $47,000 lien against Plaintiffs house on October 4, 2010. App. 19, Release Of Lien, dated October 4, 2010. 13. On January 5, 2011, Relator filed his third request for execution which was stayed by Judge Rudy Gonzalez. App. 20, Request For Writ Of Execution, CL-29,530-A, 1/25/2011. On February 2, 2011, Judge Gonzalez entered a void Order allegedly modifying the Third Amended Judgment and crediting $75,000 to the judgment Debtors for the Plaintiff's recovery of his real property while at the same time making the Plaintiff a judgment debtor for $14,120.26 plus any other costs. App. 21, Order, Case no. CL-29,530-A, February 2, 2011. Relator filed a petition for mandamus in the 13th Court of Appeals, case no. 13-11- 00276-CV, complaining that Judge Gonzalez engaged in bank fraud or extortion, and was illegally attacking the orders of the court instead of enforcing them as required by law. Judge Gonzalez immediately recused himself and evaded the complaint. Relator also appealed the Order to the 13th Court of Appeals through case no. 13-11-00289-CV on May 3, 2011. 14. Concurrently on or about May 13, 2011, and approximately three month after being credited $75,000 a judgment Debtor (deceased James Maples) and another newly acquired attorney, William McCarthy, perjured themselves by filing a petition to evict Plaintiff's tenant Joe Guerrero from the Plaintiff's real property arguing that the Debtors were landlords of the Plaintiff's condo and that they had not been paid in approximately 3 years (since Turnover Order No. 5). App. 22, Plaintiff's Petition, Case no. JP2011-197, dated May 13, 2011, Plaintiff's Petition, case no. JP2011-197. However, Joe Guerrero and Plaintiff had a court enforced rental agreement through Hidalgo County Court No. 1, case no. CL-08-3320- A. App. 23, Judgment, CL-08-3320-A, dated 2/03/2009, Order, case no. CL-08-3320-A. Strangely, the Plaintiff was not allowed to contest the Debtors' forcible detainer petition because Justice of the Peace Homer Jasso claimed that the Hidalgo County District Attorney's Office through District Attorney Rene Guerra advised him that the Plaintiff was not sued and that the Plaintiff was not allowed to participate in the detainer proceedings per the law since he was not sued. District Attorney Rene Guerra supported JP Jasso's default order and advised JP Jasso that there was no option available except for Plaintiff to petition for a TRO since this was a civil matter only. Judge Jasso entered Default Judgment for possession of the Plaintiff's real property to the Debtors, although Plaintiff was not named in the judgment. App. 24, Default Judgment, Case no. JP2011-197, dated 6/03/2011; App. 25, Civil Docket, JP2011-197. Plaintiff attempted to file a criminal complaint against the Debtors at the District Attorney's Office, but Plaintiff was refused and he was directed to file a complaint with McAllen Police or the Sheriff's Office. McAllen Police also refused to document a complaint on excuse that Hidalgo County corruption was outside their jurisdiction. Hidalgo County Sheriff's Office declined to act on Plaintiffs complaint stating that they lacked jurisdiction. App. 26, Signed Certified Mail Receipts to District Attorney Rene Guerra, McAllen Chief of Police Victor Rodriguez, McAllen Mayor Richard Cortez, and Letter Complaining of Fraud, dated 6/15/2011; App. 27, Letter to Hidalgo County Sheriff's Office, dated 5/25/2011; App. 78, Hidalgo County Sheriff's Office Incident Report. 15. Concurrently, Plaintiff's case no. CL-29,530-A became a cause without a judge, unable to enforce it's orders, so on June 6, 2011, Administrative Judge Orlando Olvera assigned retired District Judge Alex Gabert to county court case no. CL-29,530-A, and ordered Judge Gabert authority [sic] "until the plenary power has. expired." However, the plenary power of the case had already expired in 2002 and in 2004, and Plaintiff challenged Judge Gabert's assignment for lack of jurisdiction (particularly over a contempt proceedings against the Debtors), requesting Administrative Judge J. Rolando Olvera to reassign Judge Gabert and requesting Judge Gabert to seek reassignment with the necessary authority to, enforce the decrees of the court. Jiidge Olvera ignored the Plaintiff. Then on November 1, 2011, recused Judge Rudy Gonzalez transferred case no. CL-29,530-A to Hidalgo County Court no. 7 without any authority and the county clerk's changed the case no. to CL-29,530- [GI - while the case was purportedly under the assignment of Judge Gabert. App. 28, CL- 29,5304111 Docket Report. Judge Alex Gabert continued to administer the case in County Court No. 7, although he refused to acknowledge the case's final Third Amended Judgment. The 13th Court of Appeals abated and dismissed appeals case no. 13-11-00289-CV since it was unclear if Judge Gonzalez's Order (App. 21) was a final order and because Plaintiff and Debtors made a Rule 11 agreement to allow the Court to enforce the existing final judgment of the Court. Instead, Judge Gabert broke the agreement and entered another Final Judgment, dated Mar. 16, 2012, making the Plaintiff a debtor for almost $180,000 and apparently giving the Plaintiff's real property to the judgment Debtors although the Plaintiff bad not been sued. App. 29, Final Judgment, Case no. CL-29,530-A, dated 3/16/2012. William McCarthy then requested a writ of possession and the judgment Debtors were awarded an order for possession. Appendix 25, Civil Docket, JP2011-197. 16. On or about April 5, 2012, Plaintiff filed a petition for a temporary restraining order and injunctive relief in Hidalgo County District Court case. no. C-0929-12-F on complaints of Abuse of Process and Interference With An Existing Contract (App. 69) which he supported through a rich showing of certified evidence (see App. 11, 43) documenting his authority and rights to his house and Congressional Campaign Headquarters (App. 76) at a preliminary injunction hearing held in the 332nd District Court on April 16, 2012. Plaintiff demonstrated a pattern of fraud, mortal intimidation, and damages by Debtors. Plaintiff demonstrated a lack of jurisdiction by JP Homer Jasso, Sr., and Sheriff/Constable J.E. "Eddie" Guerra so strong that the issue was not further argued or defended. App. 11, Turnover Order No. 5; App. 69, Reporter's Record, 332nd District Court, April 16, 2012. Plaintiff sought an injunction and a declaratory judgment regarding the justice court's lack of jurisdiction in case no. JP2011-197, but Plaintiff was denied since the judgment.Debtors claimed they finally owned Plaintiffs property through Judge Gabert's Final Judgment dated March 16, 2012. App 29, Final Judgment (Void). The District Court put very heavy weight on Judge Gabert's Final Judgment and.accused Plaintiff of collaterally attacking it. App. 30, Temporary Injunction Hearing (Transcript), C-0929-12-F, dated 4/16/2012. District Judge Mario Ramirez dissolved the temporary restraining order and refused Plaintiff any relief or protection. App. 31, Order Denying Injunctive Relief And Dissolving The Temporary Restraining Order, C-0929-12-F, dated 05/02/2012. 17. JP Homer Jasso Sr. and Sheriff/Constable J.E. "Eddie" Guerra, used 'the opportunity this District Court offered when it refused to maintain the "status quo" by staging an armed assault, with a SWAT team, against the Plaintiff's at his house and congressional campaign headquarters, at approximately the same time as the Plaintiffs scheduled televised campaign forum against the incumbent US Congressman, Ruben Hinojosa.. On May 7, 2012, Plaintiff was scheduled to participate in the only televised forum to include all congressional candidates for the United States House of Representatives. That same day Sheriff/Constable Guerra and Deputy Constable Carlos Gonzalez assaulted Plaintiffs home and Congressional Campaign Headquarters, breaking locks off outside panels and turning off power and water. Plaintiff was able to convince the power company to send out a technician nearly 6 hours later to instruct the.police that they were breaking the law by turning off power and water, and the power and water was restored about 2 hours later. Deputy Constable Carlos Gonzalez lied to McAllen Police that he had an order from this District Court ordering Plaintiff to vacate his home - since that order does not exist. App. 79, Police Report, May 7, 2012. Deputy Constable Gonzalez also lied to McAllen Police that Plaintiff threatened him with a pistol resulting in the dispatch of SWAT with rifles and body armor around Plaintiff's house and Congressional Campaign Headquarters and the partial closing of Nolana Street in McAllen, Texas, although Plaintiff never made a mention of or displayed any specific kind of weapons he might have had in his home. Hidalgo County Constables represented to the news reporters that Plaintiff was under house arrest, and thereafter surrounded and threatened Plaintiff with arrest and criminal charges for three [3] days. On Wednesday, May 9, 2012, a reporter for KGBT news called the Sheriffs office on behalf of Plaintiff to confirm there was no arrest warrant for his person and verified with the Constable that there were no actual impending criminal charges against Plaintiff: The Constables finally withdrew on Wednesday given that they did not have a legal means to enter the premises. On Friday, May 11, 2012, Constable Guerra with several deputies and McAllen Police broke Plaintiff's front and rear entry doors down, breaking windows and absconding away with Plaintiffs business assets and records, vehicle titles, furnishings, campaign materials and records, sign making equipment, and other miscellaneous items. They seized Plaintiff's home and Congressional Campaign Headquarters and still have possession of his assets as of the date of the writing of this complaint. Constable Deputies and McAllen Police directly threatened Plaintiff that if he attempted to take repossession of his property that he would be arrested for criminal trespassing, regardless of his perceived rights or duties under the law. McAllen Public Utilities further canceled Plaintiff's water account against his protests. Plaintiff believes that Hidalgo County officials, and others, took advantage of fraud, other tortious acts, and criminal acts against him to intimidate him by violating his civil rights and causing him injury to interfere with his United States Congressional campaign against corruption. 18. Plaintiff's original petition in case no. C-0929-12-F was effectively mooted and the status quo was changed by the District Court. Plaintiff was forced to continue his litigation in the 13th Court of Appeals by filing an appeal, case no. 13-12-00267-CV, on April 27, 2012, to complain of the Final Judgment and to reestablish his rights to his house. On May 9, 2013, the 13th Court of Appeals issued its Opinion in case no. 13-12-00267-CV declaring Judge Gabert's Final Judgment to be void in Hidalgo County Court case no. CL-29,530-G. App. 32. Opinion, Appeals Case no. 13-12-00267-CV, dated 5/9/2013. Immediately on May 14, 2012, Judge Ramirez ordered a hearing for dismissal of Plaintiffs complaints under TRCP 165a and on his authority as a judge. App. 33, Notice of Hearing For Dismissal For Want Of Prosecution, Case No. C-0929-12-F, Dated May 14, 2013. 19. A dismissal hearing pursuant to TRCP 165a did not occur and Plaintiff filed, on June 3, 2013, his 190 page Plaintiff's First Amended Petition For Injunctive Relief Consolidating §1983 Civil Rights Violations and Rico Complaints; And Request For Disclosure; With Objection, and causing service on all additional defendants therefrom. App. 34, Dismissal For Want OfProsecution Hearing Transcript, dated 6/3/2013; Plaintiff also filed his Plaintiff's Motion For Summary Judgment Against James Maples on or about June 11, 2013. App. 35, Plaintiff's Motion For Summary Judgment Against James Maples, Case no. C-0929- 12-F, dated 6/11/2013. The District Court ignored the Plaintiff's motion and on July 3, 2013, the Court unexpectedly entered its Order Dismissing For Want Of Prosecution, Denying Plaintiff's Motion To Retain, and allegedly at the same time adjudicating the issues with prejudice. App. 36, Order Dismissing For Want Of Prosecution And Denying Plaintiff's Motion to Retain. Case no. C-0929-12-F, dated 7/3/2013. Plaintiff immediately filed his Plaintiff's Certified Motion To Reinstate Case DWOP which the Court again ignored. On July 8, 2013, Plaintiff filed an appeal in the 13th Court of Appeals, case no. 13-13-00341- CV, on argument he is constitutionally entitled to an open court and due process. The 13th Court of Appeal sat on the case for two years until the Plaintiff filed for mandamus orders in the Texas Supreme Court, case no. 15-0343, and an outside judge was appointed by the Chief Justice of the Supreme Court to the case. Thereafter, the appeals court reversed and remanded Judge Ramirez' order of dismissal. App. 68, Memorandum Opinion, 13th Court of Appeals, case no. 13-13-00341-CV, dated 7/2/2015. 20. Concurrently on May 24, 2013, the Plaintiff returned to Hidalgo County Court No. 7 to enforce Turnover Order No. 5, Turnover Order No. 6, and the Third Amended Judgment. Inexplicably, Judge Sergio Valdez sat in on the case although Judge Alex Gabert was assigned by the 5th Administrative District, and Judge Valdez refused to enforce the Third Amended Judgment. Instead Judge Valdez directed Plaintiff and William McCarthy to proride briefs. On October 10, 2013, Judge Valdez under the color of law again allegedly modified the prior final orders of the Court in violation of the 13th Court of Appeals mandate from case no. 13-12-00267-CV by entering Order Of The Court allegedly replacing the Third Amended Judgment again and ignoring all turnover orders. App. 37, Order Of The Court, Case no. CL-29,530-G, dated 10/10/2013; App. 32, Opinion, Appeals Case no. 13-12-00267- CV, dated May 9, 2013; App. 39, Corrected Mandate, Appeals Case no. 13-12-00267-CV, dated 8/16/2013. Judge Valdez absolutely refused to enforce the orders of the court or to return Plaintiff's illegally seized property. Plaintiff made his Judgment Creditor's Motion To Strike, Case no. CL-29,530-G, dated 11/12/2013, and at hearing on January 22, 2014, Judge Valdez duplicated Judge Gabert's illegal acts and violated the 13th Court of Appeals mandate again by hearing evidence and refusing to enforce turnover orders since Judge Valdez represented that he had overturned the Third Amended Judgment to which said turnover orders applied - and inviting Plaintiff to appeal again. App. 38, Judgment Creditor's Motion To Strike, Case no. CL-29,530-A, dated 11/12/2013; App. 42, Hearing On Motions (To enforce orders of the court) CL-29,530-G, dated 1/22/2014 (Tr. p.12-25). 21. Judgment Debtor, James Maples, died on or about March 28, 2014 of age related illness. Judge Valdez refused to add the new parties-in-interest (heirs) pursuant to TRCP 155, or to enforce any orders on a remaining Debtor. Having no reasonable remedy in law, Petitioner repossessed his own real property, made repairs again, and rented it: Relator's deed, Turnover Order No. 5, Hidalgo County Clerk's record, and tax entity information (App. 43, Hidalgo County Tax Statements, El Cazador #2 E 18.41' of W 60.82' Of Lot 37 Unit 2, Certified Owner: Plaintiff) showed that Plaintiff owned the property and police would not remove him, although attorney William McCarthy claimed he now owned the Plaintiff's property through deed prior to the death of his client (McCarthy could produce no documents). See also App. 42, Hearing On Motions (To enforce orders of the court) CL- 29,530-G, dated 1/22/2014 (Tr. p.15, pp.16-18 "The condominium. The condominium was given to me [McCarthy]. So if he wants to sue me that'sfine). 22. On July 15, 2014, William McCarthy, misrepresenting himself as the executor and administrator of "The Estate of James Maples", filed a forcible detainer action against Plaintiff's tenant, Dora Martinez - but not against the Plaintiff - again through Justice of the Peace Homer Jasso, case no. JP2014-458, in violation of Turnover Order No. 5 and now claiming that "The Estate Of James Maples" was the owner and landlord of the property. App. 44, Original Petition For Forcible Detainer, Case no. JP2014-458, dated 7/15/2014. Plaintiff filed a motion to intervene in the case and answered, objecting to the justice court's lack of jurisdiction and to William McCarthy's lack of standing. App. 45, Answer, Case no. JP2014-458, dated 7/28/2014. Plaintiff motioned for Justice of the Peace Homer Jasso to recuse himself, since Judge Jasso claimed to have superior knowledge of title, appeared hostile, and because he is a defendant and a witness in this instant district case no. C-0929- 12-F and appeals case no. 13-13-00341-CV involving similar circumstances against the Plaintiff. App. 46, Johnny Partain's First Motion To Recuse, Case no. JP2014-458, dated 8/4/2014. 23. JP Homer Jasso refused to acknowledge or honor Plaintiff's Turnover Order No. 5 or his objections, claiming he had superior knowledge of title and claiming that Assistant District Attorney Michael Garza advised him that Plaintiff was not allowed to speak at any hearing since he was not sued and had no standing. William McCarthy argued to have the Plaintiff be held in contempt, although there were no orders aimed at the Plaintiff. JP lasso stated that the District Attorney's Office was already looking into a way the Plaintiff could be held in contempt. On Sept. 29, 2014, JP Jasso ordered a Default Judgment for the "Estate of James H. Maples" claiming that his hand were ministerially tied since Plaintiff couldn't participate in hearing per the Hidalgo District Attorney's Office and wasn't a party under the law. App. 47, Default Judgment, Case no. JP2014-458, dated 9/29/2014. 24. Consequently, Plaintiff filed his own "ministerial" forcible detainer suit in Justice ' Court, Pet. 4, Pl. 2, case no. JP2014-531 on August 29, 2014, since his tenant failed to pay rent after being harassed by William McCarthy and since JP Jasso alleged his actions to exclude the Plaintiff and issue a Default Judgment were ministerial and required by the law. App 48, Petition For Forcible Detainer, Case no. JP2014-531, Johnny Partain. v. Dora Martinez dated 8/29/2014. JP Jasso then requested the Plaintiff to document his ownership for Assistant District Attorney Michael Garza in case no. JP2014-531. Plaintiff delivered the documentation directly to Michael Garza on September 12, 2014. App. 49, Johnny Partain's Demonstration Of Title As Requested By Judge Jasso Per Micheal Garza OfThe District Attorney's Office, JP2014-531, dated 9/12/2014. Judge lasso declined to rule on Plaintiff's forcible detainer suit, claiming the advice of the DA's office. Clearly, Judge Jasso's prior acts harassed the Plaintiff and his campaign against corruption while at the same time protected Hidalgo County and other public officials under the supervision of the DA's office. 25. Plaintiff filed his Intervenor's Notice of Appeal and Appeal Bond on September 3, 2014, and the Justice Court's transcript and original files were received from the Justice Court by the Hidalgo County Clerk on Sept. 9, 2014. App. 50, Letter of Receipt of Appeals Documents by County Clerk, CL-14-3542-E, dated 9/10/2014. Then JP Jasso illegally entered a Writ of Possession order on September 11, 2014, against Plaintiff's property, in apparent conflict with Texas Property Code § 24.0054 (3). App. 51, Writ of Possession, Case no. JP2014-458, dated 9/11/2014. 26. Plaintiff rushed to file his Appellant's Emergency Motion For TRO to protect his property during the appeal of the Justice Court's Default Judgment in Hidalgo County Court No. 5, case no. CL-14-3542-E. App. 52, Appellant's Emergency Motion For TRO, Case no. CL-29,530-G, dated 10/08/2014. A hearing on the motion was had on September 29, 2014 and on Oct 3, 2014, case no. CL-14-3542-E was mysteriously dismissed without warning, leading to an appeal in the 13th Court of Appeals, case no. 13-14-00584-CV on October 7, 2014. App. 53, Order (Dismissal of action), Case no. CL-14-3542-E, dated 10/3/2014. A subsequent Finding Of Fact And Conclusion Of Law documents many serious and dubious misrepresentations by Judge Arnoldo Cantu, Jr. not supported by the Court's record, but demonstrating the finality of the "dismissal order" and intent of ending any complaints. App 54, Finding of Facts and Conclusions of Law, Case no. CL-14-3542-E, dated 10/17/2014. 27. Plaintiff appealed County Court No. 5 Order to the 13th Court of Appeals and again made an Emergency Motion For Temporary Restraining Order To Protect The Status Quo, but the 13th Court of Appeals did not timely respond and Hidalgo County Constables with McAllen Police moved attorney William McCarthy into Plaintiff's house: William McCarthy presently lives in Plaintiffs house. When the 13th Court of Appeals finally responded the Court's insinuated that the appeals from case CL-14-3542-E was interlocutory and that Plaintiff was somehow a debtor responsive to TEX. R. APP. P. 29.3. App. 55, Order (Denying relief), Appeals Case no. 13-14-00584-CV, dated 11/19/2014. Plaintiff has been unable to find relief and said case is still under review. 28. While Plaintiff was waiting on the 13th Court of Appeals to respond to his Emergency Motion For Temporary Restraining Order To Protect The Status Quo, he made his (App. 56) Creditor's Emergency Motion For TRO, Case no. CL-29,530-G, dated 10/08/2014, requesting an emergency hearing, preliminary injunction, and a show cause hearing to enforce the orders of the court from collateral attacks. Judge Valdez ordered that Plaintiff was collaterally attacking the default judgment of the justice court and the order of County Court No. 5. App. 57, Order(Denying relief or protecting Turnover Order No. 5), Case no. CL-29,530-G, dated 10/9/2014. 29. On October 9, 2014, Hidalgo County Constables broke into and seized Plaintiff's house again, with the assistance of the McAllen City Police. 30. Judge Valdez then ordered the alleged transfer of case no. CL-29530-G to Judge Rolando Cantu of Hidalgo County Court No. 8 on November 21, 2014. App 58, Order Of Transfer, Case no. CL-29,530-G, dated 11/21/2014. Judge Omar Maldonado then replaced Judge Rolando Cantu in the same court on or about Jan. 2, 2015. On Jan. 14, 2015, Judge Maldonado also refused to enforce the orders of the court claiming that he had already recused himself, although the case docket does not currently reflect this assertion. App. 28, Civil Docket Report, CL-29,530-H. Regardless, on January 20, 2015, Administrative Judge J. Rolando Olvera filed his Order Of Assignment (App. 59) assigning retired District Judge Robert Blackmon to Hidalgo County case no. CL-29,530-H. Plaintiff objected to the assignment of Judge Blackmon because the Order Of Assignment again limited assignment by stating, [sic] "from this date until plenary jurisdiction has expired", which prior Judge Alex Gabert argued meant that the case was without a final judgment. App. 60, Objection To Assignment, Case no. CL-29,530-H, dated 01/02/2015. However, Judge Olvera's clerk called Plaintiff and requested he withdraw his objection since Judge Blackmon was the only judge available and that his assignment were made on forms provided by the Texas Supreme Court. Plaintiff conditionally withdrew his objection if Judge Blackmon were given the jurisdiction to enforce Relator's Third Amended Judgment and turnover orders. App. 61, Withdrawal of Objection To Assignment, Case No. CL-29, 530-H, dated 2/03/2015. 31. Judge Robert Blackmon held a show cause hearing on Feb. 26, 2015, on Plaintiff's Motion for Contempt against William McCarthy. Judge Blackmon argued that the actual number on the case was CL-29,530-H instead of the original case number, CL-29,530-A, making the case a separate and brand new case without any orders to enforce. Judge Blackmon argued that Turnover Order No. 5 wouldn't apply anyways since the turnover order was directed at the judgment Debtors and did not limit actions taken by their attorney. Judge Blackmon then chastised the Plaintiff for suing the Debtors' attorney, William McCarthy, in a new case and for trying to enforce Turnover Order No. 5 which couldn't be valid since it was entered after a final judgment in case no. CL-29,530-A. Judge Blackmon threatened the Plaintiff on and off the record that he may sanction him with fines for not "playing nice" and if the Plaintiff didn't conform to his future orders he could end up in jail. App. 67, Affidavit. Judge Blackmon finally stated that he was only assigned for the one hearing and that he hadn't made up his mind if he would continue the case; that the case was actually under County Judge Omar Maldonado. Judge Blackmon issued an order, changing the Plaintiff's original case no. CL-29,530-H and styling it under Justice Court, Pct. 4 Place 2 and with new parties to wit Johnny Ray Partain v. Estate of James H. Maples, Decedent et al. App. 62, Order Denying Motion For Contempt, Case no. CL-29,530-G, dated 3/02/2015. 32. William McCarthy also filed another exparte motion and affidavit for "The Estate Of James H. Maples" on July 30, 2014, pursuant to TEX GV. CODE ANN. § 51.902, FRAUDULENT LIENS, in District Court case no. C-6549-I4-G to attack Relator's deed on his condo on in violation of Turnover Order No. 5. App. 63, Motion For Judicial Review Of A Document Purporting To Create A Judgment Lien, Case no. C-6549-14-G, dated 7/30/2014. Plaintiff learned of the action and filed a petition for intervention and an Answer objecting to William McCarthy's motion as a violation of Turnover Order No. 5, his standing as insufficient to invoke the jurisdiction of the court, and his failure to conform to the statute. App. 64, Original Answer, Case no. C-6549-14-G, dated 9/30/2014. District Judge Noe Gonzalez conferred with District Judge Robert Flores regarding transferring William McCarthy's motion from 370th Court to the 139th Court, both recused themselves, and then Judge J. Rolando Olvera assigned Judge J. Manuel Banales. App. 66, Civil Docket Report C- 6549-14-G. Judge Banales ruled, without his jurisdiction being invoked, that Plaintiff's "deed" on his house "does not refer to a legally constituted court ... and there is no valid deed", and then ordered the Hidalgo County Clerk to deed the Plaintiff's condo to the deceased James H. Maples. App. 65, Judicial Findings OfFact And Conclusions Of Law Regarding A Documentation Or Instrument Purporting To Create A Deed, Case no. C-6549- 14-G, dated 2/13/2015. 33. Plaintiff has still not been compensated on his Third Amended Judgment from 2003 nor have any of his final turnover orders been enforced. Plaintiff has not been compensated the loss of his property or for the destruction of his business. Plaintiff has maintained a constant effort to collect judgment since his final judgment in 2002, but Hidalgo County courts have destroyed his property through meaningless litigation meant to protect and enrich the county and its officials. Plaintiff has been further injured by the judgment Debtors, their attorneys, and a racketeering enterprise involving the many public officials in Hidalgo County operating under the color of law directing their efforts and offices against the Plaintiff to deprive him of his property rights. Attorney William McCarthy is currently living in the Plaintiff's house and is still attempting to become the executor and administrator over the "Estate of James H. Maples" which now holds a real estate title over the Plaintiff's property through Judge Bangles' void order to the clerk to change his property title, and yet Plaintiff, a large judgment creditor has still never been sued for his property — as was recognized in Opinion by the 13th Court of Appeals. App. 32, Opinion, Appeals Case no. 13-12-00267-CV, dated 5/9/2013. V. CAUSES OF ACTION COUNT 1 34. FOURTEENTH ADMENDMENT TO THE CONSTITUTION OF THE UNITED STATES and 42 USC §1983 - This is an action at law to redress the deprivations under color of statute, ordinance, regulation, custom, or usage of a right, privilege, and immunity secured to Plaintiff by .the Fourteenth Amendment to the Constitution of the United States and actionable through 42 USC §1983, and arising under the law and statutes of the United States and State of Texas. At all relevant times herein JP Homer Jasso Sr., Judge Rodolfo Gonzalez, Judge Alex W. Gabert, Judge Jose Manuel Banales, Judge Robert Max Blackmon, Constable J.E. "Eddie" Guerra, Deputy Constable Carlos Gonzalez, District Attorney Rene Guerra, and Sheriff Guadalupe Trevino were duly elected officials or assigned their positions with access to Hidalgo County resources through established process to represent Hidalgo County, a political subdivision of the State of Texas, under the color of their offices. At all relevant times herein McAllen Police Chief Victor Rodriguez was employed by the City of McAllen, a municipal corporation of Texas. The aforementioned defendants have the authority and had the opportunity to invoke government process through their office, positions, and through subordinates to intervene in or arrest illegal acts perpetrated through Hidalgo County and the City of McAllen that violated Plaintiff's United States Constitution and Texas Constitution protections and several federal statutes, including but not exclusive to, illegal seizure of actual or prospective property without due process; false imprisonment; divestment of liberty, property, privileges, due course of law, and redress of grievances; interference with a political campaign; false imprisonment; equal protection of the law; and RICO as provided through the FACTs herein which created a special relationship through the use of armed police force. Each of the Defendants, separately and in concert, acted outside the scope of their jurisdiction and without authorization of law through Hidalgo County and City of McAllen resources, processes, and through other people unknown to the Plaintiff, under the color of state law and contrary to their oaths of office deprived Plaintiff his constitutional rights, his prospective property, and his actual property. With respect to the extent of damages available, the Supreme Court has noted that the basic purpose of a section 1983 damages award is to compensate the victims of official misconduct, and therefore held that there is no limit on actual damages if they can be proven. See also Damages below. COUNT 2 35. UNITED STATES CONSTITUTION AMENDMENT 5, AND TEXAS CONSTITUTION, ARTICLE 1, SECTION 17. TAKING, DAMAGING, OR DESTROYING PROPERTY FOR PUBLIC USE; SPECIAL PRIVILEGES AND IMMUNITIES; CONTROL OF PRIVILEGES AND FRANCHISES — The STATE OF TEXAS, HIDALGO COUNTY, and CITY OF MCALLEN deprived Plaintiff any standing or substantive due process, and did take, damage, and destroy the Plaintiff's Third Amended Judgment, Turnover Order No. 5, Turnover Order No. 6, and assets by refusing to enforce or even to observe the final decrees of Texas courts, diminishing Plaintiff's property of all its value, and illegally seizing his assets through assault by police. No consideration was given to.Plaintiff's private interests as public officials who sought to hide incompetence, systemic local corruption, and criminality to maintain the appearance of propriety in their offices retaliated against and destroyed Plaintiff's interests and seized his assets. District Attorney Rene Guerra (removed from office in 2014) and his office, Justice Homer Jasso, Hidalgo County Sheriff/Constable Eddie Guerra, Deputy Constable Carlos Gonzalez, District Judge Alex Gabert, District Judge Robert Blackmon, District Judge Jose Banales, County Judge Sergio Valdez, County Judge Rodolfo Gonzalez, County Judge Arnoldo Cantu, Hidalgo County Sheriff Lupe Trevino (convicted), and Judge Mario Ramirez all ignored, diminished, and destroyed Plaintiffs property rights. Even 13th Court of Appeals Justice Nora Longoria manufactured and misrepresented facts to destroy Plaintiff's interest in his property and to protect Hidalgo County from liability to Plaintiff; while at the same time paying down political capital she owed to the Hidalgo County District Attorney's office for refusing to prosecute her DUI arrest in 2014. 36. Plaintiffs final orders required the return of his equipment, records, and accounts for his business in 2008 (a business making approximately $2.5 million dollars a year), but the courts refused to enforce their final decrees depriving Plaintiff his property. Plaintiff's final orders removed and enjoined judgment Debtors from his property, but the courts later refused to acknowledge their final decrees and instead attacked Plaintiff with police and SWAT through exparte and void orders to seize his property. Plaintiff's final orders required Debtor to make monthly payments to him, but again courts refused to enforce their final decrees. Finally, public officers herein manipulated due process procedures to destroy Plaintiff's legal recourse to recover lawful damages for the destruction of his interests or for illegal incarceration pursuant to the criminal activities of a racketeering enterprise. Plaintiff did not give consent to the taking of his property or waive his rights. Tx. Const. Art 1. Sec 17 is a waiver of sovereign immunity requiring adequate compensation to the Plaintiff. See also Damages below. RACKETEER INFLUENCED CORRUPT ORGANIZATION, 18 U.S.C. § 1961-19681 COUNT 3 37. 18 US.C. § 1962 (d). Defendants Sheriff/Constable J.E."Eddie" Guerra, Deputy Constable Carlos Gonzalez, Judge Homer Jasso, Judge Alex Gabert, Judge Jose Manuel Banales, Judge Robert Blackmon, Judge Sergio Valdez, District Attorney Rene Guerra, Judge Rodolfo Gonzalez, Sheriff Guadalupe Trevino, Compass Bank, James Maples, Police Chief Victor Rodriguez, Farmers Insurance, and State Bar of Texas were well informed of the FACTS above, but are part of a racketeering enterprise and adopted its goal to deprive Plaintiff of his property, interests, and rights conspiring to violate the provisions of 18 U.S.C. § 1962. Plaintiff was injured. See damages below. COUNT 4 38. 18 U.S.0 1344 (2); 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b), (c), (d); 18 U.S. Code § 1956; 18 U.S. Code § 1957; THEFT — The Debtors (Mapleses) created a counterfeit order, Order On Defendant Motion To Stay, in cause no.CL-29,530- A, on or about February 1, 2005, to knowingly enable the Debtors and Compass Bank to transfer monies out of bank accounts owned by Global Limo, Inc. without notice to Plaintiff: Plaintiff gave Compass Bank a certified Turnover Order giving Plaintiff all rights and interest in Global Limo, Inc. and also gave Compass Bank a demand to freeze said accounts and to place. Plaintiff on those specified business accounts as the sole authority. Compass Bank did not comply and instead on or about February 18, 2005, silently transferred monies out of those account controlled by Plaintiff to new accounts for Debtors while at the same time communicating to Plaintiff over the telephone that they were unable to give him the specific account transaction information he requested Congress defined a racketeering activities under 18 U.S.C. § 1961 to help snare those who make careers of crime. Participation in the affairs of an enterprise through the commission of two or more predicate crimes is now an offense separate and distinct from those predicate crimes. So too is conspiracy to commit this new offense a crime separate and distinct from conspiracy to commit the predicate crimes. and representing that they were working to get him the information and would give him a call back: Compass Bank never called Plaintiff back. Compass Bank later represented through electronic communication that the County Court's counterfeit' order authorized them to move assets away from Plaintiff. This scheme was executed with intent to obtain monies or credit frozen under Global Limo, Inc. accounts for Debtors' control of the RICO entity, Global Limo, Inc., and for Compass Bank to influence and determine the conduct of the RICO entity when the Debtors filed for bankruptcy. Plaintiff complained of the illegal Order On Defendant.Motion To Stay to the County Court whereas it was revealed that the counterfeit order was not actually signed by a judge nor was it within the knowledge of the Judge Gonzalez. However, Judge Gonzalez refused to void the counterfeit order, and eventually reversed it after the damage was accomplished. Plaintiff made criminal complaints to District Attorney Rene Guerra, but no criminal charges were ever pursued. Plaintiff was damaged through the loss of property and the values therein and through the interference with Plaintiffs ability to operate an interstate motorcoach business resulting in loss of profits, loss of compensations, and loss of opportunities. See also Damages below. COUNT 5 39. 18 U.S.0 1344 (2); 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S. Code § 1513: 18 U.S. Code § 1513; 18 U.S.C. § 1962 (b) and (c) — On or about February 16, 2005, James Maples, Kathleen Maples, and d/b/a Global Tours and Charters electronically filed bankruptcy in case no. 05-70128. Shortly thereafter, on or about February 28, 2005, and without notice to Plaintiff, Debtors signed an agreement with Compass Bank that Global Limo, Inc. would pay it's debts (Global Limo, Inc. was not in bankruptcy). On or about March 7, 2005, Paul Moxley, President of Compass Bank, threatened over the telephone to call the police to prevent Plaintiff from operating his company and then sent two Special Asset Division Vice Presidents to the offices of Global Limo, Inc. to stop Plaintiff from operating or removing motorcoaches wherefrom the bank claimed full interests through liens with the Debtors. Thereafter, on or about March 7, 2005, Debtors and Compass Bank attempted to have Plaintiff held in contempt of bankruptcy court's automatic stay in case no. 05-70128 for not allowing Debtors to operate Global Limo, Inc. and for moving buses away without approval of Compass Bank and notice to the insurance company whom Compass Bank claimed was aggrieved that Plaintiff hadn't spoken to them. Debtors and Compass Bank knowingly executed a bankruptcy scheme to control motorcoaches, credit, and monies purportedly owned by or deposited in Compass Bank but operated by Global Limo, Inc. on intentional fraudulent representations to the bankruptcy court, cause no. 05-07009, that Global Limo, Inc. or it's assets were included under Debtors' bankruptcy. Plaintiff was damaged through the loss of property and the values therein; interference with his ability to operate an interstate motorcoach business; loss of profits; loss of compensations; and loss of opportunities. See also Damages below. COUNT 6 40. 18 U.S.0 1344 (2); 18 U.S. Code § 1956; 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b) and (c) FRAUDULENT TRANSFER - Compass Bank and James Maples knowingly executed a business loan for approximately $47,000 to Global Limo, Inc. on a purported transfer of interest of real property owned by Plaintiff and Teresa Partain, from Global Limo, Inc. to Compass bank: James Maples was not an officer of Global Limo, Inc. and did not have authority to sign for the company. The real property is describe as "[T]he East 18.41 feet of the West 60.82 feet of Lot 37, El Cazador Subdivision, Unit No. 2, an Addition to the City of McAllen, Hidalgo County, Texas according to map thereof recorded in volume 19, page 58 of the Map Records of Hidalgo County." Global Limo, Inc.'s loan monies were then sent directly by Compass Bank to an escrow account under a trust in north Texas for Debtors which the Debtors immediately used to purchase a new ranch home in or around Mt. Vernon, Texas, approximately 2 weeks prior to Debtors filing chapter 11 bankruptcy. The fraudulent loan was an intentional attempt to fraudulently transfer and encumberassets of Global and acquire an interest in and to exercise control over Global Limo, Inc. Plaintiff was damaged through the illegal lien on his property, and through the deprivation and loss of his property or the values therein. See also Damages below. COUNT 7 41. 18 USC §1951 INTERFERENCE WITH COMMERCE BY THREATS OR VIOLENCE; EXTORTION; THEFT; 18 U.S.C. § 1962 (c) (d) — On or about January 31, 2005, James Maples broke the locks of Global Limo, Inc. at 1408 N. Jackson and entered the office removing assets, including but not exclusive to interstate motorcoaches operated under Global Limo, Inc., after being warned on three occasions the weekend before by the Pharr police that he was trespassing and not to enter the premises. Debtors stationed a security guard at the office doors to prevent Plaintiff's entry into the office. This extortion continued until approximately February 16, 2008, wherefrom Plaintiff was unable to operate Global Limo, Inc. to engage in interstate commerce, pay debts, or make profit. During this same period, Compass Bank claimed it was unable to provide Plaintiff with his account information furthering enabling Debtors' extortion and control of Global Limo, Inc. See also Damages below. COUNT 8 42. 18 U.S.0 1344 (2); 18 U.S. Code § 1956; 18 U.S. Code § 1957; 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b) and (c); THEFT - On or about March 29, 2005, Debtors electronically petitioned for an injunction in adversary case no. 05-07009, Maples et. ux. v. Partain, pursuant to Mapleses' chapter 11 bankruptcy case no. 05- 70128, to acquire full control of Global Limo, Inc. The Debtors and Compass Bank prosecuted the petition on basis of James Maples' perjurious affidavit of ownership and rights in Global Limo, Inc., on basis of the aforementioned violation in the Hobbs Act (extortion in Count 7), and on basis of the counterfeit order produced in Count 4 above, although Debtors had already been denied any interests in the Bankruptcy Court and in the County Court. Debtors and Compass Bank were aware that their representations of ownership and employment were false and that they relied on or presented fraudulent or misleading documents and extortion to support their arguments, but Debtors and Compass Bank made such representations with the intent that the Court would act on them to provide Debtors and Compass Bank access to Global Limo, Inc. affairs: 43. Bankruptcy Judge Marvin Isgur did use their representations to seize Global Limo, Inc.'s assets and operation to provide Debtors and Compass Bank interest and control of the racketeering entity. Judge Isgur encumbered Plaintiff's and Teresa Partain's house with a lis pendens in connection with the RICO entity to provide Debtors and Compass Bank interest therein. Said illegal seizure greatly injured Plaintiff's property and business interests since the company was raped of all its value and operated with dangerous vehicles resulting in 23 deaths through amotorcciach fire and large liabilities against Global Limo, Inc. 44. The additional lis pendens prevented Mr. Partain's free use of his house and was later used in February of 2007 on the wild and confused whim of Judge Isgur to incarcerate Plaintiff purportedly for collecting rent on his house pursuant to the orders for the lis pendens.2 Plaintiff was damaged through deprivation of freedom, assets, and the loss of his property and the values therein. The damage was further aggravated by interference with Plaintiff's ability to operate an interstate motorcoach business; pay his debts and liabilities; loss of license to operate a motor carrier; loss of profits; loss of compensations; and loss of opportunities. See related injuries in Hidalgo County MDL case no. 05-1073, In re Hurricane Rita. See also Damages below. COUNT 9 45. 18 U.S.0 1344 (2); 18 U.S. Code § 1956; 18 U.S. Code § 1957; 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b) and (c); THEFT; FRAUDULENT TRANSFER — On or about May 16, 2005, Debtors and Compass Bank prosecuted against Plaintiff for control of Global Limo, Inc. at a preliminary injunction hearing, in adversary cause no. 05-07009 (SDTX). Debtors had devised a scheme to fraudulently transfer assets and/or to encumber assets before bankruptcy with intent to prevent the collection of Judgment in Hidalgo County case no. CL-29,530-A to restitute Plaintiff. Global Limo, Inc. was an element of this scheme as outlined by Debtors' attorney Keith Livesay in July of 2002 through a written letter. Compass Bank assisted Debtors by cross- collateralizing the assets, as outlined by Debtorss' attorney Keith Livesay. Accordingly, all assets were retitled under Global Limo, Inc. and encumbered by Compass Bank wherefrom Plaintiff could not collect his judgment for fraud against Mapleses and et al. Debtors did not 2 This.action followed complaints to the 5th Circuit that there was fraud and racketeering occurring in case no. 05- 07009 and related cases under Judge Isgur and under Judge Crane. Plaintiff sued out a habeas corpus after 72 days of incarceration on grounds that Bankruptcy Judge Marvin Isgur lied and lacked jurisdiction. maintain the legal authority or legal obligations of Global Limo, Inc. after the scheme was implemented. ' 46. On or about January 27, 2005, a turnover motion was adjudication in case no. CL- 29,530-A transferring all rights and interests in Global Limo, Inc. to Plaintiff wherefrom Plaintiff cured the company's legal obligations and operation. Debtors quickly filed chapter 11 bankruptcy as individuals, however, said bankruptcy did not include Global Limo, Inc. and the company was never in bankruptcy. Debtors and Compass Bank claimed Global Limo, Inc. did not exist and that all assets that had belonged to Global Limo, Inc. had now flowed'magically into Debtors' ownership which were protected by bankruptcy. Debtors and Compass Bank made their representations with the intent that the Judge would act on them. Judge Isgur accepted Debtors' and Compass Bank's presentations and it was determined at the aforementioned hearing that in disregard of Texas law, Texas court orders and the Rooker-Feldman doctrine, that Plaintiff had almost no identifiable interests in Global Limo, Inc.3 due to Mapleses bankruptcy and Compass Bank's interests in Global Limo, Inc. which had to be protected from Plaintiff. 47. Plaintiff's business and property interests were nearly destroyed by Judge Isgur's injunction order that allowed Debtors, and Compass Bank nearly unfettered control over Global Limo, Inc. resulting in the rape of business' value and assets and operation of dangerous interstate vehicles which resulted in 23 deaths and large liabilities against Plaintiff's interests.4 Plaintiff was severely damaged through deprivation and loss of his property and the values therein; through interference with his ability to operate an interstate motorcoach business; loss of profits; loss of compensations; and loss of opportunities. See also Damages below. COUNT 10 3 This order was reversed approximately 9 months later (after 23 deaths and destruction of Global Limo, Inc.) by Judge Isgur who found that Plaintiff was actually the owner of Global Limo, Inc. which empowered the Judge to avoid Plaintiff's interest in the corporation through bankruptcy proceedings and to remove Plaintiff's standing to sue Compass Bank and Debtors by placing all interests under Mapleses' bankruptcy estate. Memorandum Opinion On Summary Judgment, Case no. 05-07009 (SDTX). 4 Bankruptcy Judge Marvin Isgur was never prosecuted for the illegal seizure and resulting deaths that occurred since Judge Ricardo Hinojosa claimed Judge Isgur was immune to prosecution. No one was ever prosecuted for those deaths. 48. 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b) and (c); THEFT; FRAUD — On or about May 12, 2006, Compass Bank electronically motioned for relief from bankruptcy's automatic stay in chapter 11 bankruptcy case no. 05-70128 (SDTX) through Texas State Bank's Motion For Relief From The Automatic Stay to execute against Global Limo, Inc.'s assets and house seized from Plaintiff by Bankruptcy Judge Marvin Isgur in adversary case no. 05-07009 through Judgment (bankruptcy avoidance) on or about April 27, 2006 (approximately 2 weeks earlier). 49. Compass Bank made representations to the bankruptcy Court that [sic] "the Debtor has little or no equity in the Buses, Condo, and/or Rents and (c) the Buses, Condo, and Rents are not necessary to the Debtor's effective reorganization." Judge Schmidt responded with Order Granting Texas State Bank's Motion For Relief From Automatic Stay. However, Compass Bank had previous and consistently represented throughout Debtors' bankruptcy cases that it was necessary to seize Global Limo, Inc. and Plaintiff's house through bankruptcy avoidance for the benefit of Mapleses' bankruptcy estate and for the good of "all" creditors thereof: Property may only be avoided through bankruptcy if the property would have been in the bankruptcy estate and therefore available to Debtor's general creditors; essentially, voidable preferences must have depleted the estate and may not have been fully encumbered prior to avoidance. Accordingly, a judge can only avoid a preferential transfer for the benefit of the bankruptcy estate and not for the benefit of Compass.Bank. 50. Compass Bank intended and knowingly made conflicting, material, and false representations to different bankruptcy courts in venue of Debtors' Chapter 11 bankruptcy to use specific bankruptcy processes to execute a scheme to gain or legitimize interests in Global Limo, Inc. and Plaintiff's house that they did not have due to their fraud and Texas law prior to Debtors' Bankruptcy. The bankruptcy court's used their representations to effectively launder Plaintiff's assets and Global Limo, Inc. and it's assets through Debtors' bankruptcy estate to aid and enrich Compass Bank. Plaintiff was injured through deprivation and loss of his properties and the values therein; interference with Plaintiff's ability to operate an interstate motorcoach business; acquired debts and liabilities; loss of profits; loss of compensations; loss of opportunities; and illegal incarceration. See also Damages below. COUNT 11 51. ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; 18 U.S.C. § 1962 (c) and (d); — On or about January 10, 2007, Global Limo, Inc. was sentenced for Conspiracy To Make False Statements To A Government Agency, 18 U.S.0 § 371 and Violation Of Federal Motor Carrier Safety Administrations Regulations 49 U.S.C. § 521 (b) (6) and 18 U.S.C. § 2 (while operated by the Mapleses) and James Maples was sentenced for Violation Of Federal Motor Carrier Safety Administrations Regulations 49 U.S.C. § 521 (b) (6) and 18 U.S.C. § 2 in a Federal Court in the Southern District of Texas, Criminal case no. M-06-076-S. Global Limo, Inc. was originally a racketeering enterprise created by Debtors to fraudulently transfer assets. Debtors were operating Global Limo, Inc. solely due to false oral representations that company was included under their Chapter 11 Bankruptcy. The US Trustee's Office out of Washington D.C. supports Plaintiff that the corporation was never in bankruptcy. Plaintiff was injured through deprivation and loss of his properties and the values therein; severe violations to his US Constitutional rights, Federal Statutes, and Bankruptcy Code; interference with his ability to operate an interstate motorcoach business; acquired debts and liabilities; loss of profits; loss of compensations; and loss of opportunities. See also Damages below. COUNT 12 52. ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; THEFT; 18 -U.S. Code § 1341; 18 U.S.C. § 1962 (c) and (d); - James Maples filed a false sworn Plaintiff's Complaint For Eviction And Suit For Rent in the Justice Court of Precinct 4, Place 2, in Hidalgo County, case no. Cause no. JP2011-197 on or about May 13, 2011. Debtor did not invoke the jurisdiction of the court and did not sue Plaintiff. At about that same time Debtor re-enter an old order from his Bankruptcy case no. 05-07009 into the County Clerks Record allegedly giving control (although not ownership) of Plaintiffs house to Debtors dissolved bankruptcy estate in April 2006: Plaintiff actually superseded and regained control over his property in August of 2008 through Turnover Order No. 5. Debtor relied on racketeering activities in his Chapter 11 bankruptcy through a RICO enterprise consisting of James Maples, Kathy Maples, Compass Bank, Global Limo, Inc., Justice of the Peace Homer Jasso, DA Rene Guerra, and Sheriff Lupe Trevino to make a fraudulent claims to control Plaintiff's home through an illegal Writ ofPossession. (See App. 26, Certified Mail Receipts to District Attorney). JP Homer Jasso ordered a Default Judgment and an order for possession against Plaintiff's home while at the same time not allowing Plaintiff to defend his property since he was not a party to the suit. Plaintiff was injured. See damages below. 53. Plaintiff was attacked by Sheriff/Constable J.E."Eddie" Guerra, Deputy Constable Carlos Gonzalez, and a SWAT team at his house which evolved into a 3 day armed standoff. Chief Victor Rodriguez and Sheriff Guadalupe Trevino refused to stop the racketeering activities until Channel 4 news requested JP Jasso to explain how the state could take someone's property without a lawsuit: All police withdrew. On or about May 11, 2012, Sheriff/Constable J.E."Eddie" Guerra, with the assistance of McAllen Police, broke into Plaintiff's house - creating a special relationship -, removed his campaign material and other assets, and threatened Plaintiff with criminal trespass arrest if he returned. Officer Hernandez of the McAllen Police Department also threatened Plaintiff with criminal trespass arrest if he returned. Plaintiff suffered threats to his life, property loss, loss of rent, loss of time, and loss of investment. See also Damages below. COUNT 13 54. 18 U.S.0 § 1344 - BANK FRAUD; 18 U.S.0 § 1956 - LAUNDERING OF MONETARY INSTRUMENTS; 18 U.S.0 § 1957 - ENGAGING IN MONETARY TRANSACTIONS IN PROPERTY DERIVED FROM SPECIFIED UNLAWFUL ACTIVITY; 18 U.S.0 § 1961 (1) (D) ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; and 18 U.S.0 § 1962(b), (c), (d) - County Judge Sergio Valdez, Hidalgo County Court No. 7, having never been transferred case no_ CL-20,530-A by assigned Judge Alex Gabert, worked without authority to continue Judge Gonzalez' racketeering activities and assaults on Plaintiff's Third Amended Judgment and associated turnover orders, under the color of law to frustrate all of Plaintiff's attempts to enforce any of the final decrees of the court in case no. CL- 29,530-[A] even after a mandate issued from the 13th Court of Appeals to enforce the Plaintiff's final judgment. App. 32, Opinion, Appeals Case no. 13-12-00267-CV, dated 5/9/2013; App. 39, Corrected Mandate, Appeals Case no. 13-12-00267-CV, dated 8/16/2013. When the 13th Court of Appeals found Judge Gabert's Final Judgment void, since Plaintiff had never been sued and was a judgment creditor, Plaintiff again attempted to cause the court to enforce it's decrees and to return his illegally seized property by filing his Judgment Creditor's Motion For a Show Cause Hearing Hearing Enforcing Turnover Orders No. 5 and No. 6 And To Recover Stolen Monies. App. 28, Civil Docket Report, CL-29,530-H. 55. Judge Sergio Valdez mysteriously stepped in, avoiding Plaintiff's motion to regain his illegally seized property, and Judge Valdez again attempted to modify Mr. Partain's final decrees by filing an "interlocutory order" offsetting the Third Amended Judgment on excuse that the Mapleses' Title 11 bankruptcy was a suit against Plaintiff that modified the Third Amended Judgment. App. 37, Order Of The Court, Case no. CL-29,530-G, dated 10/10/2013. However, Judge Valdez was made aware that Bankruptcy courts cannot affect or review the merits of a state judgment, and certainly cannot alter a state judgment in an effort to recoup, offset, or recover, especially for criminal sanction wherefrom bankruptcy court's lack all jurisdiction. Stem v. Marshall, 564 U.S. 2 (2011), (held that a bankruptcy court lacked constitutional authority under Article III of the United States Constitution to enter a final judgment); In re Sweeney, 276 B.R. 186 (B.A.P. 6th Cir. 2002) (Under the Rooker-Feldman doctrine, a bankruptcy court may not review and re-determine the merits of a debt or set aside the default judgment reflecting it, but it may within its exclusive jurisdiction determine whether that debt is dischargeable or not. (Id. At 195)); also see Terrebonne Fuel and Lube, Inc., 1.08 F.3d 609, 613 (5th Cir.1997) ("bankruptcy courts lack the power to hold persons in criminal contempt."). 56. Judge Valdez, without jurisdiction, using the color of law in a case where the county court had already lost its plenary power, entered Order Of The Court, dated October 10, 2013, allegedly modifying the Plaintiff's Third Amended Judgment, ignoring Turnover Order No. 5 and Turnovever Order No. 6, and inviting Plaintiff to appeal again, adopting and continuing a pattern of racketeering activities of the racketeering enterprise. Plaintiff was deprived of his rights and property. Plaintiff was injured. See damages below. COUNT 14 57. 18 USC § 1344 — BANK FRAUD; EXTORTION; or alternately 18 USC § 201 — BRIBERY OF PUBLIC OFFICIALS AND WITNESS; 18 USC § 666; 18 U.S.0 § 1341; and VIOLATION OF AMENDMENT 14 OF THE UNITED STATE CONSTITUTION — The Debtors' other attorney, Kelly Mckinnis, advised Judge Gonzalez that his clients could pay part of their judgment debt in case no. CL-29,530-A to Plaintiff if the Court would "lean" on Compass Bank to release a lien against Plaintiff's house then the Court could use that to credit the Debtors. Debtors represented that Compass Bank was afraid of Plaintiff's RICO (Racketeer Influenced Corrupt Organization) complaints against the bank and Debtors, and that the bank would do "anything" to get away from his claim. Plaintiff protested that the Court shouldn't involve itself in a crime to pay him with his own asset by removing illegal liens. Judge Gonzalez called the bank's attorney, Vicky Skaggs, and Compass Bank release a $47,000 lien against Plaintiff's house, through his company Global Limo, Inc., on or about October 4, 2010 to influence Judge Gonzalez to destroy Plaintiff's final judgment. Judge Gonzalez was expecting to be influenced by the bank. Consequently, Judge Gonzalez put out an order attacking all the Court's previous orders and denying Plaintiff any judgment award or relief. Plaintiff was injured through the racketeering activity because Judge Gonzalez used into allegedly and illegally defeat all the previous orders of the court, leaving Plaintiff with no award or judgment after an original Final Judgment for approximately $452,000 years and approximately 18 years of litigation and torment. Judge Gonzales recused himself and later, without any authority under the law, ordered the case CL-29,530-A away from Judge Gabert to Judge Valdez to impair Plaintiff's recourse. Plaintiff was injured. See also Damages below. COUNT 15 58. 18 U.S. Code § 1961 (1) (D) ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; 18 U.S.C. § 1956; 18 U.S. Code § 1951; 18 U.S.C. § 1957; 18 U.S.0 § 1341; 18 U.S. Code § 1513; THEFT; FRAUD; 18 U.S.C. § 1962 (c)(d) - District Judge Alex W. Gabert, assigned judge to Hidalgo County Court no. [1} for case no. CL-29530-A operated under the color of law to participate in racketeering activities with attorney William McCarthy and Judge Rudolfo Gonzalez, including theft, fraud, and fraud connected to a Title 11 bankruptcy case, to attack the Plaintiff's Third Amended Judgment by replacing it with another Final Judgment, dated March 16, 2012, to supplement Judge Gonzalez' Order (App. 21), dated 2/2/2011, based on William McCarthy's claim of an offset from a Title 11 bankruptcy and interests in assets from an interstate motorcoach company named Global Limo, Inc. App. 29, Final Judgment, Case no. CL-29,530-A, dated 3/16/2012. 59. As a direct result of Judge Gabert's void Final Judgment, Plaintiff was attacked by Hidalgo County Constables and a SWAT team at his real property which he was using as his Congressional Campaign Headquarters on the same day and time he was scheduled for the only televised congressional candidates forum with Congressman Ruben Hinojosa (Plaintiff was also after being given a friendly warning by a Hidalgo County Sheriff's Commander to "watch his back since he was pissing off the powers that be"). App. 30, Temporary Injunction Hearing (Transcript), C-0929-12-F, dated 4/16/2012. Power and water were cutoff and a 3 day armed standoff ensued. The Constable service finally withdrew after the 3rd day (the SWAT team withdrew within 6 hours after they discovered the Relator wasn't listed in the orders to take possession of the condo and appeared to own the condo per county records), but Constables returned on the 5th day breaking into the condo and removing the Plaintiff's campaign materials, campaign records, business tools, and business inventory. - 60. Judge Gabert's void Final Judgment in case CL-29.530-[A] was used as an argument by William McCarthy to vindicate Judge Homer Jasso's illegal writ of possession in Justice Court case no. JP2011-197 to defeat a preliminary injunction in district case no. C-0929-12-F and violate Plaintiff's constitutional rights to be secure in his property and possessions. Tx. Const. Art. 1 sec. 19 - Deprivation of Life, Liberty, Etc.; Due Course of Law; USCA 14, Sec. 1. The 13th Court of Appeals opinioned in case no. 13-12-00267-CV that Final Judgment was Void, never having the effect of law. App. 32, Opinion, Appeals Case no. 13-12-00267-CV, dated 5/9/2013. 61. Plaintiff's property was never returned, his motions and efforts to recover his property were ignored or attacked by the every judge rotating through his case. Attorney William McCarthy, Judge Homer Jasso, and assistant District Attorney Michael L. Garza continue to use the resulting physical seizure of Plaintiff's property on May 11, 2012, to challenge Relator's property ownership. Plaintiff was injured. See also Damages below. COUNT 16 62. ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; THEFT; 18 U.S. Code § 1341; 18 U.S. Code § 1961 (1)(A),(B),(D); 18 U.S. Code § 1513; 18 U.S.C. § 1962 (c) and (d); CRIMINAL MISCHIEF.; EXTORTION; THEFT — William John McCarthy filed a false sworn Original Petition For Forcible Detainer, Case no. JP2014-458, in the Justice Court of Precinct 4, Place 2, in Hidalgo County, on or about July 15, 2014 for-real property owned by Plaintiff and leased to Plaintiff's tenant, Dora Martinez. William McCarthy did not invoke the jurisdiction of the court and did not sue Plaintiff: The Debtors, attorney William McCarthy, and "The Estate Of James H. Maples" lacked standing to invoke the jurisdiction of the justice court to sue for forcible detainer against Plaintiff's tenants since the Debtors were not landlords or owners pursuant to Texas Property Code § 24 and Turnover Order No. 5, making JP Jasso's Default Judgment[s] and Writ[s] of Possession void for lack of jurisdiction. William McCarthy irrelevantly clainied to be executor and administrator over The Estate Of James Maples, although he was not and a probate case had not even been filed. William McCarthy represented that the Plaintiff's real property was awarded to the Debtors' Estate through the bankruptcy court, but he did not fully represent that the bankruptcy court's order had been superseded by Mr. Partain's Turnover Order No. 5 two years later in 2008. William McCarthy also claimed to McAllen police and to a county court judge that he actually owned the real property individually, but he could produce no documents. 63. Justice of the Peace Homer lasso, Sr., operating under the color of law through Justice Court, Pct. 4, Pl. 2, Hidalgo County, case no. JP2011-197 and case no. JP2014- 458, engaged in a continuing pattern of racketeering activities with William McCarthy, and the Hidalgo County District Attorney's Office including theft, fraud, fraud connected with a case under title 11, and conspiracy to deprive Plaintiff his real property by force using Hidalgo County resources including Hidalgo County Constables, a SWAT team, Default Judgments, and Writ of Possessions against Plaintiff and his tenants, and by collaterally attacking the Relator's Turnover Order No. 5. App. 11, Turnover Order No. 5, Case No. CL-29,530-A, dated 8/18/2008; App. 24, Default Judgment, Case no. JP2011-197, dated 6/03/2011; App. 47, Default Judgment, Case no. JP2014-458, dated 9/29/2014; Writ ofPossession, Case no. JP2014-458, dated 9/11/2014. Plaintiff's rent and assets went to Hidalgo County, Debtors, and attorney William McCarthy. 18 US. Code § 1957 - Engaging in monetary transactions in properly derivedfrom specified unlawful activity. Judge Jasso further violated Texas Property Code § 24.0054(3) and injured Plaintiff by ordering a writ of possession after the appeals record was sent to the Hidalgo County Clerk. App. 50, Letter of Receipt of Appeals Documents by County Clerk, CL-14-3542-E, dated 9/10/2014. Plaintiff suffered real property loss (>$20,000), loss of rent, loss of time, and loss of his investment. See also Damages below. COUNT 17 64. ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 1118 U.S.C. § 1341; 18 U.S.C. § 1343; CRIMINAL MISCHIEF; THEFTI8 U.S.C. § 1962 (c) and (d) — William John McCarthy filed a false sworn exparte Motion For Judicial Review OfA Document Purporting To Create A Judgement Lien, case no. C- 6549-14-G, in 370th District Court of Hidalgo County, on or about July 30, 2014 claiming that Plaintiff placed an illegal lien against property owned by "The Estate Of James Maples", but he did not provide a copy of the alleged document or identify it as required by statute. William McCarthy claimed to be executor and administrator over "The Estate Of James Maples," although he was not. Two district judges recused themselves: District Judge Jose Banales was later assigned to the case. William McCarthy did not identify which document Plaintiff had filed as statutorily required by TEX GV. CODE ANN. § 51.902 (c) and William McCarthy misrepresented ownership of the real property in violation of Turnover Order No. 5 through an improper affidavit. William McCarthy did not invoke the jurisdiction of the court. Judge Jose Banales was made aware of these facts and that Plaintiff was owner of the property, but he ordered the clerk through wired communication to retitle Plaintiff's property to the deceased, James Maples. Judge Banales used the color of law to vandalize Plaintiff's deed on his property using improper ministerial action through TEX GV. CODE ANN. § 51.902 to enrich a non-legal entity and to protect a racketeering enterprise which included Hidalgo County. Plaintiff's title to his property was destroyed, and Turnover Order No. 5 was ignored. Plaintiff suffered real property loss (>$20,000), loss of rent, loss of time, loss aids investment and prejudice against his rights. Plaintiff was injured. See Damages below. COUNT 18 65. 18 U.S. CODE § 1961(1)(A),(B),(D). 18 U.S. CODE § 1961(1)(A),(D); 18 U.S. CODE § 1951 - INTERFERENCE WITH COMMERCE BY THREATS OR VIOLENCE; 18 U.S. CODE § 1513 - RETALIATING AGAINST A WITNESS, VICTIM, OR AN INFORMANT; 18 U.S. CODE § 1962(c),(d) - District Judge Robert Max Blackmon was purportedly assigned to Hidalgo County case no. CL-29,530-[H] through Administrative Judge Jose Rolando Olvera's Order ofAssignment. Plaintiff objected to the assignment of Judge Blackmon, but conditionally withdrew the objection if the assignment fully authorized Judge Blackmon to enforce the Third Amended Judgement and all associated orders of the court. App. 60, 61; TEX GV. CODE ANIV: 74.053 (b). Judge Olvera did not amend his orders or assign another judge so Plaintiffs objection laid and Judge Blackmon was legally disqualified. However, Judge Robert Blackmon ordered and held a show cause hearing under the color of law on Feb. 26, 2015, on Plaintiff's Motionfor Contempt against William McCarthy. Judge Blackmon tried to circumvent his disqualification by claiming he was only assigned for one hearing since Judge Omar Maldonado of County Court No. 8 was actually sitting over the case. App. 59, Order OfAssignment, dated 1/20/2015. However, Judge Omar Maldonado was not assigned over the case by the 5th Administrative District as required by law, and is not sitting over the case. 66. Judge Blackmon refused to acknowledge the 13th Court of Appeals Opinion and mandate, from related appeals case no. 13-12-00267-CV, and instead protected William McCarthy's fraud and multiple violation of the court's final orders by claiming the court's orders do not apply to counsel. See App. 21, 24, 30, 44, 51, 53, 54, 57, 63, 65. Judge Blackmon adopted William McCarthy's new sworn testimony, allegedly speaking for "The Estate of James H. Maples" (a non-legal entity), detailing his deceased client's interests in the Plaintiff's interstate commerce business and how much the Plaintiff owed the "The Estate of James H. Maples," although the 13th Court of Appeals wrote that it was beyond the jurisdiction of the court to hear new testimony afters it lost its plenary • power. App. 32, Opinion; Henson v. Estate of Crow, 734 S. W.2d 648, 649 (Tex. 1987) (The dispositive question before us is the holding of the trial court that the Estate of Bruce L. Crow was not a legal entity and cannot be sued as such.). 67. Judge Blackmon fervently cast fraudulent arguments and legal misrepresentations at the Plaintiff, and issued an order under the color of law denying contempt against William McCarthy to protect the racketeering enterprise and its racketeering activities. 18 U.S. Code § 1961(I)(A),(D); 18 U.S. Code § 1962(c)(d). Specifically, Judge Blackmon made arguments that the actual number on the instant case was "CL-29,530-H" instead of "CL-29,530-A" because of Judge Rudolfo Gonzalez' acts to transfer the case outside his jurisdiction, making the case a brand new case without any orders to enforce — and contradicting TEX GV. CODE ANN. § 74.121(c). 68. Judge Blackmon retaliated and further argued that Plaintiff started a new case, CL- 29,530-H, to harass the Debtors' attorney and that he was considering sanctions to punish Plaintiff unless he played nice and submitted. 18 U.S. Code § 1961(1)(A),(B),(D). Judge Blackmon threatened the Plaintiff on, but mostly off the record that he may sanction him with fines for not "playing nice", and that if the Plaintiff failed to conforrn to any of the judge's possible orders that he could end up in jail. 18 U.S. Code § 1951 - Interference with commerce by threats or violence; 18 U.S. Code § 1513 - Retaliating against a witness, victim, or an informant. Judge Blackmon even manufactured his own styled case as Johnny Ray Partain v. Estate of James H. Maples, Decedent et al. in the Justice Court, Pct. 4, Pl. 2. to continue his deception and to protect racketeering activities through his alleged new case and threats. App. 62, Order Denying Motion For Contempt, Case no. CL-29,530-H, dated 3/02/2015; 18 U.S. Code § 1962(c)(d); 18 U.S. Code § 1961(1)(D). Plaintiff Plaintiff was injured. Also see Damages below. COUNT 19 69. 18 U.S. CODE § 1001; 18 U.S. CODE § 1018; 18 U.S. CODE § 1961 (D); 18 U.S. CODE § 1962 (D) - Plaintiff made two criminal complaints to the State Bar of Texas, well informing it of attorney William McCarthy's criminal acts, his mortal threats, and the racketeering activities herein. The Texas.State Bar responded first by shortening the period originally offered to Plaintiff to provide evidence, and then by joining the RICO enterprise and converting Mr. Partain's complaints and 500 plus pages of certified documents witnessing serious crimes, as an "inquiry" concealing the racketeering enterprise, connected with a title 11 bankruptcy case, and conspiring to advance its goals in violation of 18 U.S. Code § 1962 (D): William McCarthy referenced the Texas State Bars response to Mr. Partain as condoning his (criminal) actions. The Texas State Bar adopted the goal of the racketeering enterprise claiming in written notice that the serious crimes documented and provided to them do not violate the Integrity of the Profession (See Attorney Displinary Rules of Professional Conduct, Rule 8.04. Misconduct) - although they do. The Texas State Bar of Texas conspired with the RICO enterprise and concealed the racketeering activity to adversely affect Plaintiff's recourse and to cause him injury. Plaintiff was injured. Also see Damages below. COUNT 20 70. 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962(d) — Plaintiff purchased property loss insurance for his house located at 3820 N 7th Court, McAllen, Texas, with Farmers Insurance (an insurance company operating interstate), in 2008, on representations by Farmers Insurance's agents that Farmers Insurance, or its associates, would compensate Plaintiff for property lost to the perils that Farmers Insurance listed. However, Farmers Insurance did not intend to fully provide coverage for the perils it listed, and in fact, was almost nonresponsive to Plaintiff's claims of property loss until Plaintiff communicated that he would add Farmers Insurance to a lawsuit for failure to respond. Thereafter, Farmers Insurance refused to fulfill its promise to compensate Plaintiff his property loss by joining the RICO enterprise and adopting its goal to destroy Plaintiff's property rights. Farmers Insurance used electronic communication and United States mail to execute its scheme. 71. Plaintiff made two loss claims under his Farmers insurance policy regarding the illegal taking and the destruction of title to his property under claim numbers 8000753367-1-1 (5/11/2012) and 3003661120-1-1 (10/09/2014) pursuant to the civil commotion, vandalism, and malicious mischief perils under his insurance. Farmers Insurance verified Plaintiffs title to his house on or about December of 2012, but failed to deny or accept his claim within statutory time limits. Said claim languished unanswered until 2015 wherefrom Farmers Insurance claimed protection under the statute of limitations. Plaintiff made a second claim on or around October of 2014 which Farmers Insurance also ignored until Plaintiff suggested that he may make a complaint to the Texas Department of Insurance and add the company as a party to litigation. Farmers Insurance finally responded and formally investigated Plaintiff's claims. Farmers Insurance was made well aware of the RICO enterprise and its racketeering activities, and then Farmers Insurance joined the RICO enterprise and adopted its goal to avoid paying Plaintiff's loss of his property in violation of 18 U.S.C. § 1962(d). On or about October 6, 2015, Farmers Insurance denied Plaintiff any recovery of his property loss by claiming his policy excluded "government action." Plaintiff was injured. Also see Damages below. DAMAGES 72. The acts and omissions of the Defendants are the proximate cause of the damages to Plaintiff, and Plaintiff seeks monetary relief over $1,000,000 and a demand for judgment for all the other relief to which the Plaintiff deems himself entitled. Plaintiff seeks special damages for loss of business, loss of freedom, mental anguish, loss of wages in the past, loss of future earning capacity, and exemplary damage for intentional abuse of "legal process", retaliation, and malice. Further, it is unlawful for any person to conspire to violate any of the provisions of subsections 18 U.S.C. § 1962 (a), (b), or (c), and each co-conspirator is liable for mandatory treble damages for the acts of all other co-conspirators undertaken in furtherance of the conspiracy, both prior to and subsequent to the co-conspirator's joining the conspiracy, even if the conspirator did not participate in, or was unaware of, such acts. Salinas v. United States, 522 U.S. 52, 63-64 (1997); see also CGC Holding Co., LLC v. Broad and Cassel, 773 F.3d 1076, 1088 (10th Cir. 2014). 73. Plaintiff also seeks adequate compensation for the taking, damaging, or destruction of his property by the State of Texas, Hidalgo County, and City Of McAllen. CONDITIONS PRECEDENT 74. All conditions precedent have been performed or have occurred. INCORPORATION OF EXHIBITS 75. Exhibits attached to this petition are incorporated herein as evidence and arguments supporting this Plaintiff's Second Amended Petition Consolidating Sec. 1983 Civil Rights Violations, Rico Complaints, and "Taking Clause" JURY DEMAND 76. Plaintiff demands a jury trial as required in any findings of fact. REQUEST FOR DISCLOSURE 77. Pursuant to Rule 194, you are requested to disclose, within 50 days of the service of this request, the information or material described in Rule 194.2(a)-(i). VI. PRAYER 78. WHEREFORE, PREMISES CONSIDERED, Plaintiff Johnny Partain prays this Court cause Defendants to be served with process herein, that the Defendant be ordered to appear and answer, that the Court exercises the authority granted it under 18 USC § 1961-1968 and under Tex. Civ. Prac. Rem. Ch. 37 and 65, and that upon final hearing, the Plaintiff have judgment of the Court for his damages and costs, including actual damages, exemplary damages, pre-judgment interest at 10% APR, post judgment interest at 10% APR, appeal attorney fees, all costs incurred herefrom, for his time, and for any other and further relief, either at law or in equity, to which the Plaintiff may be entitled. • , Respectfully submitted p PLA \1111 702 N. 16 --1- 41/41104,PF: reet Mc len, s 785 95 -240- p rtain stechnologies.biz CERTIFICATE OF SERVICE I hereby certify that I have caused to be delivered a true and correct copy of/Nair/Ws Second Amended Petition Consolidating Sec. 1983 Civil Rights Violations, Rico Complaints, and "Taking Clause" on this Nov. 2, 2015 pursuant to the Texas Rules of Civil Procedure to: Charles C. Murray Compass Bank 818 W. Pecan Blvd. McAllen, Texas 78501-2418 via ccmurray@atlashall.com; Michael Lee Garza Assistant District Attorney 100 N. Closner Room 303 via michael.garza@da.co.hidalgo.tx.us Benjamin Dower Assistant Attorney General P.O. Box 12548 Austin, Texas 78711-2548 via benjamin.dower@texasattomeygeneral.gov Josephine Ramirez 100 N. Closner, Room 303 Edinburg, Texas 78539 via josephinexamirez@da.co.hidalgo.tx.us; William McCarthy Oxford & Gonzalez 124 S. 12th Street Edinburg, Texas 78539-4502 via mccarthy.625@gmail.com FILE COPY M A N D A T E EXHIBIT 2 TO THE 332ND DISTRICT COURT of HIDALGO COUNTY, GREETINGS: Before our Court of Appeals for the Thirteenth District of Texas, on the 2nd day of July, 2015, the cause upon appeal to revise or reverse your judgm ent between JOHNNY PARTAIN, Appellant, v. CONTABLE J. E. 'EDDIE' GUERRA, HIDALGO COUNTY PRECINCT 4 IN HIS OFFICIAL CAPACITY AND JAMES H. MAPLES, ET AL. Appellees. CAUSE NO. 13-13-00341-CV (Tr.Ct.No. C-0929-12-F) was determined; and therein our said Court made its order in these words: THIRTEENTH COURT OF APPEALS, having considere d this cause on appeal, concludes the judgment of the trial court should be REVERSED and the cause REMANDED to the trial court. The Court orders the judgment of the trial court REVERSED and REMANDED for further proceedings cons istent with its opinion. Costs of the appeal are adjudged against appellee. We further order this decision certified below for observanc e.        WHEREFORE, WE COMMAND YOU to observe the order of our said Court of Appeals for the Thirteenth District of Texas, in this behalf, and in all things have it duly recognized, obeyed and executed. WITNESS, the Hon. Rogelio Valdez, Chief Justice of our Court of Appeals, with the seal thereof affixed, at the City of Edinburg, Texas this 18th day of September, 2015. -9-61,teuvt_ Dorian E. Ramirez, CLERK /2/(441m/u3 NUMBER 13-13-00341-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG JOHNNY PARTAIN, Appellant, v. CONSTABLE J. E. ‘EDDIE’ GUERRA, HIDALGO COUNTY PRECINCT 4 IN HIS OFFICIAL CAPACITY AND JAMES H. MAPLES, ET AL., Appellees. On appeal from the 332nd District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Benavides and Wittig Memorandum Opinion by Justice Wittig1 This is an appeal by Johnny Partain, pro se appellant, challenging the district trial court’s dismissal of his case for want of prosecution and its failure to hear his motion to reinstate.2 We will reverse and remand. 1 Retired Fourteenth Court of Appeals Justice Don Wittig assigned to this Court by the Chief Justice of the Supreme Court of Texas pursuant to the government code. See TEX. GOV'T CODE ANN. § 74.003 (West, Westlaw through 2013 3d C.S.). 2 The appellees in this cause include Constable J. E. “Eddie” Guerra of Hidalgo County, Precinct 4 in his official capacity, James H. Maples, Compass Bank, BBVA USA, Inc., Kathleen Maples, Carlos I. BACKGROUND On April 5, 2012, Partain filed suit seeking injunctive and other relief against James Maples and Constable J. E. “Eddie” Guerra, appellees. The trial court originally granted Partain’s temporary restraining order but later denied his request for a temporary injunction and dissolved the restraining order. Thereafter, twelve additional defendants were added, most of whom are also appellees herein. According to Partain, his requested temporary injunction was denied specifically because the trial court relied upon a void final judgment issued on March 16, 2012 by a county court in Hidalgo County. The record indeed reflects that on May 9, 2013, this court ruled that the judgment in question from the County Court at Law No. 7 of Hidalgo County was not valid and the county trial court was without jurisdiction. Partain v. Maples, 438 S.W.3d. 69, 73–74 (Tex. App.—Corpus Christi, 2013, no pet.). In our earlier opinion, we noted the history going back to January 1998 when Partain sued Maples, obtained a jury verdict, and a sizeable judgment was entered on February 24, 2002. Id. at 70. This judgment was amended and was followed by numerous turnover orders and show cause hearings. Then, on February 2, 2011, the county court entered an order discharging and releasing Maples and requiring Partain to file an accounting detailing assets collected so that the trial court could consider ordering a refund. Id. at 73. This order was appealed, and we abated for a trial court clarification regarding the order. On March 16, 2012, the trial court entered a third amended “judgment,” purportedly addressing an overpayment by Maples. See id. In the void March 16, 2012 judgment, the county court purported to Gonzalez, District Judge (Retired), Alex W. Gabert, McAllen Police Department, Justice of the Peace, Homer Jasso, Sr., District Attorney Rene Guerra, County Judge Rodolfo Gonzalez, Hidalgo County Sheriff Guadalupe “Lupe” Trevino, Hidalgo County, Texas, and the City of McAllen. 2 allow Maples to “recover his condo with a rescission of the turnover order.” Id. at 74. As noted, we held the county court lacked jurisdiction to enter this judgment. Id. The gravamen of Partain’s claims in the present action is that he seeks to prevent an alleged fraud on the court by allowing Maples to take possession of Partain’s condo located at 3820 N. 7th Street in McAllen, Texas. He also sought to restrain any constable or sheriff from executing any writs to dispossess Partain of his property. According to the petition and the record, Maples sold the condo on September 3, 2002 to Partain’s company, which in turn deeded the property to Partain. Partain, quoting the district judge in this appeal at the temporary injunction hearing held on April 16, 2013, stated that, notwithstanding, the void judgment from the County Court-at-Law No. 7 “gave the condo to Mr. Maples. That’s exactly what he did in this judgment.” The trial court went on to observe that, after subtracting the value of the condo and rescinding the turnover order, Maples would be entitled to a judgment. The trial court opined concerning the county court’s “judgment:” “It’s the judgment of the Court that James Maples recover his condo with a rescission of the turnover order.”3 Partain informed the trial court that he still had time (45 days) to appeal the “judgment.” The trial court stated: “And – and if you are going to appeal it, I suggest that you do that.” Partain suggested that the county court lacked jurisdiction, to which the trial court responded: “Then – then the place to attack his jurisdiction is also the Court of Appeals.” Partain followed the explicit instructions or suggestions of the district court. The result of that related appeal, as already noted, was our holding the county court judgment was null and void. 3 This is a quotation from the same April 16, 2013 hearing. 3 II. STANDARD OF REVIEW We review a trial court’s decision to dismiss a case for want of prosecution under a clear abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74, 75 (Tex. 1997); State v. Rotello, 671 S.W.2d 507, 508–09 (Tex. 1984); Fox v. Wardy, 234 S.W.3d 30, 32 (Tex. App.—El Paso 2007, pet. dism’d w.o.j.); Dick Poe Motors, Inc., v. DaimlerChrysler Corp., 169 S.W.3d 478, 484 (Tex. App.—El Paso 2005, no pet.); Garcia v. Barreiro, 115 S.W.3d 271, 275 (Tex. App.—Corpus Christi, 2003, no pet.). We likewise review a trial court’s denial of a motion to reinstate for abuse of discretion. Aguilar v. 21st Century Res., Inc., 349 S.W.3d 32, 35 (Tex. App.—El Paso, 2010, no pet.) (citing Polk v. Sw. Crossing Homeowners Ass’n, 165 S.W.3d 89, 96 (Tex. App.—Houston [14th Dist.] 2005, pet. denied)). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). III. DISCUSSION A trial court’s authority to dismiss for want of prosecution stems from the following two sources: (1) Rule 165a of the Texas Rules of Civil Procedure; and (2) the court’s inherent power. Villarreal v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999); see Veterans’ Land Bd. v. Williams, 543 S.W.2d 89, 90 (Tex. 1976); see also Bevil v. Johnson, 307 S.W.2d 85, 87 (Tex. 1957). Under Rule 165a, a trial court may dismiss a case on “failure of any party seeking affirmative relief to appear for any hearing or trial of which the party had notice,” TEX. R. CIV. P. 165a(1), or when a case is “not disposed of within the time standards promulgated by the Supreme Court.” Id. R. 165a(2). In addition, the common law vests the trial court with the inherent power to dismiss independently of the rules of procedure when a plaintiff fails to prosecute a case with due diligence. Villarreal, 994 S.W.2d at 630. However, a party must be provided with notice and an 4 opportunity to be heard before a court may dismiss a case for want of prosecution under either Rule 165a or the court’s inherent authority. Villarreal, 994 S.W.2d at 630; see also TEX. R. CIV. P. 165a(1). The failure to provide adequate notice of the trial court’s intent to dismiss for want of prosecution requires reversal. Villarreal, 994 S.W.2d at 630. First, we note that Partain did appear at the dismissal docket. Accordingly, the first prong of Rule 165a was satisfied and could not be a valid basis for dismissal. At the truncated and summary dismissal hearing, attended only by Partain, the trial court asked, “What have you got?” Partain responded that he filed a motion to retain and that the court of appeals “put out an order voiding the order that this Court was relying on . . . .” After the trial court responded that he had not seen the order, the trial court told Partain to give the order to the coordinator and that he would “take this motion under advisement.” The judge then dismissed Partain without hearing any argument or ascertaining whether he had anything further to offer. A party must be provided with notice and an opportunity to be heard before a trial court may dismiss a case for want of prosecution under either its inherent power or Rule 165a. See TEX. R. CIV. P. 165a(1); Villarreal, 994 S.W.2d at 630. The trial court’s notice of hearing for dismissal for want of prosecution cites both its inherent power and Rule 165a. Notably, the notice also states: “The court intends to dismiss this case on its dismissal docket set for hearing in open court on the 3 rd day of June, 2013, at 9:00 A.M.” It further states that failure to appear at the oral hearing will result in dismissal. In his motion to retain, Partain notes that the trial court’s notice to dismiss was signed just four days after we issued our opinion on the related void judgment. While the dismissal is technically at the one year guideline, the placement on the dismissal docket is permissive, and subject to retention on the docket for good cause. See TEX. R. CIV. P. 165a(1),(2). 5 The factors that a trial court may consider in dismissing a case under its inherent power include the length of time the case was on file, the extent of activity in the case, whether a trial setting was requested, and the existence of reasonable excuses for delay. Texas Mut. Ins. Co. v. Olivas, 323 S.W.3d 266, 274 (Tex. App.—El Paso, 2010, no pet.); Maida v. Fire Ins. Exchange, 990 S.W.2d 836, 842 (Tex. App.—Fort Worth 1999, no pet.); King v. Holland, 884 S.W.2d 231, 237 (Tex.App—Corpus Christi 1994, writ denied). We must look to the record in its entirety. Bilnoski v. Pizza Inn, Inc., 858 S.W.2d 55, 58 (Tex. App.—Houston [14th Dist.] 1993, no writ). The central issue is whether the plaintiff exercised reasonable diligence. Williams, 543 S.W.2d at 90. In his motion to retain, Partain pointed out to the trial court that our opinion in Partain v. Maples strongly vindicated his arguments to the court that the defendants’ whole defense was based upon a void judgment from County Court-at-Law No. 7. Partain also claimed that the other order from the Justice of the Peace awarding possession of Partain’s property to Maples was illegal.4 Partain further urged that his case be retained on the docket because the district court, in its earlier hearing, “put heavy weight on the Defendants’ order from the County Court requiring Johnny Partain to challenge the VOID order in the aforementioned appeals case instead.” (Emphasis in the original). Indeed, as we noted, the district court on at least two occasions pointed to the court of appeals as the proper course of relief for Partain. Our opinion was issued on May 8, 2013, just days before the dismissal hearing. In addition to multiple filings by Partain in the district court, the issuance of a temporary restraining order, and a full hearing on the temporary 4 Maples attempted to forcible evict Partain’s tenant and obtained a default judgment against the tenant then obtained a writ of possession even though Partain was not even a party to this proceeding. Subsequently, various law enforcement, including an alleged SWAT team, came to Partain’s residence seeking his removal, notwithstanding his legal title to the residence. 6 injunction, we note that the public record shows some sixty “events” in the companion appellate case. IV. CONCLUSION Considering the entire history of this litigation, the complexity, the brief one-year pendency in the district court, and the prosecution of the underlying and related appeal, we conclude that the record demonstrates extensive activity, reasonable diligence, and viable excuses for delay both as a matter of fact and a matter of law. See Williams, 543 S.W.2d at 90; MacGregor, 941 S.W.3d 279–30. We sustain Partain’s first issue. Because of our disposition, we need not address Partain’s second issue. TEX. R. APP. P. 47.1. We reverse and remand. /s/ DON WITTIG Assigned Justice Delivered and filed the 2nd day of July, 2015. 7 EXHIBIT 3 7020 N 16th Street McAllen, Texas 78504 IXCHEL PARR Assistant Attorney General Environmental Protection Division OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548, MC 066 Austin, Texas 78711-2548 (512) 475-4013 | Fax: (512) 320-0911 Ixchel.Parr@oag.texas.gov February 16, 2024 Re: Demand to cease and desist misrepresentations and attempts to divert PSF funds from GLO Ms. Parr; I received your demand letter of January 31, 2024, regarding the General Land Office’s (GLO) complaint of my properties and lessees. You either failed your due diligence before contacting me, or you are misrepresenting the illicit acts of the State of Texas – I am attaching to this letter some relevant communications with the Attorney General and Governor. It is the General Land Office that has confiscated or misappropriated some of my royalty payments, without proper legal authority over my property, by making misrepresentations to my lessees.1 This is going to cause problems for my lessees whom will eventually be unable to produce on my property – or pay the State’s taxes. But its going to be a much bigger problem for the State of Texas if it continues to use these illicit tactics to evade paying its debt to me. The State of Texas, including all the instrumentalities of the state, its legislative, executive, and judicial authorities, has precious little authority over the matter of my collecting its debt to me, as imposed by Art. 1 Sec. 17 of the Texas Constitution and the 5th Amendment of the United States Constitution. Texas’ continuing rogue evasions and gamesmanship of its obligations to pay its debt are barred by Art. 1, Sec. 29. It has been established through multiple United States and Texas Supreme Court Opinions that these debts must be paid.2 In fact, Texas Solicitor General Aaron Neilson recently represented to the United States Supreme Court, in Devillier v. Texas, cause no. 22- 913, a relevant case here, that the State of Texas always pays its constitutionally imposed debts: Mr. Neilson was responding to characterizations that Texas’ actions in Devillier were rogue, resembling gamesmanship or even bait and switch. Did he lie? Well, Texas’ debt in my instance has matured much further than even Devillier, following the State’s established path of gamesmanship to the instant situation. 1 The State has no power to commit acts contrary to the guarantees found in the Bill of Rights. Boullion, 896 S.W.2d 147-49 (Tex. 1995). 2 “[I]f a state takes a person’s property and doesn’t give compensa on, that state is viola ng the Cons tu on every day — it’s an ongoing viola on,” said United States Supreme Court Jus ce Elena Kagan, In re: Devillier v. Texas. Texas avoided and evaded paying its constitutionally imposed debt to me. Your Attorney Generals Office unlawfully claimed judicial immunity to the processes that I attempted in good faith, which consequently neutered the State’s power to resolve it debt to me, judicially and statutorily. All this done to sacrifice me and my family and protect incompetence and corruption from the lowest to the highest political offices of Texas. Ironically, I now have legal immunity to civil litigation and criminal prosecution since they are not only barred by res judicata, but by Art 1. Sec. 2934, beyond government power and inviolate. Raising further legal arguments is irrelevant and will not lie, even if the processes now implemented to collect against the State’s debt are alleged imperfect. Your best response now would be to negotiate honestly with me. As of February 16, 2024 the State of Texas is indebted to me for approximately $337 million, minus the estimated over $100 million in assets I possess through execution against the State. That’s comes out to about $237 million. Plus we’ll have to add for costs and the recent additional seizures of my property. I’ve developed a lot of tools and I will collect the full amount of the State’s debt. However, I am fully willing to release Texas from my lien once it pays it debt to me as required by law. Please make certain that the GLO returns my royalties back to me. In the meantime, you’ve express interest in some of my property which you claim is under the PSF. Do you have the authority to trade, or to pay the State’s debt? Or, do you want to set a precedent? Respectfully, Johnny Partain 956-240-1821 partain@atlastechnologies.biz Cc: Governor Greg Abbott, Office of the Governor, P.O. Box 12428, Austin, Texas 78711-2428, Cert. Mail #9407111206210996187334; Attorney General Ken Paxton, Office of the Attorney General, PO Box 12548, Austin, TX 78711- 2548, Cert. Mail #9407111206210996439693. 3 The United States Supreme Court has consistently described the Just Compensa on Clause as “self-execu ng,” meaning that no addi onal acquiescence or authoriza on is necessary to enforce the compensa on requirement. This means that no further ac on by the government is a necessary predicate to enforcing the right, nor is a waiver of sovereign immunity, nor an enabling statute. Thus, an owner whose property has been taken is en tled to seek compensa on without invoking any par cular statute or state court procedures. See, e.g., Knick, 139 S.Ct. at 2171; Clarke, 445 U.S. at 257. When government takes property, it is obligated to provide compensa on. If it does not, property owners are en tled to seek compensa on themselves without addi onal government permission. 4 “Just compensa on is provided for by the Cons tu on and the right to it cannot be taken away by statute.” Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 304 (1923). EXHIBIT KEN PAXTON ATTORNEY GENERAL OF TEXAS January 31, 2024 Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz 956-240-1821 Re: Demand to cease and desist misrepresentations and attempts to divert PSF funds from GLO Dear Mr. Partain: This office has received a request from the General Land Office (“GLO”) to address the letters you have sent to operators of numerous oil and gas leases in Texas. In these letters, you allege that certain Permanent School Fund (“PSF”) minerals have been transferred to you. You further allege that “[t]he debtor, State of Texas, has defaulted in connection with an obligation secured by collateral specified in the attached UCC Finance Statement.” The UCC Finance Statement claims as collateral “[a]ll assets, interest, and taxes belonging to Texas, Texas Treasury Safekeeping Trust Company, Hidalgo County and City of McAllen.” The letters direct the operator to make all payments owed to the State of Texas pursuant to State oil and gas leases to you. As you must be aware, the representations you have made are wholly inaccurate and entirely without authority. You have presented no recorded deeds or judgments against GLO or any other entity to support your representations. The funds you are attempting to divert away from the Permanent School Fund support public schools across Texas, and the Office of the Attorney General takes any attempt to illegally appropriate these funds very seriously. The Office of the Attorney General, on behalf of the GLO, demands that you: 1. Immediately cease and desist contacting operators claiming any interest in state property; 2. Immediately inform the operators you have previously contacted of your misrepresentations and return any royalty payments you inappropriately received; 3. Within 20 days of the date of this letter, file the attached UCC-3 termination statement for all properties on which you filed a UCC-1 statement pursuant to TEX. BUS. & COM. CODE § 9.513(c); and 4. Within 30 days of the date of this letter, send copies of your correspondence with the operators previously contacted and file stamped copies of the UCC-3 termination statements. This letter is an attempt to resolve this matter without the need, or cost, of litigation. Your prompt attention to this matter will save time and expense for you and the people of Texas. Failure to respond may result in further action by the Attorney General. Any and all future calls, correspondence, and other communications should be directed to my attention. Thank you for your prompt attention to this matter. Sincerely, /s/ Ixchel Parr IXCHEL PARR Assistant Attorney General Environmental Protection Division OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548, MC 066 Austin, Texas 78711-2548 (512) 475-4013 | Fax: (512) 320-0911 Ixchel.Parr@oag.texas.gov 2 Johnny Partain 7020 N 16th Street McAllen, Texas 78504 US Attorney General Merrick Garland U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 May 18, 2023 CRIMINAL COMPLAINT AGAINST TEXAS GOVERNOR GREG ABBOTT AND ATTORNEY GENERAL KEN PAXTON, AS WELL AS NOTICE OF COMINGLING OF PUBLIC AND PRIVATE PROPERTY POTENTIALLY AFFECTING FEDERAL PUBLIC MONIES My name is Johnny Partain, and I am filing a criminal complaint (18 USC 242, 241) against Texas Governor Greg Abbott and Texas Attorney General Ken Paxton for violating my civil rights. I am also informing your office that I have solutions to cure my injuries and enforce my civil rights that may jeopardize the interests of the United States government, so I am requesting and providing information before proceeding. Governor Greg Abbott and Attorney General Ken Paxton knowingly violated my rights to receive hundreds of millions of dollars in compensation for property that was taken, damaged, and destroyed by the State of Texas pursuant to Texas Constitution Article 1, Section 17. To be clear, the Texas Judiciary buried its inept and unlawful acts against me, my property, and other people's lives by denying me access to the courts under the pretext of confusion and immunity, which ultimately destroyed my property rights. However, it was the Attorney General, acting under color of law asserting immunity in Hidalgo County District Case No. C-0929-12-F, who absolved the helpless courts of their obligations under the Texas constitution, and as required by mandate of a higher court. Then, Texas Governor Gregg Abbott and Texas Attorney General Ken Paxton took affirmative action, objecting to and blocking the Texas Comptroller Glenn Hagar through its attorney, Murl E. Miller, from paying my application for just compensation as required by the constitution, claiming under color of law that I was required a court order to exercise my right to just compensation under Texas Constitution Article 1, Section 17, from which they had just been illegally granted immunity. Attorney General Paxton could have brought my request for compensation before a jury if he wanted a second opinion on its value rather than claiming immunity from the constitution to evade the required compensation. Governor Gregg Abbott does not require a court order to comply with the constitution or to allow the Texas Comptroller to pay me. See the attached notices. To put context on this issue, the compensation due to me arises from the racketeering activities of Texas State Bank to interfere through its political connections in the South Texas judiciary with my final judgment for $451,000 against a well-known fraud. The fraud was a personal friend and neighbor to the president of the bank. The bank then interfered with the operations of my interstate bus company through theft of its assets and racketeering (RICO) to control the company and its profits. Banks have no superior rights under the Texas Constitution. Twenty-three (23) people died as a result of the bank strong arming me through their law firm to seize control of my company. I was served with over a billion dollars in legal claims, and then I was judicially enjoined and threatened with incarceration to be silent to protect the appearance of propriety by the judiciary in the ensuing multi-district litigation. My company was destroyed and the families who lost lives were compensated almost nothing: They never realized that the courts and the bank were running the seized corporation. When I complained to higher authorities, I was threatened for complaining, my complaints were dismissed, and I was consequently imprisoned for civil contempt for 72 days by the judge I was complaining about, before suing out a habeas corpus in Federal court. The offending judge never had jurisdiction over me. Despite the fact that I had no charges against me and that I had never faced prosecution, I was fined $94,500 by a second judge for using habeas corpus to evade the first judge's order to jail me. Thereafter, four judges signed orders on each other’s courts to protect the offending judge from criminal prosecution. President Obama’s administration ordered a criminal investigation of two of the judges through the FBI, but the FBI failed to perform. I know this because I was never interviewed, but my house was searched by FBI and US Marshals. Later, my property and my temporary congressional campaign headquarters were assaulted by a SWAT team through actions by the Hidalgo County District Attorney and a Justice of the Peace to seize my property while I campaigned for a US congressional seat against public corruption. This resulted in a three day armed standoff, wherefrom police withdrew, but my campaign headquarters, a property I owned, was taken a few days later while I was away. Because I had never been sued, orders to take my property were eventually found to be unlawful by a higher court. A few years later, the same government agents once again illegally seized my property in the exact same way as I ran for Congress again. A Justice of the Peace then threatened me that the District Attorney was looking for a way to prosecute me. A month later I was indicted and fully prosecuted for a felony manufactured by local government. I was eventually exonerated on the grounds that there was no crime. However, after my acquittal, the courts withheld almost $25,000 from me and refused to restore it as required by law. Before the prosecutions were dropped, I lost my ability (security clearance) to work for my clients, which almost cost me my second company. The courts then instructed the court's clerk to title my property to a dead man using Texas lien laws to describe my title on my property as a lien not assigned by a court recognized in the State of Texas or the United States. There are a lot more civil right violations, and I have filed numerous competent complaints, but because everyone involved has always been granted unexplained immunity from the law, my complaints have never been subjected to judicial review. Even though my rights have been serially violated, I cannot appeal since the clerks have also been weaponized, altering records and making unlawful demands, to prevent my appeals. According to a district attorney's investigator, I should not expect protection from criminal assaults against me or my property because I am a contentious political issue that will not be brought before a jury. I've made it quite clear that the Texas legal system will never permit me to stand trial, but maybe I can force it to prosecute me? This brings me to one of the many extrajudicial options I have. According to Texas Constitution, Art. 1, Sec. 17, the government must provide payment before using, taking, or destroying a citizen's property. It is not necessary to file a lawsuit, because according to the constitution, payment is required prior to using, taking, or destroying property. Since Texas is not permitted to become indebted to me instead, my hundreds of millions of dollars are comingled with those of the State of Texas. Art. 1, Sec. 17 of the Constitution is a self-executing constitutional right, and I cannot be legally prosecuted for receiving my compensation. Any prosecution would lead directly to legal error according to opinions of the Texas Supreme Court for the past 60 years. However, even if I were to be prosecuted, I doubt that the State of Texas or even the Federal government would be willing to have me appear before a jury and have a team of lawyers examine what I have experienced over the past 20 years. I will collect my compensation from Texas. I am nonetheless aware that federal funds, grants, and programs also contribute to Texas's economy. Finding and avoiding any potential federal funds or pledges that Texas may hold is a nearly intractable challenge. As a result, I'm notifying you, the Department of Justice, that I want to refrain from seizing federal property and that I will seek my rightful restitution from the State of Texas. I'm respectfully requesting that you identify to me all federal property that the State of Texas is holding so that I can avoid taking it, whether or not the Department of Justice decides to pursue the charges I've made against Gov. Gregg Abbott and AG Ken Paxton. Alternately, I'm asking that any federal property that the State of Texas owns or controls be taken away until I receive my pay from Texas. This could include withdrawing FDIC protection for deposits in Texas State Depositories. As a final option, I am requesting that the United States government reimburse me for my just compensation using funds designated for the State of Texas. As of May 18, 2023, this compensation is $327,143,334, compounded at 10% annually as provided by law. If you are able to organize any relief, if you have any concerns or objections, or if you intend to leave me on my own, please let me know as soon as possible. Respectfully, Johnny Partain 956-240-1821 Cc: Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 Attorney General Ken Paxton Office of the Attorney General PO Box 12548 Austin, TX 78711-2548 GLENN HEGARTEXAS CI.INN IIECAR TEXAS COMPTROLLEROF COMPTROLLER PUBLIC ACCOUNTS OFPUBLIC ACCOUNTS P.O.Box 13528 • . Austin, P.O.Box 13528 TX 78711-3528 Austin,TX 78711-3528 December 7, 2022 December 7, 2022 Mr. Johnny R. Partain 7020 North 16th Street North 16th Street MCAllen, Texas 78504 McAllen, Texas 78504 RE: Miscellaneous Claims Application Dear Mr. Partain, Partain, greatly appreciated II greatly appreciated the the opportunity opportunity to to talk with you talk with you about about the the $250,000.000.00 $250,000,000.00 Miscellaneous Claims Application Application that you filed with our agency. For the reasons we discussed, For the reasons we discussed, your must be Application must your Application be denied denied as as aa matter matter of of law. law. Your lawsuit was dismissed because the trial court court did not have did not have jurisdiction jurisdiction to hear your of action due to causes of to sovereign immunity. Sovereign Sovereign immunity immunity entails twotwo separate forms of separate forms immunity immunity for for the the State ofTexas, Stateof Texas,its itsagencies, agencies,and andits officials(collectively, itsofficials the (collectively, "State"). the "State"). (1) Immunity from (1) Immunity fromSuit: Immunityfrom Suit: Immunity from suit suit bars bars aa lawsuit lawsuit against against the the State unless the State unless the State expressly gives its its consent to the suit. In other suit. In other words, words, although althoughthe claim asserted theclaim asserted may be one on which the State acknowledges acknowledges liability, this rule liability, this rule precludes precludes aa remedy remedy until until consents to suit. the Legislature consents (2) (2) Immunity Liability:Immunity from Liability: Immunity from Immunity from from liability liability protects protects the the State State from judgments from judgments even even if the Legislature expressly given Legislature has expressly given consent consent toto the the suit. suit. In In other words, even other words, even if if the the Legislature authorizes suit against the State the question remains whether the claim is is one granting liability by granting for which the State acknowledges liability. The State neither admits liability permission to be sued. permission to be sued. when the trial court made Thus, when judgment, it denied made its judgment, denie`dyour your claim claim as as the State isis immune the State immune liability. The from the suit and the liability. from The appellate appellate court court also did not overturn immunity judgment. overtum the immunity determined your real inaccurate to state that the Courts have not determined As a result, it is inaccurate property claim. real property claim. The judiciary have specifically found that your claims are barred under the doctrine of specifically found of sovereign immunity. payment that is Even if you disagree and continue to believe that you do have a valid right to payment Even "unopposed," you are still still required required to to obtain obtain an an Order Order from from aa Texas Texas court court with with competent competent "unopposed," you are jurisdiction over jurisdiction matter to the matter over the to agree agree to to enforce enforce your your right right toto the payment. Absent the payment. Absent aa bona bona tide fide judicial order from such a Court, our Agency has no statutory authority to pay any claim thatyou judicial order from such a Court, our Agency has no statutory authority to pay any claim that you may present concerning this matter. matter. Respectfully yours, Respectfully yours, Murl E. Miller Chief Counsel for General counsel for General Litigation Litigation Comptroller.Texas.Gov • Comptroller.Texas.Gov .512-463-4000 512-463-4000 • Toll . Free 1-800-531.5441 • TollFreel-800-531-5441. Fax 512-305-9.711 Fax512-305-9711 tr. 74-209 (Rev.10-17/8) Miscellaneous Claim Application Use this form to file a claim against the state of Texas for the following reasons: • Warrant that is void due to expiration date. • Unpaid bill that cannot be paid by receiving state agency due to expiration of appropriation. • Other claim justified by state contract or state law. Instructions on second page I Type of Claim (Please check one) Claim under Tex. Const. Art. 1, Sec. 17 I 111 Void Warrant 111 Unpaid Bill gOther Please type or print Claimant's name (Legal name of individual or business) Johnny Ray Partain Mailing address (P.O. Box. street, city, state and ZIP + 4 code) 7020 N 16th Street Claimant's Social Security number (SSN)* or Texas taxpayer number or Federal Employer Identification Number (FEIN) ***.**.**** Claimant's telephone (Area code and number) Amount of claim 956-240-1821 $250,000,000.00 Specific reason for claim (For void warrant(s), list specific identification of goods, services. refund or other items for which the warrant(s) were originally issued.) This is my sum certain claim for just compensation specifically required by Texas Constitution, Art 1., Sec. 17, for my property taken, damage, or destroyed by state actors, and particularly state judges, protected under claims of immunity to suit by the Texas judiciary: I have not been sued. The Texas Judiciary waived its right to review my claim on excuse of immunity to suit in Texas courts. Attached is the Third Amended Petition describing the original complaint. Governor Abbott and Attorney General Paxton refuse to meet to negotiate. My request for $250 million compensation through warrant is unopposed. My constitutional claim is due pursuant to Art. 1, Sec. 17, and is superior to any impeding process or statute, being constitutionally derived. Supporting documentation (Please list) 1. Third Amended Petition 3 2. Letters to Governor and Attorney Gen. 4 * Federal Privacy Act Statement: Disclosure of your Social Security number is required and authorized under law for the purpose of tax administration and identification of any individual affected by applicable law, 42 U.S.C. § 405(c)(2)(C)(i) and Tex. Gov't Code §§ 403.011, 403.015. 403.055. 403.056 and 403.078. The Public Information Act. Tex. Gov't Code Ch. 522. and applicable federal law shall govern release of information on this form in response to a public information request. Certification I certify that the information I have furnished on this form is true and correct. I certify that the amount of this claim is still outstanding and is due and payable. Type or print name Title Johnny Ray Partain Citizen of Texas Claimant's signature Date sign herer 8/26/2022 Complete application and mail to: Comptroller of Public Accounts Fiscal Management Division P.O. Box 13528 For questions, call 1-800-531-5441, ext. 5-0966. Austin, TX 78711-3528 The local number in Austin is 512-475-0966. ATTN: Miscellaneous Claims Analyst Or FAX to: 512-463-2138 Under Ch. 559. Texas Government Code, you are entitled to review. request and correct information we have on file about you, with limited exceptions in accordance with Ch. 552 Government Code. To request information for review or to request error correction, contact us at the address or phone number listed on this form. Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 Attorney General Ken Paxton Office of the Attorney General PO Box 12548 Austin, TX 78711-2548 August 11, 2022 22 NOTICE OF DEBT COLLECTION The State of Texas has to this date evaded paying to me and my family its constitutional debt under Texas Constitution, Article 1, Section 17. I have tried to resolve this through the Texas Supreme Court which now claims immunity from petition, constitution, and the laws of our state. I have tried to resolve this debt with both the Governor’s and Attorney General’s office which refuse to enforce the laws of this state or pay its debts, but have argued that the debt needs to be paid. The creation of the State of Texas begins in Texas Constitution, Article 1, and includes our Bill of Rights which are excepted from the powers of government and inviolate, in verbatim, per our Texas Constitution. Specific rights under the constitution are self-executing according to the Texas Supreme Court and can be enforced without any other actions required. WHEREAS, Johnny Partain residing at 7020 N 16th Street, McAllen, Texas 78504 has made several claims regarding the taking, use, and destruction of his property by the government amounting to $250 million, sum certain, pursuant to Texas Constitution, Article 1, Section 17; WHEREAS, Johnny Partain has attempted to compel the State of Texas and its political subdivisions to conform to the Texas Constitution to pay its debts, ad nauseam, and he has no other legal recourse; WHEREAS, The State of Texas has refused Johnny Partain any due process or a jury trial as mandated by order of a higher court and the law. WHEREAS, The State of Texas has no immunity to its obligations under the Texas Constitution and a constitutional debt exists; WHEREAS, the State of Texas, Hidalgo County, and City of McAllen have engaged in serial patterns of harassment, intimidation, oppression, and corruption, protected by the State of Texas all the way up to its Governor, Attorney General, and Chief Justice of the Texas Supreme Court; WHEREAS, Johnny Partain is entitled to full payment and to the costs of collections, including the costs of defending his restitution as necessary; WHEREAS, debt collections routinely cost 50% of the debt owed and is traditionally added to debts collected; WHEREAS, the Department of Public Safety alone has an agency wide biennial budget of $2.3 billion in state and federal funds; ACCORDINGLY, Johnny Partain is now forced to engage all forms of debt collections against the State of Texas, and its culpable political subdivisions, of assets to restitute, preserve, and defend his rights under the United States Constitution and Texas Constitution; ACCORDINGLY, restitution will be adjusted to reflect the original value of Johnny Partain’s injuries, and any additional injuries; ACCORDINGLY, costs will be adjusted to compensate for enforcement and defense of the collection of debt for restitution. The State of Texas may pay its debt to Johnny Partain within 20 days of this letter without incurring additional costs, but note that no action is necessary from your office. If you protest and wish to justify your position, protest immediately and be very specific regarding the terms of your protest: Remember that the Texas judiciary has already waived and exhausted its jurisdiction to review this debt, punting any reasonable and civil resolution to your offices, if possible. Prior letters to the Governor’s Office are attached to this notice. Justly, Johnny Partain 956-240-1821 Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 Attorney General Ken Paxton Office of the Attorney General PO Box 12548 Austin, TX 78711-2548 December 21, 2021 21 Re: Johnny Partain – Property Compensation Pursuant To Texas Constitution, Art. 1, Sec. 17 and US Constitution, Amendment 5. Governor Greg Abbott and Attorney General Ken Paxton; The State of Texas owes me $250 million for condemnation and destruction of my property through its efforts to protect official incompetence and public corruption1 in South Texas. I sent you a certified letter on August 6, 2020, requesting payment since I had been locked out of the courts for over 4 years and couldn’t even get a response to a simple motion. I never got a response from your office and your office failed to return my calls for a meeting or a calendar. In fact, I have never been interviewed even after making criminal and judicial complaints against public officials for two decades. Taking notes from your December 18, 2021, press conference2 regarding the State’s right to take 'Unprecedented' action on the border wall “when the Biden Administration has failed to do its job as required by 1 The United State Supreme Court relevantly explains in Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369, “It would be a narrow conception of jurisprudence to confine the notion of "laws" to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law…Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.” See also Poe v. Ullman, 367 U.S. 497 (1961). I.E. Corruption is the law of South Texas all the way up to the Texas Supreme Court. 2 https://www.youtube.com/watch?v=7rQHlft5jFw&t=153 the constitution … to enforce the law”, I am also taking this unprecedented action to protect my property rights under the Texas Constitution Art. 1 Sec. 17 to collect monies owed to me for property seized and destroyed. Your office and the Texas Supreme Court have facilitated “third-world country” banana republic practices which you campaigned against in 2014. You have both allowed public corruption to flourish and to cause me great injury. If you ignore me, I will be forced to take the $250 million, plus whatever costs to collect it, to make myself whole - to embarrass everyone involved and to destroy the status quo so I might finally live peacefully in Texas. Recall that it didn’t take much to shut down the whole judicial network for two months when I last contacted you. The amount is no longer at issue since the judiciary has waived its right to review, claiming it is immune to being sued in it’s own courts. Being attorneys you also realize that this hasn’t been a credible defense in the courts since the 1960’s and the Texas Constitution (Art.1, Sec. 17) requires payment, even if the Texas Supreme Court determines that public incompetence, corruption, and the status quo must be protected at all costs when it embarrasses the courts or impugns the state.3 Fortunately, Texas Constitutional rights are allegedly self-executing and don’t require judicial review. I presume you and the State will treat me as deplorable wherefrom the law doesn’t apply as usual, and maybe unresponsive since I am only a citizen of Texas. I’ve already endured two decades of poor treatment and political prosecution. Please don’t be inconsiderate. Respectfully, Johnny Partain 956-240-1821 partain@atlastechnologies.biz 3 [T]he Constitution itself is . . . a waiver of governmental immunity for the taking, damaging or destruction of property." Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980). Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 August 3, 2020 20 Re: Johnny Partain – Request Forr Property Property Compensation Compe: Pursuant To Texas Constitution, Art. 1, Sec. 17 and US US Constitution, Constitution, AAmendment 5. Governor Greg Abbott; I am currently in the Texas Supreme Court, In Re Johnny Partain, case no. 20- 0362, regarding an inverse condemnation complaint against public officials and the State of Texas with additional complaints of public officials engaging in and protecting institutionalized incompetence and public corruption – the status quo. I’m certain that you, Governor Abbott, know of what I speak since you raised the issue of public corruption in South Texas by comparing it to “third-world country practices” in your campaign near the Fort Bliss Army base in February of 2014 as you campaigned for governor. Unfortunately, the corruption hasn’t changed since your inauguration and the Texas judiciary has, in a most obvious and spectacular way, placed itself in the embarrassing situation of engaging in and then protecting this well documented public corruption in South Texas with sovereign immunity. See Hidalgo District Court case no. C-0929-12-F. Case no. C-0929-12-F is a case I petitioned in 2012 to protect my property and my final judgment in Hidalgo County case no. CL-29,530-A from retaliatory seizure and destruction. The litigation didn’t work, the rule of law did not prevail, because too many large extrajudicial interests connected to the Hidalgo County courthouse with stake in sustaining local government corruption and protecting the county interfered with the judicial process placing the judiciary into its instant embarrassment. See In Re Johnny Partain, case no. 20-0362, Petition For Writs of Mandamus. You can relax. I am not mixing current judicial process with my request to you for reimbursement of my seized and destroyed property, as required under Texas Constitution, Art. 1, Sec. 17 and US Constitution, Amendment 5. Due process as 1 explained by the United State Supreme Court1 is not necessarily judicial: It only requires some kind of meaningful and timely process. You will find that while case no. C-0929-12-F was reinstated by a 14th Appeals Court judge assigned by Texas Supreme Court Justice Nathan L. Hecht in 2015 after it was illegally dismissed only “on the authority” of a district judge, that same district judge has since then refused to answer any of my motions or to take me to trial as mandated by the 14th Appeals Court justice. Many judges I’ve encountered over the past 22 years routinely demonstrate contempt for their own judiciary and the rule of law. I am denied justice under any common judicial practice and there is nothing you could add or subtract from the process. Even the Texas Supreme Court appears to abuse its own discretion2 by refusing to enforce the appeal court’s mandate or the constitution when it obviously has the authority to do so, apparently to protect the appearance of propriety in the system. The courts, not the issue, were closed to me exactly four years ago without any adjudication except to bless nearly all parties with immunity for invading, seizing, and destroying my property. Regardless of what little scant processes are available that can be used to enforce a person’s civil rights under the constitution, the required lawful reimbursement for my property losses by the state always leads to your office to negotiate an order for repayment from the Secretary of State. I think that after 22 years of litigating the same issues over and over without resolution or enforcement in the judiciary only to be finally excluded from all court processes, that its reasonable for any man or the public to conclude the Texas Judiciary is an impotency relying on its court concocted immunity to escape public accountability while at the same time collecting paychecks and consuming public resources. The judiciary is failed and is probably irrelevant anyways to those who know its workings. Bringing me to a bigger point. The courts go further to bless nearly all other public offices with immunity from accountability - and the status quo embraces it. I’m not certain how the Executive or Legislative branches will respond to my efforts in this upcoming 87th Legislature to pierce this immunity to accountability, but it appears the political environment is ripe to raise the issue. There is a poignant point to be made by recent protests and 1 Mathews v. Eldridge, 424 U.S. 319 (1976) - This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 557-558 (1974). See, e.g., Phillips v. Commissioner, 283 U. S. 589, 283 U. S. 596-597 (1931). See also Dent v. West Virginia, 129 U. S. 114, 129 U. S. 124-125 (1889). The "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Joint Anti- Fascist Comm. v. McGrath, 341 U. S. 123, 341 U. S. 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545, 380 U. S. 552 (1965). See Grannis v. Ordean, 234 U. S. 385, 234 U. S. 394 (1914). Nelson v. Colorado, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017) To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions. 2 A judge abuses his discretion if he acts in an arbitrary or unreasonable manner or if he acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). 2 riots that injustice is rooted in institutionalized bias and corruption, that there is a serious problem with our government, and that there is no rule of law. Public corruption, immunities, and injustice are the root of anger3, inciting Black Lives Matter, Antifa, and even the Democratic Party to protest and to riot. Its not even a new issue being that the piercing of government immunity was an issue that was voted through the Sixty-first Legislature in 1969 under House Bill 117 (vetoed by the governor). That was over 50 years ago when protests and race riots were just about as they are now. 50 years ago and so little progress has been made regarding the accountability of our government to corruption and injustice. Article 1 of the Texas Constitution is our bill of rights which describes a compact defining the relationship of our Texas republic and our citizens. It includes the rights to be secured in our persons, houses, papers and possessions and to enjoy life, liberty, property, privileges, and certain immunities. Our Bill of Rights is declared in the constitution to be inviolate and excepted to modification to “guard against transgressions of the high powers herein delegated … [wherein] all laws contrary thereto … shall be void.” But the fact is that our bill of rights is already violated, that my rights have been serially violated, and that our civil rights are mostly unactionable, unenforceable, and not self-executing, pursuant to public corruption protected by the courts implementation of its own “common law” which modify the effect of our constitutional compact - to protect the State of Texas from its own citizens. These immunities displace the “rule of law” and cultivate injustices by undermining official accountability and by protecting public corruption and malfeasance under the veil of state propriety. You see, I am in the middle of a political crisis because I cannot prosecute or punish state corruption. I cannot force the Judiciary to perform or to dispense justice, especially when it will discredit itself. I can only request reimbursement for my significant losses as required by the Texas Constitution which will always end up in your office under current Texas law for consideration of payment. Your consideration is certainly political - even if the judiciary had timely performed its job, had my due process been respected. My property losses include, my hard won civil judgment ($2,720,126) in Hidalgo County Court No. 1 case no. CL-29,530-A which was finally destroyed through dismissal for want of prosecution (16 years after the judgment became final and 3 executions had been attempted); my real property ($116,000) which was invaded and first seized after an assault by a SWAT team as directed by the Hidalgo County District Attorney to interfere with my US Congressional campaign against public corruption; about eight years of rents ($96,000) after the seizure of my house; my transportation business and assets ($19 million) which were never return per court order (the court’s refused to enforce their decrees and instead threatened me with contempt and incarceration for insisting that the courts enforce their decrees); my established and prospective business interests in one of my electrical service companies ($55 million) which was partially destroyed after a failed attempt to “felonize” me following a threat by a Justice of the Peace that the 3 Racial injustice is a subset of the bigger problem. 3 District Attorney looking for a way to prosecute me (my company[ies] requires security clearance); and treble damages for the aforementioned losses that I am denied because the courts are closed to me.4 I can currently prove to a jury or the public that my property losses are approximately $236,796,378 and rising, and I’ve won a plethora of court opinions and orders supporting my claims - a stinging and constitutional rebuke against established south Texas corruption that you have already identified, and that has now landed in your office. Its an opportunity for you to address corruption in South Texas and right some wrongs. Should the corruption continue to be protected at the highest office in Texas? Should I be denied my constitutional rights to my property or its value? What will you do? I am requesting a timely scheduled meeting with you to negotiate reasonable compensation for my property losses so that I might finally resume my life, liberty, property, privileges, and immunities with my family as promised under our Texas Constitution. I would also like to bend your ear regarding accountability in our Texas government by considering new legislation in the 87th Legislature to modify common law government immunities imposed by the courts which are intrinsically unjust. Thank you in advance for your time and efforts. Respectfully, Johnny Partain 956-240-1821 partain@atlastechnologies.biz 4 "All courts shall be open, and every person for injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, §13 4 No. 22-913 In the Supreme Court of the United States RICHARD DEVILLIER, ET AL., PETITIONERS v. STATE OF TEXAS ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT BRIEF FOR RESPONDENT KEN PAXTON AARON L. NIELSON Attorney General of Texas Solicitor General Counsel of Record BRENT WEBSTER First Assistant Attorney LANORA C. PETTIT General Principal Deputy Solicitor General NATALIE D. THOMPSON KATELAND R. JACKSON OFFICE OF THE SARA B. BAUMGARDNER ATTORNEY GENERAL Assistant Solicitors P.O. Box 12548 (MC 059) General Austin, Texas 78711-2548 Aaron.Nielson@oag.texas.gov J. ANDREW MACKENZIE (512) 936-1700 Assistant Attorney General INT RO D U C TIO N The State of Texas takes property rights extremely seriously. Indeed, the Texas Constitution goes beyond the U.S. Constitution by providing that “[n]o person’s property shall be taken, damaged, or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person.” Tex. Const. art. I, §17 (emphasis added). Texas courts also decide takings claims and award full compensation under both the U.S. Constitution and the more protective Texas Constitution. This case therefore is not about property rights. Instead, it is about the separation of powers. To date, Congress has not seen fit to create a cause of action to enforce the Fourteenth Amendment—and by extension the Takings Clause of the Fifth Amendment—against the States. That is presumably because the States are appropriately resolving takings disputes. Tellingly, Petitioners do not identify any State that refuses to provide just compensation for a taking. Tellingly, Petitioners have not identified any State that refuses to provide just compensation for a taking. Nonetheless, although they were free to (and did) sue Texas under a state cause of action, Petitioners ask the Court to hold that the U.S. Constitution itself creates a federal cause of action. Their argument does not withstand scrutiny. No one disputes that the Fifth Amendment “did not expressly create a right of action when it mandated just compensation for Government takings of private property for public use.” Me. Cmty. Health Options v. United States, 140 S. Ct. 1308, 1328 n.12 (2020) (cleaned up); see Pet.Br.17. Nor does anyone dispute that for nearly a century after the founding, “takings claims against the federal government were (1) 2 resolved directly by Congress.” Pet.Br.27. It thus defies constitutional text and history to litigate a federal takings claim without a federal takings statute. Indeed, Justice Scalia lampooned the concept as one that “[n]o one would suggest.” Webster v. Doe, 486 U.S. 592, 613 (1988) (Scalia, J., dissenting). Similar analysis applies to the Fourteenth Amendment, which creates no cause of action and was ratified during the same era in which takings claims were resolved by Congress rather than courts. Nothing in its text, structure, or history suggests that the Fourteenth Amendment deprives States of the same authority possessed by Congress regarding how to satisfy their just-compensation duty. To borrow Petitioners’ phrase (at 8), these points alone should “begin and end” the Court’s analysis. Yet Petitioners urge “one last drink,” Alexander v. Sandoval, 532 U.S. 275, 287 (2001), from the “heady days in which this Court assumed common-law powers to create causes of action—decreeing them to be ‘implied’ by the mere existence of a statutory or constitutional prohibition,” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring). “[I]mplying constitutional causes of action,” however, “is ‘a disfavored judicial activity.’” Supp.Pet.App.51a (quoting Egbert v. Boule, 596 U.S. 482, 491 (2022)). And the Court should be especially reluctant to create a new cause of action here. It is one thing for a federal court to recognize a new federal cause of action against the federal government. That, at least, represents a single sovereign governing its own affairs. It is something else entirely for a federal court to create a federal cause of action against the States, which are separate sovereigns. Enforcing the Constitution as written would not leave aggrieved property owners without recourse. Because 3 the Takings Clause is self-executing, as soon as a taking occurs, a State is obligated to provide just compensation. And, in Texas, property owners can bring state causes of action. Since 1887, the federal government has largely satisfied its duty through the Court of Federal Claims. The key point, however, is that the Constitution empowers legislatures—both state and federal—to choose how to provide just compensation, whether through statutory causes of action, special bills, executive tribunals, or legislative courts. And because state courts are courts of general jurisdiction, they often also can resolve takings claims by enjoining uncompensated takings or under common-law causes of action. Petitioners could have pursued—and, in fact, did pursue—such an alternative avenue to relief. Applying those principles here, Petitioners are correct (at 8) that the “question is easy”: Unless and until Congress creates a federal cause of action for takings claims against the States, no such federal cause of action exists. Petitioners may prefer such a cause of action, but the Constitution does not entitle them to one. ST ATE ME N T I. Petitioners’ Consolidated Suits and the District Court’s Ruling This case concerns four state-court lawsuits, involving more than 70 plaintiffs, filed in two Texas counties along an interstate highway. Because “[t]he gist of all these lawsuits was the same,” they were “removed to and consolidated in federal district court.” Pet.Br.1-2. Removal allowed the cases to proceed in the same forum (something that could not happen in state court) with a single, consolidated complaint. JA.1-48. Petitioners did not object to removal. EXHIBIT 5 SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - - RICHARD DEVILLIER, ET AL., ) Petitioners, ) v. ) No. 22-913 TEXAS, ) Respondent. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 90 Place: Washington, D.C. Date: January 16, 2024 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 RICHARD DEVILLIER, ET AL., ) 4 Petitioners, ) 5 v. ) No. 22-913 6 TEXAS, ) 7 Respondent. ) 8 - - - - - - - - - - - - - - - - - - 9 10 Washington, D.C. 11 Tuesday, January 16, 2024 12 13 The above-entitled matter came on for oral 14 argument before the Supreme Court of the United 15 States at 11:10 a.m. 16 17 APPEARANCES: 18 ROBERT J. McNAMARA, ESQUIRE, Arlington, Virginia; on 19 behalf of the Petitioners. 20 AARON L. NIELSON, Solicitor General, Austin, Texas; on 21 behalf of the Respondent. 22 EDWIN S. KNEEDLER, Deputy Solicitor General, 23 Department of Justice, Washington, D.C.; for the 24 United States, as amicus curiae, supporting the 25 Respondent. Heritage Reporting Corporation Official 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: PAGE: 3 ROBERT J. McNAMARA, ESQ. 4 On behalf of the Petitioners 3 5 ORAL ARGUMENT OF: 6 AARON L. NIELSON, ESQ. 7 On behalf of the Respondent 38 8 ORAL ARGUMENT OF: 9 EDWIN S. KNEEDLER, ESQ. 10 For the United States, as amicus 11 curiae, supporting the Respondent 68 12 REBUTTAL ARGUMENT OF: 13 ROBERT J. McNAMARA, ESQ. 14 On behalf of the Petitioners 87 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation Official 3 1 P R O C E E D I N G S 2 (11:10 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear 4 argument next in Case 22-913, Devillier versus 5 Texas. 6 Mr. McNamara. 7 ORAL ARGUMENT OF ROBERT J. McNAMARA 8 ON BEHALF OF THE PETITIONERS 9 MR. McNAMARA: Mr. Chief Justice, and 10 may it please the Court: 11 The Question Presented in this case is 12 resolved by the text of the Fifth Amendment, 13 which, unlike any other provision of the 14 Constitution, imposes on the government a -- an 15 explicit duty to pay money. 16 It's also answered by this Court's 17 decision in First English, which holds that the 18 just compensation remedy is mandatory and that 19 the Fifth Amendment itself furnishes a basis on 20 which a court can award just compensation in an 21 inverse condemnation case. 22 And this right of property owners to 23 sue in inverse condemnation to obtain just 24 compensation for an alleged taking is at the 25 heart of modern American takings law. It's at Heritage Reporting Corporation Official 4 1 the heart of inverse condemnation claims filed 2 against state and local governments nationwide. 3 And it's also at the heart of every takings 4 claim filed against the federal government under 5 the Tucker Act. 6 The Tucker Act provides no cause of 7 action, no substantive entitlement to a remedy. 8 The cause of action, the substantive entitlement 9 to a remedy, in every Tucker Act takings case is 10 the self-executing Fifth Amendment, the same 11 cause of action recognized in First English, the 12 same cause of action pled here. 13 To reject that cause of action now is 14 to upend the way lower courts, both state and 15 federal, understand the Takings Clause to work 16 and also to abandon this Court's consistent 17 explanations of that clause not just in First 18 English but in more recent cases like Knick 19 v. Township of Scott. 20 And there's no reason to make that 21 kind of drastic change. This Court has already 22 recognized that money-mandating legal 23 obligations logically come along with the right 24 to file a lawsuit to enforce those obligations. 25 That's true as to statutes, which is Heritage Reporting Corporation Official 5 1 what this Court held in Maine Community Health 2 Options. It should be at least as true as to 3 the Constitution, and this Court's precedents 4 consistently teach that it is. 5 I welcome the Court's questions. 6 JUSTICE THOMAS: In your reply brief, 7 you say that the 19th century federal courts 8 were faced with a bedrock property right and no 9 way to enforce it directly. 10 Doesn't that seem to be at odds -- the 11 fact that the courts there had to resort to 12 extra-constitutional causes of action, isn't 13 that at odds with your argument now? 14 MR. McNAMARA: I don't think so, Your 15 Honor, because the primary problem facing 16 federal courts in the early part of the 19th 17 century was a lack of jurisdiction. And I think 18 the question of jurisdiction is just 19 conceptually distinct from the question of 20 whether there's a cause of action, whether 21 there's a right to a remedy. 22 Congress could tomorrow amend 23 Section 1331 to reimpose an 24 amount-in-controversy limit, and if it did that, 25 that would prevent a number of people from Heritage Reporting Corporation Official 6 1 bringing Ex parte Young actions in federal 2 court. Those claims wouldn't cease to exist. 3 Congress would just have eliminated the 4 jurisdiction over them. 5 And so I think there's a difference 6 between jurisdictional limits which limited 7 takings claims and even pleading requirements 8 like the limits to the forms of action, which 9 also limited plaintiffs' abilities to bring 10 certain kinds of claims, and the core Question 11 Presented here, which is just whether there is 12 an entitlement to relief. 13 There -- there's only one modern form 14 of action, which just takes the shape of saying, 15 I'm entitled to this remedy for that reason. 16 The remedy is just compensation. The reason is 17 the Fifth Amendment as applied through the 18 Fourteenth. And once the jurisdictional 19 problems and the pleading problems are removed, 20 as they have been in this case, the only 21 question remains whether the Fifth Amendment 22 mandates compensation, whether it mandates that 23 remedy, which this Court has already answered. 24 First English says that the just compensation 25 remedy is mandatory. Heritage Reporting Corporation Official 7 1 And I think contrasting the -- the 2 arguments of the other side with the rule 3 adopted by the California Supreme Court in Agins 4 is actually a useful illustration here. The 5 California Supreme Court's decision in Agins 6 said, we as a common law court don't want to 7 recognize a claim for just compensation in a 8 regulatory takings case. We think that intrudes 9 on the legislature's prerogative. We don't 10 recognize that cause of action. 11 And First English says that doesn't 12 matter. The cause of action, the entitlement to 13 relief, flows directly from the Fifth Amendment. 14 So too here. The complaint here pleads a cause 15 of action directly under the Fifth Amendment -- 16 JUSTICE BARRETT: Counsel -- 17 MR. McNAMARA: -- that says our 18 property was taken and the Fifth Amendment -- 19 yes, Your Honor? 20 JUSTICE BARRETT: Counsel, I agree 21 that jurisdiction and a cause of action are 22 distinct, but it's a little bit hard to see how 23 in 1791 -- I mean, I think your argument is, 24 when the Fifth Amendment was ratified, those who 25 ratified it had to see the Fifth Amendment as Heritage Reporting Corporation Official 8 1 itself supplying the cause of action because 2 this was the crucial way to vitiate the takings 3 right, the right to just compensation. 4 But Congress didn't provide for 5 federal question jurisdiction until 1875, so 6 that kind of languished on the vine for a pretty 7 long time if you're right that the founding 8 generation or the -- you know, the ratifying 9 generation in 1791 viewed it that way. 10 Moreover, you know, the historical 11 evidence of private bills runs contrary to your 12 argument because, yes, there was a right to just 13 compensation, but we have all of this time, 14 throughout the 19th century, of Congress 15 enacting private bills to give just 16 compensation. 17 And I think you have to contend with 18 that because, I mean, I get that this is against 19 Texas, against the state, but if the Fourteenth 20 Amendment incorporated the Fifth Amendment as it 21 was, there's kind of a mountain of historical 22 evidence, you know, that you've got to contend 23 with. 24 MR. McNAMARA: So I -- I don't think 25 that mountain does quite the work that Texas Heritage Reporting Corporation Official 9 1 needs it to, Your Honor. And I think one 2 problem here is the difficulty in mapping the 3 modern conception of cause of action onto 1791 4 visions of the court. I think, if you asked a 5 lawyer in 1791 whether the Fifth Amendment 6 contained a cause of action, they probably 7 wouldn't understand the question. 8 But, if you asked them can a property 9 owner sue to enforce just compensation, the 10 answer absolutely would have been yes. It would 11 have been a suit in trespass. It would perhaps 12 have been a suit in ejectment. But there was an 13 understanding at the framing that this was an 14 enforceable right, and if you -- 15 JUSTICE GORSUCH: Well, that -- that 16 establishes at most, it seems to me, that the 17 Fifth Amendment envisioned some remedial 18 mechanism would be available. And the common 19 law trespass, as you point out, might have been 20 it, or conversion might have been it. It -- it 21 doesn't necessarily mean that there is itself an 22 independent cause of action under the Fifth 23 Amendment. 24 MR. McNAMARA: I -- I think it does, 25 Your Honor, once the forms -- Heritage Reporting Corporation Official 10 1 JUSTICE GORSUCH: Why? You've just 2 conceded that the cause of action that -- that 3 the Framers would have understood would have 4 been in trespass. 5 MR. McNAMARA: Well, Your Honor, I 6 think, in -- in modern terms, what the Court 7 means when it says "cause of action" -- 8 JUSTICE GORSUCH: Well, no. But what 9 we're talking about the original meaning, and 10 you're asking us to appeal to the original 11 meaning and say they would have understood there 12 would have been a cause of action. Perhaps, but 13 what would that cause of action look like? 14 MR. McNAMARA: I -- I think they would 15 have understood that there was an entitlement to 16 a remedy. 17 JUSTICE GORSUCH: Some remedy? 18 MR. McNAMARA: An entitlement to just 19 compensation as a remedy. 20 JUSTICE GORSUCH: Some -- some way to 21 get that? 22 MR. McNAMARA: Yes, and I think -- 23 JUSTICE GORSUCH: Fair enough. That 24 doesn't necessarily mean there's a federal cause 25 of action. It could mean it happens under state Heritage Reporting Corporation Official 11 1 common law, right? 2 MR. McNAMARA: Well, Your Honor, two 3 -- two -- 4 JUSTICE GORSUCH: I mean, you -- you 5 would admit that a state common law cause of 6 action did and could fully vindicate the Fifth 7 Amendment? 8 MR. McNAMARA: Yes, Your Honor, I 9 think there could be a state common law action 10 that vindicated the First Amendment, but I also 11 think -- 12 JUSTICE GORSUCH: Fifth. Fair enough. 13 MR. McNAMARA: Yes, Your Honor, or -- 14 or the First. 15 JUSTICE GORSUCH: And that that would 16 -- that would be enough. No -- nothing more 17 would be required. 18 MR. McNAMARA: Well -- 19 JUSTICE GORSUCH: And, in fact, that's 20 how it operated for a long time. 21 MR. McNAMARA: Well, certainly, Your 22 Honor, if compensation is provided through any 23 mechanism, there's no longer a Fifth Amendment 24 injury to be remedied. 25 JUSTICE GORSUCH: Ah. Okay. I Heritage Reporting Corporation Official 12 1 understand that argument. That's not the 2 argument you're -- you're pressing, though. 3 MR. McNAMARA: That's because, here, 4 compensation hasn't been paid. The plaintiffs 5 in this case continue to suffer the ongoing 6 Fifth Amendment injury. 7 JUSTICE GORSUCH: Well, maybe that's 8 because you -- you -- you -- you allowed this 9 case to be removed, which I -- and -- and -- 10 and, you know, I'm -- I'm surprised you didn't 11 oppose removal on that ground and said there's 12 no federal question that we need to resolve here 13 because it's really a state common law cause of 14 action we're pursuing. That would have been one 15 option. 16 Or maybe in federal court you might 17 have said we want a declaratory judgment, which 18 everyone concedes you can get under the Fifth 19 Amendment, and take pendent jurisdiction over 20 our state common law cause of action, which 21 would adequately vindicate our Fifth Amendment 22 rights. 23 You didn't pursue either of those 24 courses here. 25 MR. McNAMARA: So two responses, Your Heritage Reporting Corporation Official 13 1 Honor. One, I don't think there was a 2 good-faith grounds to oppose Texas's removal 3 because what the complaint says on its face is 4 we are entitled to just compensation under the 5 Fifth Amendment. 6 JUSTICE GORSUCH: Well, but it -- it 7 then pleads state causes of action to do so. 8 MR. McNAMARA: No, Your Honor. It -- 9 it pleads a claim directly under the Fifth 10 Amendment. 11 JUSTICE GORSUCH: Well, maybe that's 12 another problem you face is it -- you -- if you 13 had an adequate common law -- do you dispute 14 that Texas has an adequate common law remedy to 15 -- for -- for your problem? 16 MR. McNAMARA: I do, Your Honor. And 17 this is actually an important point. That -- 18 JUSTICE GORSUCH: Is that argument in 19 your brief, that -- that the -- that the -- the 20 common law of Texas or state law has no 21 mechanism to enforce the Fifth Amendment? 22 MR. McNAMARA: Well, Your Honor, Texas 23 asserts -- 24 JUSTICE GORSUCH: If -- if it did, 25 I'd -- that one would I -- I'd take seriously, Heritage Reporting Corporation Official 14 1 but I didn't see it. 2 MR. McNAMARA: So Texas asserts, Your 3 Honor, that there is a Texas common law 4 mechanism to vindicate the Fifth Amendment, but 5 there is no Texas decision saying we sitting as 6 a common law court invoke our common law powers 7 to create a cause of action. 8 JUSTICE GORSUCH: No trespass, no 9 conversion? 10 MR. McNAMARA: Texas hears inverse 11 condemnation claims arising under the Fifth 12 Amendment. That's what the Texas Supreme Court 13 said most recently in City of Baytown 14 v. Schrock, and it cites the Fifth Amendment. 15 It doesn't invoke its common law powers. 16 JUSTICE GORSUCH: Fair enough. I get 17 all of that now. All right. Now that's 18 clarifying. But you -- you -- the -- the nature 19 of the argument before us isn't that Texas lacks 20 a common law cause of action. It's whether or 21 not Texas has such a thing, we're entitled to 22 another remedy under federal law. 23 MR. McNAMARA: I -- I don't think 24 that's right, Your Honor. What the Fifth 25 Circuit said is that the complaint that alleges Heritage Reporting Corporation Official 15 1 an entitlement to just compensation flowing from 2 the Fifth Amendment doesn't state a claim, that 3 that claim is dead. If -- 4 JUSTICE GORSUCH: Let -- let -- let -- 5 let's suppose you -- we -- it did create a cause 6 of action. Would -- would it also waive 7 sovereign immunity? And what would the statute 8 of limitations be? 9 MR. McNAMARA: I -- it -- it wouldn't 10 necessarily waive sovereign immunity, Your 11 Honor. I think that's a distinct question. And 12 the statute of limitations would be the statute 13 of limitations that is applied by lower courts 14 when people actually bring these claims. 15 There's a -- a robust Court of Federal 16 Claims jurisprudence, federal district courts 17 hear claims arising under the Fifth Amendment, 18 sometimes looking to state law to set the 19 statute of limitations. 20 JUSTICE GORSUCH: Ah, they look to 21 state law, don't they, yeah? 22 MR. McNAMARA: But the claim itself, 23 Your Honor, comes from the Fifth Amendment not 24 just in Texas but in states nationwide. And I 25 think this is an important point. Heritage Reporting Corporation Official 16 1 Take Oregon, for example. Oregon 2 signed on to the state's amicus brief in support 3 of Texas, but the reason that Oregon pays just 4 compensation for takings under the Fifth 5 Amendment is the Oregon courts, citing First 6 English, have said it must pay just 7 compensation. And so answering the Question 8 Presented -- 9 JUSTICE BARRETT: If we don't read 10 First English the way you do -- I mean, I think 11 that footnote's pretty difficult to decipher -- 12 do you lose? 13 MR. McNAMARA: No, Your Honor. 14 I would -- I don't think it's just the footnote 15 in First English. I think it's the broader 16 holding that the remedy is required. 17 But I think there's no dispute here 18 that there is an entitlement to relief. And, 19 certainly, by the time of the ratification of 20 the Fourteenth Amendment, courts across the 21 country had converged on how that kind of 22 entitlement would be enforced. 23 And it's enforced by a lawsuit 24 directly against the entity that took the 25 property that takes the form of saying, you have Heritage Reporting Corporation Official 17 1 this duty to provide just compensation, you have 2 not fulfilled it, and I'd like the court to 3 order you to fulfill it. 4 JUSTICE SOTOMAYOR: Can I have a -- 5 just a small point of information? Your case 6 was dismissed in federal court. Did you ask for 7 a remand on your claims under the Texas 8 Constitution? 9 MR. McNAMARA: No, Your Honor. The 10 district court is keeping pendent jurisdiction 11 over the claims under the Texas cause. 12 JUSTICE SOTOMAYOR: So you -- you have 13 a pending suit on the state law claim? 14 MR. McNAMARA: Yes, Your Honor, but 15 there is a dispute about the scope of the 16 takings law that governs that question. Texas 17 has taken the position in the lower courts that 18 the Texas Constitution has a narrower definition 19 of what counts as a taking than the federal 20 courts. 21 JUSTICE SOTOMAYOR: Well, then First 22 English comes in too because First English was 23 about a state court claim and when it started, 24 whether a temporary claim was a taking or not, 25 and we said yes, it's a taking, and so the state Heritage Reporting Corporation Official 18 1 court had to pay for that taking. 2 How is it different than First English 3 in that respect? 4 MR. McNAMARA: I -- I don't think it's 5 different from First English, Your Honor, except 6 that, here, it was removed into federal court 7 and then the Fifth Amendment aspect of the case 8 was dismissed on the merits. 9 JUSTICE SOTOMAYOR: Oh, I -- I -- I -- 10 I don't disagree with you, but First English is 11 about what the substantive law of Texas is and 12 what Texas has to pay. 13 And so that issue should be resolved 14 even in the district court, correct? 15 MR. McNAMARA: I -- I don't think so, 16 Your Honor, because the backstop in First 17 English is the Fifth Amendment that -- that says 18 that the met -- the just compensation -- 19 JUSTICE SOTOMAYOR: No, the backstop 20 in the Fifth -- yes, it's the Fifth Amendment 21 that provides the substantive law, but not 22 necessarily -- we didn't address whether it 23 provides a cause of action. 24 MR. McNAMARA: I -- I think the Court 25 did, Your Honor. The United States' amicus Heritage Reporting Corporation Official 19 1 brief -- 2 JUSTICE SOTOMAYOR: All right. We're 3 -- we're going to -- we're going to go into -- 4 JUSTICE JACKSON: Can I just ask -- 5 I -- I mean, this is similar to what -- what 6 Justice Sotomayor was just getting into. Are -- 7 are you saying that we don't have three separate 8 concepts, right, remedy, and cause of action? I 9 thought those were three different things, and 10 perhaps First English only covered two of them? 11 MR. McNAMARA: I -- I'm not sure 12 they're distinct concepts, Your Honor. I think 13 the simplest way to understand cause of action 14 is an entitlement to a particular remedy, which 15 is why it's coherent to say someone might have a 16 cause of action for an injunction. 17 JUSTICE JACKSON: I thought it had to 18 do with the forum, that you have a cause of 19 action that is recognized in the judicial forum 20 as opposed to, say, going to the legislature 21 through -- through private bills. 22 MR. McNAMARA: Well, Your Honor, I -- 23 I think, to the extent that's the definition of 24 "cause of action," we would have a cause of 25 action under the clear import of the history Heritage Reporting Corporation Official 20 1 that the -- 2 JUSTICE JACKSON: Not -- not the 3 history. I guess I'm just trying to understand, 4 is there -- does it make sense to think about 5 the Fifth Amendment as providing the right and 6 the remedy but not speaking to where you're 7 going to get that remedy from or what is the 8 enforcement mechanism? 9 That's how I sort of am 10 conceptualizing this, and -- and I think we 11 differ about that, so I'd like to hear your 12 opinion on it. 13 MR. McNAMARA: I -- I'm not sure 14 that's a correct reading of the Fifth Amendment, 15 Your Honor, in part because I think that reading 16 -- everyone agrees there are some judicial 17 remedies for the Fifth Amendment. 18 As I understand my friend's argument, 19 we'd be entitled to sue for injunctive relief or 20 for ejectment in the absence of a -- a path to a 21 Fifth Amendment compensation remedy. 22 So everyone agrees there's some 23 judicial remedy, and I think the form of that 24 judicial remedy depends on the scope of the 25 government's obligation. Heritage Reporting Corporation Official 21 1 There are two visions of the Fifth 2 Amendment. One is that the Fifth Amendment just 3 provides a precondition. The government is 4 required to pay and it can be enjoined from 5 taking the property if it doesn't pay. 6 The other vision that's adopted in 7 First English that's reiterated in Knick is that 8 the Fifth Amendment creates an obligation to pay 9 just compensation. And if that's the ongoing 10 obligation, the government has taken property, 11 it owes just compensation today, will owe just 12 compensation tomorrow, courts are empowered to 13 cure that ongoing obligation. 14 It's not a question of damages for a 15 past violation. It's a question of the 16 government's obligation as it stands in court 17 today. 18 JUSTICE BARRETT: Mr. McNamara, can I 19 go back to Justice Sotomayor's question and just 20 ask for a point of clarification? I understood 21 Texas law to provide a cause of action for 22 vitiating the federal Fifth Amendment right. 23 I took your answer to Justice 24 Sotomayor to be saying that Texas courts say -- 25 you were talking about how Texas courts define a Heritage Reporting Corporation Official 22 1 taking for purposes of the Texas Constitution. 2 So am I wrong in thinking that Texas 3 allows you to bring a state cause of action for 4 the federal Fifth Amendment claim? 5 MR. McNAMARA: I -- I'm not sure 6 whether that's right to be honest, Your Honor. 7 And I think two things flow from this. One, if 8 it's true that there is a Texas common law cause 9 of action under which we could have -- we can 10 vindicate our Fifth Amendment rights, then the 11 Fifth Circuit still has to be reversed because 12 it held that that substantive claim should be 13 dismissed on the merits. 14 JUSTICE BARRETT: Okay. Well, let me 15 just -- just -- just -- it's important for me to 16 be able to understand this procedural point. 17 Does Texas have -- provide a state cause of 18 action to vitiate the state takings right from 19 the Texas Constitution? 20 MR. McNAMARA: Yes, Your Honor. 21 JUSTICE BARRETT: Okay. It seems to 22 me then it can't discriminate against the 23 federal claim anyway. 24 MR. McNAMARA: I -- I think that's 25 true, Your Honor, but Texas doesn't -- Texas Heritage Reporting Corporation Official 23 1 isn't trying to discriminate against the -- this 2 federal claim. What Texas says, like other 3 state courts, is it's not doing -- it doesn't 4 say we're doing common law analysis and creating 5 a cause of action. 6 What Texas seems to be doing is 7 constitutional analysis, just like the other 8 state courts that specifically cite First 9 English and say, ah, there is a cause of cause 10 of action here. I'm not familiar with any state 11 case saying we are using our powers as a common 12 law court to create a cause of action to 13 vindicate the Fifth Amendment. 14 What they say is we're looking at the 15 Fifth Amendment. We see it creates the 16 obligation. Frequently they cite First English 17 directly and they say that's what gives rise to 18 the cause of action. 19 And that, I think, is what's dangerous 20 about the Question Presented here. As -- as I 21 understand Texas's argument, the complaint we 22 filed in state court was perfectly valid and 23 could be adjudicated, and the Fifth Amendment 24 could have been adjudicated in state court. 25 Once it was removed, Texas moved to dismiss and Heritage Reporting Corporation Official 24 1 sought an interlocutory appeal and has 2 successfully extinguished that. 3 But my concern is that adopting 4 Texas's arguments here tells all of these state 5 courts that have pointed to First English and 6 said this is the source of -- the Fifth 7 Amendment is the source of the cause of action 8 would look to a decision in this case adopting 9 Texas's arguments and say: Okay. We were 10 wrong. The Constitution does not, in fact, 11 require a remedy. There is no federal 12 constitutional cause of action. And that would 13 eliminate the federal takings remedy in state 14 courts across the nation. 15 JUSTICE ALITO: Mr. McDowell, the 16 language of the Takings Clause is quite similar 17 to the language of the Due Process Clause in the 18 Fifth Amendment, which immediately precedes it. 19 "No person shall be [...] deprived of life, 20 liberty, or property, without due process of 21 law; nor shall private property be taken for 22 public use, without just compensation." 23 So why should they be read differently 24 with respect to the creation of a cause of 25 action? Heritage Reporting Corporation Official 25 1 MR. McNAMARA: I -- I don't think they 2 have to be read differently, Your Honor. I 3 think, if there's an ongoing due process 4 violation, a plaintiff could bring an Ex parte 5 Young action. Ex parte Young was not a 1983 6 action. It was -- 7 JUSTICE ALITO: No, not an Ex parte 8 Young, but a claim for damages? 9 MR. McNAMARA: Well, and I think 10 that's the difference here, that we're not 11 seeking damages; we're seeking just 12 compensation. We're not saying there was a past 13 completed violation of the Constitution and we 14 want something to offset that. We're saying the 15 government has taken property, which gives rise 16 to a present duty to pay just compensation, and 17 we want the present obligation enforced, not a 18 backwards-looking damages remedy concocted or 19 created. And I think that entitlement to just 20 compensation is how the Framers would have 21 understood the Fifth Amendment. 22 The alternative view, the idea that 23 all you get are injunctions, I don't think 24 squares with either the text or how contemporary 25 commentators talked about the clause. Heritage Reporting Corporation Official 26 1 St. George Tucker and John Jay wrote 2 about the Takings Clause in the context of the 3 Army seizing horses and military supplies. But, 4 if the Army is seizing horses, the Army's going 5 to get the horses. The understanding would not 6 have been that you could stop the Army in the 7 moment from seizing your horses. 8 What St. George Tucker is writing 9 about is the ongoing duty to provide 10 compensation for the horses, which is also how 11 contemporary courts wrote about the just 12 compensation requirement, even constrained as 13 they were by the forms of action. 14 I -- I think a great example of this 15 is the Massachusetts Supreme Court's decision in 16 -- excuse me -- the Massachusetts Supreme 17 Court's decision in evaluating an -- an action 18 brought as a -- a writ of debt in Gedney v. 19 Inhabitants of Tewksbury, where the justices -- 20 the judges of the Massachusetts Supreme Court 21 there said: This isn't the right forum. This 22 isn't an action in debt. You can't state it 23 using that forum. You have to go to a different 24 forum to get your just compensation. But, if 25 that other forum denies you compensation, you Heritage Reporting Corporation Official 27 1 can return here, in the statement of one of the 2 judges, and ask for that remedy again, which 3 will not probably be refused if -- 4 JUSTICE ALITO: If the Fifth Amendment 5 confers a right to sue for just compensation in 6 and of itself, is that right unqualified? And 7 if it is not unqualified, what qualifications do 8 you recognize? 9 MR. McNAMARA: Oh, I -- I certainly 10 don't think it's unqualified, Your Honor. It -- 11 JUSTICE ALITO: What qualifications do 12 you recognize? 13 MR. McNAMARA: It -- it requires a 14 court of competent jurisdiction, and so, 15 certainly, Congress is free to channel 16 jurisdiction however it likes. Texas is 17 similarly free to create courts of jurisdiction 18 as it pleases. 19 But the underlying -- all we're saying 20 is that there is an underlying entitlement to 21 receive just compensation and that when that 22 entitlement is denied, a court of competent 23 jurisdiction can order that that just 24 compensation be paid. 25 JUSTICE ALITO: Well, does it make Heritage Reporting Corporation Official 28 1 sense to view the Fifth Amendment as providing a 2 right to sue for compensation, but your ability 3 to vindicate that right is totally dependent on 4 Congress's discretionary choice to create lower 5 federal courts and to give them jurisdiction to 6 entertain such claims? That sounds like a very 7 weak right if that's -- if it's subject to 8 limitation in that way. 9 MR. McNAMARA: I think the same could 10 be said of the entire Bill of Rights, though, 11 Your Honor. The -- the entire stratum of 12 federal constitutional rights depends on 13 Congress to create lower federal courts, courts 14 where these rights can be vindicated. 15 Once Congress does create those 16 courts, and when a state defendant deliberately 17 chooses to avail itself of those courts, the 18 only question is whether that court can enforce 19 the ongoing obligation to require the payment of 20 just compensation. 21 And I think that's ultimately what 22 distinguishes this case from the Court's Bivens 23 cases, where Bivens cases are about the policy 24 question of whether to create a remedy. They 25 don't engage in constitutional text, history, Heritage Reporting Corporation Official 29 1 and tradition analysis, which is why Justice 2 Rehnquist could dissent in cases like Carlson v. 3 Green and Davis v. Passman and then, less than a 4 decade later, Chief Justice Rehnquist could 5 write First English, because we're not talking 6 about a damages remedy; we're talking about the 7 power of the federal courts to, when their 8 jurisdiction is competently invoked and when the 9 state has waived its sovereign immunity, require 10 the state to comply with its ongoing 11 constitutional duty. 12 I think that matches both with the 13 history, it matches with the tradition, and it 14 matches particularly with the Fourteenth 15 Amendment context itself. It's worth 16 remembering that when this Court incorporated 17 the Fifth Amendment against the states in 18 Chicago, Burlington & Quincy Railroad, it 19 specifically incorporated the right to 20 compensation, not the right not to have the 21 property taken but the right to receive money, 22 that the due process of law necessarily included 23 as a matter of first principles -- Chicago, 24 Burlington actually doesn't cite the Fifth 25 Amendment -- but, as a matter of first Heritage Reporting Corporation Official 30 1 principles, it includes the right to receive 2 compensation for the property taken. 3 These state -- these cases rarely 4 appear in federal court, in part because, before 5 Knick, no takings case could be filed ab initio, 6 but also because, as the magistrate judge's 7 opinion in this case points out, it's relatively 8 rare for a state to choose to remove this 9 federal claim -- this federal right into a 10 federal forum. But, once it does so, once Texas 11 has decided it wants the scope of our rights 12 under the Fifth Amendment to be litigated in 13 federal court, that can't change the scope of 14 the claim we make. 15 What the Fifth Circuit opinion below 16 says is that we cannot state a claim invoking 17 our rights under the Fifth Amendment, full stop. 18 If Texas is right that, in fact, we have that 19 right as a matter of Texas common law, then the 20 Fifth Circuit was wrong to say that we only have 21 that right under Section 1983. That counsels in 22 favor of reversal. 23 But this Court has also squarely held 24 and again repeated in Knick that the Fifth 25 Amendment does furnish a basis on which a court Heritage Reporting Corporation Official 31 1 can award just compensation. In the mine run of 2 cases, that's going to be a state court awarding 3 just compensation. But, when the state wishes 4 to be in federal court, I don't think there's a 5 good-faith basis for the plaintiff to say, I'm 6 invoking my rights under the Fifth Amendment, I 7 want the full scope of compensation -- that I'm 8 entitled to under the Fifth Amendment, but I 9 refuse to allow this claim that arises under my 10 rights under the Fifth Amendment to be in 11 federal court. 12 It is the defendant's choice to have 13 this federal claim that turns on federal law 14 heard in federal court. That's the choice that 15 Texas made, and that choice can't, on the 16 merits, extinguish our Fifth Amendment remedy. 17 What Texas has effectively 18 accomplished here by making the unusual decision 19 to remove is that it's eliminated the Fifth 20 Amendment question from this case and given 21 itself what it believes -- I'm not conceding 22 that they're right about Texas law -- but what 23 it believes is a more favorable rule of Texas 24 law. 25 But, if First English is right and the Heritage Reporting Corporation Official 32 1 just compensation remedy is mandatory, then the 2 just compensation remedy is mandatory, and Texas 3 can't extinguish it through procedural maneuvers 4 like removing this case to federal court. The 5 claim -- a claim for just compensation simply 6 takes the form of saying the government has 7 taken a property interest and I as the former 8 owner am entitled to the fair market value of 9 that property interest. 10 JUSTICE JACKSON: Can I just be clear, 11 are you arguing that through Texas's maneuvering 12 that claim is no longer available to you? 13 MR. McNAMARA: Yes, Your Honor. I 14 think that's what Judge Oldham points out in his 15 dissent below. 16 JUSTICE JACKSON: I -- I understand 17 not in federal court, but are you claiming that 18 Texas has prevented you from making this claim 19 in state court? 20 MR. McNAMARA: Yes, Your Honor. There 21 -- there will be no remand in this case. This 22 case is staying in federal district court. And 23 as Judge Oldham correctly pointed out, the 24 upshot of the panel opinion below is that this 25 case will proceed without any federal takings Heritage Reporting Corporation Official 33 1 claim in it because -- 2 JUSTICE JACKSON: If you had sought 3 remand and it went back to Texas court, are you 4 saying that there wouldn't be the opportunity to 5 make this claim in state court? I'm just trying 6 to understand if the claim is totally gone as -- 7 as a general matter here. 8 MR. McNAMARA: I -- so I -- I think -- 9 I -- I see my light is on. 10 CHIEF JUSTICE ROBERTS: No, go ahead. 11 MR. McNAMARA: Thank you, Your Honor. 12 I -- so I think, Your Honor, first, I don't know 13 that we would have had grounds to fight remand 14 because the claim does invoke our entitlement 15 under federal law. But, if the case were 16 remanded, I think the question in Texas state 17 court would be exactly the Question Presented 18 here: Are we entitled, without the 1983 19 vehicle, to invoke our rights under the Fifth 20 Amendment? 21 Texas courts have said yes, we are 22 entitled to invoke our rights under the Fifth 23 Amendment. But, again, they just cite the Fifth 24 Amendment. They're not invoking some special 25 cause of action that they have created. They, Heritage Reporting Corporation Official 34 1 like other courts, look to the Constitution, to 2 this Court's analysis of the Constitution, and 3 say the Constitution provides the entitlement to 4 just compensation, not, as far as I'm aware, an 5 independent common law cause of action. 6 CHIEF JUSTICE ROBERTS: Thank you, 7 counsel. 8 Let's suppose you bring a -- a -- the 9 state takes some action, you claim that is a 10 taking, you bring that claim for just 11 compensation. In the state court, they decide 12 yes, it was a taking, and so the government owes 13 you $3 million. And the government says: Wow, 14 we didn't think it was worth that much. Here, 15 take it back. 16 And can they do that? 17 MR. McNAMARA: To -- to a point, Your 18 Honor. I think saying here take it back runs 19 afoul of what Justice Brennan identified in his 20 San Diego Gas & Electric dissent that ending the 21 taking just creates an uncompensated temporary 22 taking. And that is why, as this Court noted in 23 Knick, Justice Brennan's dissent became the law 24 in First English, that just stopping the taking 25 creates an uncompensated temporary taking. Heritage Reporting Corporation Official 35 1 Certainly, the -- the state is within 2 its rights to cease a taking if it wants to 3 cease a taking, and it may be that evidence at 4 trial shows Texas has chosen to cease the taking 5 here, but the question is and always based on 6 the full factual record what property interest 7 has Texas actually taken or has the defendant 8 actually taken -- 9 CHIEF JUSTICE ROBERTS: So they can 10 claim what we've taken is a temporary, you know, 11 right, so we owe you rent, that -- and that's 12 just compensation? 13 MR. McNAMARA: Exactly, Your Honor. 14 The -- the defendant is always free to say this 15 is -- this is just a temporary easement or maybe 16 this is a temporary partial easement. 17 CHIEF JUSTICE ROBERTS: And they can 18 say that after the fact? 19 MR. McNAMARA: I -- I think -- 20 CHIEF JUSTICE ROBERTS: We took the 21 whole thing, we found out we were taking more 22 than we could -- we're biting off more than we 23 could chew, and so we're going to give it back 24 to you? 25 MR. McNAMARA: I -- I think that would Heritage Reporting Corporation Official 36 1 be a valid ground for going back to the district 2 court and saying that the facts have changed. 3 The way -- 4 CHIEF JUSTICE ROBERTS: Okay. Thank 5 you. 6 MR. McNAMARA: Thank you, Your Honor. 7 CHIEF JUSTICE ROBERTS: Justice 8 Thomas? 9 Justice Alito? 10 JUSTICE ALITO: Well, suppose that 11 going forward they find a way to divert the 12 water so that it doesn't cause flooding in the 13 future. Then what claim would you have? 14 MR. McNAMARA: I -- I think that would 15 just be a -- a claim for a temporary easement, 16 Your Honor. Ultimately, the property interest 17 in this case would be some kind of flooding 18 easement. The trial court would have to decide 19 whether it's a permanent easement, a partial 20 easement, a temporary easement, and this is the 21 kind of determination courts make in takings 22 cases every day. 23 JUSTICE ALITO: Yeah, and if it's -- 24 so, if it's completely eliminated going forward, 25 your -- your property is not going to be flooded Heritage Reporting Corporation Official 37 1 going forward, what would the remedy be? 2 MR. McNAMARA: The -- the remedy -- 3 so, to the extent the Court found on the facts 4 that Texas had taken a temporary easement, it 5 would be the fair market value of that temporary 6 easement. 7 JUSTICE ALITO: Would that be 8 different from damages? 9 MR. McNAMARA: Yes, Your Honor, and -- 10 JUSTICE ALITO: In what way would it 11 be different from damages? 12 MR. McNAMARA: So damages are an 13 attempt to rectify a wrongful act. And so a 14 plaintiff seeking damages can seek consequential 15 damages. I would have had -- if you had paid me 16 on time, I would have had this business 17 opportunity that I had to forego. 18 JUSTICE ALITO: Yeah, I understand 19 that. So how would you put a value on the 20 temporary taking? 21 MR. McNAMARA: It would be -- 22 generally speaking, there is testimony from 23 dueling appraisers who talk about at fair market 24 value what rent someone would pay for -- for 25 that kind of easement, what a -- a willing Heritage Reporting Corporation Official 38 1 seller would have sold that kind of easement 2 for, but it's limited to the fair market value. 3 It's limited to what the government took as 4 distinct from what the property owner may have 5 lost. 6 JUSTICE ALITO: Okay. Thank you. 7 CHIEF JUSTICE ROBERTS: Justice 8 Sotomayor? 9 Justice Kagan? 10 Justice Barrett? 11 Justice Jackson? 12 Okay. Thank you, counsel. 13 MR. McNAMARA: Thank you, Your Honor. 14 CHIEF JUSTICE ROBERTS: Mr. Nielson. 15 ORAL ARGUMENT OF AARON L. NIELSON 16 ON BEHALF OF THE RESPONDENT 17 MR. NIELSON: Mr. Chief Justice, and 18 may it please the Court: 19 The Court will be hard-pressed to find 20 any government more committed to property than 21 Texas. The Texas Constitution is more 22 protective than the federal Constitution, and 23 Texas courts under a Texas cause of action 24 adjudicate takings claims under both 25 constitutions. Heritage Reporting Corporation Official 39 1 This appeal thus isn't about 2 substantive rights. All Petitioners had to do 3 was use Texas's cause of action. Instead, 4 Petitioners insist they can bring a cause of 5 action directly under the federal Takings Clause 6 itself. This argument is wrong for many 7 reasons. 8 For one, it ignores what the 9 Constitution says. Governments must provide 10 just compensation, but the Takings Clause says 11 nothing about how they must do it, whether 12 through commissions, private bills, or 13 litigation. 14 For another, this Court held in 15 Williams that Congress may constitutionally -- 16 and I'm going to quote here -- "retain for 17 itself, the power to hear and determine 18 controversies respecting claims against the 19 United States." It follows that, again, a 20 quote, "there is no constitutional right to a 21 judicial remedy." 22 As Petitioners concede, Congress did 23 just that for nearly a century. We don't see 24 how this Court could hold for Petitioners 25 without overruling Williams. Heritage Reporting Corporation Official 40 1 And as this Court explained in Knick, 2 states didn't start recognizing state causes of 3 action until after the Fourteenth Amendment's 4 ratification. 5 Petitioners argue none of this matters 6 because of First English, but the Court went out 7 of its way in First English to emphasize that 8 its decision was about substance, not procedure. 9 And if first Williams somehow did 10 include a procedural holding, Texas satisfies 11 it. We have a cause of action for federal 12 takings claims. Petitioners simply refuse to 13 use it. 14 We welcome the Court's questions. 15 JUSTICE THOMAS: How would that cause 16 of action look -- what would it look like? 17 MR. NIELSON: So I would point the 18 Court to the Texas Supreme Court's decision in 19 City of Baytown -- 20 JUSTICE THOMAS: Yeah. 21 MR. NIELSON: -- and they say, we hear 22 claims under both the Texas Constitution and 23 under the federal Constitution, and then they 24 resolve the claim under Penn Central, which, of 25 course, is a decision of this Court. Heritage Reporting Corporation Official 41 1 JUSTICE THOMAS: Let's say we affirm 2 here. Can Petitioners' constitutional right be 3 vindicated now in -- in Texas courts? 4 MR. NIELSON: Well, in federal court. 5 The problem is they haven't pleaded the claim. 6 So, at this point, you'd have to have leave from 7 the district court to amend their complaint if 8 they wanted to bring a claim under the Texas 9 cause of action. 10 There's still live claims here. 11 There's still a claim under the Texas 12 Constitution itself and they have federal due 13 process claims. This is an interlocutory 14 appeal. 15 So they would have to get leave from 16 the district court to amend their complaint to 17 bring a claim under Texas common law. They've 18 just never done it because they say they don't 19 have to. 20 JUSTICE SOTOMAYOR: I'm -- 21 CHIEF JUSTICE ROBERTS: Counsel, in -- 22 just a couple of quotes from cases. In Cedar 23 Point, we said that the Court in First English 24 "concluded categorically that the government 25 must pay just compensation for physical Heritage Reporting Corporation Official 42 1 invasion." 2 In Knick, it said First English 3 rejects "the view that the Constitution does not 4 of its own force furnish a basis for a court to 5 award money damages against the government." 6 Now we've -- we've said those in many 7 cases. Those are just two recent ones -- 8 MR. NIELSON: Correct, Your Honor. 9 CHIEF JUSTICE ROBERTS: -- where I 10 wrote the opinions. So -- 11 (Laughter.) 12 MR. NIELSON: Correctly wrote the 13 opinions. 14 CHIEF JUSTICE ROBERTS: -- so do you 15 have any dispute with those -- those holdings? 16 MR. NIELSON: We do not, Your Honor. 17 That's a question of the substantive right, 18 which Texas does not dispute, and you could 19 pursue that claim under the Texas cause of 20 action in a Texas court or here -- 21 CHIEF JUSTICE ROBERTS: The -- the -- 22 the -- the -- it -- it's -- 23 MR. NIELSON: -- in federal court -- 24 yes, Your Honor. 25 CHIEF JUSTICE ROBERTS: -- it's -- Heritage Reporting Corporation Official 43 1 it's the statement of the -- the right, and 2 that's a federal right, right? 3 MR. NIELSON: Yes, Your Honor. 4 CHIEF JUSTICE ROBERTS: So you can 5 require that a federal assertion of rights like 6 that be brought in state court and not in 7 federal court? 8 MR. NIELSON: Well, it's brought under 9 a -- a state cause of action. So, I mean, you 10 can remove -- there's diversity jurisdiction or 11 something like that, like any other sort of 12 cause of action, but the cause of action itself 13 is created by -- by Texas. 14 And that's how it's been -- as this 15 Court explained in Knick, that's how state 16 courts have always done it. Since 1870s, this 17 Court said and onwards -- 18 CHIEF JUSTICE ROBERTS: Well, it said 19 -- what we said in -- 20 MR. NIELSON: -- that's how we've done 21 it. 22 CHIEF JUSTICE ROBERTS: -- what we 23 said in Knick is that the Constitution of its 24 own force furnishes the basis for a court to 25 award money damages. And you think what we had Heritage Reporting Corporation Official 44 1 in mind is a -- a basis to -- to -- in state 2 court but not federal court? 3 MR. NIELSON: When the claim is 4 against a state, in Knick, the Court said 19 5 times by our count 1983. Every time the Court 6 states the holding in Knick, they tie it to 7 Section 1983 because there's a difference 8 between the substantive right and the cause of 9 action. 10 In Knick, the cause of action was 11 Section 1983 because Congress said, if you're 12 going to sue municipalities or cities, there you 13 go, there's the cause of action. 14 CHIEF JUSTICE ROBERTS: Well, you 15 removed to federal court, where you couldn't 16 bring an action under 1983, right? 17 MR. NIELSON: Correct, Your Honor. We 18 did remove to federal -- federal court. Two 19 reasons for that. One, this is not just one 20 case. These are four separate cases, all 21 putative class actions. They say there's more 22 than a hundred plaintiffs here. 23 Texas -- these are filed in different 24 counties. Texas has no way to put all of them 25 in a single Texas court. So, if the cases were Heritage Reporting Corporation Official 45 1 going to be in a single court, it had to be 2 through removal and put them in -- in that 3 court. 4 The second reason for that was Texas 5 courts don't have a lot of experience with 6 implied rights of action, alleged -- implied 7 rights of action under federal law. This is the 8 bread and butter of this Court's -- you guys' 9 Court resolves factual -- those types of issues 10 all of the time. So we thought let's just get 11 it there, we'll get everybody in one case, and 12 we can take out this, you know, putative federal 13 cause of action, which we think is flatly 14 irreconcilable to begin with. 15 CHIEF JUSTICE ROBERTS: So what -- 16 under what basis would they proceed against the 17 state under -- under 1983? 18 MR. NIELSON: They -- they couldn't, 19 Your Honor. There is no such claim. Congress 20 has said that you can bring claims against 21 cities and municipalities. You cannot sue the 22 states under Section 1983. 23 They say they can. So, under Bell 24 v. Hood, they've claimed that there is a federal 25 cause of action. When someone asserts that a Heritage Reporting Corporation Official 46 1 federal cause of action exists, the federal 2 courts have jurisdiction to decide whether that 3 is true, and then they can decide on the merits 4 whether the cause of action exists. 5 CHIEF JUSTICE ROBERTS: Well, isn't 6 that a -- a Catch-22 or -- I mean, you say you 7 -- they have to proceed in -- in state court. 8 They can't proceed in federal court. And as 9 soon as they do, you remove it to federal court 10 under 1983, where you say they can't proceed? 11 MR. NIELSON: Well, we would make the 12 same argument in state or federal court that 13 there is no federal cause of action directly 14 under the Fifth Amendment. That is not -- 15 CHIEF JUSTICE ROBERTS: Well, but 16 that's what was rejected in the -- in the two 17 cases that I read to you, Cedar Point and Knick. 18 MR. NIELSON: With your respect, Your 19 Honor, I don't read either of those cases as 20 saying there is a federal cause of action. 21 There's certainly a federal substantive right to 22 relief, but as this Court said in all of the 23 Bivens line of cases or all the implied right of 24 action cases, the right to, you know, a -- a 25 substantive right does not therefore mean that Heritage Reporting Corporation Official 47 1 there is a cause of action. 2 JUSTICE KAGAN: But, General, do you 3 agree with Mr. McNamara that if a state takes a 4 person's property and doesn't give compensation, 5 that state is violating the Constitution every 6 day? It's an ongoing violation. Do you agree 7 with that? 8 MR. NIELSON: That's not how the Court 9 has -- I -- I -- I believe -- I certainly agree 10 that's a violation of the Constitution. I don't 11 think this Court's cases have ever -- 12 JUSTICE KAGAN: But that's what I want 13 to know. It's an -- 14 MR. NIELSON: Sure. 15 JUSTICE KAGAN: -- ongoing violation 16 of the Constitution, right? I've taken Mr. 17 McNamara's property. I haven't paid him. Every 18 day, I'm violating the Constitution, correct? 19 MR. NIELSON: Yes, Your Honor. 20 JUSTICE KAGAN: Okay. So aren't 21 courts supposed to do something about that? 22 MR. NIELSON: Yes, Your Honor. And 23 what this Court said in Knick is, when there's 24 not a cause of action, which remember there 25 wasn't a cause of action, there were -- you have Heritage Reporting Corporation Official 48 1 -- there's no remedies. 2 JUSTICE KAGAN: Yeah. 3 MR. NIELSON: What -- what is 4 injunctive relief -- 5 JUSTICE KAGAN: But this is -- this is 6 very different. 7 MR. NIELSON: Sure. 8 JUSTICE KAGAN: You know, in the usual 9 case, we have a constitutional -- let's take a 10 Fourth Amendment case. You know, it's you've 11 searched somebody's home illegally. 12 MR. NIELSON: Mm-hmm. 13 JUSTICE KAGAN: It's happened, and 14 then it's over, and then the question is what 15 remedy are you going to be giving for that 16 violation. 17 But this is a different kind of 18 violation. It's not a -- it's not even clear 19 that the word "remedy" is appropriate here. 20 It's a right to compensation. And the state, by 21 taking the land and not compensating, is 22 violating that right every day. It's not that 23 the state -- 24 MR. NIELSON: Mm-hmm. 25 JUSTICE KAGAN: -- is failing to Heritage Reporting Corporation Official 49 1 provide a remedy. The state is violating the 2 right to be paid. 3 MR. NIELSON: Sure, Your Honor. And I 4 -- I just -- and the answer would be, if there's 5 not a cause of action, that's why I went back to 6 Knick. 7 JUSTICE KAGAN: Well, if it's not a 8 cause of action, I mean, in the -- 9 MR. NIELSON: Sure. 10 JUSTICE KAGAN: -- usual case, suppose 11 that a state violates Mr. McNamara's First 12 Amendment rights. 13 MR. NIELSON: Yep. 14 JUSTICE KAGAN: Could he bring a suit 15 about that? 16 MR. NIELSON: Yes, Your Honor, for 17 injunctive relief. 18 JUSTICE KAGAN: Yes. And what Mr. 19 McNamara, I believe, is saying is that -- that 20 the usual distinction that we draw, you can 21 bring a right for injunctive relief, but you 22 can't -- you can bring a suit for injunctive 23 relief, but you can't bring a suit for damages, 24 that's the usual distinction. 25 But it sort of falls apart in this Heritage Reporting Corporation Official 50 1 case because the right is a right to be paid. 2 MR. NIELSON: Yes, Your Honor. And so 3 I -- I -- I come at this from maybe the other 4 direction. Let's imagine that some government 5 said, you know what, we're not going to pay. 6 We're telling everybody now. Now you are on 7 notice we are not paying. 8 Well, then what happens? Before they 9 could do anything, you would rush to court and 10 you would say: Injunction. They can't do it. 11 They've promised they're not going to pay. 12 They're not going to provide that. And the 13 Constitution says, if they don't, they're out of 14 -- they're -- they're violating their rights. 15 That's Eastern Enterprises v. Apfel, where if 16 there's -- clear that there's not going to be a 17 right to judicial -- to payment, there are no -- 18 no monies coming, not -- not judicial, but no 19 payments coming, you can get that injunction 20 right away. 21 JUSTICE KAGAN: I mean, General, let 22 me make the point another way. 23 MR. NIELSON: Sure. 24 JUSTICE KAGAN: I mean, it's sort of 25 backwards to say that Mr. McNamara's client can Heritage Reporting Corporation Official 51 1 sue for an injunction, meaning like, you know, 2 give me back my property. Actually, the state 3 has a right to take his property or a 4 prerogative to take -- 5 MR. NIELSON: Yeah. 6 JUSTICE KAGAN: -- his property. If 7 the state wants to use his property for a 8 railroad, it doesn't really matter that the -- a 9 person doesn't want to sell. The state has the 10 ability to take -- the only thing that the state 11 does not have the prerogative to do and the 12 thing that the landowner has a right to have is 13 payment. 14 MR. NIELSON: Yes, Your Honor. 15 JUSTICE KAGAN: So to say, well, look, 16 you can sue for an injunction but you can't sue 17 for payment just doesn't understand the nature 18 of this right. 19 MR. NIELSON: Well, so our first-line 20 argument is, you know, the way the United States 21 did it for a hundred years is -- is correct. 22 But, if the Court disagrees with that, if the 23 Court says, you know what, actually -- 24 JUSTICE KAGAN: So, General, I kind of 25 agree with that. Your best argument is like Heritage Reporting Corporation Official 52 1 what happened between the time of the 2 Constitution and, you know, someplace in the 3 late 19th Century. 4 But suppose that I'm not such an 5 originalist and I don't really care about that. 6 (Laughter.) 7 MR. NIELSON: Sure. All right. So 8 the -- that -- that's the answer I'm going to 9 say. So, if we -- if the Court says, we read 10 First English and it requires not just a 11 substantive relief, it requires some sort of 12 judicial proceeding, which we don't think is 13 consistent with the history, but let's assume, 14 Texas does it. Texas provides the cause of 15 action for which they can bring a federal 16 takings claim. 17 So even if that is true, which we 18 don't believe as our first-line argument is 19 correct, Texas still wins. They -- 20 JUSTICE BARRETT: What if Texas didn't 21 do it, though? 22 MR. NIELSON: So -- so that's where we 23 get interesting. 24 JUSTICE BARRETT: But I'm not -- but 25 -- I -- I -- and I just want to be clear I'm not Heritage Reporting Corporation Official 53 1 talking about the hypothetical you gave where 2 Texas announces in advance -- 3 MR. NIELSON: Yeah. 4 JUSTICE BARRETT: -- we're going to 5 take and we're not going to pay. Let's say that 6 Texas takes and just this one property owner 7 can't get the money, the -- Texas is being 8 intransigent about it. 9 MR. NIELSON: Mm-hmm. 10 JUSTICE BARRETT: And Texas says: 11 And, by the way, our state cause of action -- we 12 have no state cause of action for you to use in 13 our courts to get the money, no private bills. 14 We don't do that. There's no state -- 15 MR. NIELSON: Sure. 16 JUSTICE BARRETT: -- law remedy. What 17 then? 18 MR. NIELSON: All right. So, you 19 know, if a state goes rogue, that's how we're 20 thinking about it, because we know from Knick 21 all the states don't do that, but let's assume 22 some state says, we're just not going to do 23 that. Well, you have injunctive relief. I 24 realize that might not be a perfect relief -- 25 JUSTICE BARRETT: Doesn't work in this Heritage Reporting Corporation Official 54 1 hypothetical. 2 MR. NIELSON: It doesn't work because 3 of that. Then the answer is exactly what the 4 Constitution says. Congress -- Section 5 of the 5 Fourteenth Amendment says, if a state is 6 violating the Constitution, which would be 7 happening in this scenario, that's precisely 8 what Section 5 is for. 9 Congress has never done that -- 10 JUSTICE BARRETT: So they have to wait 11 for Congress to enforce it through legislation? 12 Would there be some sort of due process 13 violation or an argument that the state has to 14 provide some sort of forum? 15 MR. NIELSON: Well, that's what I'm 16 trying to say. If you read First English that 17 way to say that not only is it there's a 18 substantive obligation, but there has to be a -- 19 some sort of judicial forum for -- for, you 20 know, vindication of that -- 21 JUSTICE BARRETT: I -- not, I mean, a 22 judicial forum. It could be -- 23 MR. NIELSON: Sure. 24 JUSTICE BARRETT: -- an administrative 25 forum. I mean, I -- I'm taking -- Heritage Reporting Corporation Official 55 1 MR. NIELSON: Okay. Sure. Sure. 2 JUSTICE BARRETT: -- your argument 3 about that. 4 MR. NIELSON: Okay. 5 JUSTICE BARRETT: You're -- you're 6 really saying that the state could shut down and 7 give no administrative forum, no legislative 8 forum, no judicial forum, and because the Fifth 9 Amendment doesn't create an implied cause of 10 action, then the property owner would have to 11 say, Congress, can you please use your Section 5 12 power? 13 MR. NIELSON: The answer would be 14 first try to get an injunction. That doesn't 15 always work for the reasons that you say. In 16 that scenario, yeah, that's what the 17 Constitution says. 18 CHIEF JUSTICE ROBERTS: Well, but 19 we're talk -- 20 JUSTICE GORSUCH: Why -- why -- why -- 21 I'm -- I'm sorry, Chief. 22 CHIEF JUSTICE ROBERTS: I'm sorry. 23 We're talk -- those are two governments. I 24 mean, we're talking about the ability of the 25 government to take property without paying for Heritage Reporting Corporation Official 56 1 it. The -- the states and Congress may have 2 common cause on that. And the idea that, well, 3 you look to a different government -- 4 MR. NIELSON: Mm-hmm. 5 CHIEF JUSTICE ROBERTS: -- to tell 6 this government that that's not something 7 governments can do, that's not much of a remedy. 8 MR. NIELSON: Well, this Court has 9 cases that says we trust that Congress takes 10 itself seriously. We trust that the states take 11 their oath seriously. That's one of the 12 premises of Alden v. Maine, that they're going 13 to do that. But -- 14 JUSTICE GORSUCH: Well, we also -- we 15 also assume people act in their self-interest. 16 MR. NIELSON: Sure. 17 JUSTICE GORSUCH: And the -- our whole 18 system of separated powers is premised on that 19 idea. And self-interest here that would be 20 created isn't a rogue state but an incentive for 21 governments not -- not -- to -- to withdraw 22 their -- their existing causes of action. I 23 think that's the thrust -- 24 MR. NIELSON: Yeah. 25 JUSTICE GORSUCH: -- of Justice Heritage Reporting Corporation Official 57 1 Barrett and the Chief's questions. 2 MR. NIELSON: What we -- 3 JUSTICE GORSUCH: And I guess I'm 4 wondering -- 5 MR. NIELSON: Sorry. 6 JUSTICE GORSUCH: -- why wouldn't the 7 injunction order the state to pay? 8 MR. NIELSON: So that's a question 9 that has not been litigated, whether you could 10 have injunctive relief to pay. 11 JUSTICE GORSUCH: Say you have to 12 provide -- 13 MR. NIELSON: Correct. 14 JUSTICE GORSUCH: -- just 15 compensation. We're not telling you how. 16 MR. NIELSON: Yep. 17 JUSTICE GORSUCH: We're not telling 18 you in what forum. 19 MR. NIELSON: And -- and -- and -- 20 JUSTICE GORSUCH: But -- but the 21 Constitution commands it. 22 MR. NIELSON: Sure. As I said, that's 23 -- if you want to read First English that way, 24 Texas has no quarrel with that because we 25 provide it. And we don't just provide through a Heritage Reporting Corporation Official 58 1 commission, though I think we have the 2 constitutional right to do so. We do it in 3 court. We -- 4 JUSTICE BARRETT: But you have to 5 answer -- I'm sorry. You have to answer the 6 hypothetical. 7 MR. NIELSON: Yeah. 8 JUSTICE BARRETT: I think Justice 9 Gorsuch's premise is that Texas isn't doing 10 this. 11 MR. NIELSON: Okay. So, if we say 12 that a Texas doesn't or -- or some state doesn't 13 have a -- a court proceeding and you don't have 14 any sort -- other sort of commission, you still 15 can get an injunction, and if you know the state 16 doesn't have any of those things, you can get 17 that injunction very, very, very early. 18 JUSTICE GORSUCH: And wouldn't the 19 injunction say, Texas, you have an obligation -- 20 MR. NIELSON: Mm-hmm. 21 JUSTICE GORSUCH: -- to pay? 22 MR. NIELSON: And this is where I -- 23 I'm not quarreling because Texas -- 24 JUSTICE GORSUCH: Okay. 25 MR. NIELSON: -- as a matter of -- Heritage Reporting Corporation Official 59 1 JUSTICE KAVANAUGH: You don't want to 2 concede that? 3 MR. NIELSON: -- first principles -- 4 as a matter of first principles, I don't know 5 how you get there. But I'm saying that Texas 6 has no quarrel with it -- 7 JUSTICE GORSUCH: Okay. And -- and -- 8 MR. NIELSON: -- because Texas does -- 9 what you're saying -- 10 JUSTICE KAVANAUGH: What do you mean 11 -- 12 JUSTICE GORSUCH: I've got -- I -- 13 I've got it. I've got it. I just want to -- I 14 just want to clear -- clear up two other things. 15 MR. NIELSON: Sure. 16 JUSTICE GORSUCH: What is the common 17 law cause of action and what is the state 18 constitutional cause of action that does exist 19 that you say could have but wasn't brought? 20 MR. NIELSON: That's right. So the -- 21 the easiest place to see it because it's the 22 most recent and I think the most clear is the 23 Texas Supreme Court's City of Baytown -- 24 JUSTICE GORSUCH: Right. That just 25 says, though, as I understand it from your Heritage Reporting Corporation Official 60 1 colleague -- 2 MR. NIELSON: Yeah. 3 JUSTICE GORSUCH: -- go look at the 4 federal Constitution. So how does that help 5 you? 6 MR. NIELSON: Well, they look at both. 7 They say, we resolve takings claims under our 8 constitutions, plural, and then they cite both. 9 And then they -- 10 JUSTICE GORSUCH: So Texas has 11 represented to this Court that there is a state 12 constitutional cause of action? 13 MR. NIELSON: Yes, Your Honor. 14 JUSTICE GORSUCH: Okay. And is there 15 a common law cause of action -- 16 MR. NIELSON: Well, that -- 17 JUSTICE GORSUCH: -- that would 18 achieve the same thing? 19 MR. NIELSON: -- that's what I'm -- 20 that's what I'm -- I must have -- I must have 21 misunderstood -- 22 JUSTICE GORSUCH: Beyond -- 23 MR. NIELSON: -- what you were saying. 24 That is the -- the cause of action. 25 JUSTICE GORSUCH: That is the cause of Heritage Reporting Corporation Official 61 1 action? 2 MR. NIELSON: Yeah. 3 JUSTICE GORSUCH: Okay. And it wasn't 4 pled here, is what you're -- 5 MR. NIELSON: No, Your Honor. They -- 6 JUSTICE GORSUCH: What does -- 7 MR. NIELSON: -- vigorously resisted 8 -- 9 JUSTICE GORSUCH: Fine. Fine. 10 MR. NIELSON: -- the idea that they 11 have to -- 12 JUSTICE GORSUCH: Oh, okay. I got it. 13 And what -- what cause of action remains pendent 14 as you understand it? 15 MR. NIELSON: So they still have 16 claims for federal due process, and they still 17 have claims for the Texas Constitution. 18 JUSTICE GORSUCH: Would you oppose 19 leave to amend to add a Texas constitutional 20 claim on -- on an email? 21 MR. NIELSON: On behalf of the State 22 of Texas, we would not oppose that in the 23 district court. 24 JUSTICE GORSUCH: Okay. Thank you. 25 JUSTICE KAVANAUGH: Justice Gorsuch -- Heritage Reporting Corporation Official 62 1 JUSTICE SOTOMAYOR: Sorry. But I -- I 2 -- I -- I'm sorry. 3 JUSTICE KAVANAUGH: Go ahead. 4 JUSTICE SOTOMAYOR: Point of 5 clarification. 6 MR. NIELSON: Sure. 7 JUSTICE SOTOMAYOR: Tell me how they 8 plead this. Let's assume we affirm the court 9 below. There's no freestanding right to come 10 into federal court and sue Texas under the Fifth 11 Amendment. 12 How would they go to the Texas court 13 and make their Fifth Amendment claim? 14 MR. NIELSON: So -- 15 JUSTICE SOTOMAYOR: What would they 16 say in the Texas court? 17 MR. NIELSON: So -- yes. So what they 18 would say here, and, candidly, the pleadings 19 have never been as pellucid as I think anyone 20 would have liked, but what I think that they -- 21 they would say is, we are bringing our claim 22 under state law, see City -- see, e.g., City of 23 Baytown. I think that would be sufficient to 24 get us there. 25 JUSTICE SOTOMAYOR: That -- that's -- Heritage Reporting Corporation Official 63 1 my gosh. I've never heard of pleadings in any 2 state where you had to mention the law at issue. 3 MR. NIELSON: Well, that's the -- 4 JUSTICE SOTOMAYOR: Usually you 5 mention the facts -- 6 MR. NIELSON: Well -- 7 JUSTICE SOTOMAYOR: -- or you state 8 the facts and then you -- 9 MR. NIELSON: Well -- 10 JUSTICE SOTOMAYOR: But putting that 11 aside, here, they say violation of Article I, 12 Section 17 of the Texas Constitution for the 13 taking, damaging, or the destruction of their 14 property. That's Count 1. 15 MR. NIELSON: Yes, Your Honor. 16 JUSTICE SOTOMAYOR: And Count 2 says 17 violation of the Fifth Amendment of the U.S. 18 Constitution. 19 MR. NIELSON: Yes, Your Honor. 20 JUSTICE SOTOMAYOR: Summarizing 21 basically. I don't know what else they would 22 have had to do in Texas court if I cite that 23 case. 24 MR. NIELSON: It -- 25 JUSTICE SOTOMAYOR: They said, I'm Heritage Reporting Corporation Official 64 1 suing you in Texas court. You're the one who 2 removed to federal court. 3 MR. NIELSON: Yes, Your Honor. 4 JUSTICE SOTOMAYOR: This seems to me 5 like a totally made-up case because they did 6 exactly what they had to do under Texas law. 7 It's you who are telling me -- it's almost a 8 bait and switch -- that you wanted to get to 9 federal court to basically have a class action 10 and you couldn't do it in state court, so -- but 11 you had to fight something, which -- I don't 12 know what you're fighting because you're telling 13 me that Texas lets them have a cause of action 14 under the Fifth Amendment. 15 MR. NIELSON: Yes, Your Honor. 16 There's no bait and switch here, I want to be 17 clear on that, no bait and switch. 18 JUSTICE SOTOMAYOR: Well, you're the 19 one who removed. 20 MR. NIELSON: We removed, and they 21 didn't come back and say, oh, no, you 22 misunderstand what we're saying. Instead, every 23 step along the way, they have doubled down all 24 the way going to cert, you know, seek certiorari 25 review from this Court. Heritage Reporting Corporation Official 65 1 So, if we misunderstood what they were 2 saying -- 3 JUSTICE SOTOMAYOR: So, if -- if they 4 go back down and say to the district court, this 5 has been remanded to the district court, all we 6 want is just compensation under the Texas 7 Constitution and the Fifth Amendment under that 8 case that you're mentioning, that's okay and 9 you're not going to resist that? 10 MR. NIELSON: We -- we -- we would not 11 resist that, Your Honor. 12 JUSTICE SOTOMAYOR: Okay. 13 JUSTICE KAVANAUGH: On Justice 14 Gorsuch's injunction-to-pay hypothetical, I just 15 want to make sure I'm clear on that. 16 MR. NIELSON: Yeah. 17 JUSTICE KAVANAUGH: I thought you were 18 saying we don't need to answer that question in 19 this case because Texas provides forums for 20 compensation. 21 MR. NIELSON: Yes, Your Honor. 22 Conceptually, I don't know how you get an 23 injunction to pay money. 24 JUSTICE KAVANAUGH: But -- but -- 25 MR. NIELSON: I'm not familiar with Heritage Reporting Corporation Official 66 1 that, but that's blowing apart -- 2 JUSTICE KAVANAUGH: I -- I understand 3 that, but even in the -- 4 MR. NIELSON: Yeah. 5 JUSTICE KAVANAUGH: -- the theoretical 6 possibility of it is just not present here, 7 right? 8 MR. NIELSON: Correct, Your Honor. 9 And, as I said, it's hard for me to quarrel with 10 it because Texas does pay money. But, 11 conceptually, I don't know how you get there. 12 JUSTICE KAVANAUGH: Yeah. 13 MR. NIELSON: If I may -- 14 JUSTICE JACKSON: What about a 15 declaration? What about a declaration? Is that 16 something different? 17 MR. NIELSON: A declaration? I -- 18 JUSTICE JACKSON: Could you sue for -- 19 for -- 20 MR. NIELSON: Sure. 21 JUSTICE JACKSON: -- declaratory 22 judgment that Texas or whatever state is not 23 paying you? 24 MR. NIELSON: So my understanding of a 25 declaratory judgment action is it sounds in Heritage Reporting Corporation Official 67 1 equity, not in damages. So I think it would 2 fall within the -- the universe of Ex parte 3 Young type remedies. So we wouldn't have any 4 objection to that either, though, again, I -- I 5 -- I'm a little bit shooting from the hip, so I 6 apologize it wasn't briefed on that one, so I'm 7 -- I'm a bit nervous on that. 8 JUSTICE JACKSON: Yes. 9 MR. NIELSON: Though, I mean, I -- if 10 I -- if I may, I would like just to make a 11 couple of affirmative points. 12 CHIEF JUSTICE ROBERTS: Well, no, you 13 can do that later. 14 MR. NIELSON: Oh, I apologize, Your 15 Honor. 16 CHIEF JUSTICE ROBERTS: Yeah. 17 Justice Thomas? 18 Justice Alito? 19 JUSTICE ALITO: Well, why don't you 20 quickly make an affirmative point. 21 (Laughter.) 22 MR. NIELSON: Well, I would just like 23 to say that as far as I am aware, Texas is the 24 only party here that has offered evidence on the 25 original public meaning of the actual language Heritage Reporting Corporation Official 68 1 of the text, not the ideas, the actual language 2 of the Constitution. And when courts looked at 3 that language, they read it precisely the same 4 way that Texas does now. 5 CHIEF JUSTICE ROBERTS: Anything 6 further? 7 JUSTICE ALITO: Thank you. 8 CHIEF JUSTICE ROBERTS: Justice 9 Sotomayor? 10 Justice Gorsuch? 11 Justice Jackson? 12 Thank you, counsel. 13 MR. NIELSON: Thank you, Your Honor. 14 CHIEF JUSTICE ROBERTS: Mr. Kneedler. 15 ORAL ARGUMENT OF EDWIN S. KNEEDLER 16 FOR THE UNITED STATES, AS AMICUS CURIAE, 17 SUPPORTING THE RESPONDENT 18 MR. KNEEDLER: Mr. Chief Justice, and 19 may it please the Court: 20 The Fifth Amendment to the United 21 States Constitution does not of its own force 22 create a cause of action against the government 23 under the Fifth Amendment against the United 24 States Government for damages. 25 Numerous provisions of the Heritage Reporting Corporation Official 69 1 Constitution make that clear, including the text 2 of the just compensation clause itself. It says 3 property shall not be taken, no person -- 4 property shall not be taken for public use 5 without just compensation. 6 The right is not to have the property 7 taken without compensation. It's not a right to 8 compensation. And this -- it's prohibitory. It 9 has a condition for the -- governmental action 10 to be lawful. That condition is the payment of 11 compensation. If there's not compensation, then 12 the action is unlawful, and what lies is an 13 injunction to cease the taking of the property. 14 This Court in -- in a number of 15 recent -- relatively recent cases has made that 16 point. In Ruckelshaus versus Monsanto, in Dames 17 & Moore, in the railroad reorganization cases, 18 the question really was, should there be an 19 injunction preventing this statute from going 20 into effect, or is there compensation available 21 under the Tucker Act such that an injunction 22 would not be appropriate? 23 In all of those cases, that's what the 24 Court held, that there was compensation 25 available. But that -- the the very question Heritage Reporting Corporation Official 70 1 presupposed that there might be situations in 2 which compensation was not available. That's 3 the violation. 4 And the -- the same thing, if you look 5 at the overall context of the Fifth Amendment, 6 that is also true. It -- the preceding clause, 7 as Justice Alito pointed out, says that no 8 person shall be deprived of property without due 9 process. The prohibition is the -- deprivation, 10 the condition -- without -- without the 11 condition of due process. 12 If a court finds a violation, it 13 doesn't order due process. It orders -- it 14 enjoins the conduct that was undertaken without 15 due process. The government can always go back 16 and do it over again with due process. 17 And -- and, finally, there's another 18 clause in the Fifth Amendment that is written in 19 exactly the same way, the indictment clause. It 20 says a person shall not be held for a capital or 21 otherwise infamous crime unless on a presentment 22 of an indictment. An indictment is the 23 condition precedent to having a lawful holding 24 of somebody for a crime, and one -- 25 CHIEF JUSTICE ROBERTS: Mr. Kneedler, Heritage Reporting Corporation Official 71 1 in the -- 2 MR. KNEEDLER: Yeah. 3 CHIEF JUSTICE ROBERTS: -- brief that 4 you -- you filed in First English 38 years ago, 5 you argued that the Constitution does not of its 6 own force furnish a basis for a court to award 7 money damages against the government. 8 Now, in the decision in First English, 9 Justice Rehnquist rejected the idea that "the 10 Constitution does not, of its own force, furnish 11 a basis for the court to award money damages 12 against the government." 13 Now it seems to me that the question 14 is -- turns on basis. And what you seem to be 15 saying is it created a general theory of what 16 the government had to do. But that doesn't mean 17 that anybody could take that and recover 18 compensation. They have to go get an injunction 19 or they -- they can't proceed at all because 20 there's no cause of action? 21 MR. KNEEDLER: Yes, Your -- 22 CHIEF JUSTICE ROBERTS: I mean, are 23 you just rearguing the point that the Court 24 rejected? 25 MR. KNEEDLER: Not at all. Not at Heritage Reporting Corporation Official 72 1 all. But our point -- our point, that portion 2 of our brief was really going to the cause of 3 action question and -- and for the reasons that 4 we said in that brief and this brief, and -- and 5 I don't think the Court rejected this. 6 For all the reasons we said, not just 7 the text of the clause, but -- but the 8 Appropriations Clause, the Fifth Amendment only 9 applied to the United States, the Appropriations 10 Clause would have prohibited any court from 11 awarding a money judgment or an injunction to 12 pay money because only Congress can authorize 13 the payment of money from the Treasury. 14 CHIEF JUSTICE ROBERTS: Well, but it's 15 -- 16 MR. KNEEDLER: OPM versus Richmond 17 makes that clear. 18 CHIEF JUSTICE ROBERTS: Well, the 19 Constitution can do it too, which is what the 20 rest of that footnote rejecting the arguments 21 that the government made in First English said. 22 It says that the "cases made clear that it is 23 the Constitution that dictates the remedy for 24 interference with property rights amounting to a 25 taking." Heritage Reporting Corporation Official 73 1 So I -- I'm not sure how you get 2 around the fact that the Constitution speaks in 3 terms of just compensation and not an 4 injunction. 5 MR. KNEEDLER: Well, as I said, it 6 speaks in terms of compensation in terms of 7 defining the right, which is not to have 8 property taken without just -- just 9 compensation. But that footnote, I think it's 10 important to understand the context of that 11 footnote. 12 In fact, all of First English was 13 about the Agins rule in the -- in the -- in 14 California, which said there was not even a 15 taking. Sometimes they said you -- no 16 compensation, but there was no taking until a 17 court first determined that there was a taking. 18 And that was the rule, that was the 19 controversy at the time, the so-called temporary 20 taking. Does -- does the taking arise in a 21 regulatory context at the time the regulation is 22 effective or later? That was the issue that the 23 Court rejected, and in that respect, it said no, 24 compensation is owed from the moment of -- of 25 the Constitution. And what -- Heritage Reporting Corporation Official 74 1 CHIEF JUSTICE ROBERTS: Thank you, 2 counsel. 3 JUSTICE ALITO: Mr. Kneedler, I have a 4 little trouble understanding your argument about 5 the Tucker Act. In your view, neither the 6 Tucker Act nor the Takings Clause provides a 7 cause of action, but then you say the 8 combination of the two somehow provides a cause 9 of action. 10 And the Petitioner says that what 11 you're saying is that nothing plus nothing 12 equals something. So this -- you must be 13 relying on some kind of higher math that I can't 14 understand. Where -- what is the cause of 15 action -- 16 MR. KNEEDLER: No, I -- I -- 17 JUSTICE ALITO: -- in a Tucker Act 18 suit? 19 MR. KNEEDLER: I -- as I said, I think 20 it's the combination of the two. It's not zero 21 plus zero; it's one-half plus one-half. The -- 22 the -- as we say, the -- the -- the 23 Constitution, the Fifth Amendment itself, does 24 not create a -- a -- a cause of action. It 25 would have -- would -- would have been Heritage Reporting Corporation Official 75 1 extraordinary. We went for 200 years, as 2 pointed out, with that not being the case. 3 But what the Tucker Act does is, as 4 the Court said two terms ago, three terms ago, I 5 guess, it provides the framework under which 6 it's -- it can be determined whether Congress 7 has provided the ability to -- to sue under the 8 Tucker Act. 9 The Tucker Act standard is whether the 10 particular substantive provision that is being 11 relied upon creates a -- can reasonably be read 12 to mandate compensation if there is a violation. 13 By definition -- and the Court made this point 14 in Bormes -- the Tucker Act is there for 15 something where there is an obligation but no 16 elements of a cause of action. So the -- the -- 17 for example, the Fifth Amendment or the statute 18 that may be involved, particular statute that 19 may be involved, by definition does not create a 20 cause of action. 21 Congress provided in the Tucker Act 22 that you can recover compensation if -- if the 23 other provision of law can reasonably be 24 construed. That's a -- that's a Tucker Act 25 standard for when -- Heritage Reporting Corporation Official 76 1 JUSTICE ALITO: All right. Suppose 2 there -- suppose that the Takings Clause was not 3 in the Constitution, but Congress enacted a 4 statute that said the federal government shall 5 not take private property for public use without 6 just compensation. 7 Would that be a money-mandating 8 statute that creates a cause of action? 9 MR. KNEEDLER: I don't think so. I -- 10 because it's a -- it's a -- it's a prohibition, 11 I think it's the same -- the same as the Fifth 12 Amendment itself. It -- it is a directive to 13 Congress not to -- or executive not to take 14 property without affording compensation. 15 Now it may be that the particular 16 statute would be understood or could be 17 interpreted that way, but, here, we're talking 18 about the Constitution, and no other provision 19 of the Constitution provides of its own force a 20 remedy, particularly a remedy for damages. 21 And that would have been extraordinary 22 at the time the Constitution was adopted because 23 of the Appropriations Clause, sovereign 24 immunity, and the Debt Clause. If -- if 25 compensation is not paid, that is a debt of the Heritage Reporting Corporation Official 77 1 United States, and it's clear -- 2 JUSTICE ALITO: I -- I find it hard to 3 understand how that would not be a statute that 4 mandates the payment of money. It says you -- 5 you can't take property for a public use without 6 just compensation. It's talking about paying 7 money. If that's not a money-mandating 8 provision, then -- 9 MR. KNEEDLER: It might -- it might be 10 -- it might be money -- money-mandating under 11 the Tucker Act. I -- I think I understood you 12 to say it -- this wasn't the Tucker Act. 13 JUSTICE ALITO: No. 14 MR. KNEEDLER: But that's because the 15 Tucker Act has been under -- 16 JUSTICE ALITO: It's another -- it's 17 another statute, and we would interpret it like 18 we interpreted the statute in Maine Community 19 Health. Does it -- does it mandate the payment 20 of money? I would think the answer to that 21 would be yes. And if that's the case with the 22 statute, why isn't it the same with the -- 23 MR. KNEEDLER: Because the -- 24 JUSTICE ALITO: -- with the Fifth 25 Amendment? Heritage Reporting Corporation Official 78 1 MR. KNEEDLER: -- the money mandating 2 is not -- is not something under the Tucker Act. 3 It is -- it is a provision in the Tucker Act 4 that -- 5 JUSTICE ALITO: All right. 6 MR. KNEEDLER: It -- it's not -- it's 7 not the other statute. It's a provision in the 8 Tucker Act. And that is a Tucker Act-specific 9 standard for when Congress -- 10 JUSTICE ALITO: Thank -- thank -- 11 thank you. 12 JUSTICE JACKSON: Mr. -- 13 JUSTICE ALITO: Thank you, Mr. 14 Kneedler. 15 JUSTICE JACKSON: -- Mr. Kneedler, I 16 thought your answer to Justice Alito was going 17 to be going back to what you said at the 18 beginning, which is the compensation is 19 conditional in the same way as the Due Process 20 Clause is conditional. 21 I thought that was very interesting, 22 and maybe you want to repeat it. 23 MR. KNEEDLER: Yeah. No, no, that is 24 -- that -- I -- I think that's a fundamental 25 point about the text, not -- of the just Heritage Reporting Corporation Official 79 1 compensation clause itself, but the entire Fifth 2 Amendment is pro -- is prohibitory. I mentioned 3 the indictment clause, but the 4 self-incrimination clause is the same way. The 5 Double Jeopardy Clause is -- is the same. 6 JUSTICE JACKSON: And so, to the 7 extent that we see a condition there, it -- you 8 -- you're not interpreting that as mandating 9 that condition necessarily. It's about the 10 prohibition? 11 MR. KNEEDLER: Right. Exactly. If I 12 could -- I'm -- I'm sorry. 13 CHIEF JUSTICE ROBERTS: No. 14 MR. KNEEDLER: If I could go back to 15 the Chief Justice's question about First 16 English, the language in that footnote is 17 directed to, it says -- remedial. But what it 18 is referring to is the -- computation of just 19 compensation as a remedial matter. 20 If you have a cause of action, how do 21 you calculate the remedy? All of the cases, it 22 says, as the cases in the text make clear, it -- 23 it -- it -- it's a remedy, and it does provide a 24 basis for compensation, but in a cause of action 25 where there already is one. Heritage Reporting Corporation Official 80 1 CHIEF JUSTICE ROBERTS: Thank you. 2 MR. KNEEDLER: Every one of the cases 3 the Court cited -- 4 CHIEF JUSTICE ROBERTS: Thank -- thank 5 you, counsel. 6 MR. KNEEDLER: I'm sorry. 7 CHIEF JUSTICE ROBERTS: Justice 8 Thomas? 9 JUSTICE THOMAS: No. 10 CHIEF JUSTICE ROBERTS: Anything 11 further? 12 JUSTICE SOTOMAYOR: Is your position 13 -- is there any daylight between Texas's 14 position and the government's position here? 15 MR. KNEEDLER: Well, some -- 16 JUSTICE SOTOMAYOR: Your -- you 17 representing the government? 18 MR. KNEEDLER: Yeah. To the extent 19 there was a suggestion that there could be an 20 injunction to pay money, we would disagree with 21 that because of the Appropriations Clause, I 22 think. The Fifth Amendment cannot be read -- 23 JUSTICE SOTOMAYOR: So would it be -- 24 MR. KNEEDLER: -- to allow that. 25 JUSTICE SOTOMAYOR: -- a matter of Heritage Reporting Corporation Official 81 1 semantics, you can't take this property? You 2 have to stop flooding it? You have to do -- 3 MR. KNEEDLER: You have to -- you have 4 to stop whatever it is that would constitute a 5 taking. And -- and -- and -- 6 JUSTICE SOTOMAYOR: All right. And 7 just to clarify your answer to Justice Alito in 8 my head, you're saying it's the Tucker Act plus 9 the statute -- 10 MR. KNEEDLER: Yes. 11 JUSTICE SOTOMAYOR: -- mandating 12 payment that gets you into court? 13 MR. KNEEDLER: That is -- that's -- 14 that's correct, and it's certainly not the -- 15 it's certainly not the other provision itself, 16 the just -- the just compensation clause or the 17 other statute, which by definition -- 18 JUSTICE SOTOMAYOR: So that's your 19 half-point/half-point -- 20 MR. KNEEDLER: Yes. 21 JUSTICE SOTOMAYOR: -- equals one? 22 MR. KNEEDLER: Yes. 23 JUSTICE SOTOMAYOR: Okay. 24 MR. KNEEDLER: Sorry. 25 CHIEF JUSTICE ROBERTS: Justice Kagan? Heritage Reporting Corporation Official 82 1 Justice Gorsuch? 2 JUSTICE GORSUCH: Two questions. 3 First, the rogue state example, why shouldn't we 4 worry about that? It -- why shouldn't we worry 5 about the incentive structure we create that 6 would allow states to withdraw compensation 7 schemes, and maybe the federal government too, 8 to exploit this loophole? 9 MR. KNEEDLER: With respect, it's not 10 a loophole. It's a -- it's a fundamental aspect 11 of the Constitution that the Constitution does 12 not -- does not require this. 13 And the rogue state is answered by 14 it's a prohibition, and if -- if Congress does 15 not provide the condition necessary to render it 16 lawful, you have an injunction -- injunctive 17 action. And as the Court said in Knick, that 18 was the way -- 19 JUSTICE GORSUCH: Okay. 20 MR. KNEEDLER: -- that just 21 compensation issues were raised before. 22 JUSTICE GORSUCH: Okay. And then, 23 second, this may be a question better directed 24 to Mr. McNamara when he speaks on rebuttal, but 25 Justice Sotomayor pointed out an interesting Heritage Reporting Corporation Official 83 1 feature of the procedural history of this case. 2 The complaint has two counts about takings. One 3 is under the state constitution, and the other 4 is under the federal Constitution. 5 How do we read what the Fifth Circuit 6 did here? Did it only dismiss the second, the 7 federal claim, and is the first claim under, 8 what is it, City of Bayview and the -- and the 9 Texas Constitution, still live? Do they even 10 need to amend their complaint to add it? Is it 11 already there? 12 MR. KNEEDLER: There's a footnote in 13 the court of appeals' opinion that says that the 14 Texas Constitution or Texas provides a cause of 15 action. And that is not further elaborated 16 upon, but it -- it's -- 17 JUSTICE GORSUCH: No. Exactly. 18 MR. KNEEDLER: -- it's remanded for 19 further proceedings, so -- 20 JUSTICE GORSUCH: So do you take it 21 that that first count under the state 22 constitution is still alive and available to the 23 plaintiffs? 24 MR. KNEEDLER: I -- it is still alive 25 and available. If it required an amendment to Heritage Reporting Corporation Official 84 1 the complaint, I -- I took -- 2 JUSTICE GORSUCH: Do you think it 3 requires amendment -- 4 MR. KNEEDLER: I -- 5 JUSTICE GORSUCH: -- to the complaint, 6 or because it was remanded for further 7 proceedings and the court only expressly 8 addressed the federal Constitution, that that 9 first count is still alive? 10 MR. KNEEDLER: I think it would depend 11 on whether that first count, in -- in relying on 12 the state constitution, was just relying on a 13 state substantive right to compensation or 14 whether it was also relying -- 15 JUSTICE GORSUCH: Well, Texas -- 16 MR. KNEEDLER: -- on a cause of 17 action. 18 JUSTICE GORSUCH: -- has represented 19 to us that it provides a cause of action -- 20 MR. KNEEDLER: Right. And -- and -- 21 JUSTICE GORSUCH: -- right? So -- 22 MR. KNEEDLER: -- so -- so, if -- if 23 the -- if the complaint is read to be invoking 24 the state cause of action for the federal 25 taking, then, yes, I think that would be open on Heritage Reporting Corporation Official 85 1 remand. 2 JUSTICE GORSUCH: Thank you. 3 CHIEF JUSTICE ROBERTS: Justice 4 Kavanaugh? 5 Justice Barrett? 6 JUSTICE BARRETT: Mr. Kneedler, just 7 want to clarify something. So your position in 8 response to, say, the rogue state hypothetical, 9 when you said an injunction is the solution, 10 it's not an injunction to pay money because you 11 said the United States thinks that can't happen. 12 So is it your position that if, say, a 13 state or the United States takes property, 14 refuses to get -- give just compensation for it, 15 that the property owner could get an injunction 16 essentially saying, give me my property back if 17 you're not going to pay, and perhaps get that 18 injunction but not get reimbursed for the 19 temporary taking that happened in between the 20 seizure and the award of the injunction? 21 MR. KNEEDLER: That -- that is -- that 22 is correct. And it -- the same thing would be 23 true, you -- there could be a temporary 24 deprivation of due process, and if you get an 25 injunction preventing the government from doing Heritage Reporting Corporation Official 86 1 whatever it did without due process, there is an 2 in -- interim period, but a person could go to 3 court, get a TRO, get a preliminary injunction 4 to -- to prevent that from going on a long -- a 5 long time. That's just the nature of litigation 6 and an injunction, but it doesn't lead to the 7 question of damages. 8 And this Court's cases, First English 9 and others, had to do with the calculation 10 whether interest should be paid, and that's what 11 the Court meant about the Fifth Amendment being 12 a basis for the award of compensation, not that 13 there was a cause of action. 14 CHIEF JUSTICE ROBERTS: Justice 15 Jackson? 16 JUSTICE JACKSON: And just to clarify 17 from what Justice Barrett just said, the 18 government's position would be that you might be 19 able to have a cause of action, say, under state 20 law or whatnot for that temporary taking. It's 21 not that you would be out the compensation 22 entirely, right? 23 MR. KNEEDLER: Right. It -- that -- 24 that would depend on -- on state law and the 25 availability of a state cause of action on that. Heritage Reporting Corporation Official 87 1 But we're -- I'm only talking about the federal 2 causes of action, which that -- there's no basis 3 for an award of money out of the Treasury and 4 overcoming sovereign immunity and all that in 5 federal court for a compensation even for that 6 interim period. 7 But the interim period is endemic 8 to -- to litigation, due process violation being 9 held on -- on an indictment, but that is the 10 proper remedy and that's the -- the remedy that 11 existed until the Tucker Act was passed. It was 12 the remedy that this Court said in Knick was the 13 way to vindicate Fifth Amendment rights -- until 14 the Tucker Act or state constitutions came along 15 and provided a monetary remedy. 16 JUSTICE JACKSON: Thank you. 17 CHIEF JUSTICE ROBERTS: Thank you, 18 counsel. 19 Rebuttal, Mr. McNamara. 20 REBUTTAL ARGUMENT OF ROBERT J. McNAMARA 21 ON BEHALF OF THE PETITIONERS 22 MR. McNAMARA: Thank you, Your Honor. 23 To begin with Justice Gorsuch's 24 question, I think it's important to remember the 25 procedural posture here. I understood my friend Heritage Reporting Corporation Official 88 1 from Texas to say that the City of Baytown 2 decision means that Texas courts hear claims 3 "under the federal Constitution." 4 The complaint pleads a claim under the 5 federal Constitution, and to the extent Texas's 6 only complaint with that was that it failed to 7 cite directly to a Texas Supreme Court decision, 8 it's not clear why Texas moved to dismiss it, 9 sought an interlocutory appeal of that decision 10 as a dispositive issue and then extinguished it 11 on the merits in the Fifth Circuit. 12 To the extent that claim exists, that 13 claim has been extinguished and that warrants 14 reversal. 15 To the original meaning, and I think, 16 Your Honor, the -- the rogue state example is 17 not a hypothetical. It's a real example because 18 state after state has looked to federal law and 19 to First English as the thing that prevents the 20 state from denying compensation. 21 That's true in Oregon, as I mentioned, 22 but also New Mexico, South Carolina, Nebraska, 23 the list goes on of states that provide 24 compensation under the Fifth Amendment because 25 they understand the Fifth Amendment to require Heritage Reporting Corporation Official 89 1 compensation. 2 And they're correct to understand 3 that, Your Honor. The original understanding, 4 as evidenced by writings from James Madison to 5 St. George Tucker, is that the Fifth Amendment 6 creates an obligation to pay, which is why you 7 can sue under the Tucker Act because the Fifth 8 Amendment creates an obligation to pay. 9 Only in the absence of a court of 10 competent jurisdiction to enforce that 11 obligation does -- do the federal courts resort 12 to cases like Meigs v. McClung's Lessee, where 13 the Court ejected the United States military 14 from its own base because it didn't have clean 15 title. That -- that is the last resort in the 16 absence of a court that has the jurisdiction to 17 enforce that obligation. 18 That's why, in Maine Community Health, 19 this Court specifically pointed to the Takings 20 Clause as the analogy for what sort of 21 money-mandating inquiry it means to create the 22 obligation to pay. 23 But, more broadly, Your Honor, I -- I 24 think Texas's understanding of the Fifth 25 Amendment would relegate property rights to the Heritage Reporting Corporation Official 90 1 status of the poor relation of the Bill of 2 Rights. 3 It would be the only acknowledged 4 ongoing obligation in the Constitution that is 5 entitled to no enforcement, that is left 6 entirely to the discretion of the government 7 entities that are supposedly obligated to pay. 8 But, surely, as evidenced by the writings and by 9 the adoption of the Fifth Amendment itself, the 10 Framers meant for property rights to mean more 11 than that. 12 If the Court has no further questions, 13 we'll rest on our briefs. 14 CHIEF JUSTICE ROBERTS: Thank you, 15 counsel. 16 The case is submitted. 17 (Whereupon, at 12:23 p.m., the case 18 was submitted.) 19 20 21 22 23 24 25 Heritage Reporting Corporation Official 9,18 23:5,10,12,18 24:7,12, 25 8:20,20 9:5,17,23 11:7, arising [2] 14:11 15:17 better [1] 82:23 $ 25 25:5,6 26:13,17,22 33: 10,23 12:6,19,21 13:5,10, Arlington [1] 1:18 between [5] 6:6 44:8 52:1 $3 [1] 34:13 25 34:5,9 38:23 39:3,5 40: 21 14:4,12,14 15:2,17,23 Army [3] 26:3,4,6 80:13 85:19 1 3,11,16 41:9 42:20 43:9,12, 16:5,20 18:7,17,20 20:5,14, Army's [1] 26:4 Beyond [1] 60:22 12 44:9,10,13,16 45:6,7,13, 17,21 21:2,2,8,22 22:4,10 around [1] 73:2 Bill [2] 28:10 90:1 1 [1] 63:14 25 46:1,4,13,20,24 47:1,24, 23:13,15,23 24:7,18 25:21 Article [1] 63:11 bills [5] 8:11,15 19:21 39: 11:10 [2] 1:15 3:2 25 49:5,8 52:15 53:11,12 27:4 28:1 29:15,17,25 30: aside [1] 63:11 12 53:13 12:23 [1] 90:17 1331 [1] 5:23 55:10 56:22 59:17,18 60: 12,17,25 31:6,8,10,16,20 aspect [2] 18:7 82:10 bit 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contend 8:17,22 [2] covered 19:10 [1] DEVILLIER [2] 1:3 3:4 context [5] 26:2 29:15 70:5 create [14] 14:7 15:5 23:12 dictates 72:23 [1] 23 23:2 25:8 30:9,14,16 87:5 88:20,24 89:1 31:9,13 32:5,5,12,18 33:1, competent [3] 27:14,22 89: 73:10,21 27:17 28:4,13,15,24 55:9 Diego [1] 34:20 68:22 74:24 75:19 82:5 89: differ 20:11 [1] 5,6,14 34:9,10 35:10 36:13, 10 continue [1] 12:5 Heritage Reporting Corporation Sheet 2 cause - differ Official difference [3] 6:5 25:10 44: effect [1] 69:20 everybody [2] 45:11 50:6 62:10 64:2,9 76:4 82:7 83: Fourteenth [6] 6:18 8:19 7 effective [1] 73:22 everyone [3] 12:18 20:16, 4,7 84:8,24 87:1,5 88:3,5, 16:20 29:14 40:3 54:5 different [11] 18:2,5 19:9 effectively [1] 31:17 22 18 89:11 Fourth [1] 48:10 26:23 37:8,11 44:23 48:6, either [4] 12:23 25:24 46: evidence [4] 8:11,22 35:3 Fifth [97] 3:12,19 4:10 6:17, Framers [3] 10:3 25:20 90: 17 56:3 66:16 19 67:4 67:24 21 7:13,15,18,24,25 8:20 9: 10 differently [2] 24:23 25:2 ejected [1] 89:13 evidenced [2] 89:4 90:8 5,17,22 11:6,12,23 12:6,18, framework [1] 75:5 difficult [1] 16:11 ejectment [2] 9:12 20:20 Ex [5] 6:1 25:4,5,7 67:2 21 13:5,9,21 14:4,11,14,24 framing [1] 9:13 difficulty [1] 9:2 elaborated [1] 83:15 exactly [7] 33:17 35:13 54: 15:2,17,23 16:4 18:7,17,20, free [3] 27:15,17 35:14 directed [2] 79:17 82:23 Electric [1] 34:20 3 64:6 70:19 79:11 83:17 20 20:5,14,17,21 21:1,2,8, freestanding [1] 62:9 direction [1] 50:4 elements [1] 75:16 example [6] 16:1 26:14 75: 22 22:4,10,11 23:13,15,23 Frequently [1] 23:16 directive [1] 76:12 eliminate [1] 24:13 17 82:3 88:16,17 24:6,18 25:21 27:4 28:1 friend [1] 87:25 directly [9] 5:9 7:13,15 13: eliminated [3] 6:3 31:19 except [1] 18:5 29:17,24 30:12,15,17,20, friend's [1] 20:18 9 16:24 23:17 39:5 46:13 36:24 excuse [1] 26:16 24 31:6,8,10,16,19 33:19, fulfill [1] 17:3 88:7 email [1] 61:20 executive [1] 76:13 22,23 46:14 55:8 62:10,13 fulfilled [1] 17:2 disagree [2] 18:10 80:20 emphasize [1] 40:7 exist [2] 6:2 59:18 63:17 64:14 65:7 68:20,23 full [3] 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20:8 90:5 80:18 88:5,12 find [3] 36:11 38:19 77:2 G 15 42:15,18 engage [1] 28:25 extinguish [2] 31:16 32:3 finds [1] 70:12 Gas [1] 34:20 dissent [4] 29:2 32:15 34: English [36] 3:17 4:11,18 6: extinguished [3] 24:2 88: Fine [2] 61:9,9 gave [1] 53:1 First [52] 3:17 4:11,17 6:24 Gedney 26:18 [1] 20,23 24 7:11 16:6,10,15 17:22, 10,13 distinct [5] 5:19 7:22 15:11 22 18:2,5,10,17 19:10 21:7 extra-constitutional [1] 5: 7:11 11:10,14 16:5,10,15 General [7] 1:20,22 33:7 19:12 38:4 23:9,16 24:5 29:5 31:25 12 17:21,22 18:2,5,10,16 19: 47:2 50:21 51:24 71:15 extraordinary [2] 75:1 76: 10 21:7 23:8,16 24:5 29:5, generally 37:22 [1] distinction [2] 49:20,24 34:24 40:6,7 41:23 42:2 distinguishes [1] 28:22 52:10 54:16 57:23 71:4,8 21 23,25 31:25 33:12 34:24 generation [2] 8:8,9 40:6,7,9 41:23 42:2 49:11 George 26:1,8 89:5 [3] district [10] 15:16 17:10 18: 72:21 73:12 79:16 86:8 88: 14 32:22 36:1 41:7,16 61: 19 F 52:10 54:16 55:14 57:23 gets [1] 81:12 23 65:4,5 enjoined [1] 21:4 face [2] 13:3,12 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33:18,22 32:8 37:5,23 38:2 follows [1] 39:19 16 15:4,20 55:20 56:14,17, draw [1] 49:20 90:5 fall [1] 67:2 footnote 16:14 72:20 [6] 25 57:3,6,11,14,17,20 58: entitlement [15] 4:7,8 6:12 falls 49:25 18,21,24 59:7,12,16,24 60: [1] Due [16] 24:17,20 25:3 29: 73:9,11 79:16 83:12 7:12 10:15,18 15:1 16:18, familiar 23:10 65:25 3,10,14,17,22,25 61:3,6,9, [2] 22 41:12 54:12 61:16 70:8, footnote's [1] 16:11 11,13,15,16 78:19 85:24 22 19:14 25:19 27:20,22 far [2] 34:4 67:23 force 42:4 43:24 68:21 [6] 12,18,24,25 68:10 82:1,2, 86:1 87:8 33:14 34:3 favor [1] 30:22 71:6,10 76:19 19,22 83:17,20 84:2,5,15, dueling [1] 37:23 entity [1] 16:24 favorable [1] 31:23 forego [1] 37:17 18,21 85:2 duty [5] 3:15 17:1 25:16 26: envisioned 9:17[1] feature [1] 83:1 form 6:13 16:25 20:23 [4] Gorsuch's [3] 58:9 65:14 9 29:11 equals [2] 74:12 81:21 federal [83] 4:4,15 5:7,16 6: 32:6 87:23 equity [1] 67:1 1 8:5 10:24 12:12,16 14: former [1] 32:7 gosh [1] 63:1 E ESQ 2:3,6,9,13 [4] 22 15:15,16 17:6,19 18:6 forms 6:8 9:25 26:13 [3] got [5] 8:22 59:12,13,13 61: e.g [1] 62:22 ESQUIRE [1] 1:18 21:22 22:4,23 23:2 24:11, forum [15] 19:18,19 26:21, 12 early [2] 5:16 58:17 essentially [1] 85:16 13 28:5,12,13 29:7 30:4,9, 23,24,25 30:10 54:14,19, government [28] 3:14 4:4 easement [11] 35:15,16 36: establishes [1] 9:16 9,10,13 31:4,11,13,13,14 22,25 55:7,8,8 57:18 21:3,10 25:15 32:6 34:12, 15,18,19,20,20 37:4,6,25 ET [1] 1:3 32:4,17,22,25 33:15 38:22 forums [1] 65:19 13 38:3,20 41:24 42:5 50: 38:1 evaluating 26:17 [1] 39:5 40:11,23 41:4,12 42: forward 36:11,24 37:1 [3] 4 55:25 56:3,6 68:22,24 easiest [1] 59:21 even [9] 6:7 18:14 26:12 48: 23 43:2,5,7 44:2,15,18,18 found [2] 35:21 37:3 70:15 71:7,12,16 72:21 76: Eastern [1] 50:15 18 52:17 66:3 73:14 83:9 45:7,12,24 46:1,1,8,9,12, founding [1] 8:7 4 80:17 82:7 85:25 90:6 EDWIN [3] 1:22 2:9 68:15 87:5 13,20,21 52:15 60:4 61:16 four 44:20 [1] government's [4] 20:25 Heritage Reporting Corporation Sheet 3 difference - government's Official 21:16 80:14 86:18 inverse 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immediately [1] 24:18 26:21,22 39:1 46:5 56:20 16,24 78:5,10,12,13,15,16 leave [3] 41:6,15 61:19 immunity [5] 15:7,10 29:9 58:9 77:22 79:6,13 80:1,4,7,7,9,10,12, left [1] 90:5 H 76:24 87:4 issue [4] 18:13 63:2 73:22 16,23,25 81:6,7,11,18,21, legal [1] 4:22 half-point/half-point [1] implied [4] 45:6,6 46:23 55: 88:10 23,25,25 82:1,2,19,22,25 legislation [1] 54:11 81:19 9 issues [2] 45:9 82:21 83:17,20 84:2,5,15,18,21 legislative [1] 55:7 happen [1] 85:11 import [1] 19:25 itself [19] 3:19 8:1 9:21 15: 85:2,3,3,5,6 86:14,14,16, legislature [1] 19:20 happened [3] 48:13 52:1 important [5] 13:17 15:25 22 27:6 28:17 29:15 31:21 17 87:16,17,23 90:14 legislature's [1] 7:9 85:19 22:15 73:10 87:24 39:6,17 41:12 43:12 56:10 Justice's [1] 79:15 less [1] 29:3 happening [1] 54:7 imposes [1] 3:14 69:2 74:23 76:12 79:1 81: justices [1] 26:19 Lessee [1] 89:12 happens [2] 10:25 50:8 incentive [2] 56:20 82:5 15 90:9 liberty [1] 24:20 hard [3] 7:22 66:9 77:2 include [1] 40:10 K lies [1] 69:12 hard-pressed [1] 38:19 included [1] 29:22 J Kagan [20] 38:9 47:2,12,15, light [1] 33:9 head [1] 81:8 includes [1] 30:1 JACKSON [18] 19:4,17 20: 20 48:2,5,8,13,25 49:7,10, likes [1] 27:16 Health [3] 5:1 77:19 89:18 including [1] 69:1 2 32:10,16 33:2 38:11 66: 14,18 50:21,24 51:6,15,24 limit [1] 5:24 hear [6] 3:3 15:17 20:11 39: incorporated [3] 8:20 29: 14,18,21 67:8 68:11 78:12, 81:25 limitation [1] 28:8 17 40:21 88:2 16,19 15 79:6 86:15,16 87:16 KAVANAUGH [11] 59:1,10 limitations [4] 15:8,12,13, heard [2] 31:14 63:1 independent [2] 9:22 34:5 James [1] 89:4 61:25 62:3 65:13,17,24 66: 19 hears [1] 14:10 indictment [5] 70:19,22,22 January [1] 1:11 2,5,12 85:4 limited [4] 6:6,9 38:2,3 heart [3] 3:25 4:1,3 79:3 87:9 Jay [1] 26:1 keeping [1] 17:10 limits [2] 6:6,8 held [7] 5:1 22:12 30:23 39: infamous [1] 70:21 Jeopardy [1] 79:5 kind [11] 4:21 8:6,21 16:21 line [1] 46:23 14 69:24 70:20 87:9 information [1] 17:5 John [1] 26:1 36:17,21 37:25 38:1 48:17 list [1] 88:23 help [1] 60:4 Inhabitants [1] 26:19 Judge [2] 32:14,23 51:24 74:13 litigated [2] 30:12 57:9 higher [1] 74:13 initio [1] 30:5 judge's [1] 30:6 kinds [1] 6:10 litigation [3] 39:13 86:5 87: hip [1] 67:5 injunction [27] 19:16 50: judges [2] 26:20 27:2 KNEEDLER [49] 1:22 2:9 8 historical [2] 8:10,21 10,19 51:1,16 55:14 57:7 judgment [4] 12:17 66:22, 68:14,15,18 70:25 71:2,21, little [3] 7:22 67:5 74:4 history [6] 19:25 20:3 28: 58:15,17,19 65:23 69:13, 25 72:11 25 72:16 73:5 74:3,16,19 live [2] 41:10 83:9 25 29:13 52:13 83:1 19,21 71:18 72:11 73:4 80: judicial [11] 19:19 20:16,23, 76:9 77:9,14,23 78:1,6,14, local [1] 4:2 hold [1] 39:24 20 82:16 85:9,10,15,18,20, 24 39:21 50:17,18 52:12 15,23 79:11,14 80:2,6,15, logically [1] 4:23 holding [4] 16:16 40:10 44: 25 86:3,6 54:19,22 55:8 18,24 81:3,10,13,20,22,24 long [4] 8:7 11:20 86:4,5 6 70:23 injunction-to-pay [1] 65: jurisdiction [17] 5:17,18 6: 82:9,20 83:12,18,24 84:4, longer [2] 11:23 32:12 holdings [1] 42:15 14 4 7:21 8:5 12:19 17:10 27: 10,16,20,22 85:6,21 86:23 look [11] 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51:12 [1] 11,12 34:18 35:13 36:6,16 16 86:10 28:4,13 23 22:14,21 24:15 25:7 27: language 24:16,17 67: [6] 37:9 38:13 42:8,16,24 43: interesting [3] 52:23 78: 3 44:17 45:19 46:19 47:19, 21 82:25 4,11,25 29:1,4 32:10,16 33: 25 68:1,3 79:16 M 2,10 34:6,19,23 35:9,17,20 languished 8:6 [1] 22 49:3,16 50:2 51:14 60: interference [1] 72:24 made [5] 31:15 69:15 72: 13 61:5 63:15,19 64:3,15 interim [3] 86:2 87:6,7 36:4,7,7,9,10,23 37:7,10, last [1] 89:15 21,22 75:13 65:11,21 66:8 67:15 68:13 interlocutory 24:1 41: [3] 18 38:6,7,7,9,10,11,14,17 late [1] 52:3 made-up [1] 64:5 40:15,20 41:1,20,21 42:9, later 29:4 67:13 73:22 [3] 87:22 88:16 89:3,23 13 88:9 Madison [1] 89:4 Hood [1] 45:24 interpret [1] 77:17 14,21,25 43:4,18,22 44:14 Laughter [3] 42:11 52:6 67: magistrate [1] 30:6 horses [5] 26:3,4,5,7,10 interpreted [2] 76:17 77: 45:15 46:5,15 47:2,12,15, 21 Maine [4] 5:1 56:12 77:18 20 48:2,5,8,13,25 49:7,10, law [49] 3:25 7:6 9:19 11:1, however [1] 27:16 18 89:18 hundred [2] 44:22 51:21 interpreting [1] 79:8 14,18 50:21,24 51:6,15,24 5,9 12:13,20 13:13,14,20, mandate [2] 75:12 77:19 hypothetical [6] 53:1 54:1 intransigent [1] 53:8 52:20,24 53:4,10,16,25 54: 20 14:3,6,6,15,20,22 15:18, mandates [3] 6:22,22 77:4 58:6 65:14 85:8 88:17 intrudes [1] 7:8 10,21,24 55:2,5,18,20,22 21 17:13,16 18:11,21 21: mandating [3] 78:1 79:8 invasion [1] 42:1 56:5,14,17,25,25 57:3,6,11, 21 22:8 23:4,12 24:21 29: 81:11 Heritage Reporting Corporation Sheet 4 government's - mandating Official mandatory [4] 3:18 6:25 10:6 Numerous [1] 68:25 others [1] 86:9 person [6] 24:19 51:9 69:3 32:1,2 moment [2] 26:7 73:24 otherwise [1] 70:21 70:8,20 86:2 maneuvering [1] 32:11 monetary [1] 87:15 O out [13] 9:19 30:7 32:14,23 person's [1] 47:4 money [21] 3:15 29:21 42:5 oath 56:11 [1] maneuvers [1] 32:3 35:21 40:6 45:12 50:13 70: Petitioner [1] 74:10 many [2] 39:6 42:6 43:25 53:7,13 65:23 66:10 objection [1] 67:4 7 75:2 82:25 86:21 87:3 Petitioners [12] 1:4,19 2:4, 71:7,11 72:11,12,13 77:4,7, obligated 90:7 [1] mapping [1] 9:2 over [5] 6:4 12:19 17:11 48: 14 3:8 39:2,4,22,24 40:5, market [4] 32:8 37:5,23 38: 10,20 78:1 80:20 85:10 87: obligation [17] 20:25 21:8, 14 70:16 12 87:21 2 3 10,13,16 23:16 25:17 28: overall [1] 70:5 Petitioners' [1] 41:2 Massachusetts [3] 26:15, money-mandating [5] 4: 19 54:18 58:19 75:15 89:6, overcoming [1] 87:4 physical [1] 41:25 16,20 22 76:7 77:7,10 89:21 8,11,17,22 90:4 overruling [1] 39:25 place [1] 59:21 matches [3] 29:12,13,14 monies [1] 50:18 obligations [2] 4:23,24 owe [2] 21:11 35:11 plaintiff [3] 25:4 31:5 37: math [1] 74:13 Monsanto [1] 69:16 obtain [1] 3:23 owed [1] 73:24 14 matter [11] 1:13 7:12 29:23, Moore [1] 69:17 odds [2] 5:10,13 owes [2] 21:11 34:12 plaintiffs [3] 12:4 44:22 83: 25 30:19 33:7 51:8 58:25 Moreover [1] 8:10 offered [1] 67:24 own [7] 42:4 43:24 68:21 23 most [4] 9:16 14:13 59:22, offset 25:14 [1] 59:4 79:19 80:25 71:6,10 76:19 89:14 plaintiffs' [1] 6:9 matters [1] 40:5 22 Okay [22] 11:25 22:14,21 owner [6] 9:9 32:8 38:4 53: plead [1] 62:8 McClung's 89:12 [1] mountain 8:21,25 [2] 24:9 36:4 38:6,12 47:20 6 55:10 85:15 pleaded [1] 41:5 McDowell [1] 24:15 moved [2] 23:25 88:8 55:1,4 58:11,24 59:7 60: owners [1] 3:22 pleading [2] 6:7,19 McNAMARA [68] 1:18 2:3, much [2] 34:14 56:7 14 61:3,12,24 65:8,12 81: pleadings [2] 62:18 63:1 13 3:6,7,9 5:14 7:17 8:24 municipalities [2] 44:12 23 82:19,22 P pleads [4] 7:14 13:7,9 88:4 9:24 10:5,14,18,22 11:2,8, 45:21 Oldham [2] 32:14,23 p.m [1] 90:17 please [4] 3:10 38:18 55: 13,18,21 12:3,25 13:8,16, must [7] 16:6 39:9,11 41: once [6] 6:18 9:25 23:25 PAGE [1] 2:2 11 68:19 22 14:2,10,23 15:9,22 16: 25 60:20,20 74:12 28:15 30:10,10 paid [8] 12:4 27:24 37:15 pleases [1] 27:18 13 17:9,14 18:4,15,24 19: one [22] 6:13 9:1 12:14 13: 47:17 49:2 50:1 76:25 86: pled [2] 4:12 61:4 11,22 20:13 21:18 22:5,20, N 1,25 21:2 22:7 27:1 39:8 10 plural [1] 60:8 24 25:1,9 27:9,13 28:9 32: narrower 17:18 44:19,19 45:11 53:6 56:11 panel [1] 32:24 [1] plus [4] 74:11,21,21 81:8 13,20 33:8,11 34:17 35:13, nation 24:14 64:1,19 67:6 70:24 79:25 part [3] 5:16 20:15 30:4 [1] point [20] 9:19 13:17 15:25 19,25 36:6,14 37:2,9,12,21 nationwide 4:2 15:24 80:2 81:21 83:2 parte [5] 6:1 25:4,5,7 67:2 [2] 17:5 21:20 22:16 34:17 40: 38:13 47:3 49:19 82:24 87: nature 14:18 51:17 86:5 one-half 74:21,21 partial [2] 35:16 36:19 [3] [2] 17 41:6,23 46:17 50:22 62: 19,20,22 nearly [1] 39:23 ones [1] 42:7 particular [4] 19:14 75:10, 4 67:20 69:16 71:23 72:1, McNamara's [3] 47:17 49: Nebraska 88:22 ongoing [10] 12:5 21:9,13 18 76:15 [1] 1 75:13 78:25 11 50:25 necessarily [6] 9:21 10:24 25:3 26:9 28:19 29:10 47: particularly [2] 29:14 76: pointed [6] 24:5 32:23 70: mean [22] 7:23 8:18 9:21 15:10 18:22 29:22 79:9 6,15 90:4 20 7 75:2 82:25 89:19 10:24,25 11:4 16:10 19:5 necessary [1] 82:15 only [16] 6:13,20 19:10 28: party [1] 67:24 points [3] 30:7 32:14 67:11 43:9 46:6,25 49:8 50:21, need [3] 12:12 65:18 83:10 18 30:20 51:10 54:17 67: passed [1] 87:11 policy [1] 28:23 24 54:21,25 55:24 59:10 needs [1] 9:1 24 72:8,12 83:6 84:7 87:1 Passman [1] 29:3 poor [1] 90:1 67:9 71:16,22 90:10 neither [1] 74:5 88:6 89:9 90:3 past [2] 21:15 25:12 portion [1] 72:1 meaning [5] 10:9,11 51:1 nervous [1] 67:7 onwards [1] 43:17 path [1] 20:20 position [7] 17:17 80:12, 67:25 88:15 never [4] 41:18 54:9 62:19 open [1] 84:25 pay [26] 3:15 16:6 18:1,12 14,14 85:7,12 86:18 means [3] 10:7 88:2 89:21 63:1 operated [1] 11:20 21:4,5,8 25:16 37:24 41: possibility [1] 66:6 meant [2] 86:11 90:10 New [1] 88:22 opinion [5] 20:12 30:7,15 25 50:5,11 53:5 57:7,10 posture [1] 87:25 mechanism [5] 9:18 11:23 next [1] 3:4 32:24 83:13 58:21 65:23 66:10 72:12 power [3] 29:7 39:17 55:12 13:21 14:4 20:8 NIELSON [107] 1:20 2:6 38: opinions [2] 42:10,13 80:20 85:10,17 89:6,8,22 powers [4] 14:6,15 23:11 Meigs [1] 89:12 14,15,17 40:17,21 41:4 42: OPM [1] 72:16 90:7 56:18 mention [2] 63:2,5 8,12,16,23 43:3,8,20 44:3, opportunity [2] 33:4 37:17 paying [4] 50:7 55:25 66: precedent [1] 70:23 mentioned [2] 79:2 88:21 17 45:18 46:11,18 47:8,14, oppose [4] 12:11 13:2 61: 23 77:6 precedents [1] 5:3 mentioning [1] 65:8 19,22 48:3,7,12,24 49:3,9, 18,22 payment [9] 28:19 50:17 precedes [1] 24:18 merits [5] 18:8 22:13 31:16 13,16 50:2,23 51:5,14,19 opposed [1] 19:20 51:13,17 69:10 72:13 77:4, preceding [1] 70:6 46:3 88:11 52:7,22 53:3,9,15,18 54:2, option [1] 12:15 19 81:12 precisely [2] 54:7 68:3 met [1] 18:18 15,23 55:1,4,13 56:4,8,16, Options [1] 5:2 payments [1] 50:19 precondition [1] 21:3 Mexico [1] 88:22 24 57:2,5,8,13,16,19,22 58: oral [7] 1:13 2:2,5,8 3:7 38: pays [1] 16:3 preliminary [1] 86:3 might [10] 9:19,20 12:16 7,11,20,22,25 59:3,8,15,20 15 68:15 pellucid [1] 62:19 premise [1] 58:9 19:15 53:24 70:1 77:9,9, 60:2,6,13,16,19,23 61:2,5, order [4] 17:3 27:23 57:7 pendent [3] 12:19 17:10 premised [1] 56:18 10 86:18 7,10,15,21 62:6,14,17 63:3, 70:13 61:13 premises [1] 56:12 military [2] 26:3 89:13 6,9,15,19,24 64:3,15,20 65: orders [1] 70:13 pending [1] 17:13 prerogative [3] 7:9 51:4, million [1] 34:13 10,16,21,25 66:4,8,13,17, Oregon [5] 16:1,1,3,5 88: Penn [1] 40:24 11 mind [1] 44:1 20,24 67:9,14,22 68:13 21 people [3] 5:25 15:14 56: present [3] 25:16,17 66:6 mine [1] 31:1 none [1] 40:5 original [5] 10:9,10 67:25 15 Presented [5] 3:11 6:11 misunderstand [1] 64:22 nor [2] 24:21 74:6 88:15 89:3 perfect [1] 53:24 16:8 23:20 33:17 misunderstood [2] 60:21 noted [1] 34:22 originalist [1] 52:5 perfectly [1] 23:22 presentment [1] 70:21 65:1 nothing [4] 11:16 39:11 74: other [17] 3:13 7:2 21:6 23: perhaps [4] 9:11 10:12 19: pressing [1] 12:2 Mm-hmm [5] 48:12,24 53: 11,11 2,7 26:25 34:1 43:11 50:3 10 85:17 presupposed [1] 70:1 9 56:4 58:20 notice [1] 50:7 58:14 59:14 75:23 76:18 period [3] 86:2 87:6,7 pretty [2] 8:6 16:11 modern [4] 3:25 6:13 9:3 number [2] 5:25 69:14 78:7 81:15,17 83:3 permanent [1] 36:19 prevent [2] 5:25 86:4 Heritage Reporting Corporation Sheet 5 mandatory - prevent Official prevented [1] 32:18 putting [1] 63:10 regulation [1] 73:21 resist [2] 65:9,11 9 53:10,22 54:4,5 55:17 preventing [2] 69:19 85:25 regulatory [2] 7:8 73:21 resisted [1] 61:7 56:9 59:25 63:16 69:2 70: prevents [1] 88:19 Q Rehnquist [3] 29:2,4 71:9 resolve [3] 12:12 40:24 60: 7,20 72:22 74:10 77:4 79: primary [1] 5:15 qualifications [2] 27:7,11 reimbursed [1] 85:18 7 17,22 83:13 principles [4] 29:23 30:1 quarrel [3] 57:24 59:6 66:9 reimpose [1] 5:23 resolved [2] 3:12 18:13 scenario [2] 54:7 55:16 59:3,4 quarreling [1] 58:23 reiterated [1] 21:7 resolves [1] 45:9 schemes [1] 82:7 private [7] 8:11,15 19:21 Question [33] 3:11 5:18,19 reject [1] 4:13 resort [3] 5:11 89:11,15 Schrock [1] 14:14 24:21 39:12 53:13 76:5 6:10,21 8:5 9:7 12:12 15: rejected [5] 46:16 71:9,24 respect [5] 18:3 24:24 46: scope [5] 17:15 20:24 30: pro [1] 79:2 11 16:7 17:16 21:14,15,19 72:5 73:23 18 73:23 82:9 11,13 31:7 probably [2] 9:6 27:3 23:20 28:18,24 31:20 33: rejecting [1] 72:20 respecting [1] 39:18 Scott [1] 4:19 problem [5] 5:15 9:2 13:12, 16,17 35:5 42:17 48:14 57: rejects [1] 42:3 Respondent [7] 1:7,21,25 searched [1] 48:11 15 41:5 8 65:18 69:18,25 71:13 72: relation [1] 90:1 2:7,11 38:16 68:17 second [3] 45:4 82:23 83:6 problems [2] 6:19,19 3 79:15 82:23 86:7 87:24 relatively [2] 30:7 69:15 response [1] 85:8 Section [9] 5:23 30:21 44: procedural 22:16 32:3 [5] questions [5] 5:5 40:14 57: relegate [1] 89:25 responses [1] 12:25 7,11 45:22 54:4,8 55:11 40:10 83:1 87:25 1 82:2 90:12 relied [1] 75:11 rest [2] 72:20 90:13 63:12 procedure [1] 40:8 quickly [1] 67:20 relief [13] 6:12 7:13 16:18 retain [1] 39:16 see [10] 7:22,25 14:1 23:15 proceed [6] 32:25 45:16 Quincy [1] 29:18 20:19 46:22 48:4 49:17,21, return [1] 27:1 33:9 39:23 59:21 62:22,22 46:7,8,10 71:19 quite [2] 8:25 24:16 23 52:11 53:23,24 57:10 reversal [2] 30:22 88:14 79:7 proceeding [2] 52:12 58: quote 39:16,20 [2] relying [4] 74:13 84:11,12, reversed [1] 22:11 seek [2] 37:14 64:24 13 quotes [1] 41:22 14 review [1] 64:25 seeking [3] 25:11,11 37:14 proceedings [2] 83:19 84: R remains [2] 6:21 61:13 RICHARD [1] 1:3 seem [2] 5:10 71:14 7 Railroad [3] 29:18 51:8 69: remand [5] 17:7 32:21 33: Richmond [1] 72:16 seems [5] 9:16 22:21 23:6 Process [16] 24:17,20 25:3 17 3,13 85:1 rights [23] 12:22 22:10 28: 64:4 71:13 29:22 41:13 54:12 61:16 raised [1] 82:21 remanded [4] 33:16 65:5 10,12,14 30:11,17 31:6,10 seizing [3] 26:3,4,7 70:9,11,13,15,16 78:19 85: rare [1] 30:8 83:18 84:6 33:19,22 35:2 39:2 43:5 seizure [1] 85:20 24 86:1 87:8 rarely [1] 30:3 remedial [3] 9:17 79:17,19 45:6,7 49:12 50:14 72:24 self-executing [1] 4:10 prohibited [1] 72:10 ratification [2] 16:19 40:4 remedied [1] 11:24 87:13 89:25 90:2,10 self-incrimination [1] 79: prohibition [4] 70:9 76:10 ratified [2] 7:24,25 remedies [3] 20:17 48:1 rise [2] 23:17 25:15 4 79:10 82:14 ratifying [1] 8:8 67:3 ROBERT [5] 1:18 2:3,13 3: self-interest [2] 56:15,19 prohibitory [2] 69:8 79:2 read [13] 16:9 24:23 25:2 remedy [47] 3:18 4:7,9 5: 7 87:20 sell [1] 51:9 promised [1] 50:11 46:17,19 52:9 54:16 57:23 21 6:15,16,23,25 10:16,17, ROBERTS [46] 3:3 33:10 seller [1] 38:1 proper [1] 87:10 68:3 75:11 80:22 83:5 84: 19 13:14 14:22 16:16 19:8, 34:6 35:9,17,20 36:4,7 38: semantics [1] 81:1 property [45] 3:22 5:8 7:18 23 14 20:6,7,21,23,24 24:11, 7,14 41:21 42:9,14,21,25 sense [2] 20:4 28:1 9:8 16:25 21:5,10 24:20, reading [2] 20:14,15 13 25:18 27:2 28:24 29:6 43:4,18,22 44:14 45:15 46: separate [2] 19:7 44:20 21 25:15 29:21 30:2 32:7, real [1] 88:17 31:16 32:1,2 37:1,2 39:21 5,15 55:18,22 56:5 67:12, separated [1] 56:18 9 35:6 36:16,25 38:4,20 realize [1] 53:24 48:15,19 49:1 53:16 56:7 16 68:5,8,14 70:25 71:3,22 seriously [3] 13:25 56:10, 47:4,17 51:2,3,6,7 53:6 55: 72:23 76:20,20 79:21,23 72:14,18 74:1 79:13 80:1, 11 really [6] 12:13 51:8 52:5 10,25 63:14 69:3,4,6,13 70: 55:6 69:18 72:2 87:10,10,12,15 4,7,10 81:25 85:3 86:14 set [1] 15:18 8 72:24 73:8 76:5,14 77:5 rearguing [1] 71:23 remember [2] 47:24 87:24 87:17 90:14 shall [7] 24:19,21 69:3,4 70: 81:1 85:13,15,16 89:25 90: reason [5] 4:20 6:15,16 16: remembering [1] 29:16 robust [1] 15:15 8,20 76:4 10 3 45:4 removal [3] 12:11 13:2 45: rogue [6] 53:19 56:20 82:3, shape [1] 6:14 protective [1] 38:22 reasonably [2] 75:11,23 2 13 85:8 88:16 shooting [1] 67:5 provide [15] 8:4 17:1 21:21 reasons [5] 39:7 44:19 55: remove [5] 30:8 31:19 43: Ruckelshaus [1] 69:16 shouldn't [2] 82:3,4 22:17 26:9 39:9 49:1 50: 15 72:3,6 10 44:18 46:9 rule [4] 7:2 31:23 73:13,18 shows [1] 35:4 12 54:14 57:12,25,25 79: REBUTTAL [4] 2:12 82:24 removed [8] 6:19 12:9 18: run [1] 31:1 shut [1] 55:6 23 82:15 88:23 87:19,20 6 23:25 44:15 64:2,19,20 runs [2] 8:11 34:18 side [1] 7:2 provided [4] 11:22 75:7,21 receive [3] 27:21 29:21 30: removing [1] 32:4 rush [1] 50:9 signed [1] 16:2 87:15 render [1] 82:15 similar [2] 19:5 24:16 1 provides [13] 4:6 18:21,23 recent [5] 4:18 42:7 59:22 rent [2] 35:11 37:24 S similarly [1] 27:17 21:3 34:3 52:14 65:19 74: reorganization 69:17 [1] same [15] 4:10,12 28:9 46: simplest [1] 19:13 69:15,15 12 60:18 68:3 70:4,19 76: 6,8 75:5 76:19 83:14 84: recently [1] 14:13 repeat [1] 78:22 simply [2] 32:5 40:12 19 repeated [1] 30:24 11,11 77:22 78:19 79:4,5 Since [1] 43:16 recognize [4] 7:7,10 27:8, 85:22 providing [2] 20:5 28:1 12 reply 5:6 [1] single [2] 44:25 45:1 represented [2] 60:11 84: San 34:20 [1] provision [8] 3:13 75:10, recognized [3] 4:11,22 19: sitting [1] 14:5 23 76:18 77:8 78:3,7 81: 18 satisfies [1] 40:10 situations [1] 70:1 19 saying [26] 6:14 14:5 16:25 15 recognizing [1] 40:2 representing 80:17 [1] small [1] 17:5 provisions [1] 68:25 record [1] 35:6 require [6] 24:11 28:19 29: 19:7 21:24 23:11 25:12,14 so-called [1] 73:19 public [5] 24:22 67:25 69:4 recover [2] 71:17 75:22 9 43:5 82:12 88:25 27:19 32:6 33:4 34:18 36: sold [1] 38:1 76:5 77:5 required [4] 11:17 16:16 2 46:20 49:19 55:6 59:5,9 Solicitor [2] 1:20,22 rectify [1] 37:13 60:23 64:22 65:2,18 71:15 purposes [1] 22:1 referring [1] 79:18 21:4 83:25 solution [1] 85:9 pursue [2] 12:23 42:19 requirement 26:12 [1] 74:11 81:8 85:16 somebody [1] 70:24 refuse [2] 31:9 40:12 says [31] 6:24 7:11,17 10:7 pursuing [1] 12:14 refused [1] 27:3 requirements [1] 6:7 somebody's [1] 48:11 put [3] 37:19 44:24 45:2 requires [4] 27:13 52:10, 13:3 18:17 23:2 30:16 34: somehow [2] 40:9 74:8 refuses [1] 85:14 13 39:9,10 50:13 51:23 52: putative [2] 44:21 45:12 11 84:3 someone [3] 19:15 37:24 Heritage Reporting Corporation Sheet 6 prevented - someone Official 45:25 staying [1] 32:22 19,25 13:14,20,22 14:2,3,5, 16 value [5] 32:8 37:5,19,24 someplace [1] 52:2 step [1] 64:23 10,12,19,21 15:24 16:3 17: Tucker [27] 4:5,6,9 26:1,8 38:2 sometimes [2] 15:18 73: still [11] 22:11 41:10,11 52: 7,11,16,18 18:11,12 21:21, 69:21 74:5,6,17 75:3,8,9, vehicle [1] 33:19 15 19 58:14 61:15,16 83:9,22, 24,25 22:1,2,8,17,19,25,25 14,21,24 77:11,12,15 78:2, versus [3] 3:4 69:16 72:16 soon [1] 46:9 24 84:9 23:2,6,25 27:16 30:10,18, 3,8,8 81:8 87:11,14 89:5,7 view [4] 25:22 28:1 42:3 74: sorry [9] 55:21,22 57:5 58: stop [4] 26:6 30:17 81:2,4 19 31:15,17,22,23 32:2,18 Tuesday [1] 1:11 5 5 62:1,2 79:12 80:6 81:24 stopping [1] 34:24 33:3,16,21 35:4,7 37:4 38: turns [2] 31:13 71:14 viewed [1] 8:9 sort [11] 20:9 43:11 49:25 stratum [1] 28:11 21,21,23,23 40:10,18,22 two [16] 11:2,3 12:25 19:10 vigorously [1] 61:7 50:24 52:11 54:12,14,19 structure [1] 82:5 41:3,8,11,17 42:18,19,20 21:1 22:7 42:7 44:18 46: vindicate [7] 11:6 12:21 58:14,14 89:20 subject [1] 28:7 43:13 44:23,24,25 45:4 52: 16 55:23 59:14 74:8,20 75: 14:4 22:10 23:13 28:3 87: SOTOMAYOR [36] 17:4,12, submitted [2] 90:16,18 14,14,19,20 53:2,6,7,10 57: 4 82:2 83:2 13 21 18:9,19 19:2,6 21:24 substance [1] 40:8 24 58:9,12,19,23 59:5,8,23 type [1] 67:3 vindicated [3] 11:10 28:14 38:8 41:20 62:1,4,7,15,25 substantive [14] 4:7,8 18: 60:10 61:17,19,22 62:10, types [1] 45:9 41:3 63:4,7,10,16,20,25 64:4,18 11,21 22:12 39:2 42:17 44: 12,16 63:12,22 64:1,6,13 vindication [1] 54:20 65:3,12 68:9 80:12,16,23, 8 46:21,25 52:11 54:18 75: 65:6,19 66:10,22 67:23 68: U vine [1] 8:6 25 81:6,11,18,21,23 82:25 10 84:13 4 83:9,14,14 84:15 88:1,2, U.S [1] 63:17 violates [1] 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Heritage Reporting Corporation Sheet 7 someone - without Official 25 33:18 39:25 55:25 69:5, 7 70:8,10,10,14 73:8 76:5, 14 77:5 86:1 wondering [1] 57:4 word [1] 48:19 work [5] 4:15 8:25 53:25 54:2 55:15 worry [2] 82:4,4 worth [2] 29:15 34:14 Wow [1] 34:13 writ [1] 26:18 write [1] 29:5 writing [1] 26:8 writings [2] 89:4 90:8 written [1] 70:18 wrongful [1] 37:13 wrote [4] 26:1,11 42:10,12 Y years [3] 51:21 71:4 75:1 Yep [2] 49:13 57:16 Young [5] 6:1 25:5,5,8 67: 3 Z zero [2] 74:20,21 Heritage Reporting Corporation Sheet 8 without - zero Official REPORTER'S CERTIFICATE The Contractor hereby certifies that the attached pages represent an accurate transcription of electronic sound recording of the oral argument before the Supreme Court of the United States in the matter of Richard Devillier v. Texas, Docket No. 22-913, and that these pages constitute the original transcript of the proceedings for the records of the Court. BY Karen Brynteseon, Court Reporter 2. Third Amended Petition, case no. C-0929-12-F Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres CAUSE NO. C-0929-12-F JOHNNY PARTAIN § IN THE 332 DISTRICT COURT Plaintiff § § OF HIDALGO COUNTY, TEXAS VS. § § STATE OF TEXAS, and et al. § Defendants § THIRD AMENDED PETITION 1. COMES NOW JOHNNY PARTAIN, Plaintiff in the above filed and numbered cause and files his Third Amended Petition and respectfully shows unto the Court as follows. DISCOVERY 2. Plaintiff intends that discovery be conducted under Level 3. PARTIES A. Plaintiff, JOHNNY RAY PARTAIN, 7020 N 16th Street, McAllen, Texas 78504; partain@atlastechnologies.biz; 956-240-1821; B. Defendant, STATE OF TEXAS, represented by Scot Graydon, Texas Office of Attorney General, P.O. Box 12548, Capitol Station, Austin, Texas 78711; scot.graydon@oag.texas.gov; 512-463-2120; C. Defendant, HIDALGO COUNTY, TEXAS, represented by Josephine Ramirez Solis, 100 E. Cano, First Floor, Hidalgo County Courthouse Annex III, Edinburg, Texas 78539; josephine.ramirez@da.co.hidalgo.tx.us; 956-292-7609; D. Defendant, CAMERON COUNTY, TEXAS, a local governmental entity, may be served with process by serving the present County Judge, or County Judge Eddie Trevino Jr. of said local governmental entity, at 1100 E. Monroe Street, Suite 218, Brownsville, Texas 78520; E. Defendant, MCALLEN POLICE CHIEF VICTOR RODRIGUEZ, represented by Ysmael D. Fonseca, Guerra & Sabo, PLLC, 10213 N 10th St, McAllen, TX 78504; yfonseca@guerraleeds.com; (956) 383-4300; Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres F. Defendant, CITY OF MCALLEN, TEXAS, a municipal corporation, represented by Ysmael D. Fonseca, Guerra & Sabo, PLLC, 10213 N 10th St, McAllen, TX 78504; yfonseca@guerraleeds.com; (956) 383-4300; G. Defendant, FARMERS INSURANCE, dba FIRE INSURANCE EXCHANGE, represented by Donean Surratt, Orgain Bell & Tucker, LLP, 470 Orleans Street, P.O. Box 1750, Beaumont, Texas 78704; djf@obt.com; 409-838-6412; H. Defendant, HIDALGO COUNTY SHERIFF/CONSTABLE JOSE EDUARDO GUERRA, HIDALGO COUNTY PRECINCT 4, represented by Josephine Ramirez Solis, 100 E. Cano, First Floor, Hidalgo County Courthouse Annex III, Edinburg, Texas 78539; josephine.ramirez@da.co.hidalgo.tx.us; 956-292-7609; I. Defendant, DEPUTY CONSTABLE CARLOS GONZALEZ, HIDALGO COUNTY PRECINCT 4, represented by Josephine Ramirez Solis, 100 E. Cano, First Floor, Hidalgo County Courthouse Annex III, Edinburg, Texas 78539; josephine.ramirez@da.co.hidalgo.tx.us; 956-292-7609; J. Defendant, JUSTICE OF THE PEACE HOMER JASSO SR., represented by Josephine Ramirez Solis, 100 E. Cano, First Floor, Hidalgo County Courthouse Annex III, Edinburg, Texas 78539; josephine.ramirez@da.co.hidalgo.tx.us; 956-292-7609; K. Defendant, DISTRICT JUDGE ALEX W. GABERT, represented by Benjamin L. Dower, P.O. Box 12548, Capitol Station, Austin, Texas 78711; Benjamin.Dower@texasattorneygeneral.gov; 512-465-4058; L. Defendant, DISTRICT JUDGE JOSE MANUEL BANALES, represented by Kelli Caitlin Fuqua, Texas Office of Attorney General, P.O. Box 12548, Capitol Station, Austin, Texas 78711; Kelli.fuqua@texasattorneygeneral.gov; 512-463-2120; M. Defendant, DISTRICT JUDGE ROBERT MAX BLACKMON, represented by Kelli Caitlin Fuqua, Texas Office of Attorney General, P.O. Box 12548, Capitol Station, Austin, Texas 78711; Kelli.fuqua@texasattorneygeneral.gov; 512-463-2120; N. Defendant, COUNTY JUDGE SERGIO VALDEZ, represented by Josephine Ramirez Solis, 100 E. Cano, First Floor, Hidalgo County Courthouse Annex III, Edinburg, Texas 78539; josephine.ramirez@da.co.hidalgo.tx.us; 956-292-7609; O. Defendant, DISTRICT ATTORNEY RENE GUERRA replaced by DISTRICT ATTORNEY RICARDO RODRIGUEZ, represented by Josephine Ramirez Solis, 100 E. Cano, First Floor, Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Hidalgo County Courthouse Annex III, Edinburg, Texas 78539; josephine.ramirez@da.co.hidalgo.tx.us; 956-292-7609; P. Defendant, COUNTY JUDGE RODOLFO GONZALEZ represented by Josephine Ramirez Solis, 100 E. Cano, First Floor, Hidalgo County Courthouse Annex III, Edinburg, Texas 78539; Q. Defendant, HIDALOG COUNTY SHERIFF GUADALUPE "LUPE" TREVIÑO, officially and personally, represented by Josephine Ramirez Solis, 100 E. Cano, First Floor, Hidalgo County Courthouse Annex III, Edinburg, Texas 78539; josephine.ramirez@da.co.hidalgo.tx.us; 956-292-7609; R. Defendant, BBVA USA, INC., Waterway Plaza II 10001 Woodloch Forest The Woodlands, Texas, 77380; represented by Charles C. Murray, 818 W. Pecan Blvd., McAllen, Texas 78501; ccmurray@atlashall.com; 956-682-5501 S. Defendant, COMPASS BANK aka BBVA, 15 South 20th Street, Birmingham, Alabama, 35233; represented by Charles C. Murray, 818 W. Pecan Blvd., McAllen, Texas 78501; ccmurray@atlashall.com; 956-682-5501. III. JURISDICTION 3. This Court has general jurisdictional authority under Article V, § 8 of the Texas Constitution and Tex. Gov’t Code § 24.011 is properly invoked by the filing of a Tex.Civ.Prac. & Rem.Code §§ 37.004(a), 37.006 for declaratory judgment. This Court has concurrent jurisdiction over 42 USC § 1983, Civil Action for Deprivation of Rights, and 18 U.S.C. 1964, Racketeer Influenced Corrupt Organization, pursuant to Article VI, Clause 2 of the United States Constitution. See Tafflin v. Levitt, 493 U.S. 455 (1990). This Court also has jurisdiction over inverse condemnation claims through a waiver of sovereign immunity per Texas Constitution Art. 1 Sec 17. IV. FACTS1 1 Appendix references refer to 151016 Second Amended Petition Optimized Vol 2 file on 11/03/2015 in the above numbered and styled case. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres 4. Johnny Partain, Plaintiff herein, was a large judgment creditor in Cause CL-29,530-[A] in Hidalgo County Court No. 1 pursuant to a Final Judgment dated July 24, 2002, for approximately $453,000 (App. 1, Final Judgment; App. 2. Abstract of Judgment). The final judgment was later modified to a Third Amended Judgment (App. 4, Third Amended Judgment) on February 23, 2003, through Judge Rodolfo Gonzalez: Judge Gonzalez allegedly reestablished the Court’s plenary power after a writ of execution had been issued in CL-29,530-[A] on a TRCP 306 motion that the judgment debtors did not have notice of the Final Judgment (see App. 3, Attached Letter of Debtor’s attorney describing fraudulent conveyance plan and acknowledging that the judge would make a determination by July 22, 2002) although the judge gave warning at hearing that he was signing the judgment and the judgement itself shows that it was sent to the defendants. Compass Bank originally expressed to the judge that they wanted to protect the defendants and Judge Gonzalez initially amended Partain’s judgment three time, taking awards and claims from the original judgment. Judge Gonzalez expressed to Partain that it, [sic] “should be accepted as a business loss.” Partain made a complaint and petitioned for mandamus from the 13th Court of Appeals to restrain the judge. The 13th Court of Appeals using its “legal discretion” refused to restrain the judge. Judge Gonzalez again allegedly amended the final judgment, to make Partain a judgment debtor, approximately 8 years later when Compass Bank offered to release a lien in exchange for protection from Partain’s RICO lawsuits. 5. Compass Bank also assisted the judgment debtors to avoid their debt by encumbering or conveying all their assets to a corporation (App. 5, Special Warranty Deed) per debtor attorney’s written instruction and debtor’s neighbor Paul Moxley, President of Compass Bank, who approved all their paperwork. Global Limo, Inc. (aka Atlas Transportation, Inc.) was originally a scam designed by debtors to control and to “fraudulently convey” assets away from satisfaction of judgment in case no. CL-29,530-A. The debtors hid all their non- exempt assets in the corporation and Compass Bank cross-collaterized its assets as planned through their close relationship. Compass Bank refused to abide by court orders and specific requests from Partain as the bank liquidated and transferred monies from existing business accounts to new accounts for the debtors on basis of another illegal order issued in Judge Gonzalez’ court which had been entered with the “forged” signature of the judge on or around February 2, 2005: Judge Gonzalez refused to void the illegal order, but did reverse it Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres after allowing the damage to be done. Partain was deprived his property interests and due process. One of these accounts established under Kathleen Maples was used to transfer FEMA funds earned by Global Limo, Inc. during hurricane Rita, for approximately $240,000, away from the corporation without report to the debtors’ bankruptcy or its owner, Johnny Partain. Compass Bank also fabricated new written agreements with the debtors to control Global Limo, Inc. after they received certified turnover orders from County Court no. 1 and notice from Partain that the debtors had no interests in his corporation. 6. Partain was able to obtain a turnover order on January 27, 2005, for all interests in the corporation, Global Limo, Inc. in an attempt to salvage any asset value and to offset damages through the corporation’s operation. App. 6, Order (Original Turnover Order), Case no. CL- 29,530-A, dated 1/27/2005. Partain purchased a condo from the corporation on Jan. 27, 2005, and filed a Special Warranty Deed with the Hidalgo County Clerk approximately one week prior to Compass Bank filing a Deed of Trust on the same property. App. 7. Special Warranty Deed, dated 1/27/2005. The judgment debtors then filed a Title 11 bankruptcy (immediately after purchasing a ranch house) on or about February 17, 2005, styled In Re: James H. Maples and Virginia Kathleen Maples, case no. 05-bk-70128. They also filed a bankruptcy adversary, case no. 05-bk-07009, Maples v. Partain, with the assistance of Compass Bank’s lawyers under the main bankruptcy case to seize control of Global Limo, Inc. During the pendency of the bankruptcy court’s seizure of the corporation, 23 people were killed in a bus fire pursuant to Compass Bank and the debtors exploitations of the corporation. Thereafter, Partain received nearly a billion dollars in claims for wrongful death by the families of their victims. Partain was enjoined from complaining or defending his corporation from its illegal operation through the efforts of Compass Bank and he was even threatened with contempt for raising the issue that the company wasn’t even in bankruptcy and shouldn’t be under the control of the court. 7. The adversary case judge whom had seized Partain’s corporation on Compass Bank’s efforts and arguments did his best to intimidate Partain from raising any issues regarding the operation of the company. The bankruptcy judge “avoided” the County Court’s original Turnover Order and the condo’s purchase by the Partain (which under bankruptcy law would have reverted title back to Global Limo, Inc. and reimbursed Mr. Partain his payment) placing the corporation and condo into the estate of the debtors so they could pay for their Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres bankruptcy and reimburse Compass Bank. App. 8, Judgment, Maples v. Partain, Case no. 05-bk-07009, dated 4/27/2006: Note that the Texas corporation Global Limo, Inc. was never in bankruptcy, although it was treated like an asset instead of a legal entity in the adversary case by the bankruptcy court to evade the corporation’s legal rights for the benefit of Compass Bank, on Compass Bank’s arguments to the bankruptcy court that the company was of interest to all creditors. Partain’s standing was removed and he was not allowed to sue Compass Bank in a counter-claim, however it was ordered that [sic] “Partain’s Third Amended Judgment issued by the Hidalgo County Court at Law No. 1 in case CL 29,530-A was excepted from any discharge. 8. After the bankruptcy avoidance proceeding, Compass Bank returned to the main bankruptcy case and motioned the bankruptcy court to allow it to foreclose against Global Limo, Inc. and the condo since the debtors actually had no interests in either (an avoidance under bankruptcy requires an interest by bankruptcees that will add value to the estate). App. 10, Texas State Bank’s Motion For Relief From The Automatic Stay, Bankruptcy Case no. 05-bk-70128, dated 05/16/2006. Compass Bank obviously lied to the courts to achieve control over the interstate transportation company and its assets by claiming it had value that had to be shared by the bankruptcy creditors, and then after the bank had control Compass Bank represented that the company had no value to other creditors. Bankruptcy Judge Schmidt then allowed Compass Bank to foreclose against the condo but he didn’t have jurisdiction to allow them to foreclose against Global Limo, Inc since it was not a party in bankruptcy. App. 9, Order Granting Texas State Bank’s Motion For Relief from The Automatic Stay, Bankruptcy Case no. 05-bk-70128, dated 08/24/2007. 9. The debtors’ bankruptcy estate was dissolved on August 22, 2007 on approval of their plan to pay creditors, but the debtors later refused to pay any creditors, except Compass Bank. App. 15, Creditor, Plaintiff’s, Third Amended Complaint Of Debtors’ Default Of Plan Payment, case no. 05-70128, date 3/14/2008; App. 16, Final Docket Report, case no. 05- 70128. Bankruptcy court also refused to enforce the debtors’ bankruptcy plan although Partain made multiple and constant complaints, and accordingly, Partain was directed by the bankruptcy court’s to return to county courts to enforce his judgment since it was non- dischargeable and because he was a “super-creditor.” Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres 10. On August 18, 2008, Hidalgo County No. 1 trial court entered Turnover No. 5 (App. 11, Turnover Order No. 5, Case No. CL-29,530-A, dated 8/18/2008) to assist Partain to collect his judgment. Partain used the turnover to recover his assets (a condominium identified in App. 7, Special Warranty Deed, January 27, 2005, and identified hereafter as the “real property”) and the corporation, Global Limo, Inc. Partain then added Compass Bank as a party to a RICO complaint in federal case no. M-07-016 on January 23, 2009, but the case was dismissed for judicial immunity just prior to the amended petition being filed. Partain’s complaint containing Compass Bank was also struck for not obtaining permission to amend his petition pursuant to a new FRCP rule that took effect after the filing of his amended petition. The dismissal and the striking of Partain’s amended petition was pursued through the 5th Circuit which affirmed the original dismissal on basis immunity on July 28, 2010. 11. On or about September 22, 2010, attorney Kelly McKinnis advised Judge Gonzalez that his clients could help pay off their judgment debt in case no. CL-29,530-A to Partain if the Court would “lean” on Compass Bank to release a lien against Partain’s house. He proposed that the Court could use that credit to the debtors’ advantage. Mr. McKinnis represented that Compass Bank was afraid of Partain’s RICO (Racketeer Influenced Corrupt Organization) complaints against the bank, and that the bank would do “anything” to get away from his claim. App. 67, Affidavit. Judge Gonzalez asked Partain if he approved. Partain advised Judge Gonzalez that litigants do not come to a court asking for equity with “dirty hands”, admitting to a crime, and then expecting the Court to continue the crime to pay off their debt with the creditor’s assets. The lien that Mr. McKinnis spoke was an unenforceable lien taken against Partain’s house to generate a debt whose partial value was laundered through Partain’s company, Global Limo, Inc. without Partain’s authorization, to an escrow account under a trust in north Texas for the cash benefit of the judgment debtors just 2 weeks before filing for bankruptcy to buy a ranch house (the ranch house was given to a debtor’s lawyer to pay for criminal defense – debtor was convicted). App. 81, Disbursement Authorization and Promissory Note (regardless of the documents’ alleged dates, note that the documents were not file with the Hidalgo County Clerk’s Office until much later, after Partain had already instructed the bank to put a hold on his corporate accounts and a week after Partain had already filed a deed with the Hidalgo County Clerk’s Office for the same property). Judge Gonzalez called Vicky Skaggs with the Atlas & Hall Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres LLP law firm who represented Compass Bank, and Compass Bank then released the $47,000 lien against Partain’s real property on October 4, 2010, although Compass Bank was not a party to the suit. App. 19, Release Of Lien, dated October 4, 2010. Partain also spoke to Vicky Skaggs who confirmed that the judge had contacted her personally, before she talked to the bank. 12. Partain continued to use legal process and self-help to recover the assets and records for his company. Many company assets were abandoned throughout the Gulf Coast from Texas to Louisiana, and unrecoverable since their locations and information was hidden. On January 5, 2011, Partain filed his third request for execution which was stayed by Judge Rudy Gonzalez. App. 20, Request For Writ Of Execution, CL-29,530-A, 1/25/2011. On February 2, 2011, Judge Gonzalez entered a void Order allegedly modifying the Third Amended Judgment and crediting $75,000 to the judgment Debtors for the Partain’s recovery of his real property while at the same time making the Partain a judgment debtor for $14,120.26 plus any other costs. App. 21, Order, Case no. CL-29,530-A, February 2, 2011. Partain filed a petition for mandamus in the 13th Court of Appeals, case no. 13-11-00276- CV, complaining that Judge Gonzalez engaged in bank fraud, and was illegally attacking the orders of the court instead of enforcing them as required by law. Partain was deprived his property interests and due process. The 13th Court of Appeals again using their “legal discretion” refused to act and dismissed Partain’s petition. Partain also appealed to the 13th Court of Appeals through case no. 13-11-00289-CV on May 3, 2011. 13. Concurrently on or about May 13, 2011, and approximately three month after being credited $75,000 for Partain’s real condo, a judgment debtor (deceased James Maples) and his family attorney, William McCarthy, perjured themselves by filing a petition to evict Partain’s tenant Joe Guerrero from the Partain’s real property arguing that they were landlords or owners2 of the Partain’s real property and that they had not been paid in approximately 3 years (since Partain had exercised Turnover Order No. 5). App. 22, 2 James Maples sold the real property to Global Limo, Inc. in 2004, and Johnny Partain bought the real property from Global Limo, Inc. in 2005. The bankruptcy court avoided Partain’s purchase from Global Limo, Inc., but never returned his considerations. The real property allegedly reverted back to the original owner, Global Limo, Inc., although Global Limo, Inc. was never in bankruptcy. Regardless, it was never disclosed by the 13th Court of Appeals, District Attorneys Office, Compass Bank, County Court no. 1, or the Justice of the Peace Homer Jasso how James Maples or his attorney came to be entitled or owners of the real property after having sold it in 2004. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Plaintiff’s Petition, Case no. JP2011-197, dated May 13, 2011, Plaintiff’s Petition, case no. JP2011-197. Joe Guerrero and Partain had a court enforced rental agreement through Hidalgo County Court No. 1, case no. CL-08-3320-A. App. 23, Judgment, CL-08-3320-A, dated 2/03/2009, Order, case no. CL-08-3320-A. Strangely, Partain was not allowed to contest the forcible detainer petition because Justice of the Peace Homer Jasso claimed that the Hidalgo County District Attorney’s Office through District Attorney Rene Guerra advised him that Partain was not sued and that Partain was not allowed to participate in the detainer proceedings per the law since he was not sued. By this time a commander for the Hidalgo County Sheriffs Office warned Partain that his complaints of local corruption in his Congressional Campaign for US Congress, District 15, had “pissed off the power that be” and that they were going to retaliate. He advised Partain that he had become a hot topic subject at the Sheriffs Office. District Attorney Rene Guerra supported JP Jasso’s default order and advised JP Jasso that there was no option available except for Partain to petition for a TRO since this was a civil matter only. Judge Jasso entered Default Judgment to take possession of the Partain’s condo, although Partain was not named in the judgment: The Hidalgo County Tax Appraiser listed Partain as the certified owner. App. 24, Default Judgment, Case no. JP2011-197, dated 6/03/2011; App. 25, Civil Docket, JP2011-197. Partain attempted to file a criminal complaint at the District Attorney’s Office, but Partain was refused. Instead, he was directed to file a complaint with McAllen Police or the Sheriff’s Office. McAllen Police refused to document a complaint on excuse that Hidalgo County corruption was outside their jurisdiction. The Hidalgo County Sheriff’s Office declined to act on Partain’s complaint stating that they lacked jurisdiction. App. 26, Signed Certified Mail Receipts to District Attorney Rene Guerra, McAllen Chief of Police Victor Rodriguez, McAllen Mayor Richard Cortez, and Letter Complaining of Fraud, dated 6/15/2011; App. 27, Letter to Hidalgo County Sheriff’s Office, dated 5/25/2011; App. 78, Hidalgo County Sheriff’s Office Incident Report. The City of McAllen through Police Chief Victor Rodriguez and District Attorney Rene Guerra used their “legal discretion” to assist the seizure of Partain’s real property and to threaten Partain with charges for criminal trespassing. Partain filed a complaint against JP Homer Jasso with the State Commission on Judicial Conduct, which went nowhere. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres 14. Concurrently, Partain’s case no. CL-29,530-A became a cause without a judge (when Judge Rudy Gonzalez recused himself sua sponte), unable to enforce it’s orders, so on June 6, 2011, Administrative Judge Orlando Olvera assigned retired District Judge Alex Gabert to county court case no. CL-29,530-A, and ordered Judge Gabert authority [sic] “until the plenary power has expired.” However, the plenary power of the case had already expired in 2002, and Partain challenged Judge Gabert’s assignment for lack of jurisdiction (particularly over a contempt proceedings against the debtors), requesting Administrative Judge J. Rolando Olvera to reassign Judge Gabert and requesting Judge Gabert to seek reassignment with the necessary authority to enforce the decrees of the court. Partain made complaints to the 5th Administrative Judicial Region whom ignored Partain. Then on November 1, 2011, recused Judge Rudy Gonzalez transferred case no. CL-29,530-A to Hidalgo County Court no. 7 without any apparent authority and the county clerk’s changed the case no. to CL- 29,530-[G] - while the case was purportedly under the assignment of Judge Gabert. App. 28, CL-29,530-[H] Docket Report. Judge Alex Gabert continued to administer the case in County Court No. 7, although he refused to acknowledge the case’s final Third Amended Judgment. The 13th Court of Appeals abated and dismissed appeals case no. 13-11-00289- CV since it was unclear if Judge Gonzalez’s Order (App. 21) was a final order and because Partain and debtors made a Rule 11 agreement to allow the Court to enforce the existing final judgment of the Court. Instead, Judge Gabert immediately broke the agreement and allegedly entered another Final Judgment, dated Mar. 16, 2012, making Partain a debtor for almost $180,000 and taking Partain’s real property and giving it to the judgment debtors although the Partain had not been sued. App. 29, Final Judgment, Case no. CL-29,530-A, dated 3/16/2012. William McCarthy then requested a writ of possession and the judgment debtors were awarded an order for possession. Appendix 25, Civil Docket, JP2011-197. Partain was deprived his property rights and due process. 15. As advised by DA Rene Guerra, Partain filed a petition for a temporary restraining order and injunctive relief in Hidalgo County District Court case no. C-0929-12-F, on or about April 5, 2012, complaining of abuse of process and interference with an existing contract (App. 69) which he supported through a rich showing of certified evidence (see App. 11, 43) documenting his authority and rights to his real property (being used as a Congressional Campaign Headquarters at the time since his renters had been personally Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres harassed) (App. 76) at a preliminary injunction hearing held in the 332nd District Court on April 16, 2012. Partain demonstrated a pattern of fraud, mortal intimidation, and injuries by debtors. Partain demonstrated a lack of jurisdiction by JP Homer Jasso Sr., and Sheriff/Constable Jose Eduardo Guerra so strong that the issue was not further argued or defended. App. 11, Turnover Order No. 5; App. 69, Reporter’s Record, 332nd District Court, April 16, 2012. Partain sought an injunction and a declaratory judgment regarding the justice court’s lack of jurisdiction in case no. JP2011-197, but Partain was denied relief since the judgment debtors claimed they finally owned Partain’s real property through Judge Gabert’s Final Judgment dated March 16, 2012. App 29, Final Judgment (Void). The District Court put very heavy weight on Judge Gabert’s Final Judgment and accused Partain of collaterally attacking it. App. 30, Temporary Injunction Hearing (Transcript), C-0929-12-F, dated 4/16/2012. District Judge Mario Ramirez dissolved the temporary restraining order and refused Partain any relief or protection. App. 31, Order Denying Injunctive Relief And Dissolving The Temporary Restraining Order, C-0929-12-F, dated 05/02/2012. Partain was deprived his property interests by District Judge Mario Ramirez and District Judge Alex Gabert. 16. Sheriff/Constable Guerra claims he spoke to the District Court which authorized him to stage an armed assault, with a SWAT team, against Partain at his house (his congressional campaign headquarters) - at almost exactly the same time as the Partain’s scheduled televised campaign forum against the incumbent US Congressman, Ruben Hinojosa. On May 7, 2012, Partain was scheduled to participate in the only televised forum to include all congressional candidates for the United States House of Representatives, but Sheriff/Constable Guerra and Deputy Constable Carlos Gonzalez assaulted Partain’s property, breaking locks off outside electrical panels and turning off the power and water. Partain was able to convince the power company to send out a technician nearly 6 hours later to instruct the police that they were breaking the law by turning off power and water, and Partain’s power and water was restored about 2 hours after that. Deputy Constable Carlos Gonzalez represented to McAllen Police that he had an order from this District Court ordering Partain to vacate his home - but that order does not exist. App. 79, Police Report, May 7, 2012. Deputy Constable Gonzalez also lied to McAllen Police using a standard law enforcement cliche that Partain threatened him with a pistol. The City of McAllen dispatched additional SWAT police with rifles and body Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres armor around Partain’s real property, partial closing Nolana Street in McAllen, Texas, although Partain never made a mention of or even displayed any specific kind of weapons he might have had on his property. Hidalgo County Constables represented to the news reporters that Partain was under house arrest, and thereafter surrounded and threatened Partain with arrest and criminal charges for three [3] days. On Wednesday, May 9, 2012, a reporter for KGBT news called the Sheriff’s office on behalf of Partain to confirm that there was no arrest warrant for his person and verified with the Constable that there were no actual impending criminal charges against Partain: The Constables finally withdrew on Wednesday quoting to the reporter that they did not have a legal means to enter the premises since Partain owned it. On Friday, May 11, 2012, Sheriff/Constable Guerra with several deputies and McAllen Police broke Partain’s front and rear entry doors down, breaking windows and absconding away with Partain’s business assets and records, vehicle titles, furnishings, campaign materials and records, sign making equipment, and other miscellaneous items while Partain was working. They seized Partain’s home and still have possession of his assets as of the date of the writing of this Third Amended Petition. Constable Deputies and McAllen Police directly threatened Partain that if he attempted to take repossession of his property that he would be arrested for criminal trespassing, regardless of his perceived rights or duties under the law. McAllen Public Utilities further canceled Partain’s water account and re-established it for actual trespassers against Partain’s protest, claiming it was a city policy to provide water to anyone who requested it at any address. 17. At the same time, Hidalgo County, Hidalgo County Drainage District #1 and McAllen Independent School District filed a tax suit in case no. T-1394-12, for approximately $700 in unpaid ad valorem tax accrued before Partain acquired possession of his property – mainly due to a justice court refusing to enforce its own orders for writs of possession in 2008 and 2009 requiring Partain to file an appeal in a county court in 2009. Partain paid all the property taxes on the property while he had possession of it, but no taxes have been paid since 2012 when Hidalgo County and the City of McAllen seized the property and destroyed its ability to generate income. The property has not been returned to Partain, nor has Partain been compensated his rents or injuries. 18. Upon seizing of the property, Partain’s original petition in case no. C-0929-12-F was effectively mooted and the status quo was changed by the District Court. Partain was forced Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres to continue his litigation in the 13th Court of Appeals by filing an appeal, case no. 13-12- 00267-CV, on April 27, 2012, to complain of the “new” Final Judgment and to reestablish his rights to his real property. The appeals case was lost for approximately one year. Partain went to the Texas Legislature and lobbied for relief before speaking to the General Counsel for the Texas Supreme Court, who went to the 13th Court of Appeals and had Partain’s case found and back on the docket within a half hour. On May 9, 2013, the 13th Court of Appeals issued its Opinion in case no. 13-12-00267-CV declaring Judge Gabert’s Final Judgment to be void in Hidalgo County Court case no. CL-29,530-G, having no jurisidiction. App. 32. Opinion, Appeals Case no. 13-12-00267-CV, dated 5/9/2013. Immediately on May 14, 2012, Judge Ramirez ordered a hearing for dismissal of Partain’s complaints under TRCP 165a and on his authority as a judge. App. 33, Notice of Hearing For Dismissal For Want Of Prosecution, Case No. C-0929-12-F, Dated May 14, 2013. 19. A dismissal hearing pursuant to TRCP 165a did not occur so Partain filed his 190 page Plaintiff’s First Amended Petition For Injunctive Relief Consolidating §1983 Civil Rights Violations and Rico Complaints; And Request For Disclosure; With Objection, on June 3, 2013, causing service on additional defendants. App. 34, Dismissal For Want Of Prosecution Hearing Transcript, dated 6/3/2013; Partain also filed his Plaintiff’s Motion For Summary Judgment Against James Maples on or about June 11, 2013. App. 35, Plaintiff’s Motion For Summary Judgment Against James Maples, Case no. C-0929-12-F, dated 6/11/2013. The District Court ignored the Partain’s motion and on July 3, 2013, the Court unexpectedly entered its Order Dismissing For Want Of Prosecution, Denying Partain’s Motion To Retain, and allegedly at the same time adjudicating the issues with prejudice. App. 36, Order Dismissing For Want Of Prosecution And Denying Plaintiff’s Motion to Retain. Case no. C- 0929-12-F, dated 7/3/2013. Partain immediately filed his Plaintiff’s Certified Motion To Reinstate Case DWOP which Judge Ramirez again ignored. On July 8, 2013, Partain filed an appeal in the 13th Court of Appeals, case no. 13-13-00341-CV, on argument that he is constitutionally entitled to an open court and due process. The 13th Court of Appeals lost the case for approximately two years this time until Partain filed for mandamus orders in the Texas Supreme Court, case no. 15-0343, against nine judges engaged in criminal activities. A judge from the 14th Court of Appeals was appointed by the Chief Justice of the Supreme Court to the case who agreed with Partain’s appeal. However, the Supreme Court, and every Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres other agency of Texas, failed to respond to Partain’s criminal complaints against the judges, allowing their abuse to continue against Partain and his property. Thereafter, the appeals court reversed and remanded Judge Ramirez’ order of dismissal. App. 68, Memorandum Opinion, 13th Court of Appeals, case no. 13-13-00341-CV, dated 7/2/2015. However, the 13th Court of Appeals refused to enforce its mandate on Judge Ramirez. Apparently it has the “legal discretion” to do so. 20. Concurrently on May 24, 2013, Partain went to Hidalgo County Court No. 7 to enforce Turnover Order No. 5, Turnover Order No. 6, and the Third Amended Judgment since his case mysterious ended up being sent there. Inexplicably, Judge Sergio Valdez sat in on the case although Judge Alex Gabert was assigned by the 5th Administrative District. Judge Valdez refused to enforce the Third Amended Judgment. Instead Judge Valdez directed Partain and William McCarthy to provide briefs. On October 10, 2013, Judge Valdez under the color of law again allegedly modified the prior final orders of the Court in violation of the 13th Court of Appeals Opinion of case no. 13-12-00267-CV by entering Order Of The Court, allegedly replacing the Third Amended Judgment again and ignoring all turnover orders. App. 37, Order Of The Court, Case no. CL-29,530-G, dated 10/10/2013; App. 32, Opinion, Appeals Case no. 13-12-00267-CV, dated May 9, 2013; App. 39, Corrected Mandate, Appeals Case no. 13-12-00267-CV, dated 8/16/2013. Judge Valdez absolutely refused to enforce Partain’s final judgment from years earlier, or to return Partain’s illegally seized property. Partain made his Judgment Creditor’s Motion To Strike, Case no. CL-29,530-G, dated 11/12/2013, and at hearing on January 22, 2014, Judge Valdez duplicated Judge Gabert’s acts and violated the 13th Court of Appeals Opinion again by hearing evidence and refusing to enforce turnover orders since Judge Valdez represented that he had overturned the Third Amended Judgment to which said turnover orders applied - and invited Partain to appeal again. App. 38, Judgment Creditor’s Motion To Strike, Case no. CL-29,530-A, dated 11/12/2013; App. 42, Hearing On Motions (To enforce orders of the court) CL-29,530-G, dated 1/22/2014 (Tr. p.12-25). Partain thought it a pointless exercise to appeal if the courts refused to conform to the orders or mandate of the higher court, and the higher court refused to enforce its mandate. Seemed like just a bunch of paper pushing with no substantive due process. Partain had no reasonable remedy at law to address his accruing injuries. Partain was deprived his property interests and due process. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres 21. A judgment debtor died on or about March 28, 2014. Judge Valdez refused to add the new parties-in-interest (heirs) pursuant to TRCP 155, or to enforce any orders on a remaining debtor. Having no reasonable remedy in law, Partain repossessed his own real property, made repairs again, and rented it: Partain’s deed, Turnover Order No. 5, Hidalgo County Clerk’s record, and tax entity information (App. 43, Hidalgo County Tax Statements, El Cazador #2 E 18.41’ of W 60.82’ Of Lot 37 – Unit 2, Certified Owner: Plaintiff) showed that Partain still owned his property. Up to this time Partain had spent $39,000 repairing his property twice – this doesn’t include the taxes he paid. However, attorney William McCarthy now claimed he owned the Partain’s property through deed prior to the death of his client although McCarthy could produce no documents. See also App. 42, Hearing On Motions (To enforce orders of the court) CL-29,530-G, dated 1/22/2014 (Tr. p.15, pp.16-18 “The condominium. The condominium was given to me [McCarthy]. So if he wants to sue me that’s fine.). 22. On July 15, 2014, William McCarthy, changed his argument again, misrepresenting himself as the executor and administrator of “The Estate of James Maples”, harassed and then filed a forcible detainer action against Partain’s tenant, Dora Martinez - but not against the Partain - again through Justice of the Peace Homer Jasso, case no. JP2014-458, in violation of Turnover Order No. 5 and the 13th Court of Appeal Opinion, now claiming that “The Estate Of James Maples” was the owner and landlord of the real property. App. 44, Original Petition For Forcible Detainer, Case no. JP2014-458, dated 7/15/2014. He lied in his sworn statement because a probate case hadn’t even been filed yet, and he had no proof of ownership. Partain filed a motion to intervene in the case and answered, objecting to the justice court’s lack of jurisdiction and to William McCarthy’s lack of standing. App. 45, Answer, Case no. JP2014-458, dated 7/28/2014. Partain motioned for Justice of the Peace Homer Jasso to recuse himself, since Judge Jasso claimed to have superior knowledge of title, appeared hostile, and because he is a defendant and a witness in this instant district case no. C-0929-12-F and appeals case no. 13-13-00341-CV involving similar circumstances against Partain. App. 46, Johnny Partain’s First Motion To Recuse, Case no. JP2014-458, dated 8/4/2014. 23. JP Homer Jasso refused to acknowledge or honor Partain’s Turnover Order No. 5 or his objections, claiming he had superior knowledge of title because the District Attorneys Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Office claimed James Maples was the owner of the Partain’s real property, and claiming that Assistant District Attorney Michael Garza advised him that Partain was not allowed to speak at any hearing since he was not sued and had no standing. William McCarthy motioned to have the Partain be held in contempt. Partain pointed out to JP Jasso that if he thought that Partain was not a litigant and had no orders directed at him, then it was impossible to find him in contempt. JP Jasso then stated that the District Attorney’s Office was already looking for a way prosecuted Partain - failure to violate the criminal code first is not an impediment to criminal prosecution. JP Jasso ignored the Opinion of the 13th Court of Appeals that Partain had to be sued first if he wanted to take his property. On Sept. 29, 2014, JP Jasso ordered a Default Judgment for the “Estate of James H. Maples” claiming that his hands were ministerially tied since Partain couldn’t participate in hearing per the Hidalgo District Attorney’s Office and wasn’t a party under the law. App. 47, Default Judgment, Case no. JP2014-458, dated 9/29/2014. JP Jasso claims it’s a loophole in Texas law that anybody’s property can be taken if you sue someone else and they don’t answer. Partain filed a criminal complaint against William McCarthy directly with the Hidalgo District Attorneys Office who told him that they would not prosecute because Partain’s issues were a hot political potato. Apparently, the Hidalgo District Attorneys Office who represents the State of Texas in criminal prosecutions has “legal discretion” to ignore crimes and the injuries they cause. Partain also filed a complaint with the Texas State Bar who immediately rejected his complaint without investigation. Apparently, the Texas State Bar, a department under the Texas Supreme Court, has “legal discretion” to ignore crimes and the injuries they cause. Partain was deprived his property interests and due process. 24. Partain filed his own “ministerial” forcible detainer suit in Justice Court, Pct. 4, Pl. 2, case no. JP2014-531 on August 29, 2014, since his tenant failed to pay rent after being harassed by William McCarthy and since JP Jasso alleged his actions to exclude the Partain and issue a default judgment were ministerial and required by the law. App 48, Petition For Forcible Detainer, Case no. JP2014-531, Johnny Partain v. Dora Martinez dated 8/29/2014. But JP Jasso refused to ministerially act for Partain and requested he document his ownership for Assistant District Attorney Michael Garza in case no. JP2014-531. Partain filed his proof ownership and delivered a copy of the documentation directly to Michael Garza on September 12, 2014, to memorialize their request. App. 49, Johnny Partain’s Demonstration Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Of Title As Requested By Judge Jasso Per Micheal Garza Of The District Attorney’s Office, JP2014-531, dated 9/12/2014. Judge Jasso declined to exercise his alleged ministerial duty to rule on Partain’s forcible detainer suit, claiming he was following the advice of the DA’s office. Partain was again deprived his property interests and due process. 25. Partain filed an Intervenor’s Notice of Appeal and Appeal Bond on September 3, 2014, and the Justice Court’s transcript and original files were received from the Justice Court by the Hidalgo County Clerk on Sept. 9, 2014. App. 50, Letter of Receipt of Appeals Documents by County Clerk, CL-14-3542-E, dated 9/10/2014. Then JP Jasso entered a Writ of Possession order on September 11, 2014, against Partain’s property, in direct conflict with Texas Property Code § 24.0054 (3). App. 51, Writ of Possession, Case no. JP2014-458, dated 9/11/2014. 26. Partain rushed to file his Appellant’s Emergency Motion For TRO to protect his property during the appeal of the Justice Court’s Default Judgment in Hidalgo County Court No. 5, case no. CL-14-3542-E. App. 52, Appellant’s Emergency Motion For TRO, Case no. CL-29,530-G, dated 10/08/2014. A hearing on the motion was had on September 29, 2014, and on Oct 3, 2014, case no. CL-14-3542-E was mysteriously dismissed without warning, leading to an appeal in the 13th Court of Appeals, case no. 13-14-00584-CV on October 7, 2014. App. 53, Order (Dismissal of action), Case no. CL-14-3542-E, dated 10/3/2014. A subsequent Finding Of Fact And Conclusion Of Law documents many serious and dubious misrepresentations by Judge Arnoldo Cantu, Jr. not supported by the Court’s record, but demonstrating the finality of the “dismissal order” and intent of ending any complaints. App 54, Finding of Facts and Conclusions of Law, Case no. CL-14-3542-E, dated 10/17/2014. The Finding of Facts and Conclusions of Law were written by William McCarthy without any argument being allowed from Partain since it was concluded he had no standing to appeal. 27. Plaintiff appealed County Court No. 5 Order to the 13th Court of Appeals and again made an Emergency Motion For Temporary Restraining Order To Protect The Status Quo, but the 13th Court of Appeals did not timely respond. On October 9, 2014, Hidalgo County Constables broke into and seized Partain’s house again, with the assistance of the McAllen City Police. Hidalgo County Constables with McAllen Police moved attorney William McCarthy into Partain’s house. Partain was again threatened by McAllen Police with arrest Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres for criminal trespass if he returned to his property. When the 13th Court of Appeals finally responded the Court’s insinuated that the appeals from case CL-14-3542-E was interlocutory and that Partain was somehow a debtor. App. 55, Order (Denying relief), Appeals Case no. 13-14-00584-CV, dated 11/19/2014. 13th Court of Appeals Justice Nora Longoria then fabricated a tale based on William McCarthy’s fraud and her ignorance of bankruptcy law to further deprive Partain his property. Partain complained to the 13th Court of Appeal, en banc, challenging the court to review her fabrications for any truth, but the court on their “legal discretion” refused to act and allowed Justice Longoria’s fraud to continue. Partain made a criminal complaint of official oppression against Justice Longoria, but the Hidalgo District Attorney on his “legal discretion” let it pass. Partain appealed to the Texas Supreme Court, case no. 15-0720, claiming violations to Texas Constitution Art. 1, Sec. 9, 13, and 19. The Texas Supreme Court with their “legal discretion” denied Partain any relief claiming that he had no standing to complain because he wasn’t sued. Partain was deprived his property interests and due process. 28. While Partain was waiting for the 13th Court of Appeals to respond to his Emergency Motion For Temporary Restraining Order To Protect The Status Quo, he made his (App. 56) Creditor’s Emergency Motion For TRO, Case no. CL-29,530-G, dated 10/08/2014, requesting an emergency hearing, preliminary injunction, and a show cause hearing to enforce the orders of the court from collateral attacks. Judge Valdez ordered that Partain was collaterally attacking the default judgment of the justice court and the order of County Court No. 5. App. 57, Order(Denying relief or protecting Turnover Order No. 5),Case no. CL- 29,530-G, dated 10/9/2014. Judge Valdez eventually approved that William McCarthy could claim ownership and that he moved into Partain’s condo. 29. On November 4, 2014, (election day) Partain was called and told that he needed to turn himself in to be arrested for felony charges for a business transaction through his electrical company. Partain surrendered on November 5, 2014, on threat of an arrest warrant. Consequently, Partain lost his security clearance for the majority of work he provided to the Federal, Texas, and city governments and his businesses suffered severely. Partain being the main principle of a licensed electrical company was indicted and fully prosecuted on a fraudulent arrest affidavit made primarily on opinions (very little fact) of a detective who had been ordered to find a way to prosecute Partain. The Cameron County District Attorney Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Office was very familiar with Partain’s complaints in Hidalgo County and used their knowledge of the abuses in Hidalgo County to argue to a jury in his criminal prosecution that the State of Texas was averse to Mr. Partain. The District Attorney made absolutely no attempts at all to find justice as required by the law. The district attorney has broad “legal discretion” protected by immunity from complaint. Cameron County, representing the State of Texas in its cause styled The State of Texas v. Johnny Ray Partain also seized approximately $23,000 from Partain on the orders of Judge Elia Cornejo Lopez, through his company, on continuing threats of further arrest and incarceration. However, Partain was eventually acquitted after firing his lawyer, and proceeding pro se, since there was no crime. The case was expunged and Partain was able to return to some of his business years later. Cameron County through Judge Elia Cornejo Lopez refused to return the monies taken from Partain. Partain made a complaint to the State Commission on Judicial Conduct regarding Judge Elia Cornejo Lopez’ refusal to return his monies, but there has been no response. 30. Judge Valdez ordered the alleged transfer of case no. CL-29530-G to Judge Rolando Cantu of Hidalgo County Court No. 8 on November 21, 2014. App 58, Order Of Transfer, Case no. CL-29,530-G, dated 11/21/2014. Judge Omar Maldonado then somehow replaced Judge Rolando Cantu in the same court on or about Jan. 2, 2015. On Jan. 14, 2015, Judge Maldonado also refused to enforce the orders of the court claiming that he had already recused himself, although the case docket did not reflect this assertion. App. 28, Civil Docket Report, CL-29,530-H. Regardless, on January 20, 2015, Administrative Judge J. Rolando Olvera filed his Order Of Assignment (App. 59) assigning retired District Judge Robert Blackmon to Hidalgo County case no. CL-29,530-H. Partain objected to the assignment of Judge Blackmon because the Order Of Assignment again limited assignment by stating, [sic] “from this date until plenary jurisdiction has expired”, which prior Judge Alex Gabert argued meant that the case was without a final judgment. App. 60, Objection To Assignment, Case no. CL-29,530-H, dated 01/02/2015. However, Judge Olvera’s clerk called Partain and requested he withdraw his objection since Judge Blackmon was the only judge available and that his assignment were made on forms provided by the Texas Supreme Court. Partain conditionally withdrew his objection if Judge Blackmon were given the jurisdiction to enforce Relator’s Third Amended Judgment and turnover orders. App. 61, Withdrawal of Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Objection To Assignment, Case No. CL-29,530-H, dated 2/03/2015. He wasn’t given proper jurisdiction so Partain continued his objection. 31. Judge Robert Blackmon held a show cause hearing on Feb. 26, 2015, on Partain’s Motion for Contempt against William McCarthy. Judge Blackmon argued that the actual number on the case was CL-29,530-H instead of the original case number, CL-29,530-A, making the case a separate and brand new case without any orders to enforce. Partain was deprived his property interests and due process. Judge Blackmon argued that Turnover Order No. 5 wouldn’t apply anyways since the turnover order was directed at judgment debtors and did not limit actions taken by their attorney. Judge Blackmon then chastised Partain for suing William McCarthy in Blackmon’s new case and for trying to enforce Turnover Order No. 5 which couldn’t be valid since it was entered after a final judgment in case no. CL-29,530-A. Judge Blackmon threatened Partain on and off the record that he may sanction him with fines for not “playing nice” and if the Partain didn’t conform to his future orders he could end up in jail. App. 67, Affidavit. Judge Blackmon finally stated that he was only assigned for the one hearing and that he hadn’t made up his mind if he would continue the case - that he was actually filling in under County Judge Omar Maldonado. Judge Blackmon issued an order, changing Partain’s original case no. CL-29,530-H and re-styling it under Justice Court, Pct. 4 Place 2 and with new parties to wit – Johnny Ray Partain v. Estate of James H. Maples, Decedent et al. App. 62, Order Denying Motion For Contempt, Case no. CL-29,530-G, dated 3/02/2015. 32. William McCarthy also filed another ex parte motion and affidavit for “The Estate Of James H. Maples” on July 30, 2014, pursuant to TEX GV. CODE ANN. § 51.902, FRAUDULENT LIENS, in District Court case no. C-6549-14-G to attack Partain’s deed on his real property. App. 63, Motion For Judicial Review Of A Document Purporting To Create A Judgment Lien, Case no. C-6549-14-G, dated 7/30/2014. Partain learned of the action after a call from the clerk’s office and he filed a petition for intervention and an Answer objecting to William McCarthy’s motion. Partain claim McCarthy had no standing to invoke the jurisdiction of the court, to sign an affidavit for a dead man, and failed to conform to the statute. App. 64, Original Answer, Case no. C-6549-14-G, dated 9/30/2014. District Judge Noe Gonzalez conferred with District Judge Robert Flores regarding transferring William McCarthy’s motion from 370th Court to the 139th Court, both recused Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres themselves, and then Judge J. Rolando Olvera assigned Judge J. Manuel Banales. App. 66, Civil Docket Report C-6549-14-G. Judge Banales ruled, without his jurisdiction being invoked per the statute on liens, that Partain’s “deed” on his house “does not refer to a legally constituted court … and there is no valid deed”, and then ordered the Clerk to deed the Partain’s condo to the deceased James H. Maples. App. 65, Judicial Findings Of Fact And Conclusions Of Law Regarding A Documentation Or Instrument Purporting To Create A Deed, Case no. C-6549-14-G, dated 2/13/2015. Banales vandalized Partain’s title on his property, depriving Partain of his property interests and due process. Partain complained to the Texas Supreme Court, case no. 15-0343, for a mandamus. Relief was denied. Partain complained to the State Commission on Judicial Conduct which has been unresponsive. 33. A probate case was started on July 30, 2014, case no. P-36,416, styled Estate of James Maples, deceased. Partain sued the heirs for theft on basis that Judge Banales had attached Partain’s real property to the deceased estate. After approximately two years of litigating, Attorney Howard Reiner, hired by Compass Bank and executor for the estate, informed Partain that Compass Bank had spent over $30,000 on a third party law firm to look over all the cases involving Partain to determine if he could make a legal claim to his real property. That law firm concluded that Partain was the actual owner. Consequently, Mr. Reiner offered to return the real property to Partain or to give him a better property that was in the bankruptcy courts if he would stop suing the defendants. Partain agreed that he wanted his property only, if the probate judge would quiet the title. A judgment quieting title on Partain’s real property was signed on December 19, 2016. App. 84, Judgment on Creditor Claims Of Johnny Partain And Quieting Of Title3. However, the property is unusable, needs repairs again, and is now being sued for over $18,000 in ad valorem taxes and fines since nobody paid taxes after Hidalgo County and the City of McAllen seized the property in 2012. Partain is still deprived his property interests. 34. After the 13th Court of Appeals, under 14th Court of Appeals Justice Wiggins, reversed Judge Ramirez’ order of dismissal and remanded Partain’s complaints back to the district court on July 2, 2015, to conform to the appellate court’s mandate, Judge Ramirez started dismissing defendants and told Partain he may go to trial, but he wouldn’t have anyone to go 3 App. 84, Judgment On Creditor Claims Of Johnny Partain And Quieting Of Title is filed with this Third Amended Petition. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres to trial against. Partain motioned for a summary judgment against the State Of Texas which went unopposed, but was never adjudicated. Partain motioned for compensation of his costs of court pursuant to Judge Ramirez’ mandate to pay Partain, buy Ramirez ignored him. Thereafter, Judge Ramirez closed his court to all the parties for over four years until Partain petitioned the Texas Supreme Court for a mandamus to enforce the 13th Court of Appeals mandate on Judge Ramirez. Partain also complained of either serious corruption in the South Texas Judiciary or widespread coincidental incompetence. The Texas Supreme Court again denied him relief, but it is unclear if the court even read his petition since the court’s network was brought down by ransomware at approximately the same time Partain petitioned and State of Texas’ judicial network was still inoperative 30 days later making Partain’s complaints unviewable to at least the General Counsel for the Supreme Court and the State Commission on Judicial Conduct. Another coincidence? Partain filed a cordial demand letter to Texas Governor Abbott to be compensated his losses under the Texas Constitution, but the Governor kept silent. Partain also filed a petition to the 87th Texas Legislature for relief and was informed by his senator that he could receive no more than $50,000 because of the budget shortfall due to Covid 19. Partain declined because his losses and his efforts to be made whole were magnitudes higher and said offer was grossly unreasonable. Judge Ramirez mysteriously re-opened his court in August of 2020, and then dismissed all the defendants depriving Partain his property interests and due process. Partain appealed to an appellate court again, requesting a direct appeal to the Texas Supreme Court. Partain then rendered this Third Amended Petition. V. CAUSES OF ACTION COUNT 1 35. FOURTEENTH ADMENDMENT TO THE CONSTITUTION OF THE UNITED STATES and 42 USC §1983 - This is an action at law to redress the deprivations under color of statute, ordinance, regulation, custom, or usage of a right, privilege, and immunity secured to Partain by the Fourteenth Amendment to the Constitution of the United States, actionable through 42 USC §1983, and arising under the law and statutes of the United States and State of Texas. At all relevant times herein JP Homer Jasso Sr., Judge Rodolfo Gonzalez, Judge Alex W. Gabert, Judge Jose Manuel Banales, Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Judge Robert Max Blackmon, Sherriff/Constable Jose Guerra, Deputy Constable Carlos Gonzalez, District Attorney Rene Guerra (Ricardo Rodriguez), and Sheriff Guadalupe Trevino were duly elected officials or assigned their positions with access to Hidalgo County resources through established process to represent Hidalgo County, a political subdivision of the State of Texas, under the color of their offices. At all relevant times herein McAllen Police Chief Victor Rodriguez, a policy maker, was employed by the City of McAllen, a municipal corporation of Texas. The aforementioned defendants have the authority and had the opportunity and were personally involved in or at least casually connected to the illegal acts perpetrated through Hidalgo County and the City of McAllen that violated Partain’s United States and Texas Constitutional protections and several federal statutes, including but not exclusive to, illegal seizure of actual or prospective property without due process; false imprisonment; divestment of liberty, property, privileges, due course of law, and redress of grievances; interference with a political campaign; false imprisonment; equal protection of the law; and RICO as demonstrated in the above FACTS which created a special relationship through the use of armed police force. Each of the defendants, separately and in concert, acted outside the scope of their jurisdiction and under the color of state law through Hidalgo County and City of McAllen, to deprive Partain his constitutional rights and his property. Hidalgo County and the City of McAllen with deliberate indifference to the consequences, established and maintained a policy, practice, or custom enforcing orders with police force, in this instance void judgments and orders issued without jurisdiction, which directly caused the violations perpetrated against Partain. The City of McAllen doesn’t even have a statutory duty to enforce a valid order. Hidalgo County and City of McAllen did this twice. Also, City of McAllen with deliberate indifference to the consequences, established and maintained a policy, practice, or custom of turning on and off utilities at a property regardless of property owner’s demand or contract to divest the owner his interest in his property, to enable criminal trespassing, which directly caused the violations perpetrated on Partain. City of McAllen also did this twice. With respect to the extent of damages available, the Supreme Court has noted that the basic purpose of a section 1983 damages award is to Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres compensate the victims of official misconduct, and therefore held that there is no limit on actual damages if they can be proven. See also Damages below. COUNT 2 36. UNITED STATES CONSTITUTION AMENDMENT 5, TEXAS CONSTITUTION, ARTICLE 1, SECTION 17, TEXAS CONSTITUTION, ARTICLE 1, SECTION 9, TEXAS CONSTITUTION, ARTICLE 1, SECTION 17, TEXAS CONSTITUTION, ARTICLE 1, SECTION 19 – The State of Texas, Hidalgo County, and City of McAllen deprived Partain any standing or substantive due process, and did take, damage, and destroy his property without suing him and without warrant against him by seizing a condo owned by Partain on two different occasions and depriving him his rents. They used a SWAT team, McAllen police, and court orders - even after the 13th Court of Appeals opined that Partain had to be sued before his property could be taken. No consideration was given to Partain, not even for his petition for injunction in the instant case to District Judge Mario Ramirez to stop their unconstitutional actions. Instead, Partain was accused of collaterally attacking (void) orders, while public officials who sought to hide incompetency, systemic local corruption, and criminality to maintain the public appearance of propriety in their offices retaliated against and destroyed his property. District Attorney Rene Guerra (removed from office in 2014) and his office, Justice Homer Jasso, Hidalgo County Sheriff/Constable Jose Guerra, Deputy Constable Carlos Gonzalez, District Judge Alex Gabert, District Judge Robert Blackmon, District Judge Jose Banales, County Judge Sergio Valdez, County Judge Rodolfo Gonzalez, County Judge Arnoldo Cantu, Hidalgo County Sheriff Lupe Trevino (convicted), Chief Victor Rodriguez, and Judge Mario Ramirez all worked together to diminish, destroy, and seize Partain’s property 37. The aforementioned district judges, county judges, and district attorney consistently conspired to deprive Partain the fruits of his final judgment (case no. CL- 29,530-[A]), his condo, his interstate transportation company, Atlas Transportation, Inc., and his damages pursuant to his litigation for relief in the courts directly after Compass Bank bribed Hidalgo County Judge Rodolfo Gonzalez, on or about October 4, 2010, to avoid a lawsuit for racketeering under the RICO statute. The aforementioned state and Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres county judges refused to enforce, or even acknowledge, Partain’s final judgment and turnover orders, and spent much effort trying to make Partain a judgment debtor although he had not been sued, which protected Compass Bank against RICO complaints. Even Justice Nora Longoria of the 13th Court of Appeals manufactured facts in a fraudulent opinion (without a scintilla of resistance being raised from the rest of the 13th Court of Appeals, despite the fraud being illuminated and identified fake) and demonstrated serial ignorance or contempt of bankruptcy law, case no. 13-14-00584-CV, to protect Hidalgo County from liability to Partain and to destroy Partain’s property interests while at the same time paying down the political capital she owed to the Hidalgo County District Attorney for refusing to prosecute her DUI arrest in 2014 (simultaneous events). Partain was adjudged from a justice court to the Supreme Court not to have standing to complain that his property was seized - his complaints were completely ignored. Protection of civil rights under the Texas or United States constitutions did not self-execute or void the constitutional violations against Partain. Additionally, Hidalgo County and City of McAllen immediately sued Partain’s real property (not Partain) for ad valorem taxes accrued during the time they seized and/or exercised control over his property, further inhibiting Partain’s ability to recover, use, or sale his property.4 Partain made criminal complaints to the Hidalgo County District Attorneys Office, McAllen Police, Hidalgo County Sheriffs Office, Texas State Bar, State Commission on Judicial Conduct, and Texas Supreme Court - and nothing happened. The crimes and malfeasance were tolerated since these are the deeply rooted traditions of our state’s policy. 5 38. Partain’s final orders required the return of his equipment, records, and accounts for his interstate transportation company in 2008 (a business making approximately $2.5 million dollars a year), but the courts (district and county judges) refused to enforce Partain’s final decrees depriving him of his property. Partain has an large interest in the causes of action claimed against Compass Bank and Farmer Insurance/Fire Insurance 4 This petition is a counter-suit against Hidalgo County and City of McAllen for their tax and fines claims 5 Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369, “It would be a narrow conception of jurisprudence to confine the notion of "laws" to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law…Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.” See also Poe v. Ullman, 367 U.S. 497 (1961). Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Exchange for the damages they perpetrated on him through racketeering, yet the State of Texas through its District Judge Mario Ramirez has continually abused his discretion in this instant lawsuit through the enforcement of an unconstitutional order (found void by a higher court), unconstitutional dismissal of Partain’s lawsuit (reversed), and general summary judgment and dismissal to protect these large corporations from their own actions, their liability to Partain. Partain has not been compensated, nor has he been allowed substantive due process years after Compass Bank seized control of his interstate company and then bribed a county judge. Plaintiff did not give consent to the taking of his property or waive his rights. Tx. Const. Art 1. Sec 17 is a waiver of sovereign immunity requiring adequate compensation to the Plaintiff. See Damages below. COUNT 3 39. UNITED STATES CONSTITUTION AMENDMENT 5, TEXAS CONSTITUTION, ART. 1, SEC. 17 - The State of Texas, Hidalgo County, and Cameron County seized and destroyed Partain’s property and damage his reputation as part of their legal strategy to defeat his political campaign complaints against corruption in South Texas government and to justify their initial seizures and destruction of Partain’s property to protect Compass Bank from RICO complaints and a racketeering enterprise. On Sept. 29, 2014, JP Jasso stated that the District Attorney’s Office was looking for a way prosecuted Partain. One month later on November 5, 2014, Partain was arrested for a criminal felony charge evolving from a contract dispute regarding his interstate electrical company, Atlas Technologies, Inc. Partain was arrested and indicted on the basis of a fraudulent affidavit for arrest which contained mostly opinions and very little facts, through the approval and advice of the Cameron County District Attorney, allegedly to protect public interests. Partain was fully prosecuted and eventually acquitted, pro se, on or about November 16, 2017, because there was no crime. During the trial of Partain, the Cameron County prosecutor boasted about her knowledge of Hidalgo County’s seizure of Partain’s property to a jury and claimed the State of Texas was averse to Mr. Partain, although Partain never raised an issue. Cameron County seized $22,802.00 in cash from Partain and deprived Partain the value of his associated business contract through its court orders (voided) and on threats of incarceration: Partain did not approve. Cameron Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres County’s indictment and prosecution against Partain, for what was clearly well- established by law as not a crime, destroyed Partain’s ability to work with his government customers and destroyed his significant vested interests in his company. Thereafter, Partain subpoenaed documents regarding the communications between Hidalgo County District Attorneys Office and the Cameron County Attorneys Office in the prosecution, but the Hidalgo County District Attorneys Office successfully defended against any discovery through a federal court on the argument of privileged legal strategy in the instant case. Partain made requests for compensation from Cameron County and he was denied. Cameron County claimed sovereign immunity, but its immunity was waived under Tx. Const. Art. 1 Sec 17. Partain’s property was seized and destroyed without compensation: See Damages below. COUNT 4 40. TEXAS CONSTITUTION, ART. 1, SEC. 13, 17, and 19 - The State of Texas, Hidalgo County, District Attorney Rene Guerra (Ricardo Rodriguez), City of McAllen, and Justice of the Peace Homer Jasso Sr. violated Partain’s civil rights under Texas Constitution Art. 1, Sec. 13, 17, and 19, through the unconstitutional application of Texas Property Code, Title 4. Actions and Remedies, Chapter 24. Forcible Entry And Detainer. Defendants damaged Partain and violated his civil rights by taking his condo, destroying its value, and depriving Partain of his rents without suing Partain (no due process) and without providing him an opportunity to an open court. Justice Homer Jasso claims that Chapter 24 is a loop-hole in the law that allows that anybody may sue anybody for any property, and if there is no answer, any property may be taken. Chapter 24 doesn’t provide any protection for a person’s constitutional rights, other than a sworn statement, which in the instant case has proven to be little more than pushing paper since a sworn statement doesn’t necessarily create an adversary or protect the rights of all, in any, persons at interest in a particular property. Partain appealed the unconstitutional seizure of his property all the way to the Texas Supreme Court and was denied standing (all the way) to complain. Partain even filed for an injunction in the instant case to prevent the illegal taking wherefrom his complaints were dismissed on the authority of Judge Mario Ramirez, then reinstated, then the court Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres closed to Partain, and then finally - over 9 years later - all defendants excused on immunity. Criminal complaints and administrative complaints to the Texas State Bar, Texas State Commission on Judicial Conduct, District Attorneys office, and Attorney Generals office have also been pointless and ineffectual. Partain has continued to be deprived due process, an open court, and his property pursuant to the application of TPC §24. Sovereign immunity is waived under Tex.Civ.Prac. & Rem.Code §§ 37.004(a), 37.006. This count is interrelated with 42 U.S.C. § 1983 claims herein. COUNT 5 41. TEXAS CONSTITUTION, ART. 1, SEC. 13, 17, and 19 - The State of Texas, Hidalgo County, and Judge Jose Banales violated Partain’s civil rights under Texas Constitution Art. 1, Sec. 13, 17, and 19, through the unconstitutional application of Tex. Gov. Code § 51.902, Fraudulent Liens. Defendants damaged Partain and violated his civil rights by vandalizing the title on his house, adjudicating it as an unlawful lien under §51.902 without suing Partain. §51.902 does not protect constitutional considerations such as creating an adversary, due process, jury determination of the facts, or even appealability, yet it can be used to determine property rights. Recourse has been unobtainable since criminal complaints and administrative complaints to the Texas State Bar, Texas State Commission on Judicial Conduct, District Attorneys office, and Attorney Generals office have also been pointless and ineffectual. Sovereign immunity is waived under Tex.Civ.Prac. & Rem.Code §§ 37.004(a), 37.006. This count is interrelated with 42 U.S.C. § 1983 claims herein. RACKETEER INFLUENCED CORRUPT ORGANIZATION, 18 U.S.C. § 1961-19686 COUNT 6 6 Congress defined racketeering activities under 18 U.S.C. § 1961 to help snare those who make careers of crime. Participation in the affairs of an enterprise through the commission of two or more predicate crimes is now an offense separate and distinct from those predicate crimes. So too is conspiracy to commit this new offense a crime separate and distinct from conspiracy to commit the predicate crimes. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres 42. 18 U.S.C. § 1962 (d). Defendants Sheriff/Constable Jose Guerra, Deputy Constable Carlos Gonzalez, Judge Mario Ramirez, Judge Homer Jasso, Judge Alex Gabert, Judge Jose Manuel Banales, Judge Robert Blackmon, Judge Sergio Valdez, District Attorney Rene Guerra (Ricardo Rodriguez), Judge Rodolfo Gonzalez, Sheriff Guadalupe Trevino, Justice Nora Longoria, Compass Bank, Police Chief Victor Rodriguez, Farmers Insurance, and State Bar of Texas were well informed of the FACTS above, but are part of a racketeering enterprise and adopted its goal to deprive Partain his property, interests, and rights, to protect themselves, by conspiring to violate the provisions of 18 U.S.C. § 1962. Partain is still being injured by the continuing deprival of his rights and damages by defendants reflecting an open pattern of RICO. See Damages below. COUNT 7 43. 18 U.S.C 1344 (2); 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b), (c), (d); 18 U.S. Code § 1956; 18 U.S. Code § 1957; THEFT – The debtors (Mapleses) created a counterfeit order, Order On Defendant Motion To Stay, in cause no.CL-29,530-A, on or about February 1, 2005, to knowingly enable the Compass Bank to transfer monies out of bank accounts owned by Global Limo, Inc. without notice to its owner Partain: Partain gave Compass Bank a certified Turnover Order disclosing Partain’s rights and interest in Global Limo, Inc. and also gave Compass Bank a demand to freeze said accounts and to place Partain on those specified business accounts as the sole authority. Compass Bank did not comply and instead on or about February 18, 2005, silently transferred monies out of those account to new hidden accounts while at the same time communicating to Partain over the telephone that they were unable to give him the specific account transaction information he requested and representing that they were working to get him the information and would give him a call back: Compass Bank never called Partain back. Compass Bank later represented through electronic communication that the County Court’s counterfeit order authorized them to move assets away from Partain. This scheme was executed with intent to obtain monies or credit frozen under Global Limo, Inc. accounts for control of Global Limo, Inc., and for Compass Bank to influence and determine the conduct of the corporation when the debtors filed for bankruptcy protection. Partain complained of the illegal Order On Defendant Motion To Stay to the Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres County Court whereas it was revealed that the counterfeit order was not actually signed by a judge nor was it within the knowledge of Judge Gonzalez. However, Judge Gonzalez refused to void the counterfeit order, and eventually reversed it after allowing Compass Bank to accomplish its theft. Partain made criminal complaints to District Attorney Rene Guerra, but no criminal charges were ever brought. Partain was damaged through the loss of property and the values therein and through the interference with his ability to operate an interstate motorcoach business resulting in loss of profits, loss of compensations, and loss of opportunities. See also Damages below. COUNT 8 44. 18 U.S.C 1344 (2); 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S. Code § 1513: 18 U.S. Code § 1513; 18 U.S.C. § 1962 (b) and (c) – On or about February 16, 2005, debtors electronically filed bankruptcy in case no. 05-70128. Shortly thereafter, on or about February 28, 2005, and without notice to Partain, debtors made a written agreement with Compass Bank that Partain’s company would pay it’s debts (for fraudulently conveyed assets). On or about March 7, 2005, Paul Moxley, President of Compass Bank, threatened Partain over the telephone to call the police to prevent Partain from operating his company. He sent two Special Asset Division Vice Presidents to the offices of Global Limo, Inc. to stop Partain from operating or removing motorcoaches wherefrom the bank claimed full interests through liens with the debtors. Thereafter, on or about March 7, 2005, Compass Bank attempted to have Partain held in contempt of bankruptcy court’s automatic stay in case no. 05-70128 for not allowing debtors to operate Global Limo, Inc. (Partain had fired debtors) and for moving buses away without approval of Compass Bank. Compass Bank knowingly executed a bankruptcy scheme to control motorcoaches, credit, and monies purportedly owned by or deposited in Compass Bank but operated by Global Limo, Inc. through intentionally fraudulent representations to the bankruptcy court in cause no. 05-07009 that Global Limo, Inc. or it’s assets were included under debtors’ bankruptcy of a sole proprietor business named Global Tours. Partain was damaged through the loss of property and the values therein; interference with his ability to operate his interstate motorcoach business; loss of profits; loss of compensations; and loss of opportunities. See also Damages below. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres COUNT 9 45. 18 U.S.C 1344 (2); 18 U.S. Code § 1956; 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b) and (c) FRAUDULENT TRANSFER - Compass Bank knowingly executed a business loan for approximately $47,000 against Global Limo, Inc. on a purported transfer of interest of real property owned by Partain to Compass bank. Partain did not authorize a business loan. The real property is describe as “[T]he East 18.41 feet of the West 60.82 feet of Lot 37, El Cazador Subdivision, Unit No. 2, an Addition to the City of McAllen, Hidalgo County, Texas according to map thereof recorded in volume 19, page 58 of the Map Records of Hidalgo County.” Compass Bank then sent the alleged loan monies to an escrow account under a trust in north Texas for debtors to further encumber through the purchase of a new ranch home in or around Mt. Vernon, Texas, approximately 2 weeks prior to filing a chapter 11 bankruptcy. The loan was an act of theft to fraudulently transfer and to acquire an interest in Global Limo, Inc. to exercise control over the corporation. Plaintiff was damaged through the illegal lien on his property, and through the deprivation and loss of his property or the values therein. See also Damages below. COUNT 10 46. 18 USC §1951 INTERFERENCE WITH COMMERCE BY THREATS OR VIOLENCE; EXTORTION; THEFT; 18 U.S.C. § 1962 (c) (d) – On or about January 31, 2005, debtors broke the locks of Global Limo, Inc. at 1408 N. Jackson and entered Partain’s office removing assets, including but not exclusive to interstate motorcoaches operated under Global Limo, Inc., after being warned on three occasions the weekend before by the Pharr police that they were trespassing and not to enter the premises. Debtors stationed a security guard at the office doors to challenge Partain’s entry into the office and created counterfeit court order to keep police away from the building. This extortion continued until approximately February 16, 2008, wherefrom Plaintiff was unable to operate Global Limo, Inc. to engage in interstate commerce, pay debts, or make profit. During this same period, Compass Bank claimed it was unable to provide Partain with his account information furthering enabling debtors’ extortion and control of Global Limo, Inc. See also Damages below. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres COUNT 11 47. 18 U.S.C 1344 (2); 18 U.S. Code § 1956; 18 U.S. Code § 1957; 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b) and (c); THEFT - On or about March 29, 2005, debtors as bankruptcees electronically petitioned for an injunction in adversary case no. 05-07009, Maples et. ux. v. Partain, pursuant to their chapter 11 bankruptcy case no. 05- 70128, to acquire control of Global Limo, Inc. Compass Bank prosecuted the petition on basis of a debtor’s perjurious affidavit of ownership and rights in Global Limo, Inc., on basis of the aforementioned violation in the Hobbs Act (extortion in Count 10), and on basis of the counterfeit order produced in Count 7 above, although debtors had already been denied any interests in the bankruptcy court and in the county court. Compass Bank was aware that their representations of ownership and employment were false, but Compass Bank argued such representations with the intent that the court would act on them to provide Compass Bank access to Global Limo, Inc. affairs: Bankruptcy Judge Marvin Isgur did use their representations to seize Global Limo, Inc.’s assets and operation to provide Compass Bank interest and control of the corporation (the corporation was not in bankruptcy). Judge Isgur encumbered Partain’s house with a lis pendens to provide Compass Bank interest therein. Said illegal seizure greatly injured Partain’s property and business interests since Compass Bank raped his company of all its value and which caused it to operate dangerous vehicles needing repairs, resulting in 23 deaths through a motorcoach fire and large liabilities against Global Limo, Inc. The additional lis pendens prevented Mr. Partain’s free use of his house and was later used in February of 2007 on the wild and confused whim of Judge Isgur to incarcerate Plaintiff purportedly for collecting rent on his house pursuant to the orders for the lis pendens.7 Partain was damaged through deprivation of freedom, assets, and the loss of his property and the values therein. The damage was further aggravated by interference with Partain’s ability to operate his interstate motorcoach business; pay his debts and liabilities; loss of license to operate a motor carrier; loss of profits; loss of compensations; and loss of 7 This action followed complaints to the 5th Circuit that there was fraud and racketeering occurring in case no. 05-07009 and related cases under Judge Isgur and under Judge Crane. Partain sued out a habeas corpus after 72 days of incarceration on grounds that Bankruptcy Judge Marvin Isgur lied and lacked jurisdiction. The Federal District court was unable to find where Judge Isgur had ever acquired jurisdiction over Partain’s property. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres opportunities. See related injuries in Hidalgo County MDL case no. 05-1073, In re Hurricane Rita. See also Damages below. COUNT 12 48. 18 U.S.C 1344 (2); 18 U.S. Code § 1956; 18 U.S. Code § 1957; 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b) and (c); THEFT; FRAUDULENT TRANSFER – On or about May 16, 2005, Compass Bank, with debtors, argued against Partain for control of Global Limo, Inc. at a preliminary injunction hearing, in adversary cause no. 05-07009 (SDTX). Debtors devised a scheme requiring Compass Bank’s assistance to fraudulently transfer assets and/or to encumber assets before bankruptcy with intent to prevent collection of Judgment in Hidalgo County case no. CL-29,530-A. Global Limo, Inc. was an element in this scheme as outlined by debtor’s new attorney Keith Livesay in July of 2002, through a written letter. Compass Bank cross- collateralized Global Limo, Inc.’s assets, as instructed by the attorney. Once all assets were retitled under Global Limo, Inc., Compass Bank encumbered them to prevent their collection on a judgment of fraud against debtors. On or about January 27, 2005, a turnover motion was adjudication in case no. CL-29,530-A transferring all rights and interests in Global Limo, Inc. to Partain. Debtors quickly filed chapter 11 bankruptcy as individuals, however, said bankruptcy did not include Global Limo, Inc. Compass Bank then claimed Global Limo, Inc. did not exist and that all its assets now flowed magically into debtors’ bankruptcy. Compass Bank made its representations with the intent that the Judge would act on them. Judge Isgur accepted Compass Bank’s misrepresentations and it was determined at the aforementioned hearing that regardless of Texas law, Texas court orders and the Rooker- Feldman doctrine, that Partain had almost no identifiable interests in Global Limo, Inc.8 due to Compass Bank’s interests in Global Limo, Inc. Judge Isgur gave Compass Bank nearly unfettered control over Global Limo, Inc. resulting in the rape of business’ value and assets and operation of dangerous interstate vehicles which resulted in 23 deaths and 8 This order was reversed approximately 9 months later (after 23 deaths and destruction of Global Limo, Inc.) by Judge Isgur who found that Plaintiff was actually the owner of Global Limo, Inc. which empowered the judge to avoid Partain’s interest in the corporation through bankruptcy proceedings and to remove Plaintiff’s standing to sue Compass Bank and Debtors by placing all interests under Mapleses’ bankruptcy estate. Memorandum Opinion On Summary Judgment, Case no. 05-07009 (SDTX). Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres large liabilities against Partain’s property interests.9 Plaintiff was severely damaged through deprivation and loss of his property and the values therein; through interference with his ability to operate an interstate motorcoach business; loss of profits; loss of compensations; and loss of opportunities. See also Damages below. COUNT 13 49. 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962 (b) and (c); THEFT; FRAUD – On or about May 12, 2006, Compass Bank electronically motioned for relief from bankruptcy’s automatic stay in chapter 11 bankruptcy case no. 05-70128 (SDTX) through Texas State Bank’s Motion For Relief From The Automatic Stay to execute against Global Limo, Inc.’s assets and house seized from Partain by the bankruptcy judge in adversary case no. 05-07009 through Judgment (bankruptcy avoidance) on or about April 27, 2006 (approximately 2 weeks earlier). 50. Compass Bank made representations to the bankruptcy Court that [sic] “the Debtor has little or no equity in the Buses, Condo, and/or Rents and (c) the Buses, Condo, and Rents are not necessary to the Debtor’s effective reorganization.” Judge Schmidt responded with Order Granting Texas State Bank’s Motion For Relief From Automatic Stay. However, Compass Bank had previous and consistently represented throughout the bankruptcy cases that it was necessary to seize Global Limo, Inc. and Partain’s house through bankruptcy avoidance for the benefit of the bankruptcy estate and for the good of “all” creditors therein: Property may only be avoided through bankruptcy if the property would have been in the bankruptcy estate and therefore available to a debtor’s general creditors; essentially, voidable preferences must have depleted the estate and may not have been fully encumbered prior to avoidance. Accordingly, a judge can only avoid a preferential transfer for the benefit of the bankruptcy estate and not for the benefit of Compass Bank. 51. Compass Bank intended and knowingly made conflicting, material, and false representations to different bankruptcy courts in venue of debtors’ Chapter 11 bankruptcy 9 Bankruptcy Judge Marvin Isgur was never prosecuted for the illegal seizure and resulting deaths that occurred since Judge Ricardo Hinojosa claimed Judge Isgur was immune to prosecution. No one was ever prosecuted for those deaths. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres to use specific bankruptcy processes to execute a scheme to gain or legitimize interests in Global Limo, Inc. and Partain’s house that they did not have prior to debtors’ Bankruptcy. The bankruptcy court’s used their representations to effectively launder Partain’s assets and his corporation through a bankruptcy estate to aid and enrich Compass Bank. Partain was injured through deprivation and loss of his properties and the values therein; interference with Partain’s ability to operate an interstate motorcoach business; acquired debts and liabilities; loss of profits; loss of compensations; loss of opportunities; and illegal incarceration. See also Damages below. COUNT 14 52. ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; 18 U.S.C. § 1962 (c) and (d); – On or about January 10, 2007, Global Limo, Inc. was sentenced for Conspiracy To Make False Statements To A Government Agency, 18 U.S.C § 371 and Violation Of Federal Motor Carrier Safety Administrations Regulations 49 U.S.C. § 521 (b) (6) and 18 U.S.C. § 2 while under seizure by the bankruptcy courts, although not in bankruptcy. Debtor, James Maples, was sentenced for Violation Of Federal Motor Carrier Safety Administrations Regulations 49 U.S.C. § 521 (b) (6) and 18 U.S.C. § 2 in a Federal Court in the Southern District of Texas, Criminal case no. M-06- 076-S. Debtors were able to operate Global Limo, Inc. under their Chapter 11 Bankruptcy on Compass Bank’s efforts to launder the corporation through the bankruptcy courts on fraudulent representations. The US Trustee’s Office out of Washington D.C. supports Partain that the corporation was never in bankruptcy. Partain was injured through deprivation and loss of his properties and the values therein; severe violations to his US Constitutional rights, Federal Statutes, and Bankruptcy Code; interference with his ability to operate an interstate motorcoach business; acquired debts and liabilities; loss of profits; loss of compensations; and loss of opportunities. See also Damages below. COUNT 15 53. ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; THEFT; 18 U.S. Code § 1341; 18 U.S.C. § 1962 (c) and (d) - On or about October 4, 2010, Compass Bank bribed County Judge Rodolfo Gonzalez with a release of lien to Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres avoid RICO complaints, on the premise of some unknown ownership interests of judgment debtor, James Maples, in Partain’s house. The debtor had actually sold the house to Partain’s company in 2004 and had acquired no legal title to it thereafter. The debtor used the Judge Gonzalez’ actions to lien on a bank for credit on Partain’s house to claim an interest in Partain’s property. He filed a fraudulent sworn Plaintiff’s Complaint For Eviction And Suit For Rent in the Justice Court of Precinct 4, Place 2, in Hidalgo County, case no. Cause no. JP2011-197 on or about May 13, 2011, with the assistance the District Attorney Rene Guerra. The debtor did not sue Partain. The debtor did rely on the racketeering predicate acts in his Chapter 11 bankruptcy through a RICO enterprise consisting of James Maples, Kathy Maples, Compass Bank, Global Limo, Inc., Justice of the Peace Homer Jasso, DA Rene Guerra, and Sheriff Lupe Trevino to make a fraudulent claim to seize Partain’s home through an ex parte default judgment and Writ of Possession. (See App. 26, Certified Mail Receipts to District Attorney). JP Homer Jasso ordered a Default Judgment and an order for possession against Partain’s home while at the same time not allowing Partain to participate in the litigation or to defend his property. Partain was injured. See damages below. 54. Consequently, Partain was attacked by Sheriff/Constable J.E.”Eddie” Guerra, Deputy Constable Carlos Gonzalez, and a SWAT team at his house which evolved into a 3 day armed standoff. Chief Victor Rodriguez and Sheriff Guadalupe Trevino refused to stop the racketeering activities until Channel 4 news requested JP Jasso to explain how the state could take someone’s property without a lawsuit: All police withdrew. On or about May 11, 2012, Sheriff/Constable Jose Guerra, with the assistance of McAllen police, broke into Partain’s house - creating a special relationship -, removed his campaign material and other assets, and threatened Partain with criminal trespass arrest if he returned. Officer Hernandez of the McAllen Police Department also threatened Partain with criminal trespass arrest if he returned. Plaintiff suffered threats to his life, property loss, loss of rent, loss of time, and loss of investment. See also Damages below. COUNT 16 55. 18 U.S.C § 1344 - BANK FRAUD; 18 U.S.C § 1956 - LAUNDERING OF MONETARY INSTRUMENTS; 18 U.S.C § 1957 - ENGAGING IN MONETARY Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres TRANSACTIONS IN PROPERTY DERIVED FROM SPECIFIED UNLAWFUL ACTIVITY; 18 U.S.C § 1961 (1) (D) ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; and 18 U.S.C § 1962(b), (c), (d) - County Judge Sergio Valdez, Hidalgo County Court No. 7, having never been transferred case no. CL-20,530-A by assigned Judge Alex Gabert, worked without authority to continue Judge Gonzalez’ racketeering activities and assaults on Partain’s Final Judgment under the color of law to frustrate all of Partain’s attempts to enforce any of the final decrees of the court in case no. CL-29,530-[A] even after a mandate issued from the 13th Court of Appeals to enforce the Partain’s final judgment. App. 32, Opinion, Appeals Case no. 13-12-00267-CV, dated 5/9/2013; App. 39, Corrected Mandate, Appeals Case no. 13-12-00267-CV, dated 8/16/2013. When the 13th Court of Appeals found Judge Gabert’s Final Judgment void, since Partain had never been sued and was a judgment creditor, Partain again attempted to cause the court to enforce it’s decrees and to return his illegally seized property by filing his Judgment Creditor’s Motion For a Show Cause Hearing Hearing Enforcing Turnover Orders No. 5 and No. 6 And To Recover Stolen Monies. App. 28, Civil Docket Report, CL-29,530-H. 56. Judge Sergio Valdez mysteriously stepped in, avoiding Partain’s motion to regain his illegally seized property, and Judge Valdez again attempted to modify Partain’s final decrees by filing an “interlocutory order” offsetting the Third Amended Judgment on excuse that the Mapleses’ Title 11 bankruptcy was a suit against Partain that modified the Third Amended Judgment. App. 37, Order Of The Court, Case no. CL-29,530-G, dated 10/10/2013. However, Judge Valdez was made aware that bankruptcy courts cannot affect or review the merits of a state judgment, and certainly cannot alter a state judgment in an effort to recoup, offset, or recover, especially for criminal sanction wherefrom bankruptcy court’s lack all jurisdiction. Stern v. Marshall, 564 U.S. 2 (2011), (held that a bankruptcy court lacked constitutional authority under Article III of the United States Constitution to enter a final judgment); In re Sweeney, 276 B.R. 186 (B.A.P. 6th Cir. 2002) (Under the Rooker-Feldman doctrine, a bankruptcy court may not review and re- determine the merits of a debt or set aside the default judgment reflecting it, but it may within its exclusive jurisdiction determine whether that debt is dischargeable or not. (Id. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres At 195)); also see Terrebonne Fuel and Lube, Inc., 108 F.3d 609, 613 (5th Cir.1997) (“bankruptcy courts lack the power to hold persons in criminal contempt.”). 57. Judge Valdez, without jurisdiction, using the color of law in a case where the county court had already lost its plenary power, entered Order Of The Court, dated October 10, 2013, allegedly modifying the Partain’s Third Amended Judgment, ignoring Turnover Order No. 5 and Turnovever Order No. 6, and inviting Partain to appeal again, adopting and continuing a pattern of racketeering activities of the racketeering enterprise. Partain was deprived of his rights and property. Partain was injured. See damages below. COUNT 17 58. 18 USC § 1344 – BANK FRAUD; EXTORTION; or alternately 18 USC § 201 – BRIBERY OF PUBLIC OFFICIALS AND WITNESS; 18 USC § 666; 18 U.S.C § 1341; and VIOLATION OF AMENDMENT 14 OF THE UNITED STATE CONSTITUTION – The debtors’ other attorney, Kelly Mckinnis, advised Judge Gonzalez that his clients could pay part of their judgment debt in case no. CL-29,530-A to Partain if the Court would “lean” on Compass Bank to release a lien against Partain’s house then the Court could use that to credit the debtors. Debtors represented that Compass Bank was afraid of Partain’s RICO (Racketeer Influenced Corrupt Organization) complaints against the bank, and that the bank would do “anything” to get away from his claim. Partain protested that the court shouldn’t involve itself in a crime to pay him with his own assets by removing illegal liens. Judge Gonzalez called the bank’s attorney, Vicky Skaggs, and Compass Bank release a $47,000 lien against Partain’s house, through his company Global Limo, Inc., on or about October 4, 2010 to influence Judge Gonzalez to destroy Partain’s final judgment to protect the bank. Judge Gonzalez was expecting to be influenced by the bank. Consequently, Judge Gonzalez put out an order attacking all the court’s previous orders and denying Partain any judgment award or relief. Partain was injured through the racketeering activity because Judge Gonzalez used it to allegedly and illegally defeat all the previous orders of the court, leaving Partain with no award or judgment after an original Final Judgment for approximately $452,000 years and approximately 18 years of litigation and torment. Judge Gonzales recused himself and Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres later, without any authority under the law, ordered the case CL-29,530-A away from Judge Gabert to Judge Valdez to impair Partain’s recourse. Partain was injured. See also Damages below. COUNT 18 59. 18 U.S. Code § 1961 (1) (D) ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; 18 U.S.C. § 1956; 18 U.S. Code § 1951; 18 U.S.C. § 1957; 18 U.S.C § 1341; 18 U.S. Code § 1513; THEFT; FRAUD; 18 U.S.C. § 1962 (c)(d) - District Judge Alex W. Gabert, assigned judge to Hidalgo County Court no. [1] for case no. CL-29530-A operated under the color of law to participate in racketeering activities with attorney William McCarthy and Judge Rodolfo Gonzalez, including theft, fraud, and fraud connected to a Title 11 bankruptcy case, to attack the Partain’s Third Amended Judgment by replacing it with another Final Judgment, dated March 16, 2012, to supplement Judge Gonzalez’ Order (App. 21), dated 2/2/2011, based on William McCarthy’s claim of an offset from a Title 11 bankruptcy and interests in assets from an interstate motorcoach company named Global Limo, Inc. App. 29, Final Judgment, Case no. CL-29,530-A, dated 3/16/2012. 60. As a direct result of Judge Gabert’s void Final Judgment, Partain was attacked by Hidalgo County Constables and a SWAT team at his condo which he was using as his Congressional Campaign Headquarters, on the same day and time he was scheduled for the only televised congressional candidates forum with Congressman Ruben Hinojosa (Plaintiff was also after being given a friendly warning by a Hidalgo County Sheriff’s Commander to “watch his back since he was pissing off the powers that be”). App. 30, Temporary Injunction Hearing (Transcript), C-0929-12-F, dated 4/16/2012. Power and water were cutoff and a 3 day armed standoff ensued. The Constable service finally withdrew after the 3rd day (the SWAT team withdrew within 6 hours after they discovered the Partain wasn’t listed in the orders to take possession of the condo and appeared to own the condo per county records), but Constables returned on the 5th day with McAllen police breaking into the condo and removing the Partain’s campaign materials, campaign records, business tools, and business inventory. Judge Gabert’s void Final Judgment in case CL-29.530-[A] was used as an argument by William McCarthy to Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres vindicate Judge Homer Jasso’s illegal writ of possession in Justice Court case no. JP2011-197 to defeat a preliminary injunction in district case no. C-0929-12-F and violate Partain’s constitutional rights to be secure in his property and possessions. Tx. Const. Art. 1 sec. 19 - Deprivation of Life, Liberty, Etc.; Due Course of Law; USCA 14, Sec. 1. The 13th Court of Appeals opinioned in case no. 13-12-00267-CV that Final Judgment was Void, never having the effect of law. App. 32, Opinion, Appeals Case no. 13-12-00267-CV, dated 5/9/2013. 61. Partain’s property was never returned, his motions and efforts to recover his property were ignored or attacked by every judge rotating through his case. Attorney William McCarthy, Judge Homer Jasso, and assistant District Attorney Michael L. Garza continued to use the resulting physical seizure of Plaintiff’s property on May 11, 2012, to challenge Partain’s property ownership. Plaintiff was injured. See also Damages below. COUNT 19 62. ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 11; THEFT; 18 U.S. Code § 1341; 18 U.S. Code § 1961 (1)(A),(B),(D); 18 U.S. Code § 1513; 18 U.S.C. § 1962 (c) and (d); CRIMINAL MISCHIEF; EXTORTION; THEFT – William John McCarthy filed a false sworn Original Petition For Forcible Detainer, Case no. JP2014-458, in the Justice Court of Precinct 4, Place 2, in Hidalgo County, on or about July 15, 2014 for real property owned by Partain and leased to Partain’s tenant, Dora Martinez. William McCarthy did not sue Partain: Attorney William McCarthy, and “The Estate Of James H. Maples” lacked standing to invoke the jurisdiction of the justice court to sue for forcible detainer against Partain’s tenants since the debtors were not landlords or owners pursuant to Texas Property Code § 24 and Turnover Order No. 5, making JP Jasso’s Default Judgment[s] and Writ[s] of Possession void for lack of jurisdiction. William McCarthy irrelevantly claimed to be executor and administrator over The Estate Of James Maples, although he was not and a probate case had not even been filed. William McCarthy represented that the Partain’s property was awarded to the debtors’ Estate through the bankruptcy court, but he did not fully represent that the bankruptcy court’s order had been superseded by Mr. Partain’s Turnover Order No. 5 Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres approximately 6 years earlier in 2008. William McCarthy also claimed to McAllen police and to a county court judge that he actually owned the real property individually, but he could produce no documents. 63. Justice of the Peace Homer Jasso, Sr., operating under the color of law through Justice Court, Pct. 4, Pl. 2, Hidalgo County, case no. JP2011-197 and case no. JP2014- 458, engaged in a continuing pattern of racketeering activities with William McCarthy, and the Hidalgo County District Attorney’s Office including theft, fraud, fraud connected with a case under title 11, and conspiracy to deprive Partain his real property by force using Hidalgo County resources including Hidalgo County Constables, a SWAT team, Default Judgments, and Writ of Possessions against Partain and his tenants, and by collaterally attacking the Partain’s Turnover Order No. 5. App. 11, Turnover Order No. 5, Case No. CL-29,530-A, dated 8/18/2008; App. 24, Default Judgment, Case no. JP2011- 197, dated 6/03/2011; App. 47, Default Judgment, Case no. JP2014-458, dated 9/29/2014; Writ of Possession, Case no. JP2014-458, dated 9/11/2014. Partain’s rent and assets went to Hidalgo County and attorney William McCarthy. 18 U.S. Code § 1957 - Engaging in monetary transactions in property derived from specified unlawful activity. Judge Jasso further violated Texas Property Code § 24.0054(3) and injured Partain by ordering a writ of possession after the appeals record was sent to the Hidalgo County Clerk. App. 50, Letter of Receipt of Appeals Documents by County Clerk, CL-14-3542-E, dated 9/10/2014. Partain suffered real property loss, loss of rent, loss of time, and loss of his investment. See also Damages below. COUNT 20 64. ANY OFFENSE INVOLVING FRAUD CONNECTED WITH A CASE UNDER TITLE 1118 U.S.C. § 1341; 18 U.S.C. § 1343; CRIMINAL MISCHIEF; THEFT18 U.S.C. § 1962 (c) and (d) – William John McCarthy filed a fraudulent sworn exparte Motion For Judicial Review Of A Document Purporting To Create A Judgement Lien, case no. C- 6549-14-G, in 370th District Court of Hidalgo County, on or about July 30, 2014 claiming that Partain placed an illegal lien against property owned by “The Estate Of James Maples”, but he did not provide a copy of the alleged document or identify it as required by statute. William McCarthy claimed to be executor and administrator over Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres “The Estate Of James Maples,” although he was not. Two district judges recused themselves: District Judge Jose Banales was later assigned to the case. William McCarthy did not identify which document Partain had filed as statutorily required by TEX GV. CODE ANN. § 51.902 (c) and William McCarthy misrepresented ownership of the real property in violation of Turnover Order No. 5 through an improper affidavit for a deceased debtor. William McCarthy did not invoke the jurisdiction of the court. Judge Jose Banales was made aware of these facts and that Partain was owner of the property, but he ordered the clerk through wired communication to retitle Partain’s property to a deadman. Judge Banales used the color of law to vandalize Partain’s deed on his property using improper ministerial action through TEX GV. CODE ANN. § 51.902 to enrich a non-legal entity and to protect a racketeering enterprise which included Hidalgo County. Partain’s title to his property was destroyed. Partain suffered real property loss, loss of rent, loss of time, loss of his investment and prejudice against his rights. Partain was injured. See Damages below. COUNT 21 65. 18 U.S. CODE § 1961(1)(A),(B),(D). 18 U.S. CODE § 1961(1)(A),(D); 18 U.S. CODE § 1951 - INTERFERENCE WITH COMMERCE BY THREATS OR VIOLENCE; 18 U.S. CODE § 1513 - RETALIATING AGAINST A WITNESS, VICTIM, OR AN INFORMANT; 18 U.S. CODE § 1962(c),(d) - District Judge Robert Max Blackmon was purportedly assigned to Hidalgo County case no. CL-29,530-[H] through Administrative Judge Jose Rolando Olvera’s Order of Assignment. Partain objected to the assignment of Judge Blackmon, but conditionally withdrew the objection if the assignment fully authorized Judge Blackmon to enforce the Third Amended Judgement and all associated orders of the court. App. 60, 61; TEX GV. CODE ANN. § 74.053 (b). Judge Olvera did not amend his orders or assign another judge so Partain’s objection laid and Judge Blackmon was legally disqualified. However, Judge Robert Blackmon ordered and held a show cause hearing under the color of law on Feb. 26, 2015, on Partain’s Motion for Contempt against William McCarthy. Judge Blackmon tried to circumvent his disqualification by claiming he was only assigned for one hearing since Judge Omar Maldonado of County Court No. 8 was actually sitting over the case. App. 59, Order Of Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres Assignment, dated 1/20/2015. However, Judge Omar Maldonado was not assigned over the case by the 5th Administrative District as required by law, and is not sitting over the case. 66. Judge Blackmon refused to acknowledge the 13th Court of Appeals Opinion and mandate, from related appeals case no. 13-12-00267-CV, and instead protected William McCarthy’s fraud and multiple violation of the court’s final orders by claiming the court’s orders do not apply to counsel. See App. 21, 24, 30, 44, 51, 53, 54, 57, 63, 65. Judge Blackmon adopted William McCarthy’s new sworn testimony, allegedly speaking for “The Estate of James H. Maples” (a non-legal entity), detailing his deceased client’s interests in the Partain’s interstate commerce business and how much the Partain owed the “The Estate of James H. Maples,” although the 13th Court of Appeals wrote that it was beyond the jurisdiction of the court to hear new testimony after it lost its plenary power. App. 32, Opinion; Henson v. Estate of Crow, 734 S.W.2d 648, 649 (Tex. 1987) (The dispositive question before us is the holding of the trial court that the Estate of Bruce L. Crow was not a legal entity and cannot be sued as such.). 67. Judge Blackmon fervently cast fraudulent arguments and legal misrepresentations at the Partain, and issued an order under the color of law denying contempt against William McCarthy to protect the racketeering enterprise and its racketeering activities. 18 U.S. Code § 1961(1)(A),(D); 18 U.S. Code § 1962(c)(d). Specifically, Judge Blackmon made arguments that the actual number on the instant case was “CL-29,530-H” instead of “CL-29,530-A” because of Judge Rodolfo Gonzalez’ acts to transfer the case outside his jurisdiction, making the case a brand new case without any orders to enforce – and contradicting TEX GV. CODE ANN. § 74.121(c). 68. Judge Blackmon retaliated and further argued that Partain started a new case, CL- 29,530-H, to harass the attorney McCarthy and that he was considering sanctions to punish Partain unless he played nice and submitted. 18 U.S. Code § 1961(1)(A),(B),(D). Judge Blackmon threatened the Partain on, but mostly off the record that he may sanction him with fines for not “playing nice”, and that if the Partain failed to conform to any of the judge’s possible orders that he could end up in jail. 18 U.S. Code § 1951 - Interference with commerce by threats or violence; 18 U.S. Code § 1513 - Retaliating against a witness, victim, or an informant. Judge Blackmon even Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres manufactured his own styled case as Johnny Ray Partain v. Estate of James H. Maples, Decedent et al. in the Justice Court, Pct. 4, Pl. 2. to continue his deception and to protect racketeering activities through his alleged new case and threats. App. 62, Order Denying Motion For Contempt, Case no. CL-29,530-H, dated 3/02/2015; 18 U.S. Code § 1962(c)(d); 18 U.S. Code § 1961(1)(D). The association-in-fact continued when Judge Robert Blackmon illegally filed an order in Hidalgo County case no. CL-29,530- [H] in 2016 to dismiss the finalized case for want of prosecution (DWOP) to overrule all orders and the final judgment, which was over 14 years, to take the Partain’s property and business to protect the racketeering enterprise. Partain was injured. Also see Damages below. COUNT 22 69. 18 U.S. CODE § 1001; 18 U.S. CODE § 1018; 18 U.S. CODE § 1961 (D); 18 U.S. CODE § 1962 (D) - Partain made two criminal complaints to the Texas State Bar informing it well of attorney William McCarthy’s criminal acts, his mortal threats, and the racketeering activities herein. The Texas State Bar responded first by shortening the period originally offered to Partain to provide evidence, and then by joining the RICO enterprise and converting Mr. Partain’s complaints and 500 plus pages of certified documents witnessing serious crimes, as an “inquiry” concealing the racketeering enterprise, connected with a title 11 bankruptcy case, and conspiring to advance its goals in violation of 18 U.S. Code § 1962 (D): William McCarthy referenced the Texas State Bar’s response to Partain as condoning his (criminal) actions. The Texas State Bar adopted the goal of the racketeering enterprise claiming in written notice that the serious crimes documented and provided to them do not violate the Integrity of the Profession (See Attorney Displinary Rules of Professional Conduct, Rule 8.04. Misconduct) - although they technically do. The Texas State Bar10 of Texas conspired with the RICO enterprise and concealed the racketeering activity to deprive Partain recourse and to cause him injury. Partain was injured. Also see Damages below. 10 Partain is not suing the Texas State Bar, but is documenting the extent of the racketeering enterprise for which co-conspiring defendants are liable. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres COUNT 23 70. 18 U.S.C. § 1341; 18 U.S.C. § 1343; 18 U.S.C. § 1962(d) – Farmers Insurance engaged in wire fraud, mail fraud, and RICO conspiracy. Partain purchased property loss insurance for his condo located at 3820 N 7th Court, McAllen, Texas, with Farmers Insurance, in 2008, on representations by Farmers Insurance’s agents that Farmers Insurance, or its associates, would compensate Partain for property lost to the perils that Farmers Insurance listed. However, Farmers Insurance did not intend to fully provide coverage for the perils it listed, and in fact, was almost nonresponsive to Partain’s claims of property loss. Instead, Farmers joined a RICO enterprise and adopted its goal to destroy Partain’s property rights. Farmers Insurance used electronic communication and United States mail to execute its scheme. 71. Specifically, Partain made two loss claims under his Farmers insurance policy regarding the illegal taking and the destruction of title to his property under claim numbers 8000753367-1-1 (5/11/2012) and 3003661120-1-1 (10/09/2014) pursuant to the civil commotion, vandalism, and malicious mischief perils under his insurance. Farmers Insurance verified Partain’s title to his house on or about December of 2012, but failed to deny or accept his claim within statutory time limits. Instead Farmers having learned of the RICO enterprise started a scheme to defraud Partain of insurance money by evading Partain’s insurance claim 8000753367-1-1 (5/11/2012) through representations in emails and mailings that they were conducting an investigation on his claim when in fact they had already closed the claim. Then on October 5, 2015, after the statute of limitations had run to enforce an insurance claim through lawsuit, Farmers mailed a denial of coverage misrepresenting legally established precedent to profit off of Partain through the conduct of the racketeering enterprise. Partain was injured. Also see Damages below. COUNT 24 72. 18 U.S.C. § 1962(d) – Judge Mario Ramirez11 is associated-in-fact with the racketeering enterprise and continues to conspire to engage in a course of conduct to deprive Partain 11 The enterprise element of a RICO allegation may be proven with evidence of an “association-in-fact” enterprise. Boyle v. United States, 129 S. Ct. 2237 (2009); United States v. Warner, 498 F.3d 666 (7th Cir. 2007) (A state may be an enterprise). Former Governor George Ryan’s conviction was affirmed). Naming a judge as part of an association-in-fact enterprise does not require that the judge becomes a defendant in the complaint of racketeering, Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres his property, his rights, and the operation of his interstate company, Atlas Transportation, Inc. (aka Global Limo, Inc.) while protecting Compass Bank and other racketeers. The association-in-fact enterprise continued when Judge Mario Ramirez dismissed the defendants of this lawsuit on his authority as a judge to protect the racketeering enterprise. When the case was reopened and remanded to conform to the law, Judge Ramirez closed his court to the Partain for over 4 years, refusing to respond to motions, and preventing Partain from exercising his constitutional rights and recovering compensation for his businesses and property, and protecting Hidalgo County corruption. After Partain complained to the Texas Supreme Court and Governor Greg Abbott, Judge Ramirez was contemptuous of Partain’s rights and Ramirez’ mandate so Judge Ramirez bless all the defendants of the racketeering enterprise with immunity and dismissal to continue the open pattern of racketeering described herein. To be part of a conspiracy to violate RICO under § 1962(d), the conspirator need not himself have committed or agreed to commit the two or more predicate acts, only to further the conduct of the racketeering enterprise. He who opts into or participates in a conspiracy is liable for the acts of his co-conspirators which violate section 1962(c), and vice versa, even if the defendants do not personally agree to do, or to conspire with respect to, any particular element. Partain is injured. Also see Damages below. DAMAGES 73. The acts and omissions of the Defendants are the proximate cause of the damages to Partain, and Partain seeks monetary relief over $1,000,000 and a demand for judgment for all the other relief to which the Partain deems himself entitled. Partain seeks compensation for the loss and damage of his property and his vested interests in his businesses, and general damages for the loss of freedom, mental anguish, loss of wages in the past, loss of future earning capacity, and exemplary damage for intentional abuse of “legal process”, retaliation, and malice. Further, it is unlawful for any person to conspire to violate any of the provisions of subsections 18 U.S.C. § 1962 (a), (b), or (c), and each co-conspirator is liable for mandatory treble damages for the acts of all other co-conspirators undertaken in furtherance nor that a judge be a part of a lawsuit, but he is still an associate of the racketeering enterprise nonetheless which demonstrates a continuation or an open pattern of racketeering in the instant case. Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres of the conspiracy, both prior to and subsequent to the co-conspirator’s joining the conspiracy, even if the conspirator did not participate in, or was unaware of, such acts. Salinas v. United States, 522 U.S. 52, 63-64 (1997); see also CGC Holding Co., LLC v. Broad and Cassel, 773 F.3d 1076, 1088 (10th Cir. 2014). 74. As of August 3, 2020, Partain’s property losses include, a hard won civil judgment ($2,720,126) in Hidalgo County Court No. 1 case no. CL-29,530-A which was finally destroyed through dismissal for want of prosecution (16 years after the judgment became final and 3 executions had been attempted); real property ($116,000) which was invaded and first seized after an assault by a SWAT team as directed by the Hidalgo County District Attorney to interfere with Partain’s US Congressional campaign against public corruption; eight years of rents ($96,000) after the seizure of Partain’s condo; Partain’s transportation business and assets ($19 million) which was never return per court order (the court’s refused to enforce their decrees and instead threatened Partain with contempt and incarceration for insisting that the courts enforce their decrees); Partain’s established and vested business interests in his electrical service companies ($55 million) which was partially destroyed after a failed attempt to “felonize” Partain in Cameron County following a threat by a Justice of the Peace that the District Attorney looking for a way to prosecute him; $22,802 in additional monies seized by Cameron County, plus simple interest at 10% before judgment and compound interest after judgment; plus treble damages against RICO defendants. Said damages are minimally sum certain at $236,819,180, and do not include any jury findings for loss of freedom, mental anguish, intentional abuse of “legal process”, retaliation, and malice. CONDITIONS PRECEDENT 75. All conditions precedent have been performed or have occurred. JURY DEMAND 76. Plaintiff demands a jury trial as required in any findings of fact. REQUEST FOR DISCLOSURE 77. Pursuant to Rule 194, you are requested to disclose, within 50 days of the service of this request, the information or material described in Rule 194.2(a)-(i). Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres VI. PRAYER 78. WHEREFORE, PREMISES CONSIDERED, Plaintiff, Johnny Partain prays the Court causes Defendants to be served with process herein, that the Defendants be ordered to appear and answer, that the Court exercises the authority granted it under 18 USC § 1961-1968 and under Tex. Civ. Prac. Rem. Ch. 37 and 65, and the Texas Constitution, and that upon final hearing, Partain have judgment of the Court for his damages and costs, including actual damages, general damages, exemplary damages, pre-judgment interest at 10% APR, post judgment compound interest at 10% APR, all costs incurred therefrom, for his time, and for any other and further relief, either at law or in equity, to which Partain may be entitled. Partain seeks adequate compensation for the taking, damaging, or destruction of his property by the State of Texas, Hidalgo County, Cameron County, and City Of McAllen, and seeks declaratory judgment on the as-applied-to-the-facts-of-this-case constitutionality of Tex. Gov. Code § 51.902, and Fraudulent Liens and Texas Property Code, Title 4. Actions and Remedies, Chapter 24. Forcible Entry And Detainer. Respectfully submitted ________________________________ PLAINTIFF 7020 N. 16th Street McAllen, Texas 78504 956-240-1821 partain@atlastechnologies.biz CERTIFICATE OF SERVICE I hereby certify that I have caused to be delivered a true and correct copy of Third Amended Petition on this May 18, 2021 pursuant to the Texas Rules of Civil Procedure to: 1. STATE OF TEXAS; TEXAS ATTORNEY GENERAL KEN PAXTON; DISTRICT JUDGE ALEX W. GABERT; DISTRICT JUDGE ROBERT MAX BLACKMON; DISTRICT JUDGE MANUEL BANALES - Benjamin.Dower@texasattorneygeneral.gov, Demetri.Anastasiadis@texasattorneygeneral.gov, kelli.fuqua@texasattorneygeneral.gov, scot.graydon@oag.texas.gov; Electronically Filed 5/18/2021 1:40 PM Hidalgo County District Clerks Reviewed By: Irene Caceres 2. HIDALGO COUNTY, TEXAS; HIDALGO COUNTY SHERIFF/CONSTABLE J.E.”EDDIE” GUERRA, HIDALGO COUNTY PRECINCT 4; DEPUTY CONSTABLE CARLOS GONZALEZ, HIDALGO COUNTY PRECINCT 4; JUSTICE OF THE PEACE HOMER JASSO SR.; DISTRICT JUDGE JOSE MANUEL BANALES; COUNTY JUDGE SERGIO VALDEZ; COUNTY JUDGE RODOLFO GONZALEZ; HIDALOG COUNTY SHERIFF GUADALUPE "LUPE" TREVIÑO, officially and personally; - josephine.ramirez@da.co.hidalgo.tx.us; 3. MCALLEN POLICE CHIEF VICTOR RODRIGUEZ and CITY OF MCALLEN – rdguerra@guerrasabo.com, hscott@guerrasabo.com; 4. FARMERS INSURANCE, INSURANCE EXCHANGE- sds@obt.com; 5. DISTRICT ATTORNEY RENE GUERRA replaced by DISTRICT ATTORNEY RICARDO RODRIGUEZ - michael.garza@da.co.hidalgo.tx.us; 6. BBVA USA, INC.; COMPASS BANK - ccmurray@atlashall.com; 3. Letters To Governor and Attorney General EXHIBIT 3 7020 N 16th Street McAllen, Texas 78504 IXCHEL PARR Assistant Attorney General Environmental Protection Division OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548, MC 066 Austin, Texas 78711-2548 (512) 475-4013 | Fax: (512) 320-0911 Ixchel.Parr@oag.texas.gov February 16, 2024 Re: Demand to cease and desist misrepresentations and attempts to divert PSF funds from GLO Ms. Parr; I received your demand letter of January 31, 2024, regarding the General Land Office’s (GLO) complaint of my properties and lessees. You either failed your due diligence before contacting me, or you are misrepresenting the illicit acts of the State of Texas – I am attaching to this letter some relevant communications with the Attorney General and Governor. It is the General Land Office that has confiscated or misappropriated some of my royalty payments, without proper legal authority over my property, by making misrepresentations to my lessees.1 This is going to cause problems for my lessees whom will eventually be unable to produce on my property – or pay the State’s taxes. But its going to be a much bigger problem for the State of Texas if it continues to use these illicit tactics to evade paying its debt to me. The State of Texas, including all the instrumentalities of the state, its legislative, executive, and judicial authorities, has precious little authority over the matter of my collecting its debt to me, as imposed by Art. 1 Sec. 17 of the Texas Constitution and the 5th Amendment of the United States Constitution. Texas’ continuing rogue evasions and gamesmanship of its obligations to pay its debt are barred by Art. 1, Sec. 29. It has been established through multiple United States and Texas Supreme Court Opinions that these debts must be paid.2 In fact, Texas Solicitor General Aaron Neilson recently represented to the United States Supreme Court, in Devillier v. Texas, cause no. 22- 913, a relevant case here, that the State of Texas always pays its constitutionally imposed debts: Mr. Neilson was responding to characterizations that Texas’ actions in Devillier were rogue, resembling gamesmanship or even bait and switch. Did he lie? Well, Texas’ debt in my instance has matured much further than even Devillier, following the State’s established path of gamesmanship to the instant situation. 1 The State has no power to commit acts contrary to the guarantees found in the Bill of Rights. Boullion, 896 S.W.2d 147-49 (Tex. 1995). 2 “[I]f a state takes a person’s property and doesn’t give compensa on, that state is viola ng the Cons tu on every day — it’s an ongoing viola on,” said United States Supreme Court Jus ce Elena Kagan, In re: Devillier v. Texas. Texas avoided and evaded paying its constitutionally imposed debt to me. Your Attorney Generals Office unlawfully claimed judicial immunity to the processes that I attempted in good faith, which consequently neutered the State’s power to resolve it debt to me, judicially and statutorily. All this done to sacrifice me and my family and protect incompetence and corruption from the lowest to the highest political offices of Texas. Ironically, I now have legal immunity to civil litigation and criminal prosecution since they are not only barred by res judicata, but by Art 1. Sec. 2934, beyond government power and inviolate. Raising further legal arguments is irrelevant and will not lie, even if the processes now implemented to collect against the State’s debt are alleged imperfect. Your best response now would be to negotiate honestly with me. As of February 16, 2024 the State of Texas is indebted to me for approximately $337 million, minus the estimated over $100 million in assets I possess through execution against the State. That’s comes out to about $237 million. Plus we’ll have to add for costs and the recent additional seizures of my property. I’ve developed a lot of tools and I will collect the full amount of the State’s debt. However, I am fully willing to release Texas from my lien once it pays it debt to me as required by law. Please make certain that the GLO returns my royalties back to me. In the meantime, you’ve express interest in some of my property which you claim is under the PSF. Do you have the authority to trade, or to pay the State’s debt? Or, do you want to set a precedent? Respectfully, Johnny Partain 956-240-1821 partain@atlastechnologies.biz Cc: Governor Greg Abbott, Office of the Governor, P.O. Box 12428, Austin, Texas 78711-2428, Cert. Mail #9407111206210996187334; Attorney General Ken Paxton, Office of the Attorney General, PO Box 12548, Austin, TX 78711- 2548, Cert. Mail #9407111206210996439693. 3 The United States Supreme Court has consistently described the Just Compensa on Clause as “self-execu ng,” meaning that no addi onal acquiescence or authoriza on is necessary to enforce the compensa on requirement. This means that no further ac on by the government is a necessary predicate to enforcing the right, nor is a waiver of sovereign immunity, nor an enabling statute. Thus, an owner whose property has been taken is en tled to seek compensa on without invoking any par cular statute or state court procedures. See, e.g., Knick, 139 S.Ct. at 2171; Clarke, 445 U.S. at 257. When government takes property, it is obligated to provide compensa on. If it does not, property owners are en tled to seek compensa on themselves without addi onal government permission. 4 “Just compensa on is provided for by the Cons tu on and the right to it cannot be taken away by statute.” Seaboard Air Line Ry. Co. v. United States, 261 U.S. 299, 304 (1923). EXHIBIT KEN PAXTON ATTORNEY GENERAL OF TEXAS January 31, 2024 Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz 956-240-1821 Re: Demand to cease and desist misrepresentations and attempts to divert PSF funds from GLO Dear Mr. Partain: This office has received a request from the General Land Office (“GLO”) to address the letters you have sent to operators of numerous oil and gas leases in Texas. In these letters, you allege that certain Permanent School Fund (“PSF”) minerals have been transferred to you. You further allege that “[t]he debtor, State of Texas, has defaulted in connection with an obligation secured by collateral specified in the attached UCC Finance Statement.” The UCC Finance Statement claims as collateral “[a]ll assets, interest, and taxes belonging to Texas, Texas Treasury Safekeeping Trust Company, Hidalgo County and City of McAllen.” The letters direct the operator to make all payments owed to the State of Texas pursuant to State oil and gas leases to you. As you must be aware, the representations you have made are wholly inaccurate and entirely without authority. You have presented no recorded deeds or judgments against GLO or any other entity to support your representations. The funds you are attempting to divert away from the Permanent School Fund support public schools across Texas, and the Office of the Attorney General takes any attempt to illegally appropriate these funds very seriously. The Office of the Attorney General, on behalf of the GLO, demands that you: 1. Immediately cease and desist contacting operators claiming any interest in state property; 2. Immediately inform the operators you have previously contacted of your misrepresentations and return any royalty payments you inappropriately received; 3. Within 20 days of the date of this letter, file the attached UCC-3 termination statement for all properties on which you filed a UCC-1 statement pursuant to TEX. BUS. & COM. CODE § 9.513(c); and 4. Within 30 days of the date of this letter, send copies of your correspondence with the operators previously contacted and file stamped copies of the UCC-3 termination statements. This letter is an attempt to resolve this matter without the need, or cost, of litigation. Your prompt attention to this matter will save time and expense for you and the people of Texas. Failure to respond may result in further action by the Attorney General. Any and all future calls, correspondence, and other communications should be directed to my attention. Thank you for your prompt attention to this matter. Sincerely, /s/ Ixchel Parr IXCHEL PARR Assistant Attorney General Environmental Protection Division OFFICE OF THE ATTORNEY GENERAL P.O. Box 12548, MC 066 Austin, Texas 78711-2548 (512) 475-4013 | Fax: (512) 320-0911 Ixchel.Parr@oag.texas.gov 2 Johnny Partain 7020 N 16th Street McAllen, Texas 78504 US Attorney General Merrick Garland U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530-0001 May 18, 2023 CRIMINAL COMPLAINT AGAINST TEXAS GOVERNOR GREG ABBOTT AND ATTORNEY GENERAL KEN PAXTON, AS WELL AS NOTICE OF COMINGLING OF PUBLIC AND PRIVATE PROPERTY POTENTIALLY AFFECTING FEDERAL PUBLIC MONIES My name is Johnny Partain, and I am filing a criminal complaint (18 USC 242, 241) against Texas Governor Greg Abbott and Texas Attorney General Ken Paxton for violating my civil rights. I am also informing your office that I have solutions to cure my injuries and enforce my civil rights that may jeopardize the interests of the United States government, so I am requesting and providing information before proceeding. Governor Greg Abbott and Attorney General Ken Paxton knowingly violated my rights to receive hundreds of millions of dollars in compensation for property that was taken, damaged, and destroyed by the State of Texas pursuant to Texas Constitution Article 1, Section 17. To be clear, the Texas Judiciary buried its inept and unlawful acts against me, my property, and other people's lives by denying me access to the courts under the pretext of confusion and immunity, which ultimately destroyed my property rights. However, it was the Attorney General, acting under color of law asserting immunity in Hidalgo County District Case No. C-0929-12-F, who absolved the helpless courts of their obligations under the Texas constitution, and as required by mandate of a higher court. Then, Texas Governor Gregg Abbott and Texas Attorney General Ken Paxton took affirmative action, objecting to and blocking the Texas Comptroller Glenn Hagar through its attorney, Murl E. Miller, from paying my application for just compensation as required by the constitution, claiming under color of law that I was required a court order to exercise my right to just compensation under Texas Constitution Article 1, Section 17, from which they had just been illegally granted immunity. Attorney General Paxton could have brought my request for compensation before a jury if he wanted a second opinion on its value rather than claiming immunity from the constitution to evade the required compensation. Governor Gregg Abbott does not require a court order to comply with the constitution or to allow the Texas Comptroller to pay me. See the attached notices. To put context on this issue, the compensation due to me arises from the racketeering activities of Texas State Bank to interfere through its political connections in the South Texas judiciary with my final judgment for $451,000 against a well-known fraud. The fraud was a personal friend and neighbor to the president of the bank. The bank then interfered with the operations of my interstate bus company through theft of its assets and racketeering (RICO) to control the company and its profits. Banks have no superior rights under the Texas Constitution. Twenty-three (23) people died as a result of the bank strong arming me through their law firm to seize control of my company. I was served with over a billion dollars in legal claims, and then I was judicially enjoined and threatened with incarceration to be silent to protect the appearance of propriety by the judiciary in the ensuing multi-district litigation. My company was destroyed and the families who lost lives were compensated almost nothing: They never realized that the courts and the bank were running the seized corporation. When I complained to higher authorities, I was threatened for complaining, my complaints were dismissed, and I was consequently imprisoned for civil contempt for 72 days by the judge I was complaining about, before suing out a habeas corpus in Federal court. The offending judge never had jurisdiction over me. Despite the fact that I had no charges against me and that I had never faced prosecution, I was fined $94,500 by a second judge for using habeas corpus to evade the first judge's order to jail me. Thereafter, four judges signed orders on each other’s courts to protect the offending judge from criminal prosecution. President Obama’s administration ordered a criminal investigation of two of the judges through the FBI, but the FBI failed to perform. I know this because I was never interviewed, but my house was searched by FBI and US Marshals. Later, my property and my temporary congressional campaign headquarters were assaulted by a SWAT team through actions by the Hidalgo County District Attorney and a Justice of the Peace to seize my property while I campaigned for a US congressional seat against public corruption. This resulted in a three day armed standoff, wherefrom police withdrew, but my campaign headquarters, a property I owned, was taken a few days later while I was away. Because I had never been sued, orders to take my property were eventually found to be unlawful by a higher court. A few years later, the same government agents once again illegally seized my property in the exact same way as I ran for Congress again. A Justice of the Peace then threatened me that the District Attorney was looking for a way to prosecute me. A month later I was indicted and fully prosecuted for a felony manufactured by local government. I was eventually exonerated on the grounds that there was no crime. However, after my acquittal, the courts withheld almost $25,000 from me and refused to restore it as required by law. Before the prosecutions were dropped, I lost my ability (security clearance) to work for my clients, which almost cost me my second company. The courts then instructed the court's clerk to title my property to a dead man using Texas lien laws to describe my title on my property as a lien not assigned by a court recognized in the State of Texas or the United States. There are a lot more civil right violations, and I have filed numerous competent complaints, but because everyone involved has always been granted unexplained immunity from the law, my complaints have never been subjected to judicial review. Even though my rights have been serially violated, I cannot appeal since the clerks have also been weaponized, altering records and making unlawful demands, to prevent my appeals. According to a district attorney's investigator, I should not expect protection from criminal assaults against me or my property because I am a contentious political issue that will not be brought before a jury. I've made it quite clear that the Texas legal system will never permit me to stand trial, but maybe I can force it to prosecute me? This brings me to one of the many extrajudicial options I have. According to Texas Constitution, Art. 1, Sec. 17, the government must provide payment before using, taking, or destroying a citizen's property. It is not necessary to file a lawsuit, because according to the constitution, payment is required prior to using, taking, or destroying property. Since Texas is not permitted to become indebted to me instead, my hundreds of millions of dollars are comingled with those of the State of Texas. Art. 1, Sec. 17 of the Constitution is a self-executing constitutional right, and I cannot be legally prosecuted for receiving my compensation. Any prosecution would lead directly to legal error according to opinions of the Texas Supreme Court for the past 60 years. However, even if I were to be prosecuted, I doubt that the State of Texas or even the Federal government would be willing to have me appear before a jury and have a team of lawyers examine what I have experienced over the past 20 years. I will collect my compensation from Texas. I am nonetheless aware that federal funds, grants, and programs also contribute to Texas's economy. Finding and avoiding any potential federal funds or pledges that Texas may hold is a nearly intractable challenge. As a result, I'm notifying you, the Department of Justice, that I want to refrain from seizing federal property and that I will seek my rightful restitution from the State of Texas. I'm respectfully requesting that you identify to me all federal property that the State of Texas is holding so that I can avoid taking it, whether or not the Department of Justice decides to pursue the charges I've made against Gov. Gregg Abbott and AG Ken Paxton. Alternately, I'm asking that any federal property that the State of Texas owns or controls be taken away until I receive my pay from Texas. This could include withdrawing FDIC protection for deposits in Texas State Depositories. As a final option, I am requesting that the United States government reimburse me for my just compensation using funds designated for the State of Texas. As of May 18, 2023, this compensation is $327,143,334, compounded at 10% annually as provided by law. If you are able to organize any relief, if you have any concerns or objections, or if you intend to leave me on my own, please let me know as soon as possible. Respectfully, Johnny Partain 956-240-1821 Cc: Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 Attorney General Ken Paxton Office of the Attorney General PO Box 12548 Austin, TX 78711-2548 GLENN TEXAS HEGARTEXAS CI.INN IIECAR COMPTROLLEROF COMPTROLLER PUBLIC ACCOUNTS OFPUBLIC ACCOUNTS P.O. P.O.Box 13528 • . Austin,TX Box 13528 Austin,TX78711-3528 78711-3528 December 7, December 7, 2022 2022 R. Partain Mr. Johnny R. North 16th 7020 North 16`h Street Street McAllen, Texas MCAllen, Texas 78504 78504 RE: Miscellaneous Claims Application Dear Mr. Partain, Partain, II greatly appreciated the greatly appreciated the opportunity opportunity to to talk with you talk with you about about the the $250,000,000.00 $250,000,000.00 Miscellaneous Claims Application Application that you filed with our agency. For the reasons we discussed, For the reasons we discussed, your Application must your Application must be denied as be denied as aa matter matter of of law. law. Your lawsuit was dismissed because the trial court did not court did not have have jurisdiction to hear your jurisdiction to of action due to causes of to sovereign immunity. Sovereign Sovereign immunity entails two immunity entails two separate forms of separate forms immunity for immunity for the the State Stateof ofTexas, itsagencies, Texas,its agencies,and andits officials(collectively, itsofficials (collectively,the "State"). the "State"). (1) Immunity from (1) Immunity fromSuit: Suit: Immunity from suit Immunityfrom suit bars bars aa lawsuit lawsuit against against the the State State unless the unless the State expressly gives its its consent to the the suit. In other suit. In other words, words, although althoughthe claim asserted the claim asserted may be one on which the State acknowledges acknowledges liability, liability, this rule precludes this rule precludes aa remedy remedy until until to suit. the Legislature consents to suit. (2) (2) Immunity from Liability: Immunity from Immunityfrom Liability:Immunity from liability liability protects protects the the State State from judgments from judgments even if the Legislature expressly given Legislature has expressly given consent consent toto the the suit. suit. In other words, In other words, even even if if the the Legislature authorizes suit against the State the question remains whether the claim is is one liability by granting for which the State acknowledges liability. The State neither admits liability granting permission to be sued. permission to be sued. Thus, when trial court made when the trial made its judgment, denie`dyour judgment, itit denied your claim claim as as the the State State isis immune immune from from the suit and the liability. The appellate liability. The appellate court court also did not overtum immunity judgment. overturn the immunity As a result, it is inaccurate property claim. inaccurate to state that the Courts have not determined your real property claim. The judiciary have specifically found that your claims are barred under the doctrine of of sovereign sovereign immunity. immunity. is Even if you disagree and continue to believe that you do have a valid right to payment that is "unopposed," you are still required required to to obtain obtain an an Order Order from from aa Texas Texas court court with with competent competent "unopposed," you are still jurisdiction over jurisdiction over the the matter to agree matter to agree to to enforce enforce your your right righttoto the payment. Absent the payment. Absent aa bona bona tide fide judicial order from such a Court, our Agency has no statutory authority to pay any claim that you judicial order from such a Court, our Agency has no statutory authority to pay any claim that you matter. may present concerning this matter. Respectfully Respectfully yours, yours, Murl E. Miller Chief Counsel for General counsel for General Litigation Litigation Comptroller.Texas.Gov Comptroller.Texas.Gov • .512-463-4000 512-463-4000 • Toll . Free 1-800-531-5441 • TollFreel-800-531-5441. Fax 512-305-9711 Fax512-305-9711 tr. 74-209 (Rev.10-17/8) Miscellaneous Claim Application Use this form to file a claim against the state of Texas for the following reasons: • Warrant that is void due to expiration date. • Unpaid bill that cannot be paid by receiving state agency due to expiration of appropriation. • Other claim justified by state contract or state law. Instructions on second page I Type of Claim (Please check one) Claim under Tex. Const. Art. 1, Sec. 17 I 111 Void Warrant 111 Unpaid Bill gOther Please type or print Claimant's name (Legal name of individual or business) Johnny Ray Partain Mailing address (P.O. Box. street, city, state and ZIP + 4 code) 7020 N 16th Street Claimant's Social Security number (SSN)* or Texas taxpayer number or Federal Employer Identification Number (FEIN) ***.**.**** Claimant's telephone (Area code and number) Amount of claim 956-240-1821 $250,000,000.00 Specific reason for claim (For void warrant(s), list specific identification of goods, services. refund or other items for which the warrant(s) were originally issued.) This is my sum certain claim for just compensation specifically required by Texas Constitution, Art 1., Sec. 17, for my property taken, damage, or destroyed by state actors, and particularly state judges, protected under claims of immunity to suit by the Texas judiciary: I have not been sued. The Texas Judiciary waived its right to review my claim on excuse of immunity to suit in Texas courts. Attached is the Third Amended Petition describing the original complaint. Governor Abbott and Attorney General Paxton refuse to meet to negotiate. My request for $250 million compensation through warrant is unopposed. My constitutional claim is due pursuant to Art. 1, Sec. 17, and is superior to any impeding process or statute, being constitutionally derived. Supporting documentation (Please list) 1. Third Amended Petition 3 2. Letters to Governor and Attorney Gen. 4 * Federal Privacy Act Statement: Disclosure of your Social Security number is required and authorized under law for the purpose of tax administration and identification of any individual affected by applicable law, 42 U.S.C. § 405(c)(2)(C)(i) and Tex. Gov't Code §§ 403.011, 403.015. 403.055. 403.056 and 403.078. The Public Information Act. Tex. Gov't Code Ch. 522. and applicable federal law shall govern release of information on this form in response to a public information request. Certification I certify that the information I have furnished on this form is true and correct. I certify that the amount of this claim is still outstanding and is due and payable. Type or print name Title Johnny Ray Partain Citizen of Texas Claimant's signature Date sign herer 8/26/2022 Complete application and mail to: Comptroller of Public Accounts Fiscal Management Division P.O. Box 13528 For questions, call 1-800-531-5441, ext. 5-0966. Austin, TX 78711-3528 The local number in Austin is 512-475-0966. ATTN: Miscellaneous Claims Analyst Or FAX to: 512-463-2138 Under Ch. 559. Texas Government Code, you are entitled to review. request and correct information we have on file about you, with limited exceptions in accordance with Ch. 552 Government Code. To request information for review or to request error correction, contact us at the address or phone number listed on this form. Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 Attorney General Ken Paxton Office of the Attorney General PO Box 12548 Austin, TX 78711-2548 August 11, 2022 22 NOTICE OF DEBT COLLECTION The State of Texas has to this date evaded paying to me and my family its constitutional debt under Texas Constitution, Article 1, Section 17. I have tried to resolve this through the Texas Supreme Court which now claims immunity from petition, constitution, and the laws of our state. I have tried to resolve this debt with both the Governor’s and Attorney General’s office which refuse to enforce the laws of this state or pay its debts, but have argued that the debt needs to be paid. The creation of the State of Texas begins in Texas Constitution, Article 1, and includes our Bill of Rights which are excepted from the powers of government and inviolate, in verbatim, per our Texas Constitution. Specific rights under the constitution are self-executing according to the Texas Supreme Court and can be enforced without any other actions required. WHEREAS, Johnny Partain residing at 7020 N 16th Street, McAllen, Texas 78504 has made several claims regarding the taking, use, and destruction of his property by the government amounting to $250 million, sum certain, pursuant to Texas Constitution, Article 1, Section 17; WHEREAS, Johnny Partain has attempted to compel the State of Texas and its political subdivisions to conform to the Texas Constitution to pay its debts, ad nauseam, and he has no other legal recourse; WHEREAS, The State of Texas has refused Johnny Partain any due process or a jury trial as mandated by order of a higher court and the law. WHEREAS, The State of Texas has no immunity to its obligations under the Texas Constitution and a constitutional debt exists; WHEREAS, the State of Texas, Hidalgo County, and City of McAllen have engaged in serial patterns of harassment, intimidation, oppression, and corruption, protected by the State of Texas all the way up to its Governor, Attorney General, and Chief Justice of the Texas Supreme Court; WHEREAS, Johnny Partain is entitled to full payment and to the costs of collections, including the costs of defending his restitution as necessary; WHEREAS, debt collections routinely cost 50% of the debt owed and is traditionally added to debts collected; WHEREAS, the Department of Public Safety alone has an agency wide biennial budget of $2.3 billion in state and federal funds; ACCORDINGLY, Johnny Partain is now forced to engage all forms of debt collections against the State of Texas, and its culpable political subdivisions, of assets to restitute, preserve, and defend his rights under the United States Constitution and Texas Constitution; ACCORDINGLY, restitution will be adjusted to reflect the original value of Johnny Partain’s injuries, and any additional injuries; ACCORDINGLY, costs will be adjusted to compensate for enforcement and defense of the collection of debt for restitution. The State of Texas may pay its debt to Johnny Partain within 20 days of this letter without incurring additional costs, but note that no action is necessary from your office. If you protest and wish to justify your position, protest immediately and be very specific regarding the terms of your protest: Remember that the Texas judiciary has already waived and exhausted its jurisdiction to review this debt, punting any reasonable and civil resolution to your offices, if possible. Prior letters to the Governor’s Office are attached to this notice. Justly, Johnny Partain 956-240-1821 Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 Attorney General Ken Paxton Office of the Attorney General PO Box 12548 Austin, TX 78711-2548 December 21, 2021 21 Re: Johnny Partain – Property Compensation Pursuant To Texas Constitution, Art. 1, Sec. 17 and US Constitution, Amendment 5. Governor Greg Abbott and Attorney General Ken Paxton; The State of Texas owes me $250 million for condemnation and destruction of my property through its efforts to protect official incompetence and public corruption1 in South Texas. I sent you a certified letter on August 6, 2020, requesting payment since I had been locked out of the courts for over 4 years and couldn’t even get a response to a simple motion. I never got a response from your office and your office failed to return my calls for a meeting or a calendar. In fact, I have never been interviewed even after making criminal and judicial complaints against public officials for two decades. Taking notes from your December 18, 2021, press conference2 regarding the State’s right to take 'Unprecedented' action on the border wall “when the Biden Administration has failed to do its job as required by 1 The United State Supreme Court relevantly explains in Nashville, C. & St. L. R. Co. v. Browning, 310 U.S. 362, 369, “It would be a narrow conception of jurisprudence to confine the notion of "laws" to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice cannot supplant constitutional guarantees, but it can establish what is state law…Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text.” See also Poe v. Ullman, 367 U.S. 497 (1961). I.E. Corruption is the law of South Texas all the way up to the Texas Supreme Court. 2 https://www.youtube.com/watch?v=7rQHlft5jFw&t=153 the constitution … to enforce the law”, I am also taking this unprecedented action to protect my property rights under the Texas Constitution Art. 1 Sec. 17 to collect monies owed to me for property seized and destroyed. Your office and the Texas Supreme Court have facilitated “third-world country” banana republic practices which you campaigned against in 2014. You have both allowed public corruption to flourish and to cause me great injury. If you ignore me, I will be forced to take the $250 million, plus whatever costs to collect it, to make myself whole - to embarrass everyone involved and to destroy the status quo so I might finally live peacefully in Texas. Recall that it didn’t take much to shut down the whole judicial network for two months when I last contacted you. The amount is no longer at issue since the judiciary has waived its right to review, claiming it is immune to being sued in it’s own courts. Being attorneys you also realize that this hasn’t been a credible defense in the courts since the 1960’s and the Texas Constitution (Art.1, Sec. 17) requires payment, even if the Texas Supreme Court determines that public incompetence, corruption, and the status quo must be protected at all costs when it embarrasses the courts or impugns the state.3 Fortunately, Texas Constitutional rights are allegedly self-executing and don’t require judicial review. I presume you and the State will treat me as deplorable wherefrom the law doesn’t apply as usual, and maybe unresponsive since I am only a citizen of Texas. I’ve already endured two decades of poor treatment and political prosecution. Please don’t be inconsiderate. Respectfully, Johnny Partain 956-240-1821 partain@atlastechnologies.biz 3 [T]he Constitution itself is . . . a waiver of governmental immunity for the taking, damaging or destruction of property." Steele v. City of Houston, 603 S.W.2d 786, 791 (Tex. 1980). Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 August 3, 2020 Re: Johnny Partain – Request Forr Property Property Compensation Compe: Pursuant To Texas Constitution, Art. 1, Sec. 17 and US US Constitution, Constitution, .AAmendment 5. Governor Greg Abbott; I am currently in the Texas Supreme Court, In Re Johnny Partain, case no. 20- 0362, regarding an inverse condemnation complaint against public officials and the State of Texas with additional complaints of public officials engaging in and protecting institutionalized incompetence and public corruption – the status quo. I’m certain that you, Governor Abbott, know of what I speak since you raised the issue of public corruption in South Texas by comparing it to “third-world country practices” in your campaign near the Fort Bliss Army base in February of 2014 as you campaigned for governor. Unfortunately, the corruption hasn’t changed since your inauguration and the Texas judiciary has, in a most obvious and spectacular way, placed itself in the embarrassing situation of engaging in and then protecting this well documented public corruption in South Texas with sovereign immunity. See Hidalgo District Court case no. C-0929-12-F. Case no. C-0929-12-F is a case I petitioned in 2012 to protect my property and my final judgment in Hidalgo County case no. CL-29,530-A from retaliatory seizure and destruction. The litigation didn’t work, the rule of law did not prevail, because too many large extrajudicial interests connected to the Hidalgo County courthouse with stake in sustaining local government corruption and protecting the county interfered with the judicial process placing the judiciary into its instant embarrassment. See In Re Johnny Partain, case no. 20-0362, Petition For Writs of Mandamus. You can relax. I am not mixing current judicial process with my request to you for reimbursement of my seized and destroyed property, as required under Texas Constitution, Art. 1, Sec. 17 and US Constitution, Amendment 5. Due process as 1 explained by the United State Supreme Court1 is not necessarily judicial: It only requires some kind of meaningful and timely process. You will find that while case no. C-0929-12-F was reinstated by a 14th Appeals Court judge assigned by Texas Supreme Court Justice Nathan L. Hecht in 2015 after it was illegally dismissed only “on the authority” of a district judge, that same district judge has since then refused to answer any of my motions or to take me to trial as mandated by the 14th Appeals Court justice. Many judges I’ve encountered over the past 22 years routinely demonstrate contempt for their own judiciary and the rule of law. I am denied justice under any common judicial practice and there is nothing you could add or subtract from the process. Even the Texas Supreme Court appears to abuse its own discretion2 by refusing to enforce the appeal court’s mandate or the constitution when it obviously has the authority to do so, apparently to protect the appearance of propriety in the system. The courts, not the issue, were closed to me exactly four years ago without any adjudication except to bless nearly all parties with immunity for invading, seizing, and destroying my property. Regardless of what little scant processes are available that can be used to enforce a person’s civil rights under the constitution, the required lawful reimbursement for my property losses by the state always leads to your office to negotiate an order for repayment from the Secretary of State. I think that after 22 years of litigating the same issues over and over without resolution or enforcement in the judiciary only to be finally excluded from all court processes, that its reasonable for any man or the public to conclude the Texas Judiciary is an impotency relying on its court concocted immunity to escape public accountability while at the same time collecting paychecks and consuming public resources. The judiciary is failed and is probably irrelevant anyways to those who know its workings. Bringing me to a bigger point. The courts go further to bless nearly all other public offices with immunity from accountability - and the status quo embraces it. I’m not certain how the Executive or Legislative branches will respond to my efforts in this upcoming 87th Legislature to pierce this immunity to accountability, but it appears the political environment is ripe to raise the issue. There is a poignant point to be made by recent protests and 1 Mathews v. Eldridge, 424 U.S. 319 (1976) - This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 557-558 (1974). See, e.g., Phillips v. Commissioner, 283 U. S. 589, 283 U. S. 596-597 (1931). See also Dent v. West Virginia, 129 U. S. 114, 129 U. S. 124-125 (1889). The "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Joint Anti- Fascist Comm. v. McGrath, 341 U. S. 123, 341 U. S. 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545, 380 U. S. 552 (1965). See Grannis v. Ordean, 234 U. S. 385, 234 U. S. 394 (1914). Nelson v. Colorado, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017) To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions. 2 A judge abuses his discretion if he acts in an arbitrary or unreasonable manner or if he acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). 2 riots that injustice is rooted in institutionalized bias and corruption, that there is a serious problem with our government, and that there is no rule of law. Public corruption, immunities, and injustice are the root of anger3, inciting Black Lives Matter, Antifa, and even the Democratic Party to protest and to riot. Its not even a new issue being that the piercing of government immunity was an issue that was voted through the Sixty-first Legislature in 1969 under House Bill 117 (vetoed by the governor). That was over 50 years ago when protests and race riots were just about as they are now. 50 years ago and so little progress has been made regarding the accountability of our government to corruption and injustice. Article 1 of the Texas Constitution is our bill of rights which describes a compact defining the relationship of our Texas republic and our citizens. It includes the rights to be secured in our persons, houses, papers and possessions and to enjoy life, liberty, property, privileges, and certain immunities. Our Bill of Rights is declared in the constitution to be inviolate and excepted to modification to “guard against transgressions of the high powers herein delegated … [wherein] all laws contrary thereto … shall be void.” But the fact is that our bill of rights is already violated, that my rights have been serially violated, and that our civil rights are mostly unactionable, unenforceable, and not self-executing, pursuant to public corruption protected by the courts implementation of its own “common law” which modify the effect of our constitutional compact - to protect the State of Texas from its own citizens. These immunities displace the “rule of law” and cultivate injustices by undermining official accountability and by protecting public corruption and malfeasance under the veil of state propriety. You see, I am in the middle of a political crisis because I cannot prosecute or punish state corruption. I cannot force the Judiciary to perform or to dispense justice, especially when it will discredit itself. I can only request reimbursement for my significant losses as required by the Texas Constitution which will always end up in your office under current Texas law for consideration of payment. Your consideration is certainly political - even if the judiciary had timely performed its job, had my due process been respected. My property losses include, my hard won civil judgment ($2,720,126) in Hidalgo County Court No. 1 case no. CL-29,530-A which was finally destroyed through dismissal for want of prosecution (16 years after the judgment became final and 3 executions had been attempted); my real property ($116,000) which was invaded and first seized after an assault by a SWAT team as directed by the Hidalgo County District Attorney to interfere with my US Congressional campaign against public corruption; about eight years of rents ($96,000) after the seizure of my house; my transportation business and assets ($19 million) which were never return per court order (the court’s refused to enforce their decrees and instead threatened me with contempt and incarceration for insisting that the courts enforce their decrees); my established and prospective business interests in one of my electrical service companies ($55 million) which was partially destroyed after a failed attempt to “felonize” me following a threat by a Justice of the Peace that the 3 Racial injustice is a subset of the bigger problem. 3 District Attorney looking for a way to prosecute me (my company[ies] requires security clearance); and treble damages for the aforementioned losses that I am denied because the courts are closed to me.4 I can currently prove to a jury or the public that my property losses are approximately $236,796,378 and rising, and I’ve won a plethora of court opinions and orders supporting my claims - a stinging and constitutional rebuke against established south Texas corruption that you have already identified, and that has now landed in your office. Its an opportunity for you to address corruption in South Texas and right some wrongs. Should the corruption continue to be protected at the highest office in Texas? Should I be denied my constitutional rights to my property or its value? What will you do? I am requesting a timely scheduled meeting with you to negotiate reasonable compensation for my property losses so that I might finally resume my life, liberty, property, privileges, and immunities with my family as promised under our Texas Constitution. I would also like to bend your ear regarding accountability in our Texas government by considering new legislation in the 87th Legislature to modify common law government immunities imposed by the courts which are intrinsically unjust. Thank you in advance for your time and efforts. Respectfully, Johnny Partain 956-240-1821 partain@atlastechnologies.biz 4 "All courts shall be open, and every person for injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, §13 4 4. Transfer Statement Doc-3547620 Hidalgo County Arturo Guajardo Jr. County Clerk Edinburg, Texas 78540 VG 785 2024 3547620* Document No: 3547620 Billable Pages: 5 Recorded On: May 10, 2024 04:59 PM Number of Pages: 6 NOTICE *****Examined and Charged as Follows***** Total Recording: $ 51.00 *****THIS PAGE IS PART OF THE DOCUMENT***** Any provision herein which restricts the Sale, Rental, or use of the described REAL PROPERTY because of color or race is invalid and unenforceable under federal law. File Information: Record and Return To: Document No: 3547620 Johnny Ray Partain Receipt No: 20240510000390 7020 N 16th Street Recorded On: May 10, 2024 04:59 PM PCI - original returned to customer Deputy Clerk: Olga Garcia MCALLEN TX 78504 Station: CH-1-CC-K21 STATE OF TEXAS COUNTY OF HIDALGO I hereby certify that this Instrument was FILED in the File Number sequence on the date/time printed hereon, and was duly RECORDED in the Official Records of Hidalgo County, Texas. Arturo Guajardo Jr. County Clerk Hidalgo County, Texas Doc-3547620 TRANSFER STATEMENT Date: May 10, 2024 Debtor: State of Texas Texas Secretary of State P.O. Box 12079 Austin, Texas 78711 Hidalgo County 100 E. Cano, Second Floor Edinburg, Texas 78539 City of McAllen 1300 Houston Avenue McAllen, Texas 78501 Secured Party and Transferee: Johnny Ray Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz The debtor[s], State of Texas, County of Hidalgo, and City of McAllen, have defaulted in connection with an obligation secured by collateral specified in the attached UCC Finance Statement. The secured party, Johnny Ray Partain, exercises his post-default remedies with respect to the collateral. By reason of the remedies exercised, Johnny Ray Partain has acquired all the rights and interests of the State of Texas, County of Hidalgo, and City of McAllen, in the following collateral: • The East 18.41 feet of the West 60.82 feet of Lot 37, El Cazador Subdivision, Unit 2, an addition to the City of McAllen, Hidalgo County, Texas, according to the map or plat thereof, recorded in Volume 19, Page 58, and in Volume 2, Page 75, Map Records of Hidalgo County, Texas. Page 1of 2 Doc-3547620 STATE OF TEXAS COUNTY OF HIDALGO This transfer statement was authenticated pursuant to TX Bus & Corn Code § 9.619 by Johnny Ray Partain on this May 10, 2024. VIVIAN LEE RINCON Notary Public, State of Texas Comm. Expires 07-28-2026 Notary ID 133881138 Page 2 of 2 Doc-3547620 UCC FINANCING STATEMENT FOLLOW INSTRUCTIONS A. NAME & PHONE OF CONTACT AT SUBMITTER (optional) Partain Johnny 956-240-1821 B. E-MAIL CONTACT AT SUBMITTER (optional) C. SEND ACKNOWLEDGMENT TO: (Name and Address) Partain Johnny FILING NUMBER: 23-0043292984 7020 N 16th Street FILING DATE: 10/06/2023 10:56 AM Mcallen, TX 78504-3132 DOCUMENT NUMBER: 1292224560002 FILED: Texas Secretary of State USA IMAGE GENERATED ELECTRONICALLY FOR WEB FILING SEE BELOW FOR SECURED PARTY CONTACT INFORMATION THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY it DEBTOR'S NAME - Provide only one Debtor name (la or lb) (use exact, full name; do not omit, modify, or abbreviate any part of the Debtor's name); if any part of the Individual Debtor's name will not fit in line lb, leave all of item 1 blank, check here rand provide the Individual Debtor information in item 10 of the Financing Statement Addendum (Form S/CC1Ad) a. ORGANIZATION'S NAME Texas OR b. INDIVIDUAL'S SURNAME FIRST PERSONAL NAME FADDITIONAL NAME(S)/INITIAL(S) SUFFIX c. MAILING ADDRESS IT STATE POSTAL CODE COUNTRY Secretary of State, P.O. Box 12079 Austin TX 78711 USA , . DEBTOR'S NAME - Provide only one Debtor name (2a or 2b) (use exact, full name; do not omit, modify, or abbreviate any part of the Debtor's name); if an part of the Individual Debtor's name will not fit in line 2b, leave all of item 2 blank, check here rand provide the Individual Debtor information in item 10 of the Financing Statement Addendum (Form ' CC1Ad) 2a. ORGANIZATION'S NAME Hidalgo County OR 2b. INDIVIDUAL'S SURNAME FIRST PERSONAL NAME ADDITIONAL NAME(S)/INITIAL(S) SUFFIX ac. MAILING ADDRESS CITY iSTATE POSTAL CODE -COUNTRY I 100 E. Cano, Second Floor Edinburg TX ! 78539 USA p. SECURED PARTYS NAME (or NAME of ASSIGNEE of ASSIGNOR SECURED PARTY) - Provide only one Secured Party name (3a or 3b) 3a. ORGANIZATION'S NAME OR 3b. INDIVIDUAL'S SURNAME FIRST PERSONAL NAME ADDITIONAL NAME(S)/INITIAL(S) SUFFIX rUSA Partain IJohnny Ray 3c. MAILING ADDRESS Icrry STATE .POSTAL CODE OUNTRY 7020 N 16th Street McAllen TX 78504 A. COLLATERAL: This financing statement covers the following collateral: Collateral includes all assets, interests, and taxes, prospective and real, belonging to Texas, The Texas Treasury Safekeeping Trust Company, Hidalgo County, and City of McAllen, which may be comingled with Johnny Ray Partain's 'assets and interests, the sum certain total including $250,000,000, plus 10% compounded interest per year accruing on the $250,000,000 since January 4, 2021, plus all costs to collect the accruing total, payable to Johnny Ray Partain, ;upon debtor's failure to fulfill their obligations. Payment and record is authorized and required by the Debtor's herein pursuant to Tex. Const. Art. 1, Sec. 17, and protected without exception under Sec. 29. This financing statement is to be filed in the Real Estate Records, to include all real estate and as-extracted collateral held by and for the benefit of the Debtors. 4 Check °IS if applicable and check orS one me Collateral is Eheld in a Trust (see UCCIAd, item 17 and Instructions) Ebeing administered by a Decedent's Personal Representative fie. Check only if applicable and check only one box: b. Check only if applicable and check only one box. IrPublic-Finance Transaction EManufactured-Home Transaction FA Debtor is a Transmitting Utility rrAgricultural Lien ENon-UCC Filing ' . ALTERNATIVE DESIGNATION (if applicable): rLesseetessor r1Consignee/Consignor rSeller/Buyer reailee/Bailor rlicensee/Licensor 0. OPTIONAL FILER REFERENCE DATA: Doc-3547620 page 2 UCC FINANCING STATEMENT ADDENDUM FOLLOW INSTRUCTIONS 9: NAME OF FIRST DEBTOR: Same as line la or 1b on Financing Statement; if line lb was left blank because Individual Debtor name did not fit, check here 9a. ORGANIZATION'S NAME Texas OR pb. INDIVIDUAL'S SURNAME i FIRST PERSONAL NAME }ADDITIONAL NAME(S)/INITIAL(S) SUFFIX : THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY l 10. DEBTOR'S NAME: Provide (10a or 10b) only one additional Debtor name or Debtor name tha did not lit in line lb or 2b of the Financing Statement (Form UCC 7) (use exact, full name; do not omit, modify, or abbreviate any part of the Debtor's name) and enter the mailing address in line 10c 10a. ORGANIZATION'S NAME OR City of McAllen 10b INDIVIDUAL'S SURNAME NDIVIDUAL'S FIRST PERSONAL NAME NDIVIDUAL'S ADDITIONAL NAME(S)/INITIAL(S) [SUFFIX 10c. MA LING ADDRESS CITY TATE [POSTAL CODE COUNTRY 1300 Houston Avenue McAllen sTX 178501 USA 11. ( - ,ADDITIONAL SECURED PARTY'S NAME or FASSIGNOR SECURED PARTY'S NAME: Provide only one name (11a or 11b) 11a. ORGANIZATION'S NAME OR POSTAL rOUNTRY 11b. INDIVIDUAL'S SURNAME IFIRST PERSONAL NAME ADDITIONAL NAME(S)/INITIAL(S) SUFFIX 11c. MAILING ADDRESS (CITY 1sTATE CODE 12. ADDITIONAL SPACE FOR ITEM 4 (Collateral) 13. ETThis FINANCING STATEMENT is to be filed [for record] (or 14 , . This FINANCING STATEMENT ~rrecorded) in the REAL ESTATE RECORDS (if applicable) Licovers limber to be cut [' covers as-extracted collateral [' is filed as a fixture filing 75. Name and address of a RECORD OWNER of real estate 16. Description of real estate: described in item 16 (if Debtor does not have a record interest): 17. MISCELLANEOUS Doc-3547620 page 3 UCC FINANCING STATEMENT ADDENDUM FOLLOW INSTRUCTIONS 19: NAME OF FIRST DEBTOR: Same as line la or lb on Financing Statement; if line lb was left blank because Individual Debtor name did not fit, check here r pa. ORGANIZATIONS NAME I Texas OR 19b. INDIVIDUALS SURNAME rIRST PERSONAL NAME fADDITIONAL NAME(SpINITIAL(S) GUFFIX THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY 10. ADDITIONAL DEBTOR'S NAME: Provide only one Debtor name (10a or 10b) (use exact, full name; do not omit, modify. or abbreviate any part of the Debtors name) Oa. ORGANIZATIONS NAME The Texas Treasury Safekeeping Trust Company OR Ob. INDIVIDUALS SURNAME FIRST PERSONAL NAME DDITIONAL NAME(S)/INITIAL(S) SUFFIX Oc. MAILING ADDRESS pITY i STATE POSTAL CODE GOUNTRY 208 E 10th Street ; Austin TX 78701 IUSA FILING OFFICE COPY 5. Certified Transcript in Devillier v. Texas, 601 U.S. 285 (2024) SUPREME COURT OF THE UNITED STATES IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - - RICHARD DEVILLIER, ET AL., ) Petitioners, ) v. ) No. 22-913 TEXAS, ) Respondent. ) - - - - - - - - - - - - - - - - - - Pages: 1 through 90 Place: Washington, D.C. Date: January 16, 2024 HERITAGE REPORTING CORPORATION Official Reporters 1220 L Street, N.W., Suite 206 Washington, D.C. 20005 (202) 628-4888 www.hrccourtreporters.com Official 1 1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - - - - 3 RICHARD DEVILLIER, ET AL., ) 4 Petitioners, ) 5 v. ) No. 22-913 6 TEXAS, ) 7 Respondent. ) 8 - - - - - - - - - - - - - - - - - - 9 10 Washington, D.C. 11 Tuesday, January 16, 2024 12 13 The above-entitled matter came on for oral 14 argument before the Supreme Court of the United 15 States at 11:10 a.m. 16 17 APPEARANCES: 18 ROBERT J. McNAMARA, ESQUIRE, Arlington, Virginia; on 19 behalf of the Petitioners. 20 AARON L. NIELSON, Solicitor General, Austin, Texas; on 21 behalf of the Respondent. 22 EDWIN S. KNEEDLER, Deputy Solicitor General, 23 Department of Justice, Washington, D.C.; for the 24 United States, as amicus curiae, supporting the 25 Respondent. Heritage Reporting Corporation Official 2 1 C O N T E N T S 2 ORAL ARGUMENT OF: PAGE: 3 ROBERT J. McNAMARA, ESQ. 4 On behalf of the Petitioners 3 5 ORAL ARGUMENT OF: 6 AARON L. NIELSON, ESQ. 7 On behalf of the Respondent 38 8 ORAL ARGUMENT OF: 9 EDWIN S. KNEEDLER, ESQ. 10 For the United States, as amicus 11 curiae, supporting the Respondent 68 12 REBUTTAL ARGUMENT OF: 13 ROBERT J. McNAMARA, ESQ. 14 On behalf of the Petitioners 87 15 16 17 18 19 20 21 22 23 24 25 Heritage Reporting Corporation Official 3 1 P R O C E E D I N G S 2 (11:10 a.m.) 3 CHIEF JUSTICE ROBERTS: We'll hear 4 argument next in Case 22-913, Devillier versus 5 Texas. 6 Mr. McNamara. 7 ORAL ARGUMENT OF ROBERT J. McNAMARA 8 ON BEHALF OF THE PETITIONERS 9 MR. McNAMARA: Mr. Chief Justice, and 10 may it please the Court: 11 The Question Presented in this case is 12 resolved by the text of the Fifth Amendment, 13 which, unlike any other provision of the 14 Constitution, imposes on the government a -- an 15 explicit duty to pay money. 16 It's also answered by this Court's 17 decision in First English, which holds that the 18 just compensation remedy is mandatory and that 19 the Fifth Amendment itself furnishes a basis on 20 which a court can award just compensation in an 21 inverse condemnation case. 22 And this right of property owners to 23 sue in inverse condemnation to obtain just 24 compensation for an alleged taking is at the 25 heart of modern American takings law. It's at Heritage Reporting Corporation Official 4 1 the heart of inverse condemnation claims filed 2 against state and local governments nationwide. 3 And it's also at the heart of every takings 4 claim filed against the federal government under 5 the Tucker Act. 6 The Tucker Act provides no cause of 7 action, no substantive entitlement to a remedy. 8 The cause of action, the substantive entitlement 9 to a remedy, in every Tucker Act takings case is 10 the self-executing Fifth Amendment, the same 11 cause of action recognized in First English, the 12 same cause of action pled here. 13 To reject that cause of action now is 14 to upend the way lower courts, both state and 15 federal, understand the Takings Clause to work 16 and also to abandon this Court's consistent 17 explanations of that clause not just in First 18 English but in more recent cases like Knick 19 v. Township of Scott. 20 And there's no reason to make that 21 kind of drastic change. This Court has already 22 recognized that money-mandating legal 23 obligations logically come along with the right 24 to file a lawsuit to enforce those obligations. 25 That's true as to statutes, which is Heritage Reporting Corporation Official 5 1 what this Court held in Maine Community Health 2 Options. It should be at least as true as to 3 the Constitution, and this Court's precedents 4 consistently teach that it is. 5 I welcome the Court's questions. 6 JUSTICE THOMAS: In your reply brief, 7 you say that the 19th century federal courts 8 were faced with a bedrock property right and no 9 way to enforce it directly. 10 Doesn't that seem to be at odds -- the 11 fact that the courts there had to resort to 12 extra-constitutional causes of action, isn't 13 that at odds with your argument now? 14 MR. McNAMARA: I don't think so, Your 15 Honor, because the primary problem facing 16 federal courts in the early part of the 19th 17 century was a lack of jurisdiction. And I think 18 the question of jurisdiction is just 19 conceptually distinct from the question of 20 whether there's a cause of action, whether 21 there's a right to a remedy. 22 Congress could tomorrow amend 23 Section 1331 to reimpose an 24 amount-in-controversy limit, and if it did that, 25 that would prevent a number of people from Heritage Reporting Corporation Official 6 1 bringing Ex parte Young actions in federal 2 court. Those claims wouldn't cease to exist. 3 Congress would just have eliminated the 4 jurisdiction over them. 5 And so I think there's a difference 6 between jurisdictional limits which limited 7 takings claims and even pleading requirements 8 like the limits to the forms of action, which 9 also limited plaintiffs' abilities to bring 10 certain kinds of claims, and the core Question 11 Presented here, which is just whether there is 12 an entitlement to relief. 13 There -- there's only one modern form 14 of action, which just takes the shape of saying, 15 I'm entitled to this remedy for that reason. 16 The remedy is just compensation. The reason is 17 the Fifth Amendment as applied through the 18 Fourteenth. And once the jurisdictional 19 problems and the pleading problems are removed, 20 as they have been in this case, the only 21 question remains whether the Fifth Amendment 22 mandates compensation, whether it mandates that 23 remedy, which this Court has already answered. 24 First English says that the just compensation 25 remedy is mandatory. Heritage Reporting Corporation Official 7 1 And I think contrasting the -- the 2 arguments of the other side with the rule 3 adopted by the California Supreme Court in Agins 4 is actually a useful illustration here. The 5 California Supreme Court's decision in Agins 6 said, we as a common law court don't want to 7 recognize a claim for just compensation in a 8 regulatory takings case. We think that intrudes 9 on the legislature's prerogative. We don't 10 recognize that cause of action. 11 And First English says that doesn't 12 matter. The cause of action, the entitlement to 13 relief, flows directly from the Fifth Amendment. 14 So too here. The complaint here pleads a cause 15 of action directly under the Fifth Amendment -- 16 JUSTICE BARRETT: Counsel -- 17 MR. McNAMARA: -- that says our 18 property was taken and the Fifth Amendment -- 19 yes, Your Honor? 20 JUSTICE BARRETT: Counsel, I agree 21 that jurisdiction and a cause of action are 22 distinct, but it's a little bit hard to see how 23 in 1791 -- I mean, I think your argument is, 24 when the Fifth Amendment was ratified, those who 25 ratified it had to see the Fifth Amendment as Heritage Reporting Corporation Official 8 1 itself supplying the cause of action because 2 this was the crucial way to vitiate the takings 3 right, the right to just compensation. 4 But Congress didn't provide for 5 federal question jurisdiction until 1875, so 6 that kind of languished on the vine for a pretty 7 long time if you're right that the founding 8 generation or the -- you know, the ratifying 9 generation in 1791 viewed it that way. 10 Moreover, you know, the historical 11 evidence of private bills runs contrary to your 12 argument because, yes, there was a right to just 13 compensation, but we have all of this time, 14 throughout the 19th century, of Congress 15 enacting private bills to give just 16 compensation. 17 And I think you have to contend with 18 that because, I mean, I get that this is against 19 Texas, against the state, but if the Fourteenth 20 Amendment incorporated the Fifth Amendment as it 21 was, there's kind of a mountain of historical 22 evidence, you know, that you've got to contend 23 with. 24 MR. McNAMARA: So I -- I don't think 25 that mountain does quite the work that Texas Heritage Reporting Corporation Official 9 1 needs it to, Your Honor. And I think one 2 problem here is the difficulty in mapping the 3 modern conception of cause of action onto 1791 4 visions of the court. I think, if you asked a 5 lawyer in 1791 whether the Fifth Amendment 6 contained a cause of action, they probably 7 wouldn't understand the question. 8 But, if you asked them can a property 9 owner sue to enforce just compensation, the 10 answer absolutely would have been yes. It would 11 have been a suit in trespass. It would perhaps 12 have been a suit in ejectment. But there was an 13 understanding at the framing that this was an 14 enforceable right, and if you -- 15 JUSTICE GORSUCH: Well, that -- that 16 establishes at most, it seems to me, that the 17 Fifth Amendment envisioned some remedial 18 mechanism would be available. And the common 19 law trespass, as you point out, might have been 20 it, or conversion might have been it. It -- it 21 doesn't necessarily mean that there is itself an 22 independent cause of action under the Fifth 23 Amendment. 24 MR. McNAMARA: I -- I think it does, 25 Your Honor, once the forms -- Heritage Reporting Corporation Official 10 1 JUSTICE GORSUCH: Why? You've just 2 conceded that the cause of action that -- that 3 the Framers would have understood would have 4 been in trespass. 5 MR. McNAMARA: Well, Your Honor, I 6 think, in -- in modern terms, what the Court 7 means when it says "cause of action" -- 8 JUSTICE GORSUCH: Well, no. But what 9 we're talking about the original meaning, and 10 you're asking us to appeal to the original 11 meaning and say they would have understood there 12 would have been a cause of action. Perhaps, but 13 what would that cause of action look like? 14 MR. McNAMARA: I -- I think they would 15 have understood that there was an entitlement to 16 a remedy. 17 JUSTICE GORSUCH: Some remedy? 18 MR. McNAMARA: An entitlement to just 19 compensation as a remedy. 20 JUSTICE GORSUCH: Some -- some way to 21 get that? 22 MR. McNAMARA: Yes, and I think -- 23 JUSTICE GORSUCH: Fair enough. That 24 doesn't necessarily mean there's a federal cause 25 of action. It could mean it happens under state Heritage Reporting Corporation Official 11 1 common law, right? 2 MR. McNAMARA: Well, Your Honor, two 3 -- two -- 4 JUSTICE GORSUCH: I mean, you -- you 5 would admit that a state common law cause of 6 action did and could fully vindicate the Fifth 7 Amendment? 8 MR. McNAMARA: Yes, Your Honor, I 9 think there could be a state common law action 10 that vindicated the First Amendment, but I also 11 think -- 12 JUSTICE GORSUCH: Fifth. Fair enough. 13 MR. McNAMARA: Yes, Your Honor, or -- 14 or the First. 15 JUSTICE GORSUCH: And that that would 16 -- that would be enough. No -- nothing more 17 would be required. 18 MR. McNAMARA: Well -- 19 JUSTICE GORSUCH: And, in fact, that's 20 how it operated for a long time. 21 MR. McNAMARA: Well, certainly, Your 22 Honor, if compensation is provided through any 23 mechanism, there's no longer a Fifth Amendment 24 injury to be remedied. 25 JUSTICE GORSUCH: Ah. Okay. I Heritage Reporting Corporation Official 12 1 understand that argument. That's not the 2 argument you're -- you're pressing, though. 3 MR. McNAMARA: That's because, here, 4 compensation hasn't been paid. The plaintiffs 5 in this case continue to suffer the ongoing 6 Fifth Amendment injury. 7 JUSTICE GORSUCH: Well, maybe that's 8 because you -- you -- you -- you allowed this 9 case to be removed, which I -- and -- and -- 10 and, you know, I'm -- I'm surprised you didn't 11 oppose removal on that ground and said there's 12 no federal question that we need to resolve here 13 because it's really a state common law cause of 14 action we're pursuing. That would have been one 15 option. 16 Or maybe in federal court you might 17 have said we want a declaratory judgment, which 18 everyone concedes you can get under the Fifth 19 Amendment, and take pendent jurisdiction over 20 our state common law cause of action, which 21 would adequately vindicate our Fifth Amendment 22 rights. 23 You didn't pursue either of those 24 courses here. 25 MR. McNAMARA: So two responses, Your Heritage Reporting Corporation Official 13 1 Honor. One, I don't think there was a 2 good-faith grounds to oppose Texas's removal 3 because what the complaint says on its face is 4 we are entitled to just compensation under the 5 Fifth Amendment. 6 JUSTICE GORSUCH: Well, but it -- it 7 then pleads state causes of action to do so. 8 MR. McNAMARA: No, Your Honor. It -- 9 it pleads a claim directly under the Fifth 10 Amendment. 11 JUSTICE GORSUCH: Well, maybe that's 12 another problem you face is it -- you -- if you 13 had an adequate common law -- do you dispute 14 that Texas has an adequate common law remedy to 15 -- for -- for your problem? 16 MR. McNAMARA: I do, Your Honor. And 17 this is actually an important point. That -- 18 JUSTICE GORSUCH: Is that argument in 19 your brief, that -- that the -- that the -- the 20 common law of Texas or state law has no 21 mechanism to enforce the Fifth Amendment? 22 MR. McNAMARA: Well, Your Honor, Texas 23 asserts -- 24 JUSTICE GORSUCH: If -- if it did, 25 I'd -- that one would I -- I'd take seriously, Heritage Reporting Corporation Official 14 1 but I didn't see it. 2 MR. McNAMARA: So Texas asserts, Your 3 Honor, that there is a Texas common law 4 mechanism to vindicate the Fifth Amendment, but 5 there is no Texas decision saying we sitting as 6 a common law court invoke our common law powers 7 to create a cause of action. 8 JUSTICE GORSUCH: No trespass, no 9 conversion? 10 MR. McNAMARA: Texas hears inverse 11 condemnation claims arising under the Fifth 12 Amendment. That's what the Texas Supreme Court 13 said most recently in City of Baytown 14 v. Schrock, and it cites the Fifth Amendment. 15 It doesn't invoke its common law powers. 16 JUSTICE GORSUCH: Fair enough. I get 17 all of that now. All right. Now that's 18 clarifying. But you -- you -- the -- the nature 19 of the argument before us isn't that Texas lacks 20 a common law cause of action. It's whether or 21 not Texas has such a thing, we're entitled to 22 another remedy under federal law. 23 MR. McNAMARA: I -- I don't think 24 that's right, Your Honor. What the Fifth 25 Circuit said is that the complaint that alleges Heritage Reporting Corporation Official 15 1 an entitlement to just compensation flowing from 2 the Fifth Amendment doesn't state a claim, that 3 that claim is dead. If -- 4 JUSTICE GORSUCH: Let -- let -- let -- 5 let's suppose you -- we -- it did create a cause 6 of action. Would -- would it also waive 7 sovereign immunity? And what would the statute 8 of limitations be? 9 MR. McNAMARA: I -- it -- it wouldn't 10 necessarily waive sovereign immunity, Your 11 Honor. I think that's a distinct question. And 12 the statute of limitations would be the statute 13 of limitations that is applied by lower courts 14 when people actually bring these claims. 15 There's a -- a robust Court of Federal 16 Claims jurisprudence, federal district courts 17 hear claims arising under the Fifth Amendment, 18 sometimes looking to state law to set the 19 statute of limitations. 20 JUSTICE GORSUCH: Ah, they look to 21 state law, don't they, yeah? 22 MR. McNAMARA: But the claim itself, 23 Your Honor, comes from the Fifth Amendment not 24 just in Texas but in states nationwide. And I 25 think this is an important point. Heritage Reporting Corporation Official 16 1 Take Oregon, for example. Oregon 2 signed on to the state's amicus brief in support 3 of Texas, but the reason that Oregon pays just 4 compensation for takings under the Fifth 5 Amendment is the Oregon courts, citing First 6 English, have said it must pay just 7 compensation. And so answering the Question 8 Presented -- 9 JUSTICE BARRETT: If we don't read 10 First English the way you do -- I mean, I think 11 that footnote's pretty difficult to decipher -- 12 do you lose? 13 MR. McNAMARA: No, Your Honor. 14 I would -- I don't think it's just the footnote 15 in First English. I think it's the broader 16 holding that the remedy is required. 17 But I think there's no dispute here 18 that there is an entitlement to relief. And, 19 certainly, by the time of the ratification of 20 the Fourteenth Amendment, courts across the 21 country had converged on how that kind of 22 entitlement would be enforced. 23 And it's enforced by a lawsuit 24 directly against the entity that took the 25 property that takes the form of saying, you have Heritage Reporting Corporation Official 17 1 this duty to provide just compensation, you have 2 not fulfilled it, and I'd like the court to 3 order you to fulfill it. 4 JUSTICE SOTOMAYOR: Can I have a -- 5 just a small point of information? Your case 6 was dismissed in federal court. Did you ask for 7 a remand on your claims under the Texas 8 Constitution? 9 MR. McNAMARA: No, Your Honor. The 10 district court is keeping pendent jurisdiction 11 over the claims under the Texas cause. 12 JUSTICE SOTOMAYOR: So you -- you have 13 a pending suit on the state law claim? 14 MR. McNAMARA: Yes, Your Honor, but 15 there is a dispute about the scope of the 16 takings law that governs that question. Texas 17 has taken the position in the lower courts that 18 the Texas Constitution has a narrower definition 19 of what counts as a taking than the federal 20 courts. 21 JUSTICE SOTOMAYOR: Well, then First 22 English comes in too because First English was 23 about a state court claim and when it started, 24 whether a temporary claim was a taking or not, 25 and we said yes, it's a taking, and so the state Heritage Reporting Corporation Official 18 1 court had to pay for that taking. 2 How is it different than First English 3 in that respect? 4 MR. McNAMARA: I -- I don't think it's 5 different from First English, Your Honor, except 6 that, here, it was removed into federal court 7 and then the Fifth Amendment aspect of the case 8 was dismissed on the merits. 9 JUSTICE SOTOMAYOR: Oh, I -- I -- I -- 10 I don't disagree with you, but First English is 11 about what the substantive law of Texas is and 12 what Texas has to pay. 13 And so that issue should be resolved 14 even in the district court, correct? 15 MR. McNAMARA: I -- I don't think so, 16 Your Honor, because the backstop in First 17 English is the Fifth Amendment that -- that says 18 that the met -- the just compensation -- 19 JUSTICE SOTOMAYOR: No, the backstop 20 in the Fifth -- yes, it's the Fifth Amendment 21 that provides the substantive law, but not 22 necessarily -- we didn't address whether it 23 provides a cause of action. 24 MR. McNAMARA: I -- I think the Court 25 did, Your Honor. The United States' amicus Heritage Reporting Corporation Official 19 1 brief -- 2 JUSTICE SOTOMAYOR: All right. We're 3 -- we're going to -- we're going to go into -- 4 JUSTICE JACKSON: Can I just ask -- 5 I -- I mean, this is similar to what -- what 6 Justice Sotomayor was just getting into. Are -- 7 are you saying that we don't have three separate 8 concepts, right, remedy, and cause of action? I 9 thought those were three different things, and 10 perhaps First English only covered two of them? 11 MR. McNAMARA: I -- I'm not sure 12 they're distinct concepts, Your Honor. I think 13 the simplest way to understand cause of action 14 is an entitlement to a particular remedy, which 15 is why it's coherent to say someone might have a 16 cause of action for an injunction. 17 JUSTICE JACKSON: I thought it had to 18 do with the forum, that you have a cause of 19 action that is recognized in the judicial forum 20 as opposed to, say, going to the legislature 21 through -- through private bills. 22 MR. McNAMARA: Well, Your Honor, I -- 23 I think, to the extent that's the definition of 24 "cause of action," we would have a cause of 25 action under the clear import of the history Heritage Reporting Corporation Official 20 1 that the -- 2 JUSTICE JACKSON: Not -- not the 3 history. I guess I'm just trying to understand, 4 is there -- does it make sense to think about 5 the Fifth Amendment as providing the right and 6 the remedy but not speaking to where you're 7 going to get that remedy from or what is the 8 enforcement mechanism? 9 That's how I sort of am 10 conceptualizing this, and -- and I think we 11 differ about that, so I'd like to hear your 12 opinion on it. 13 MR. McNAMARA: I -- I'm not sure 14 that's a correct reading of the Fifth Amendment, 15 Your Honor, in part because I think that reading 16 -- everyone agrees there are some judicial 17 remedies for the Fifth Amendment. 18 As I understand my friend's argument, 19 we'd be entitled to sue for injunctive relief or 20 for ejectment in the absence of a -- a path to a 21 Fifth Amendment compensation remedy. 22 So everyone agrees there's some 23 judicial remedy, and I think the form of that 24 judicial remedy depends on the scope of the 25 government's obligation. Heritage Reporting Corporation Official 21 1 There are two visions of the Fifth 2 Amendment. One is that the Fifth Amendment just 3 provides a precondition. The government is 4 required to pay and it can be enjoined from 5 taking the property if it doesn't pay. 6 The other vision that's adopted in 7 First English that's reiterated in Knick is that 8 the Fifth Amendment creates an obligation to pay 9 just compensation. And if that's the ongoing 10 obligation, the government has taken property, 11 it owes just compensation today, will owe just 12 compensation tomorrow, courts are empowered to 13 cure that ongoing obligation. 14 It's not a question of damages for a 15 past violation. It's a question of the 16 government's obligation as it stands in court 17 today. 18 JUSTICE BARRETT: Mr. McNamara, can I 19 go back to Justice Sotomayor's question and just 20 ask for a point of clarification? I understood 21 Texas law to provide a cause of action for 22 vitiating the federal Fifth Amendment right. 23 I took your answer to Justice 24 Sotomayor to be saying that Texas courts say -- 25 you were talking about how Texas courts define a Heritage Reporting Corporation Official 22 1 taking for purposes of the Texas Constitution. 2 So am I wrong in thinking that Texas 3 allows you to bring a state cause of action for 4 the federal Fifth Amendment claim? 5 MR. McNAMARA: I -- I'm not sure 6 whether that's right to be honest, Your Honor. 7 And I think two things flow from this. One, if 8 it's true that there is a Texas common law cause 9 of action under which we could have -- we can 10 vindicate our Fifth Amendment rights, then the 11 Fifth Circuit still has to be reversed because 12 it held that that substantive claim should be 13 dismissed on the merits. 14 JUSTICE BARRETT: Okay. Well, let me 15 just -- just -- just -- it's important for me to 16 be able to understand this procedural point. 17 Does Texas have -- provide a state cause of 18 action to vitiate the state takings right from 19 the Texas Constitution? 20 MR. McNAMARA: Yes, Your Honor. 21 JUSTICE BARRETT: Okay. It seems to 22 me then it can't discriminate against the 23 federal claim anyway. 24 MR. McNAMARA: I -- I think that's 25 true, Your Honor, but Texas doesn't -- Texas Heritage Reporting Corporation Official 23 1 isn't trying to discriminate against the -- this 2 federal claim. What Texas says, like other 3 state courts, is it's not doing -- it doesn't 4 say we're doing common law analysis and creating 5 a cause of action. 6 What Texas seems to be doing is 7 constitutional analysis, just like the other 8 state courts that specifically cite First 9 English and say, ah, there is a cause of cause 10 of action here. I'm not familiar with any state 11 case saying we are using our powers as a common 12 law court to create a cause of action to 13 vindicate the Fifth Amendment. 14 What they say is we're looking at the 15 Fifth Amendment. We see it creates the 16 obligation. Frequently they cite First English 17 directly and they say that's what gives rise to 18 the cause of action. 19 And that, I think, is what's dangerous 20 about the Question Presented here. As -- as I 21 understand Texas's argument, the complaint we 22 filed in state court was perfectly valid and 23 could be adjudicated, and the Fifth Amendment 24 could have been adjudicated in state court. 25 Once it was removed, Texas moved to dismiss and Heritage Reporting Corporation Official 24 1 sought an interlocutory appeal and has 2 successfully extinguished that. 3 But my concern is that adopting 4 Texas's arguments here tells all of these state 5 courts that have pointed to First English and 6 said this is the source of -- the Fifth 7 Amendment is the source of the cause of action 8 would look to a decision in this case adopting 9 Texas's arguments and say: Okay. We were 10 wrong. The Constitution does not, in fact, 11 require a remedy. There is no federal 12 constitutional cause of action. And that would 13 eliminate the federal takings remedy in state 14 courts across the nation. 15 JUSTICE ALITO: Mr. McDowell, the 16 language of the Takings Clause is quite similar 17 to the language of the Due Process Clause in the 18 Fifth Amendment, which immediately precedes it. 19 "No person shall be [...] deprived of life, 20 liberty, or property, without due process of 21 law; nor shall private property be taken for 22 public use, without just compensation." 23 So why should they be read differently 24 with respect to the creation of a cause of 25 action? Heritage Reporting Corporation Official 25 1 MR. McNAMARA: I -- I don't think they 2 have to be read differently, Your Honor. I 3 think, if there's an ongoing due process 4 violation, a plaintiff could bring an Ex parte 5 Young action. Ex parte Young was not a 1983 6 action. It was -- 7 JUSTICE ALITO: No, not an Ex parte 8 Young, but a claim for damages? 9 MR. McNAMARA: Well, and I think 10 that's the difference here, that we're not 11 seeking damages; we're seeking just 12 compensation. We're not saying there was a past 13 completed violation of the Constitution and we 14 want something to offset that. We're saying the 15 government has taken property, which gives rise 16 to a present duty to pay just compensation, and 17 we want the present obligation enforced, not a 18 backwards-looking damages remedy concocted or 19 created. And I think that entitlement to just 20 compensation is how the Framers would have 21 understood the Fifth Amendment. 22 The alternative view, the idea that 23 all you get are injunctions, I don't think 24 squares with either the text or how contemporary 25 commentators talked about the clause. Heritage Reporting Corporation Official 26 1 St. George Tucker and John Jay wrote 2 about the Takings Clause in the context of the 3 Army seizing horses and military supplies. But, 4 if the Army is seizing horses, the Army's going 5 to get the horses. The understanding would not 6 have been that you could stop the Army in the 7 moment from seizing your horses. 8 What St. George Tucker is writing 9 about is the ongoing duty to provide 10 compensation for the horses, which is also how 11 contemporary courts wrote about the just 12 compensation requirement, even constrained as 13 they were by the forms of action. 14 I -- I think a great example of this 15 is the Massachusetts Supreme Court's decision in 16 -- excuse me -- the Massachusetts Supreme 17 Court's decision in evaluating an -- an action 18 brought as a -- a writ of debt in Gedney v. 19 Inhabitants of Tewksbury, where the justices -- 20 the judges of the Massachusetts Supreme Court 21 there said: This isn't the right forum. This 22 isn't an action in debt. You can't state it 23 using that forum. You have to go to a different 24 forum to get your just compensation. But, if 25 that other forum denies you compensation, you Heritage Reporting Corporation Official 27 1 can return here, in the statement of one of the 2 judges, and ask for that remedy again, which 3 will not probably be refused if -- 4 JUSTICE ALITO: If the Fifth Amendment 5 confers a right to sue for just compensation in 6 and of itself, is that right unqualified? And 7 if it is not unqualified, what qualifications do 8 you recognize? 9 MR. McNAMARA: Oh, I -- I certainly 10 don't think it's unqualified, Your Honor. It -- 11 JUSTICE ALITO: What qualifications do 12 you recognize? 13 MR. McNAMARA: It -- it requires a 14 court of competent jurisdiction, and so, 15 certainly, Congress is free to channel 16 jurisdiction however it likes. Texas is 17 similarly free to create courts of jurisdiction 18 as it pleases. 19 But the underlying -- all we're saying 20 is that there is an underlying entitlement to 21 receive just compensation and that when that 22 entitlement is denied, a court of competent 23 jurisdiction can order that that just 24 compensation be paid. 25 JUSTICE ALITO: Well, does it make Heritage Reporting Corporation Official 28 1 sense to view the Fifth Amendment as providing a 2 right to sue for compensation, but your ability 3 to vindicate that right is totally dependent on 4 Congress's discretionary choice to create lower 5 federal courts and to give them jurisdiction to 6 entertain such claims? That sounds like a very 7 weak right if that's -- if it's subject to 8 limitation in that way. 9 MR. McNAMARA: I think the same could 10 be said of the entire Bill of Rights, though, 11 Your Honor. The -- the entire stratum of 12 federal constitutional rights depends on 13 Congress to create lower federal courts, courts 14 where these rights can be vindicated. 15 Once Congress does create those 16 courts, and when a state defendant deliberately 17 chooses to avail itself of those courts, the 18 only question is whether that court can enforce 19 the ongoing obligation to require the payment of 20 just compensation. 21 And I think that's ultimately what 22 distinguishes this case from the Court's Bivens 23 cases, where Bivens cases are about the policy 24 question of whether to create a remedy. They 25 don't engage in constitutional text, history, Heritage Reporting Corporation Official 29 1 and tradition analysis, which is why Justice 2 Rehnquist could dissent in cases like Carlson v. 3 Green and Davis v. Passman and then, less than a 4 decade later, Chief Justice Rehnquist could 5 write First English, because we're not talking 6 about a damages remedy; we're talking about the 7 power of the federal courts to, when their 8 jurisdiction is competently invoked and when the 9 state has waived its sovereign immunity, require 10 the state to comply with its ongoing 11 constitutional duty. 12 I think that matches both with the 13 history, it matches with the tradition, and it 14 matches particularly with the Fourteenth 15 Amendment context itself. It's worth 16 remembering that when this Court incorporated 17 the Fifth Amendment against the states in 18 Chicago, Burlington & Quincy Railroad, it 19 specifically incorporated the right to 20 compensation, not the right not to have the 21 property taken but the right to receive money, 22 that the due process of law necessarily included 23 as a matter of first principles -- Chicago, 24 Burlington actually doesn't cite the Fifth 25 Amendment -- but, as a matter of first Heritage Reporting Corporation Official 30 1 principles, it includes the right to receive 2 compensation for the property taken. 3 These state -- these cases rarely 4 appear in federal court, in part because, before 5 Knick, no takings case could be filed ab initio, 6 but also because, as the magistrate judge's 7 opinion in this case points out, it's relatively 8 rare for a state to choose to remove this 9 federal claim -- this federal right into a 10 federal forum. But, once it does so, once Texas 11 has decided it wants the scope of our rights 12 under the Fifth Amendment to be litigated in 13 federal court, that can't change the scope of 14 the claim we make. 15 What the Fifth Circuit opinion below 16 says is that we cannot state a claim invoking 17 our rights under the Fifth Amendment, full stop. 18 If Texas is right that, in fact, we have that 19 right as a matter of Texas common law, then the 20 Fifth Circuit was wrong to say that we only have 21 that right under Section 1983. That counsels in 22 favor of reversal. 23 But this Court has also squarely held 24 and again repeated in Knick that the Fifth 25 Amendment does furnish a basis on which a court Heritage Reporting Corporation Official 31 1 can award just compensation. In the mine run of 2 cases, that's going to be a state court awarding 3 just compensation. But, when the state wishes 4 to be in federal court, I don't think there's a 5 good-faith basis for the plaintiff to say, I'm 6 invoking my rights under the Fifth Amendment, I 7 want the full scope of compensation -- that I'm 8 entitled to under the Fifth Amendment, but I 9 refuse to allow this claim that arises under my 10 rights under the Fifth Amendment to be in 11 federal court. 12 It is the defendant's choice to have 13 this federal claim that turns on federal law 14 heard in federal court. That's the choice that 15 Texas made, and that choice can't, on the 16 merits, extinguish our Fifth Amendment remedy. 17 What Texas has effectively 18 accomplished here by making the unusual decision 19 to remove is that it's eliminated the Fifth 20 Amendment question from this case and given 21 itself what it believes -- I'm not conceding 22 that they're right about Texas law -- but what 23 it believes is a more favorable rule of Texas 24 law. 25 But, if First English is right and the Heritage Reporting Corporation Official 32 1 just compensation remedy is mandatory, then the 2 just compensation remedy is mandatory, and Texas 3 can't extinguish it through procedural maneuvers 4 like removing this case to federal court. The 5 claim -- a claim for just compensation simply 6 takes the form of saying the government has 7 taken a property interest and I as the former 8 owner am entitled to the fair market value of 9 that property interest. 10 JUSTICE JACKSON: Can I just be clear, 11 are you arguing that through Texas's maneuvering 12 that claim is no longer available to you? 13 MR. McNAMARA: Yes, Your Honor. I 14 think that's what Judge Oldham points out in his 15 dissent below. 16 JUSTICE JACKSON: I -- I understand 17 not in federal court, but are you claiming that 18 Texas has prevented you from making this claim 19 in state court? 20 MR. McNAMARA: Yes, Your Honor. There 21 -- there will be no remand in this case. This 22 case is staying in federal district court. And 23 as Judge Oldham correctly pointed out, the 24 upshot of the panel opinion below is that this 25 case will proceed without any federal takings Heritage Reporting Corporation Official 33 1 claim in it because -- 2 JUSTICE JACKSON: If you had sought 3 remand and it went back to Texas court, are you 4 saying that there wouldn't be the opportunity to 5 make this claim in state court? I'm just trying 6 to understand if the claim is totally gone as -- 7 as a general matter here. 8 MR. McNAMARA: I -- so I -- I think -- 9 I -- I see my light is on. 10 CHIEF JUSTICE ROBERTS: No, go ahead. 11 MR. McNAMARA: Thank you, Your Honor. 12 I -- so I think, Your Honor, first, I don't know 13 that we would have had grounds to fight remand 14 because the claim does invoke our entitlement 15 under federal law. But, if the case were 16 remanded, I think the question in Texas state 17 court would be exactly the Question Presented 18 here: Are we entitled, without the 1983 19 vehicle, to invoke our rights under the Fifth 20 Amendment? 21 Texas courts have said yes, we are 22 entitled to invoke our rights under the Fifth 23 Amendment. But, again, they just cite the Fifth 24 Amendment. They're not invoking some special 25 cause of action that they have created. They, Heritage Reporting Corporation Official 34 1 like other courts, look to the Constitution, to 2 this Court's analysis of the Constitution, and 3 say the Constitution provides the entitlement to 4 just compensation, not, as far as I'm aware, an 5 independent common law cause of action. 6 CHIEF JUSTICE ROBERTS: Thank you, 7 counsel. 8 Let's suppose you bring a -- a -- the 9 state takes some action, you claim that is a 10 taking, you bring that claim for just 11 compensation. In the state court, they decide 12 yes, it was a taking, and so the government owes 13 you $3 million. And the government says: Wow, 14 we didn't think it was worth that much. Here, 15 take it back. 16 And can they do that? 17 MR. McNAMARA: To -- to a point, Your 18 Honor. I think saying here take it back runs 19 afoul of what Justice Brennan identified in his 20 San Diego Gas & Electric dissent that ending the 21 taking just creates an uncompensated temporary 22 taking. And that is why, as this Court noted in 23 Knick, Justice Brennan's dissent became the law 24 in First English, that just stopping the taking 25 creates an uncompensated temporary taking. Heritage Reporting Corporation Official 35 1 Certainly, the -- the state is within 2 its rights to cease a taking if it wants to 3 cease a taking, and it may be that evidence at 4 trial shows Texas has chosen to cease the taking 5 here, but the question is and always based on 6 the full factual record what property interest 7 has Texas actually taken or has the defendant 8 actually taken -- 9 CHIEF JUSTICE ROBERTS: So they can 10 claim what we've taken is a temporary, you know, 11 right, so we owe you rent, that -- and that's 12 just compensation? 13 MR. McNAMARA: Exactly, Your Honor. 14 The -- the defendant is always free to say this 15 is -- this is just a temporary easement or maybe 16 this is a temporary partial easement. 17 CHIEF JUSTICE ROBERTS: And they can 18 say that after the fact? 19 MR. McNAMARA: I -- I think -- 20 CHIEF JUSTICE ROBERTS: We took the 21 whole thing, we found out we were taking more 22 than we could -- we're biting off more than we 23 could chew, and so we're going to give it back 24 to you? 25 MR. McNAMARA: I -- I think that would Heritage Reporting Corporation Official 36 1 be a valid ground for going back to the district 2 court and saying that the facts have changed. 3 The way -- 4 CHIEF JUSTICE ROBERTS: Okay. Thank 5 you. 6 MR. McNAMARA: Thank you, Your Honor. 7 CHIEF JUSTICE ROBERTS: Justice 8 Thomas? 9 Justice Alito? 10 JUSTICE ALITO: Well, suppose that 11 going forward they find a way to divert the 12 water so that it doesn't cause flooding in the 13 future. Then what claim would you have? 14 MR. McNAMARA: I -- I think that would 15 just be a -- a claim for a temporary easement, 16 Your Honor. Ultimately, the property interest 17 in this case would be some kind of flooding 18 easement. The trial court would have to decide 19 whether it's a permanent easement, a partial 20 easement, a temporary easement, and this is the 21 kind of determination courts make in takings 22 cases every day. 23 JUSTICE ALITO: Yeah, and if it's -- 24 so, if it's completely eliminated going forward, 25 your -- your property is not going to be flooded Heritage Reporting Corporation Official 37 1 going forward, what would the remedy be? 2 MR. McNAMARA: The -- the remedy -- 3 so, to the extent the Court found on the facts 4 that Texas had taken a temporary easement, it 5 would be the fair market value of that temporary 6 easement. 7 JUSTICE ALITO: Would that be 8 different from damages? 9 MR. McNAMARA: Yes, Your Honor, and -- 10 JUSTICE ALITO: In what way would it 11 be different from damages? 12 MR. McNAMARA: So damages are an 13 attempt to rectify a wrongful act. And so a 14 plaintiff seeking damages can seek consequential 15 damages. I would have had -- if you had paid me 16 on time, I would have had this business 17 opportunity that I had to forego. 18 JUSTICE ALITO: Yeah, I understand 19 that. So how would you put a value on the 20 temporary taking? 21 MR. McNAMARA: It would be -- 22 generally speaking, there is testimony from 23 dueling appraisers who talk about at fair market 24 value what rent someone would pay for -- for 25 that kind of easement, what a -- a willing Heritage Reporting Corporation Official 38 1 seller would have sold that kind of easement 2 for, but it's limited to the fair market value. 3 It's limited to what the government took as 4 distinct from what the property owner may have 5 lost. 6 JUSTICE ALITO: Okay. Thank you. 7 CHIEF JUSTICE ROBERTS: Justice 8 Sotomayor? 9 Justice Kagan? 10 Justice Barrett? 11 Justice Jackson? 12 Okay. Thank you, counsel. 13 MR. McNAMARA: Thank you, Your Honor. 14 CHIEF JUSTICE ROBERTS: Mr. Nielson. 15 ORAL ARGUMENT OF AARON L. NIELSON 16 ON BEHALF OF THE RESPONDENT 17 MR. NIELSON: Mr. Chief Justice, and 18 may it please the Court: 19 The Court will be hard-pressed to find 20 any government more committed to property than 21 Texas. The Texas Constitution is more 22 protective than the federal Constitution, and 23 Texas courts under a Texas cause of action 24 adjudicate takings claims under both 25 constitutions. Heritage Reporting Corporation Official 39 1 This appeal thus isn't about 2 substantive rights. All Petitioners had to do 3 was use Texas's cause of action. Instead, 4 Petitioners insist they can bring a cause of 5 action directly under the federal Takings Clause 6 itself. This argument is wrong for many 7 reasons. 8 For one, it ignores what the 9 Constitution says. Governments must provide 10 just compensation, but the Takings Clause says 11 nothing about how they must do it, whether 12 through commissions, private bills, or 13 litigation. 14 For another, this Court held in 15 Williams that Congress may constitutionally -- 16 and I'm going to quote here -- "retain for 17 itself, the power to hear and determine 18 controversies respecting claims against the 19 United States." It follows that, again, a 20 quote, "there is no constitutional right to a 21 judicial remedy." 22 As Petitioners concede, Congress did 23 just that for nearly a century. We don't see 24 how this Court could hold for Petitioners 25 without overruling Williams. Heritage Reporting Corporation Official 40 1 And as this Court explained in Knick, 2 states didn't start recognizing state causes of 3 action until after the Fourteenth Amendment's 4 ratification. 5 Petitioners argue none of this matters 6 because of First English, but the Court went out 7 of its way in First English to emphasize that 8 its decision was about substance, not procedure. 9 And if first Williams somehow did 10 include a procedural holding, Texas satisfies 11 it. We have a cause of action for federal 12 takings claims. Petitioners simply refuse to 13 use it. 14 We welcome the Court's questions. 15 JUSTICE THOMAS: How would that cause 16 of action look -- what would it look like? 17 MR. NIELSON: So I would point the 18 Court to the Texas Supreme Court's decision in 19 City of Baytown -- 20 JUSTICE THOMAS: Yeah. 21 MR. NIELSON: -- and they say, we hear 22 claims under both the Texas Constitution and 23 under the federal Constitution, and then they 24 resolve the claim under Penn Central, which, of 25 course, is a decision of this Court. Heritage Reporting Corporation Official 41 1 JUSTICE THOMAS: Let's say we affirm 2 here. Can Petitioners' constitutional right be 3 vindicated now in -- in Texas courts? 4 MR. NIELSON: Well, in federal court. 5 The problem is they haven't pleaded the claim. 6 So, at this point, you'd have to have leave from 7 the district court to amend their complaint if 8 they wanted to bring a claim under the Texas 9 cause of action. 10 There's still live claims here. 11 There's still a claim under the Texas 12 Constitution itself and they have federal due 13 process claims. This is an interlocutory 14 appeal. 15 So they would have to get leave from 16 the district court to amend their complaint to 17 bring a claim under Texas common law. They've 18 just never done it because they say they don't 19 have to. 20 JUSTICE SOTOMAYOR: I'm -- 21 CHIEF JUSTICE ROBERTS: Counsel, in -- 22 just a couple of quotes from cases. In Cedar 23 Point, we said that the Court in First English 24 "concluded categorically that the government 25 must pay just compensation for physical Heritage Reporting Corporation Official 42 1 invasion." 2 In Knick, it said First English 3 rejects "the view that the Constitution does not 4 of its own force furnish a basis for a court to 5 award money damages against the government." 6 Now we've -- we've said those in many 7 cases. Those are just two recent ones -- 8 MR. NIELSON: Correct, Your Honor. 9 CHIEF JUSTICE ROBERTS: -- where I 10 wrote the opinions. So -- 11 (Laughter.) 12 MR. NIELSON: Correctly wrote the 13 opinions. 14 CHIEF JUSTICE ROBERTS: -- so do you 15 have any dispute with those -- those holdings? 16 MR. NIELSON: We do not, Your Honor. 17 That's a question of the substantive right, 18 which Texas does not dispute, and you could 19 pursue that claim under the Texas cause of 20 action in a Texas court or here -- 21 CHIEF JUSTICE ROBERTS: The -- the -- 22 the -- the -- it -- it's -- 23 MR. NIELSON: -- in federal court -- 24 yes, Your Honor. 25 CHIEF JUSTICE ROBERTS: -- it's -- Heritage Reporting Corporation Official 43 1 it's the statement of the -- the right, and 2 that's a federal right, right? 3 MR. NIELSON: Yes, Your Honor. 4 CHIEF JUSTICE ROBERTS: So you can 5 require that a federal assertion of rights like 6 that be brought in state court and not in 7 federal court? 8 MR. NIELSON: Well, it's brought under 9 a -- a state cause of action. So, I mean, you 10 can remove -- there's diversity jurisdiction or 11 something like that, like any other sort of 12 cause of action, but the cause of action itself 13 is created by -- by Texas. 14 And that's how it's been -- as this 15 Court explained in Knick, that's how state 16 courts have always done it. Since 1870s, this 17 Court said and onwards -- 18 CHIEF JUSTICE ROBERTS: Well, it said 19 -- what we said in -- 20 MR. NIELSON: -- that's how we've done 21 it. 22 CHIEF JUSTICE ROBERTS: -- what we 23 said in Knick is that the Constitution of its 24 own force furnishes the basis for a court to 25 award money damages. And you think what we had Heritage Reporting Corporation Official 44 1 in mind is a -- a basis to -- to -- in state 2 court but not federal court? 3 MR. NIELSON: When the claim is 4 against a state, in Knick, the Court said 19 5 times by our count 1983. Every time the Court 6 states the holding in Knick, they tie it to 7 Section 1983 because there's a difference 8 between the substantive right and the cause of 9 action. 10 In Knick, the cause of action was 11 Section 1983 because Congress said, if you're 12 going to sue municipalities or cities, there you 13 go, there's the cause of action. 14 CHIEF JUSTICE ROBERTS: Well, you 15 removed to federal court, where you couldn't 16 bring an action under 1983, right? 17 MR. NIELSON: Correct, Your Honor. We 18 did remove to federal -- federal court. Two 19 reasons for that. One, this is not just one 20 case. These are four separate cases, all 21 putative class actions. They say there's more 22 than a hundred plaintiffs here. 23 Texas -- these are filed in different 24 counties. Texas has no way to put all of them 25 in a single Texas court. So, if the cases were Heritage Reporting Corporation Official 45 1 going to be in a single court, it had to be 2 through removal and put them in -- in that 3 court. 4 The second reason for that was Texas 5 courts don't have a lot of experience with 6 implied rights of action, alleged -- implied 7 rights of action under federal law. This is the 8 bread and butter of this Court's -- you guys' 9 Court resolves factual -- those types of issues 10 all of the time. So we thought let's just get 11 it there, we'll get everybody in one case, and 12 we can take out this, you know, putative federal 13 cause of action, which we think is flatly 14 irreconcilable to begin with. 15 CHIEF JUSTICE ROBERTS: So what -- 16 under what basis would they proceed against the 17 state under -- under 1983? 18 MR. NIELSON: They -- they couldn't, 19 Your Honor. There is no such claim. Congress 20 has said that you can bring claims against 21 cities and municipalities. You cannot sue the 22 states under Section 1983. 23 They say they can. So, under Bell 24 v. Hood, they've claimed that there is a federal 25 cause of action. When someone asserts that a Heritage Reporting Corporation Official 46 1 federal cause of action exists, the federal 2 courts have jurisdiction to decide whether that 3 is true, and then they can decide on the merits 4 whether the cause of action exists. 5 CHIEF JUSTICE ROBERTS: Well, isn't 6 that a -- a Catch-22 or -- I mean, you say you 7 -- they have to proceed in -- in state court. 8 They can't proceed in federal court. And as 9 soon as they do, you remove it to federal court 10 under 1983, where you say they can't proceed? 11 MR. NIELSON: Well, we would make the 12 same argument in state or federal court that 13 there is no federal cause of action directly 14 under the Fifth Amendment. That is not -- 15 CHIEF JUSTICE ROBERTS: Well, but 16 that's what was rejected in the -- in the two 17 cases that I read to you, Cedar Point and Knick. 18 MR. NIELSON: With your respect, Your 19 Honor, I don't read either of those cases as 20 saying there is a federal cause of action. 21 There's certainly a federal substantive right to 22 relief, but as this Court said in all of the 23 Bivens line of cases or all the implied right of 24 action cases, the right to, you know, a -- a 25 substantive right does not therefore mean that Heritage Reporting Corporation Official 47 1 there is a cause of action. 2 JUSTICE KAGAN: But, General, do you 3 agree with Mr. McNamara that if a state takes a 4 person's property and doesn't give compensation, 5 that state is violating the Constitution every 6 day? It's an ongoing violation. Do you agree 7 with that? 8 MR. NIELSON: That's not how the Court 9 has -- I -- I -- I believe -- I certainly agree 10 that's a violation of the Constitution. I don't 11 think this Court's cases have ever -- 12 JUSTICE KAGAN: But that's what I want 13 to know. It's an -- 14 MR. NIELSON: Sure. 15 JUSTICE KAGAN: -- ongoing violation 16 of the Constitution, right? I've taken Mr. 17 McNamara's property. I haven't paid him. Every 18 day, I'm violating the Constitution, correct? 19 MR. NIELSON: Yes, Your Honor. 20 JUSTICE KAGAN: Okay. So aren't 21 courts supposed to do something about that? 22 MR. NIELSON: Yes, Your Honor. And 23 what this Court said in Knick is, when there's 24 not a cause of action, which remember there 25 wasn't a cause of action, there were -- you have Heritage Reporting Corporation Official 48 1 -- there's no remedies. 2 JUSTICE KAGAN: Yeah. 3 MR. NIELSON: What -- what is 4 injunctive relief -- 5 JUSTICE KAGAN: But this is -- this is 6 very different. 7 MR. NIELSON: Sure. 8 JUSTICE KAGAN: You know, in the usual 9 case, we have a constitutional -- let's take a 10 Fourth Amendment case. You know, it's you've 11 searched somebody's home illegally. 12 MR. NIELSON: Mm-hmm. 13 JUSTICE KAGAN: It's happened, and 14 then it's over, and then the question is what 15 remedy are you going to be giving for that 16 violation. 17 But this is a different kind of 18 violation. It's not a -- it's not even clear 19 that the word "remedy" is appropriate here. 20 It's a right to compensation. And the state, by 21 taking the land and not compensating, is 22 violating that right every day. It's not that 23 the state -- 24 MR. NIELSON: Mm-hmm. 25 JUSTICE KAGAN: -- is failing to Heritage Reporting Corporation Official 49 1 provide a remedy. The state is violating the 2 right to be paid. 3 MR. NIELSON: Sure, Your Honor. And I 4 -- I just -- and the answer would be, if there's 5 not a cause of action, that's why I went back to 6 Knick. 7 JUSTICE KAGAN: Well, if it's not a 8 cause of action, I mean, in the -- 9 MR. NIELSON: Sure. 10 JUSTICE KAGAN: -- usual case, suppose 11 that a state violates Mr. McNamara's First 12 Amendment rights. 13 MR. NIELSON: Yep. 14 JUSTICE KAGAN: Could he bring a suit 15 about that? 16 MR. NIELSON: Yes, Your Honor, for 17 injunctive relief. 18 JUSTICE KAGAN: Yes. And what Mr. 19 McNamara, I believe, is saying is that -- that 20 the usual distinction that we draw, you can 21 bring a right for injunctive relief, but you 22 can't -- you can bring a suit for injunctive 23 relief, but you can't bring a suit for damages, 24 that's the usual distinction. 25 But it sort of falls apart in this Heritage Reporting Corporation Official 50 1 case because the right is a right to be paid. 2 MR. NIELSON: Yes, Your Honor. And so 3 I -- I -- I come at this from maybe the other 4 direction. Let's imagine that some government 5 said, you know what, we're not going to pay. 6 We're telling everybody now. Now you are on 7 notice we are not paying. 8 Well, then what happens? Before they 9 could do anything, you would rush to court and 10 you would say: Injunction. They can't do it. 11 They've promised they're not going to pay. 12 They're not going to provide that. And the 13 Constitution says, if they don't, they're out of 14 -- they're -- they're violating their rights. 15 That's Eastern Enterprises v. Apfel, where if 16 there's -- clear that there's not going to be a 17 right to judicial -- to payment, there are no -- 18 no monies coming, not -- not judicial, but no 19 payments coming, you can get that injunction 20 right away. 21 JUSTICE KAGAN: I mean, General, let 22 me make the point another way. 23 MR. NIELSON: Sure. 24 JUSTICE KAGAN: I mean, it's sort of 25 backwards to say that Mr. McNamara's client can Heritage Reporting Corporation Official 51 1 sue for an injunction, meaning like, you know, 2 give me back my property. Actually, the state 3 has a right to take his property or a 4 prerogative to take -- 5 MR. NIELSON: Yeah. 6 JUSTICE KAGAN: -- his property. If 7 the state wants to use his property for a 8 railroad, it doesn't really matter that the -- a 9 person doesn't want to sell. The state has the 10 ability to take -- the only thing that the state 11 does not have the prerogative to do and the 12 thing that the landowner has a right to have is 13 payment. 14 MR. NIELSON: Yes, Your Honor. 15 JUSTICE KAGAN: So to say, well, look, 16 you can sue for an injunction but you can't sue 17 for payment just doesn't understand the nature 18 of this right. 19 MR. NIELSON: Well, so our first-line 20 argument is, you know, the way the United States 21 did it for a hundred years is -- is correct. 22 But, if the Court disagrees with that, if the 23 Court says, you know what, actually -- 24 JUSTICE KAGAN: So, General, I kind of 25 agree with that. Your best argument is like Heritage Reporting Corporation Official 52 1 what happened between the time of the 2 Constitution and, you know, someplace in the 3 late 19th Century. 4 But suppose that I'm not such an 5 originalist and I don't really care about that. 6 (Laughter.) 7 MR. NIELSON: Sure. All right. So 8 the -- that -- that's the answer I'm going to 9 say. So, if we -- if the Court says, we read 10 First English and it requires not just a 11 substantive relief, it requires some sort of 12 judicial proceeding, which we don't think is 13 consistent with the history, but let's assume, 14 Texas does it. Texas provides the cause of 15 action for which they can bring a federal 16 takings claim. 17 So even if that is true, which we 18 don't believe as our first-line argument is 19 correct, Texas still wins. They -- 20 JUSTICE BARRETT: What if Texas didn't 21 do it, though? 22 MR. NIELSON: So -- so that's where we 23 get interesting. 24 JUSTICE BARRETT: But I'm not -- but 25 -- I -- I -- and I just want to be clear I'm not Heritage Reporting Corporation Official 53 1 talking about the hypothetical you gave where 2 Texas announces in advance -- 3 MR. NIELSON: Yeah. 4 JUSTICE BARRETT: -- we're going to 5 take and we're not going to pay. Let's say that 6 Texas takes and just this one property owner 7 can't get the money, the -- Texas is being 8 intransigent about it. 9 MR. NIELSON: Mm-hmm. 10 JUSTICE BARRETT: And Texas says: 11 And, by the way, our state cause of action -- we 12 have no state cause of action for you to use in 13 our courts to get the money, no private bills. 14 We don't do that. There's no state -- 15 MR. NIELSON: Sure. 16 JUSTICE BARRETT: -- law remedy. What 17 then? 18 MR. NIELSON: All right. So, you 19 know, if a state goes rogue, that's how we're 20 thinking about it, because we know from Knick 21 all the states don't do that, but let's assume 22 some state says, we're just not going to do 23 that. Well, you have injunctive relief. I 24 realize that might not be a perfect relief -- 25 JUSTICE BARRETT: Doesn't work in this Heritage Reporting Corporation Official 54 1 hypothetical. 2 MR. NIELSON: It doesn't work because 3 of that. Then the answer is exactly what the 4 Constitution says. Congress -- Section 5 of the 5 Fourteenth Amendment says, if a state is 6 violating the Constitution, which would be 7 happening in this scenario, that's precisely 8 what Section 5 is for. 9 Congress has never done that -- 10 JUSTICE BARRETT: So they have to wait 11 for Congress to enforce it through legislation? 12 Would there be some sort of due process 13 violation or an argument that the state has to 14 provide some sort of forum? 15 MR. NIELSON: Well, that's what I'm 16 trying to say. If you read First English that 17 way to say that not only is it there's a 18 substantive obligation, but there has to be a -- 19 some sort of judicial forum for -- for, you 20 know, vindication of that -- 21 JUSTICE BARRETT: I -- not, I mean, a 22 judicial forum. It could be -- 23 MR. NIELSON: Sure. 24 JUSTICE BARRETT: -- an administrative 25 forum. I mean, I -- I'm taking -- Heritage Reporting Corporation Official 55 1 MR. NIELSON: Okay. Sure. Sure. 2 JUSTICE BARRETT: -- your argument 3 about that. 4 MR. NIELSON: Okay. 5 JUSTICE BARRETT: You're -- you're 6 really saying that the state could shut down and 7 give no administrative forum, no legislative 8 forum, no judicial forum, and because the Fifth 9 Amendment doesn't create an implied cause of 10 action, then the property owner would have to 11 say, Congress, can you please use your Section 5 12 power? 13 MR. NIELSON: The answer would be 14 first try to get an injunction. That doesn't 15 always work for the reasons that you say. In 16 that scenario, yeah, that's what the 17 Constitution says. 18 CHIEF JUSTICE ROBERTS: Well, but 19 we're talk -- 20 JUSTICE GORSUCH: Why -- why -- why -- 21 I'm -- I'm sorry, Chief. 22 CHIEF JUSTICE ROBERTS: I'm sorry. 23 We're talk -- those are two governments. I 24 mean, we're talking about the ability of the 25 government to take property without paying for Heritage Reporting Corporation Official 56 1 it. The -- the states and Congress may have 2 common cause on that. And the idea that, well, 3 you look to a different government -- 4 MR. NIELSON: Mm-hmm. 5 CHIEF JUSTICE ROBERTS: -- to tell 6 this government that that's not something 7 governments can do, that's not much of a remedy. 8 MR. NIELSON: Well, this Court has 9 cases that says we trust that Congress takes 10 itself seriously. We trust that the states take 11 their oath seriously. That's one of the 12 premises of Alden v. Maine, that they're going 13 to do that. But -- 14 JUSTICE GORSUCH: Well, we also -- we 15 also assume people act in their self-interest. 16 MR. NIELSON: Sure. 17 JUSTICE GORSUCH: And the -- our whole 18 system of separated powers is premised on that 19 idea. And self-interest here that would be 20 created isn't a rogue state but an incentive for 21 governments not -- not -- to -- to withdraw 22 their -- their existing causes of action. I 23 think that's the thrust -- 24 MR. NIELSON: Yeah. 25 JUSTICE GORSUCH: -- of Justice Heritage Reporting Corporation Official 57 1 Barrett and the Chief's questions. 2 MR. NIELSON: What we -- 3 JUSTICE GORSUCH: And I guess I'm 4 wondering -- 5 MR. NIELSON: Sorry. 6 JUSTICE GORSUCH: -- why wouldn't the 7 injunction order the state to pay? 8 MR. NIELSON: So that's a question 9 that has not been litigated, whether you could 10 have injunctive relief to pay. 11 JUSTICE GORSUCH: Say you have to 12 provide -- 13 MR. NIELSON: Correct. 14 JUSTICE GORSUCH: -- just 15 compensation. We're not telling you how. 16 MR. NIELSON: Yep. 17 JUSTICE GORSUCH: We're not telling 18 you in what forum. 19 MR. NIELSON: And -- and -- and -- 20 JUSTICE GORSUCH: But -- but the 21 Constitution commands it. 22 MR. NIELSON: Sure. As I said, that's 23 -- if you want to read First English that way, 24 Texas has no quarrel with that because we 25 provide it. And we don't just provide through a Heritage Reporting Corporation Official 58 1 commission, though I think we have the 2 constitutional right to do so. We do it in 3 court. We -- 4 JUSTICE BARRETT: But you have to 5 answer -- I'm sorry. You have to answer the 6 hypothetical. 7 MR. NIELSON: Yeah. 8 JUSTICE BARRETT: I think Justice 9 Gorsuch's premise is that Texas isn't doing 10 this. 11 MR. NIELSON: Okay. So, if we say 12 that a Texas doesn't or -- or some state doesn't 13 have a -- a court proceeding and you don't have 14 any sort -- other sort of commission, you still 15 can get an injunction, and if you know the state 16 doesn't have any of those things, you can get 17 that injunction very, very, very early. 18 JUSTICE GORSUCH: And wouldn't the 19 injunction say, Texas, you have an obligation -- 20 MR. NIELSON: Mm-hmm. 21 JUSTICE GORSUCH: -- to pay? 22 MR. NIELSON: And this is where I -- 23 I'm not quarreling because Texas -- 24 JUSTICE GORSUCH: Okay. 25 MR. NIELSON: -- as a matter of -- Heritage Reporting Corporation Official 59 1 JUSTICE KAVANAUGH: You don't want to 2 concede that? 3 MR. NIELSON: -- first principles -- 4 as a matter of first principles, I don't know 5 how you get there. But I'm saying that Texas 6 has no quarrel with it -- 7 JUSTICE GORSUCH: Okay. And -- and -- 8 MR. NIELSON: -- because Texas does -- 9 what you're saying -- 10 JUSTICE KAVANAUGH: What do you mean 11 -- 12 JUSTICE GORSUCH: I've got -- I -- 13 I've got it. I've got it. I just want to -- I 14 just want to clear -- clear up two other things. 15 MR. NIELSON: Sure. 16 JUSTICE GORSUCH: What is the common 17 law cause of action and what is the state 18 constitutional cause of action that does exist 19 that you say could have but wasn't brought? 20 MR. NIELSON: That's right. So the -- 21 the easiest place to see it because it's the 22 most recent and I think the most clear is the 23 Texas Supreme Court's City of Baytown -- 24 JUSTICE GORSUCH: Right. That just 25 says, though, as I understand it from your Heritage Reporting Corporation Official 60 1 colleague -- 2 MR. NIELSON: Yeah. 3 JUSTICE GORSUCH: -- go look at the 4 federal Constitution. So how does that help 5 you? 6 MR. NIELSON: Well, they look at both. 7 They say, we resolve takings claims under our 8 constitutions, plural, and then they cite both. 9 And then they -- 10 JUSTICE GORSUCH: So Texas has 11 represented to this Court that there is a state 12 constitutional cause of action? 13 MR. NIELSON: Yes, Your Honor. 14 JUSTICE GORSUCH: Okay. And is there 15 a common law cause of action -- 16 MR. NIELSON: Well, that -- 17 JUSTICE GORSUCH: -- that would 18 achieve the same thing? 19 MR. NIELSON: -- that's what I'm -- 20 that's what I'm -- I must have -- I must have 21 misunderstood -- 22 JUSTICE GORSUCH: Beyond -- 23 MR. NIELSON: -- what you were saying. 24 That is the -- the cause of action. 25 JUSTICE GORSUCH: That is the cause of Heritage Reporting Corporation Official 61 1 action? 2 MR. NIELSON: Yeah. 3 JUSTICE GORSUCH: Okay. And it wasn't 4 pled here, is what you're -- 5 MR. NIELSON: No, Your Honor. They -- 6 JUSTICE GORSUCH: What does -- 7 MR. NIELSON: -- vigorously resisted 8 -- 9 JUSTICE GORSUCH: Fine. Fine. 10 MR. NIELSON: -- the idea that they 11 have to -- 12 JUSTICE GORSUCH: Oh, okay. I got it. 13 And what -- what cause of action remains pendent 14 as you understand it? 15 MR. NIELSON: So they still have 16 claims for federal due process, and they still 17 have claims for the Texas Constitution. 18 JUSTICE GORSUCH: Would you oppose 19 leave to amend to add a Texas constitutional 20 claim on -- on an email? 21 MR. NIELSON: On behalf of the State 22 of Texas, we would not oppose that in the 23 district court. 24 JUSTICE GORSUCH: Okay. Thank you. 25 JUSTICE KAVANAUGH: Justice Gorsuch -- Heritage Reporting Corporation Official 62 1 JUSTICE SOTOMAYOR: Sorry. But I -- I 2 -- I -- I'm sorry. 3 JUSTICE KAVANAUGH: Go ahead. 4 JUSTICE SOTOMAYOR: Point of 5 clarification. 6 MR. NIELSON: Sure. 7 JUSTICE SOTOMAYOR: Tell me how they 8 plead this. Let's assume we affirm the court 9 below. There's no freestanding right to come 10 into federal court and sue Texas under the Fifth 11 Amendment. 12 How would they go to the Texas court 13 and make their Fifth Amendment claim? 14 MR. NIELSON: So -- 15 JUSTICE SOTOMAYOR: What would they 16 say in the Texas court? 17 MR. NIELSON: So -- yes. So what they 18 would say here, and, candidly, the pleadings 19 have never been as pellucid as I think anyone 20 would have liked, but what I think that they -- 21 they would say is, we are bringing our claim 22 under state law, see City -- see, e.g., City of 23 Baytown. I think that would be sufficient to 24 get us there. 25 JUSTICE SOTOMAYOR: That -- that's -- Heritage Reporting Corporation Official 63 1 my gosh. I've never heard of pleadings in any 2 state where you had to mention the law at issue. 3 MR. NIELSON: Well, that's the -- 4 JUSTICE SOTOMAYOR: Usually you 5 mention the facts -- 6 MR. NIELSON: Well -- 7 JUSTICE SOTOMAYOR: -- or you state 8 the facts and then you -- 9 MR. NIELSON: Well -- 10 JUSTICE SOTOMAYOR: But putting that 11 aside, here, they say violation of Article I, 12 Section 17 of the Texas Constitution for the 13 taking, damaging, or the destruction of their 14 property. That's Count 1. 15 MR. NIELSON: Yes, Your Honor. 16 JUSTICE SOTOMAYOR: And Count 2 says 17 violation of the Fifth Amendment of the U.S. 18 Constitution. 19 MR. NIELSON: Yes, Your Honor. 20 JUSTICE SOTOMAYOR: Summarizing 21 basically. I don't know what else they would 22 have had to do in Texas court if I cite that 23 case. 24 MR. NIELSON: It -- 25 JUSTICE SOTOMAYOR: They said, I'm Heritage Reporting Corporation Official 64 1 suing you in Texas court. You're the one who 2 removed to federal court. 3 MR. NIELSON: Yes, Your Honor. 4 JUSTICE SOTOMAYOR: This seems to me 5 like a totally made-up case because they did 6 exactly what they had to do under Texas law. 7 It's you who are telling me -- it's almost a 8 bait and switch -- that you wanted to get to 9 federal court to basically have a class action 10 and you couldn't do it in state court, so -- but 11 you had to fight something, which -- I don't 12 know what you're fighting because you're telling 13 me that Texas lets them have a cause of action 14 under the Fifth Amendment. 15 MR. NIELSON: Yes, Your Honor. 16 There's no bait and switch here, I want to be 17 clear on that, no bait and switch. 18 JUSTICE SOTOMAYOR: Well, you're the 19 one who removed. 20 MR. NIELSON: We removed, and they 21 didn't come back and say, oh, no, you 22 misunderstand what we're saying. Instead, every 23 step along the way, they have doubled down all 24 the way going to cert, you know, seek certiorari 25 review from this Court. Heritage Reporting Corporation Official 65 1 So, if we misunderstood what they were 2 saying -- 3 JUSTICE SOTOMAYOR: So, if -- if they 4 go back down and say to the district court, this 5 has been remanded to the district court, all we 6 want is just compensation under the Texas 7 Constitution and the Fifth Amendment under that 8 case that you're mentioning, that's okay and 9 you're not going to resist that? 10 MR. NIELSON: We -- we -- we would not 11 resist that, Your Honor. 12 JUSTICE SOTOMAYOR: Okay. 13 JUSTICE KAVANAUGH: On Justice 14 Gorsuch's injunction-to-pay hypothetical, I just 15 want to make sure I'm clear on that. 16 MR. NIELSON: Yeah. 17 JUSTICE KAVANAUGH: I thought you were 18 saying we don't need to answer that question in 19 this case because Texas provides forums for 20 compensation. 21 MR. NIELSON: Yes, Your Honor. 22 Conceptually, I don't know how you get an 23 injunction to pay money. 24 JUSTICE KAVANAUGH: But -- but -- 25 MR. NIELSON: I'm not familiar with Heritage Reporting Corporation Official 66 1 that, but that's blowing apart -- 2 JUSTICE KAVANAUGH: I -- I understand 3 that, but even in the -- 4 MR. NIELSON: Yeah. 5 JUSTICE KAVANAUGH: -- the theoretical 6 possibility of it is just not present here, 7 right? 8 MR. NIELSON: Correct, Your Honor. 9 And, as I said, it's hard for me to quarrel with 10 it because Texas does pay money. But, 11 conceptually, I don't know how you get there. 12 JUSTICE KAVANAUGH: Yeah. 13 MR. NIELSON: If I may -- 14 JUSTICE JACKSON: What about a 15 declaration? What about a declaration? Is that 16 something different? 17 MR. NIELSON: A declaration? I -- 18 JUSTICE JACKSON: Could you sue for -- 19 for -- 20 MR. NIELSON: Sure. 21 JUSTICE JACKSON: -- declaratory 22 judgment that Texas or whatever state is not 23 paying you? 24 MR. NIELSON: So my understanding of a 25 declaratory judgment action is it sounds in Heritage Reporting Corporation Official 67 1 equity, not in damages. So I think it would 2 fall within the -- the universe of Ex parte 3 Young type remedies. So we wouldn't have any 4 objection to that either, though, again, I -- I 5 -- I'm a little bit shooting from the hip, so I 6 apologize it wasn't briefed on that one, so I'm 7 -- I'm a bit nervous on that. 8 JUSTICE JACKSON: Yes. 9 MR. NIELSON: Though, I mean, I -- if 10 I -- if I may, I would like just to make a 11 couple of affirmative points. 12 CHIEF JUSTICE ROBERTS: Well, no, you 13 can do that later. 14 MR. NIELSON: Oh, I apologize, Your 15 Honor. 16 CHIEF JUSTICE ROBERTS: Yeah. 17 Justice Thomas? 18 Justice Alito? 19 JUSTICE ALITO: Well, why don't you 20 quickly make an affirmative point. 21 (Laughter.) 22 MR. NIELSON: Well, I would just like 23 to say that as far as I am aware, Texas is the 24 only party here that has offered evidence on the 25 original public meaning of the actual language Heritage Reporting Corporation Official 68 1 of the text, not the ideas, the actual language 2 of the Constitution. And when courts looked at 3 that language, they read it precisely the same 4 way that Texas does now. 5 CHIEF JUSTICE ROBERTS: Anything 6 further? 7 JUSTICE ALITO: Thank you. 8 CHIEF JUSTICE ROBERTS: Justice 9 Sotomayor? 10 Justice Gorsuch? 11 Justice Jackson? 12 Thank you, counsel. 13 MR. NIELSON: Thank you, Your Honor. 14 CHIEF JUSTICE ROBERTS: Mr. Kneedler. 15 ORAL ARGUMENT OF EDWIN S. KNEEDLER 16 FOR THE UNITED STATES, AS AMICUS CURIAE, 17 SUPPORTING THE RESPONDENT 18 MR. KNEEDLER: Mr. Chief Justice, and 19 may it please the Court: 20 The Fifth Amendment to the United 21 States Constitution does not of its own force 22 create a cause of action against the government 23 under the Fifth Amendment against the United 24 States Government for damages. 25 Numerous provisions of the Heritage Reporting Corporation Official 69 1 Constitution make that clear, including the text 2 of the just compensation clause itself. It says 3 property shall not be taken, no person -- 4 property shall not be taken for public use 5 without just compensation. 6 The right is not to have the property 7 taken without compensation. It's not a right to 8 compensation. And this -- it's prohibitory. It 9 has a condition for the -- governmental action 10 to be lawful. That condition is the payment of 11 compensation. If there's not compensation, then 12 the action is unlawful, and what lies is an 13 injunction to cease the taking of the property. 14 This Court in -- in a number of 15 recent -- relatively recent cases has made that 16 point. In Ruckelshaus versus Monsanto, in Dames 17 & Moore, in the railroad reorganization cases, 18 the question really was, should there be an 19 injunction preventing this statute from going 20 into effect, or is there compensation available 21 under the Tucker Act such that an injunction 22 would not be appropriate? 23 In all of those cases, that's what the 24 Court held, that there was compensation 25 available. But that -- the the very question Heritage Reporting Corporation Official 70 1 presupposed that there might be situations in 2 which compensation was not available. That's 3 the violation. 4 And the -- the same thing, if you look 5 at the overall context of the Fifth Amendment, 6 that is also true. It -- the preceding clause, 7 as Justice Alito pointed out, says that no 8 person shall be deprived of property without due 9 process. The prohibition is the -- deprivation, 10 the condition -- without -- without the 11 condition of due process. 12 If a court finds a violation, it 13 doesn't order due process. It orders -- it 14 enjoins the conduct that was undertaken without 15 due process. The government can always go back 16 and do it over again with due process. 17 And -- and, finally, there's another 18 clause in the Fifth Amendment that is written in 19 exactly the same way, the indictment clause. It 20 says a person shall not be held for a capital or 21 otherwise infamous crime unless on a presentment 22 of an indictment. An indictment is the 23 condition precedent to having a lawful holding 24 of somebody for a crime, and one -- 25 CHIEF JUSTICE ROBERTS: Mr. Kneedler, Heritage Reporting Corporation Official 71 1 in the -- 2 MR. KNEEDLER: Yeah. 3 CHIEF JUSTICE ROBERTS: -- brief that 4 you -- you filed in First English 38 years ago, 5 you argued that the Constitution does not of its 6 own force furnish a basis for a court to award 7 money damages against the government. 8 Now, in the decision in First English, 9 Justice Rehnquist rejected the idea that "the 10 Constitution does not, of its own force, furnish 11 a basis for the court to award money damages 12 against the government." 13 Now it seems to me that the question 14 is -- turns on basis. And what you seem to be 15 saying is it created a general theory of what 16 the government had to do. But that doesn't mean 17 that anybody could take that and recover 18 compensation. They have to go get an injunction 19 or they -- they can't proceed at all because 20 there's no cause of action? 21 MR. KNEEDLER: Yes, Your -- 22 CHIEF JUSTICE ROBERTS: I mean, are 23 you just rearguing the point that the Court 24 rejected? 25 MR. KNEEDLER: Not at all. Not at Heritage Reporting Corporation Official 72 1 all. But our point -- our point, that portion 2 of our brief was really going to the cause of 3 action question and -- and for the reasons that 4 we said in that brief and this brief, and -- and 5 I don't think the Court rejected this. 6 For all the reasons we said, not just 7 the text of the clause, but -- but the 8 Appropriations Clause, the Fifth Amendment only 9 applied to the United States, the Appropriations 10 Clause would have prohibited any court from 11 awarding a money judgment or an injunction to 12 pay money because only Congress can authorize 13 the payment of money from the Treasury. 14 CHIEF JUSTICE ROBERTS: Well, but it's 15 -- 16 MR. KNEEDLER: OPM versus Richmond 17 makes that clear. 18 CHIEF JUSTICE ROBERTS: Well, the 19 Constitution can do it too, which is what the 20 rest of that footnote rejecting the arguments 21 that the government made in First English said. 22 It says that the "cases made clear that it is 23 the Constitution that dictates the remedy for 24 interference with property rights amounting to a 25 taking." Heritage Reporting Corporation Official 73 1 So I -- I'm not sure how you get 2 around the fact that the Constitution speaks in 3 terms of just compensation and not an 4 injunction. 5 MR. KNEEDLER: Well, as I said, it 6 speaks in terms of compensation in terms of 7 defining the right, which is not to have 8 property taken without just -- just 9 compensation. But that footnote, I think it's 10 important to understand the context of that 11 footnote. 12 In fact, all of First English was 13 about the Agins rule in the -- in the -- in 14 California, which said there was not even a 15 taking. Sometimes they said you -- no 16 compensation, but there was no taking until a 17 court first determined that there was a taking. 18 And that was the rule, that was the 19 controversy at the time, the so-called temporary 20 taking. Does -- does the taking arise in a 21 regulatory context at the time the regulation is 22 effective or later? That was the issue that the 23 Court rejected, and in that respect, it said no, 24 compensation is owed from the moment of -- of 25 the Constitution. And what -- Heritage Reporting Corporation Official 74 1 CHIEF JUSTICE ROBERTS: Thank you, 2 counsel. 3 JUSTICE ALITO: Mr. Kneedler, I have a 4 little trouble understanding your argument about 5 the Tucker Act. In your view, neither the 6 Tucker Act nor the Takings Clause provides a 7 cause of action, but then you say the 8 combination of the two somehow provides a cause 9 of action. 10 And the Petitioner says that what 11 you're saying is that nothing plus nothing 12 equals something. So this -- you must be 13 relying on some kind of higher math that I can't 14 understand. Where -- what is the cause of 15 action -- 16 MR. KNEEDLER: No, I -- I -- 17 JUSTICE ALITO: -- in a Tucker Act 18 suit? 19 MR. KNEEDLER: I -- as I said, I think 20 it's the combination of the two. It's not zero 21 plus zero; it's one-half plus one-half. The -- 22 the -- as we say, the -- the -- the 23 Constitution, the Fifth Amendment itself, does 24 not create a -- a -- a cause of action. It 25 would have -- would -- would have been Heritage Reporting Corporation Official 75 1 extraordinary. We went for 200 years, as 2 pointed out, with that not being the case. 3 But what the Tucker Act does is, as 4 the Court said two terms ago, three terms ago, I 5 guess, it provides the framework under which 6 it's -- it can be determined whether Congress 7 has provided the ability to -- to sue under the 8 Tucker Act. 9 The Tucker Act standard is whether the 10 particular substantive provision that is being 11 relied upon creates a -- can reasonably be read 12 to mandate compensation if there is a violation. 13 By definition -- and the Court made this point 14 in Bormes -- the Tucker Act is there for 15 something where there is an obligation but no 16 elements of a cause of action. So the -- the -- 17 for example, the Fifth Amendment or the statute 18 that may be involved, particular statute that 19 may be involved, by definition does not create a 20 cause of action. 21 Congress provided in the Tucker Act 22 that you can recover compensation if -- if the 23 other provision of law can reasonably be 24 construed. That's a -- that's a Tucker Act 25 standard for when -- Heritage Reporting Corporation Official 76 1 JUSTICE ALITO: All right. Suppose 2 there -- suppose that the Takings Clause was not 3 in the Constitution, but Congress enacted a 4 statute that said the federal government shall 5 not take private property for public use without 6 just compensation. 7 Would that be a money-mandating 8 statute that creates a cause of action? 9 MR. KNEEDLER: I don't think so. I -- 10 because it's a -- it's a -- it's a prohibition, 11 I think it's the same -- the same as the Fifth 12 Amendment itself. It -- it is a directive to 13 Congress not to -- or executive not to take 14 property without affording compensation. 15 Now it may be that the particular 16 statute would be understood or could be 17 interpreted that way, but, here, we're talking 18 about the Constitution, and no other provision 19 of the Constitution provides of its own force a 20 remedy, particularly a remedy for damages. 21 And that would have been extraordinary 22 at the time the Constitution was adopted because 23 of the Appropriations Clause, sovereign 24 immunity, and the Debt Clause. If -- if 25 compensation is not paid, that is a debt of the Heritage Reporting Corporation Official 77 1 United States, and it's clear -- 2 JUSTICE ALITO: I -- I find it hard to 3 understand how that would not be a statute that 4 mandates the payment of money. It says you -- 5 you can't take property for a public use without 6 just compensation. It's talking about paying 7 money. If that's not a money-mandating 8 provision, then -- 9 MR. KNEEDLER: It might -- it might be 10 -- it might be money -- money-mandating under 11 the Tucker Act. I -- I think I understood you 12 to say it -- this wasn't the Tucker Act. 13 JUSTICE ALITO: No. 14 MR. KNEEDLER: But that's because the 15 Tucker Act has been under -- 16 JUSTICE ALITO: It's another -- it's 17 another statute, and we would interpret it like 18 we interpreted the statute in Maine Community 19 Health. Does it -- does it mandate the payment 20 of money? I would think the answer to that 21 would be yes. And if that's the case with the 22 statute, why isn't it the same with the -- 23 MR. KNEEDLER: Because the -- 24 JUSTICE ALITO: -- with the Fifth 25 Amendment? Heritage Reporting Corporation Official 78 1 MR. KNEEDLER: -- the money mandating 2 is not -- is not something under the Tucker Act. 3 It is -- it is a provision in the Tucker Act 4 that -- 5 JUSTICE ALITO: All right. 6 MR. KNEEDLER: It -- it's not -- it's 7 not the other statute. It's a provision in the 8 Tucker Act. And that is a Tucker Act-specific 9 standard for when Congress -- 10 JUSTICE ALITO: Thank -- thank -- 11 thank you. 12 JUSTICE JACKSON: Mr. -- 13 JUSTICE ALITO: Thank you, Mr. 14 Kneedler. 15 JUSTICE JACKSON: -- Mr. Kneedler, I 16 thought your answer to Justice Alito was going 17 to be going back to what you said at the 18 beginning, which is the compensation is 19 conditional in the same way as the Due Process 20 Clause is conditional. 21 I thought that was very interesting, 22 and maybe you want to repeat it. 23 MR. KNEEDLER: Yeah. No, no, that is 24 -- that -- I -- I think that's a fundamental 25 point about the text, not -- of the just Heritage Reporting Corporation Official 79 1 compensation clause itself, but the entire Fifth 2 Amendment is pro -- is prohibitory. I mentioned 3 the indictment clause, but the 4 self-incrimination clause is the same way. The 5 Double Jeopardy Clause is -- is the same. 6 JUSTICE JACKSON: And so, to the 7 extent that we see a condition there, it -- you 8 -- you're not interpreting that as mandating 9 that condition necessarily. It's about the 10 prohibition? 11 MR. KNEEDLER: Right. Exactly. If I 12 could -- I'm -- I'm sorry. 13 CHIEF JUSTICE ROBERTS: No. 14 MR. KNEEDLER: If I could go back to 15 the Chief Justice's question about First 16 English, the language in that footnote is 17 directed to, it says -- remedial. But what it 18 is referring to is the -- computation of just 19 compensation as a remedial matter. 20 If you have a cause of action, how do 21 you calculate the remedy? All of the cases, it 22 says, as the cases in the text make clear, it -- 23 it -- it -- it's a remedy, and it does provide a 24 basis for compensation, but in a cause of action 25 where there already is one. Heritage Reporting Corporation Official 80 1 CHIEF JUSTICE ROBERTS: Thank you. 2 MR. KNEEDLER: Every one of the cases 3 the Court cited -- 4 CHIEF JUSTICE ROBERTS: Thank -- thank 5 you, counsel. 6 MR. KNEEDLER: I'm sorry. 7 CHIEF JUSTICE ROBERTS: Justice 8 Thomas? 9 JUSTICE THOMAS: No. 10 CHIEF JUSTICE ROBERTS: Anything 11 further? 12 JUSTICE SOTOMAYOR: Is your position 13 -- is there any daylight between Texas's 14 position and the government's position here? 15 MR. KNEEDLER: Well, some -- 16 JUSTICE SOTOMAYOR: Your -- you 17 representing the government? 18 MR. KNEEDLER: Yeah. To the extent 19 there was a suggestion that there could be an 20 injunction to pay money, we would disagree with 21 that because of the Appropriations Clause, I 22 think. The Fifth Amendment cannot be read -- 23 JUSTICE SOTOMAYOR: So would it be -- 24 MR. KNEEDLER: -- to allow that. 25 JUSTICE SOTOMAYOR: -- a matter of Heritage Reporting Corporation Official 81 1 semantics, you can't take this property? You 2 have to stop flooding it? You have to do -- 3 MR. KNEEDLER: You have to -- you have 4 to stop whatever it is that would constitute a 5 taking. And -- and -- and -- 6 JUSTICE SOTOMAYOR: All right. And 7 just to clarify your answer to Justice Alito in 8 my head, you're saying it's the Tucker Act plus 9 the statute -- 10 MR. KNEEDLER: Yes. 11 JUSTICE SOTOMAYOR: -- mandating 12 payment that gets you into court? 13 MR. KNEEDLER: That is -- that's -- 14 that's correct, and it's certainly not the -- 15 it's certainly not the other provision itself, 16 the just -- the just compensation clause or the 17 other statute, which by definition -- 18 JUSTICE SOTOMAYOR: So that's your 19 half-point/half-point -- 20 MR. KNEEDLER: Yes. 21 JUSTICE SOTOMAYOR: -- equals one? 22 MR. KNEEDLER: Yes. 23 JUSTICE SOTOMAYOR: Okay. 24 MR. KNEEDLER: Sorry. 25 CHIEF JUSTICE ROBERTS: Justice Kagan? Heritage Reporting Corporation Official 82 1 Justice Gorsuch? 2 JUSTICE GORSUCH: Two questions. 3 First, the rogue state example, why shouldn't we 4 worry about that? It -- why shouldn't we worry 5 about the incentive structure we create that 6 would allow states to withdraw compensation 7 schemes, and maybe the federal government too, 8 to exploit this loophole? 9 MR. KNEEDLER: With respect, it's not 10 a loophole. It's a -- it's a fundamental aspect 11 of the Constitution that the Constitution does 12 not -- does not require this. 13 And the rogue state is answered by 14 it's a prohibition, and if -- if Congress does 15 not provide the condition necessary to render it 16 lawful, you have an injunction -- injunctive 17 action. And as the Court said in Knick, that 18 was the way -- 19 JUSTICE GORSUCH: Okay. 20 MR. KNEEDLER: -- that just 21 compensation issues were raised before. 22 JUSTICE GORSUCH: Okay. And then, 23 second, this may be a question better directed 24 to Mr. McNamara when he speaks on rebuttal, but 25 Justice Sotomayor pointed out an interesting Heritage Reporting Corporation Official 83 1 feature of the procedural history of this case. 2 The complaint has two counts about takings. One 3 is under the state constitution, and the other 4 is under the federal Constitution. 5 How do we read what the Fifth Circuit 6 did here? Did it only dismiss the second, the 7 federal claim, and is the first claim under, 8 what is it, City of Bayview and the -- and the 9 Texas Constitution, still live? Do they even 10 need to amend their complaint to add it? Is it 11 already there? 12 MR. KNEEDLER: There's a footnote in 13 the court of appeals' opinion that says that the 14 Texas Constitution or Texas provides a cause of 15 action. And that is not further elaborated 16 upon, but it -- it's -- 17 JUSTICE GORSUCH: No. Exactly. 18 MR. KNEEDLER: -- it's remanded for 19 further proceedings, so -- 20 JUSTICE GORSUCH: So do you take it 21 that that first count under the state 22 constitution is still alive and available to the 23 plaintiffs? 24 MR. KNEEDLER: I -- it is still alive 25 and available. If it required an amendment to Heritage Reporting Corporation Official 84 1 the complaint, I -- I took -- 2 JUSTICE GORSUCH: Do you think it 3 requires amendment -- 4 MR. KNEEDLER: I -- 5 JUSTICE GORSUCH: -- to the complaint, 6 or because it was remanded for further 7 proceedings and the court only expressly 8 addressed the federal Constitution, that that 9 first count is still alive? 10 MR. KNEEDLER: I think it would depend 11 on whether that first count, in -- in relying on 12 the state constitution, was just relying on a 13 state substantive right to compensation or 14 whether it was also relying -- 15 JUSTICE GORSUCH: Well, Texas -- 16 MR. KNEEDLER: -- on a cause of 17 action. 18 JUSTICE GORSUCH: -- has represented 19 to us that it provides a cause of action -- 20 MR. KNEEDLER: Right. And -- and -- 21 JUSTICE GORSUCH: -- right? So -- 22 MR. KNEEDLER: -- so -- so, if -- if 23 the -- if the complaint is read to be invoking 24 the state cause of action for the federal 25 taking, then, yes, I think that would be open on Heritage Reporting Corporation Official 85 1 remand. 2 JUSTICE GORSUCH: Thank you. 3 CHIEF JUSTICE ROBERTS: Justice 4 Kavanaugh? 5 Justice Barrett? 6 JUSTICE BARRETT: Mr. Kneedler, just 7 want to clarify something. So your position in 8 response to, say, the rogue state hypothetical, 9 when you said an injunction is the solution, 10 it's not an injunction to pay money because you 11 said the United States thinks that can't happen. 12 So is it your position that if, say, a 13 state or the United States takes property, 14 refuses to get -- give just compensation for it, 15 that the property owner could get an injunction 16 essentially saying, give me my property back if 17 you're not going to pay, and perhaps get that 18 injunction but not get reimbursed for the 19 temporary taking that happened in between the 20 seizure and the award of the injunction? 21 MR. KNEEDLER: That -- that is -- that 22 is correct. And it -- the same thing would be 23 true, you -- there could be a temporary 24 deprivation of due process, and if you get an 25 injunction preventing the government from doing Heritage Reporting Corporation Official 86 1 whatever it did without due process, there is an 2 in -- interim period, but a person could go to 3 court, get a TRO, get a preliminary injunction 4 to -- to prevent that from going on a long -- a 5 long time. That's just the nature of litigation 6 and an injunction, but it doesn't lead to the 7 question of damages. 8 And this Court's cases, First English 9 and others, had to do with the calculation 10 whether interest should be paid, and that's what 11 the Court meant about the Fifth Amendment being 12 a basis for the award of compensation, not that 13 there was a cause of action. 14 CHIEF JUSTICE ROBERTS: Justice 15 Jackson? 16 JUSTICE JACKSON: And just to clarify 17 from what Justice Barrett just said, the 18 government's position would be that you might be 19 able to have a cause of action, say, under state 20 law or whatnot for that temporary taking. It's 21 not that you would be out the compensation 22 entirely, right? 23 MR. KNEEDLER: Right. It -- that -- 24 that would depend on -- on state law and the 25 availability of a state cause of action on that. Heritage Reporting Corporation Official 87 1 But we're -- I'm only talking about the federal 2 causes of action, which that -- there's no basis 3 for an award of money out of the Treasury and 4 overcoming sovereign immunity and all that in 5 federal court for a compensation even for that 6 interim period. 7 But the interim period is endemic 8 to -- to litigation, due process violation being 9 held on -- on an indictment, but that is the 10 proper remedy and that's the -- the remedy that 11 existed until the Tucker Act was passed. It was 12 the remedy that this Court said in Knick was the 13 way to vindicate Fifth Amendment rights -- until 14 the Tucker Act or state constitutions came along 15 and provided a monetary remedy. 16 JUSTICE JACKSON: Thank you. 17 CHIEF JUSTICE ROBERTS: Thank you, 18 counsel. 19 Rebuttal, Mr. McNamara. 20 REBUTTAL ARGUMENT OF ROBERT J. McNAMARA 21 ON BEHALF OF THE PETITIONERS 22 MR. McNAMARA: Thank you, Your Honor. 23 To begin with Justice Gorsuch's 24 question, I think it's important to remember the 25 procedural posture here. I understood my friend Heritage Reporting Corporation Official 88 1 from Texas to say that the City of Baytown 2 decision means that Texas courts hear claims 3 "under the federal Constitution." 4 The complaint pleads a claim under the 5 federal Constitution, and to the extent Texas's 6 only complaint with that was that it failed to 7 cite directly to a Texas Supreme Court decision, 8 it's not clear why Texas moved to dismiss it, 9 sought an interlocutory appeal of that decision 10 as a dispositive issue and then extinguished it 11 on the merits in the Fifth Circuit. 12 To the extent that claim exists, that 13 claim has been extinguished and that warrants 14 reversal. 15 To the original meaning, and I think, 16 Your Honor, the -- the rogue state example is 17 not a hypothetical. It's a real example because 18 state after state has looked to federal law and 19 to First English as the thing that prevents the 20 state from denying compensation. 21 That's true in Oregon, as I mentioned, 22 but also New Mexico, South Carolina, Nebraska, 23 the list goes on of states that provide 24 compensation under the Fifth Amendment because 25 they understand the Fifth Amendment to require Heritage Reporting Corporation Official 89 1 compensation. 2 And they're correct to understand 3 that, Your Honor. The original understanding, 4 as evidenced by writings from James Madison to 5 St. George Tucker, is that the Fifth Amendment 6 creates an obligation to pay, which is why you 7 can sue under the Tucker Act because the Fifth 8 Amendment creates an obligation to pay. 9 Only in the absence of a court of 10 competent jurisdiction to enforce that 11 obligation does -- do the federal courts resort 12 to cases like Meigs v. McClung's Lessee, where 13 the Court ejected the United States military 14 from its own base because it didn't have clean 15 title. That -- that is the last resort in the 16 absence of a court that has the jurisdiction to 17 enforce that obligation. 18 That's why, in Maine Community Health, 19 this Court specifically pointed to the Takings 20 Clause as the analogy for what sort of 21 money-mandating inquiry it means to create the 22 obligation to pay. 23 But, more broadly, Your Honor, I -- I 24 think Texas's understanding of the Fifth 25 Amendment would relegate property rights to the Heritage Reporting Corporation Official 90 1 status of the poor relation of the Bill of 2 Rights. 3 It would be the only acknowledged 4 ongoing obligation in the Constitution that is 5 entitled to no enforcement, that is left 6 entirely to the discretion of the government 7 entities that are supposedly obligated to pay. 8 But, surely, as evidenced by the writings and by 9 the adoption of the Fifth Amendment itself, the 10 Framers meant for property rights to mean more 11 than that. 12 If the Court has no further questions, 13 we'll rest on our briefs. 14 CHIEF JUSTICE ROBERTS: Thank you, 15 counsel. 16 The case is submitted. 17 (Whereupon, at 12:23 p.m., the case 18 was submitted.) 19 20 21 22 23 24 25 Heritage Reporting Corporation Official 9,18 23:5,10,12,18 24:7,12, 25 8:20,20 9:5,17,23 11:7, arising [2] 14:11 15:17 better [1] 82:23 $ 25 25:5,6 26:13,17,22 33: 10,23 12:6,19,21 13:5,10, Arlington [1] 1:18 between [5] 6:6 44:8 52:1 $3 [1] 34:13 25 34:5,9 38:23 39:3,5 40: 21 14:4,12,14 15:2,17,23 Army [3] 26:3,4,6 80:13 85:19 1 3,11,16 41:9 42:20 43:9,12, 16:5,20 18:7,17,20 20:5,14, Army's [1] 26:4 Beyond [1] 60:22 12 44:9,10,13,16 45:6,7,13, 17,21 21:2,2,8,22 22:4,10 around [1] 73:2 Bill [2] 28:10 90:1 1 [1] 63:14 25 46:1,4,13,20,24 47:1,24, 23:13,15,23 24:7,18 25:21 Article [1] 63:11 bills [5] 8:11,15 19:21 39: 11:10 [2] 1:15 3:2 25 49:5,8 52:15 53:11,12 27:4 28:1 29:15,17,25 30: aside [1] 63:11 12 53:13 12:23 [1] 90:17 1331 [1] 5:23 55:10 56:22 59:17,18 60: 12,17,25 31:6,8,10,16,20 aspect [2] 18:7 82:10 bit 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brief [8] 5:6 13:19 16:2 19: add [2] 61:19 83:10 18:25 68:16 available [7] 9:18 32:12 69: 1 71:3 72:2,4,4 2 address [1] 18:22 amount-in-controversy 20,25 70:2 83:22,25 briefed [1] 67:6 2 [1] 63:16 addressed [1] 84:8 [1] 5:24 award [9] 3:20 31:1 42:5 briefs [1] 90:13 200 [1] 75:1 adequate [2] 13:13,14 amounting [1] 72:24 43:25 71:6,11 85:20 86:12 bring [16] 6:9 15:14 22:3 2024 [1] 1:11 adequately [1] 12:21 analogy [1] 89:20 87:3 25:4 34:8,10 39:4 41:8,17 22-913 [1] 3:4 adjudicate [1] 38:24 analysis [4] 23:4,7 29:1 34: awarding [2] 31:2 72:11 44:16 45:20 49:14,21,22, adjudicated [2] 23:23,24 2 aware [2] 34:4 67:23 23 52:15 3 administrative [2] 54:24 announces [1] 53:2 away [1] 50:20 bringing [2] 6:1 62:21 3 [1] 2:4 55:7 another [7] 13:12 14:22 39: broader [1] 16:15 38 [2] 2:7 71:4 admit [1] 11:5 14 50:22 70:17 77:16,17 B broadly [1] 89:23 adopted [3] 7:3 21:6 76:22 answer [12] 9:10 21:23 49: back [14] 21:19 33:3 34:15, 5 brought [4] 26:18 43:6,8 adopting [2] 24:3,8 4 52:8 54:3 55:13 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85:5,6 86:17 22 Ah [3] 11:25 15:20 23:9 appeals' [1] 83:13 abilities [1] 6:9 base [1] 89:14 capital [1] 70:20 ahead [2] 33:10 62:3 appear [1] 30:4 ability [4] 28:2 51:10 55:24 based [1] 35:5 care [1] 52:5 AL [1] 1:3 APPEARANCES [1] 1:17 75:7 basically [2] 63:21 64:9 Carlson [1] 29:2 Alden [1] 56:12 applied [3] 6:17 15:13 72:9 able [2] 22:16 86:19 basis [13] 3:19 30:25 31:5 Carolina [1] 88:22 ALITO [28] 24:15 25:7 27:4, appraisers [1] 37:23 above-entitled [1] 1:13 42:4 43:24 44:1 45:16 71: Case [37] 3:4,11,21 4:9 6: 11,25 36:9,10,23 37:7,10, appropriate [2] 48:19 69: absence [3] 20:20 89:9,16 6,11,14 79:24 86:12 87:2 20 7:8 12:5,9 17:5 18:7 23: 18 38:6 67:18,19 68:7 70: 22 absolutely [1] 9:10 Appropriations [4] 72:8,9 Baytown 14:13 40:19 11 24:8 28:22 30:5,7 31: [5] 7 74:3,17 76:1 77:2,13,16, accomplished [1] 31:18 59:23 62:23 88:1 20 32:4,21,22,25 33:15 36: 24 78:5,10,13,16 81:7 76:23 80:21 achieve [1] 60:18 Bayview [1] 83:8 17 44:20 45:11 48:9,10 49: alive [3] 83:22,24 84:9 aren't [1] 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[1] 45:23 Catch-22 [1] 46:6 amend 5:22 41:7,16 61: arguments 7:2 24:4,9 [5] [4] 13,25 11:6,9 12:14,20 13:7 below [4] 30:15 32:15,24 categorically [1] 41:24 19 83:10 72:20 14:7,20 15:6 18:23 19:8, 62:9 cause [104] 4:6,8,11,12,13 Amendment [98] 3:12,19 arise [1] 73:20 13,16,19,24,25 21:21 22:3, best [1] 51:25 5:20 7:10,12,14,21 8:1 9:3, 4:10 6:17,21 7:13,15,18,24, arises 31:9 [1] Heritage Reporting Corporation Sheet 1 $3 - cause Official 6,22 10:2,7,12,13,24 11:5 15 40:24 41:5,8,11,17 42: competently [1] 29:8 contrary [1] 8:11 21 12:13,20 14:7,20 15:5 17: 19 44:3 45:19 52:16 61:20 complaint [13] 7:14 13:3 contrasting [1] 7:1 created [5] 25:19 33:25 43: 11 18:23 19:8,13,16,18,24, 62:13,21 83:7,7 88:4,12,13 14:25 23:21 41:7,16 83:2, controversies [1] 39:18 13 56:20 71:15 24 21:21 22:3,8,17 23:5,9, claimed [1] 45:24 10 84:1,5,23 88:4,6 controversy [1] 73:19 creates [8] 21:8 23:15 34: 9,12,18 24:7,12,24 33:25 claiming [1] 32:17 completed [1] 25:13 converged [1] 16:21 21,25 75:11 76:8 89:6,8 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16,19,24 86:13,19,25 class [2] 44:21 64:9 causes [5] 5:12 13:7 40:2 Clause [27] 4:15,17 24:16, conceptually [3] 5:19 65: 38:12 41:21 68:12 74:2 80: 11,18 29:6 37:8,11,12,14, 56:22 87:2 17 25:25 26:2 39:5,10 69: 22 66:11 5 87:18 90:15 15 42:5 43:25 49:23 67:1 cease [5] 6:2 35:2,3,4 69: 2 70:6,18,19 72:7,8,10 74: concern [1] 24:3 counsels [1] 30:21 68:24 71:7,11 76:20 86:7 count [6] 44:5 63:14,16 83: damaging 63:13 [1] 13 6 76:2,23,24 78:20 79:1,3, concluded [1] 41:24 Cedar 41:22 46:17 [2] 4,5 80:21 81:16 89:20 concocted 25:18 [1] 21 84:9,11 Dames [1] 69:16 Central [1] 40:24 clean [1] 89:14 condemnation [4] 3:21,23 counties [1] 44:24 dangerous [1] 23:19 century 5:7,17 8:14 39: clear [5] [16] 19:25 32:10 48: 4:1 14:11 country 16:21 [1] Davis [1] 29:3 23 52:3 18 50:16 52:25 59:14,14, condition [8] 69:9,10 70: counts [2] 17:19 83:2 day [4] 36:22 47:6,18 48:22 cert [1] 64:24 22 64:17 65:15 69:1 72:17, 10,11,23 79:7,9 82:15 couple [2] 41:22 67:11 daylight [1] 80:13 certain 6:10 [1] 22 77:1 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20:8 90:5 80:18 88:5,12 find [3] 36:11 38:19 77:2 G 15 42:15,18 engage [1] 28:25 extinguish [2] 31:16 32:3 finds [1] 70:12 Gas [1] 34:20 dissent [4] 29:2 32:15 34: English [36] 3:17 4:11,18 6: extinguished [3] 24:2 88: Fine [2] 61:9,9 gave [1] 53:1 First [52] 3:17 4:11,17 6:24 Gedney 26:18 [1] 20,23 24 7:11 16:6,10,15 17:22, 10,13 distinct [5] 5:19 7:22 15:11 22 18:2,5,10,17 19:10 21:7 extra-constitutional [1] 5: 7:11 11:10,14 16:5,10,15 General [7] 1:20,22 33:7 19:12 38:4 23:9,16 24:5 29:5 31:25 12 17:21,22 18:2,5,10,16 19: 47:2 50:21 51:24 71:15 extraordinary [2] 75:1 76: 10 21:7 23:8,16 24:5 29:5, generally 37:22 [1] distinction [2] 49:20,24 34:24 40:6,7 41:23 42:2 distinguishes [1] 28:22 52:10 54:16 57:23 71:4,8 21 23,25 31:25 33:12 34:24 generation [2] 8:8,9 40:6,7,9 41:23 42:2 49:11 George 26:1,8 89:5 [3] district [10] 15:16 17:10 18: 72:21 73:12 79:16 86:8 88: 14 32:22 36:1 41:7,16 61: 19 F 52:10 54:16 55:14 57:23 gets [1] 81:12 23 65:4,5 enjoined [1] 21:4 face [2] 13:3,12 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33:18,22 32:8 37:5,23 38:2 follows [1] 39:19 16 15:4,20 55:20 56:14,17, draw [1] 49:20 90:5 fall [1] 67:2 footnote 16:14 72:20 [6] 25 57:3,6,11,14,17,20 58: entitlement [15] 4:7,8 6:12 falls 49:25 18,21,24 59:7,12,16,24 60: [1] Due [16] 24:17,20 25:3 29: 73:9,11 79:16 83:12 7:12 10:15,18 15:1 16:18, familiar 23:10 65:25 3,10,14,17,22,25 61:3,6,9, [2] 22 41:12 54:12 61:16 70:8, footnote's [1] 16:11 11,13,15,16 78:19 85:24 22 19:14 25:19 27:20,22 far [2] 34:4 67:23 force 42:4 43:24 68:21 [6] 12,18,24,25 68:10 82:1,2, 86:1 87:8 33:14 34:3 favor [1] 30:22 71:6,10 76:19 19,22 83:17,20 84:2,5,15, dueling [1] 37:23 entity [1] 16:24 favorable [1] 31:23 forego [1] 37:17 18,21 85:2 duty [5] 3:15 17:1 25:16 26: envisioned 9:17[1] feature [1] 83:1 form 6:13 16:25 20:23 [4] Gorsuch's [3] 58:9 65:14 9 29:11 equals [2] 74:12 81:21 federal [83] 4:4,15 5:7,16 6: 32:6 87:23 equity [1] 67:1 1 8:5 10:24 12:12,16 14: former [1] 32:7 gosh [1] 63:1 E ESQ 2:3,6,9,13 [4] 22 15:15,16 17:6,19 18:6 forms 6:8 9:25 26:13 [3] got [5] 8:22 59:12,13,13 61: e.g [1] 62:22 ESQUIRE [1] 1:18 21:22 22:4,23 23:2 24:11, forum [15] 19:18,19 26:21, 12 early [2] 5:16 58:17 essentially [1] 85:16 13 28:5,12,13 29:7 30:4,9, 23,24,25 30:10 54:14,19, government [28] 3:14 4:4 easement [11] 35:15,16 36: establishes [1] 9:16 9,10,13 31:4,11,13,13,14 22,25 55:7,8,8 57:18 21:3,10 25:15 32:6 34:12, 15,18,19,20,20 37:4,6,25 ET [1] 1:3 32:4,17,22,25 33:15 38:22 forums [1] 65:19 13 38:3,20 41:24 42:5 50: 38:1 evaluating 26:17 [1] 39:5 40:11,23 41:4,12 42: forward 36:11,24 37:1 [3] 4 55:25 56:3,6 68:22,24 easiest [1] 59:21 even [9] 6:7 18:14 26:12 48: 23 43:2,5,7 44:2,15,18,18 found [2] 35:21 37:3 70:15 71:7,12,16 72:21 76: Eastern [1] 50:15 18 52:17 66:3 73:14 83:9 45:7,12,24 46:1,1,8,9,12, founding [1] 8:7 4 80:17 82:7 85:25 90:6 EDWIN [3] 1:22 2:9 68:15 87:5 13,20,21 52:15 60:4 61:16 four 44:20 [1] government's [4] 20:25 Heritage Reporting Corporation Sheet 3 difference - government's Official 21:16 80:14 86:18 inverse [4] 3:21,23 4:1 14: 14,17,20 58:4,8,8,18,21,24 22 30:19 31:13,22,24 33: governmental [1] 69:9 I 10 59:1,7,10,12,16,24 60:3,10, 15 34:5,23 41:17 45:7 53: governments [5] 4:2 39:9 idea [5] 25:22 56:2,19 61: invoke [5] 14:6,15 33:14, 14,17,22,25 61:3,6,9,12,18, 16 59:17 60:15 62:22 63:2 55:23 56:7,21 10 71:9 19,22 24,25,25 62:1,3,4,7,15,25 64:6 75:23 86:20,24 88:18 governs [1] 17:16 ideas [1] 68:1 invoked [1] 29:8 63:4,7,10,16,20,25 64:4,18 lawful [3] 69:10 70:23 82: great [1] 26:14 identified [1] 34:19 invoking [4] 30:16 31:6 33: 65:3,12,13,13,17,24 66:2,5, 16 Green [1] 29:3 ignores [1] 39:8 24 84:23 12,14,18,21 67:8,12,16,17, lawsuit [2] 4:24 16:23 ground [2] 12:11 36:1 illegally [1] 48:11 involved [2] 75:18,19 18,19 68:5,7,8,8,10,11,14, lawyer [1] 9:5 grounds [2] 13:2 33:13 illustration [1] 7:4 irreconcilable [1] 45:14 18 70:7,25 71:3,9,22 72:14, lead [1] 86:6 guess [3] 20:3 57:3 75:5 imagine [1] 50:4 isn't [10] 5:12 14:19 23:1 18 74:1,3,17 76:1 77:2,13, least [1] 5:2 guys' [1] 45:8 immediately [1] 24:18 26:21,22 39:1 46:5 56:20 16,24 78:5,10,12,13,15,16 leave [3] 41:6,15 61:19 immunity [5] 15:7,10 29:9 58:9 77:22 79:6,13 80:1,4,7,7,9,10,12, left [1] 90:5 H 76:24 87:4 issue [4] 18:13 63:2 73:22 16,23,25 81:6,7,11,18,21, legal [1] 4:22 half-point/half-point [1] implied [4] 45:6,6 46:23 55: 88:10 23,25,25 82:1,2,19,22,25 legislation [1] 54:11 81:19 9 issues [2] 45:9 82:21 83:17,20 84:2,5,15,18,21 legislative [1] 55:7 happen [1] 85:11 import [1] 19:25 itself [19] 3:19 8:1 9:21 15: 85:2,3,3,5,6 86:14,14,16, legislature [1] 19:20 happened [3] 48:13 52:1 important [5] 13:17 15:25 22 27:6 28:17 29:15 31:21 17 87:16,17,23 90:14 legislature's [1] 7:9 85:19 22:15 73:10 87:24 39:6,17 41:12 43:12 56:10 Justice's [1] 79:15 less [1] 29:3 happening [1] 54:7 imposes [1] 3:14 69:2 74:23 76:12 79:1 81: justices [1] 26:19 Lessee [1] 89:12 happens [2] 10:25 50:8 incentive [2] 56:20 82:5 15 90:9 liberty [1] 24:20 hard [3] 7:22 66:9 77:2 include [1] 40:10 K lies [1] 69:12 hard-pressed [1] 38:19 included [1] 29:22 J Kagan [20] 38:9 47:2,12,15, light [1] 33:9 head [1] 81:8 includes [1] 30:1 JACKSON [18] 19:4,17 20: 20 48:2,5,8,13,25 49:7,10, likes [1] 27:16 Health [3] 5:1 77:19 89:18 including [1] 69:1 2 32:10,16 33:2 38:11 66: 14,18 50:21,24 51:6,15,24 limit [1] 5:24 hear [6] 3:3 15:17 20:11 39: incorporated [3] 8:20 29: 14,18,21 67:8 68:11 78:12, 81:25 limitation [1] 28:8 17 40:21 88:2 16,19 15 79:6 86:15,16 87:16 KAVANAUGH [11] 59:1,10 limitations [4] 15:8,12,13, heard [2] 31:14 63:1 independent [2] 9:22 34:5 James [1] 89:4 61:25 62:3 65:13,17,24 66: 19 hears [1] 14:10 indictment [5] 70:19,22,22 January [1] 1:11 2,5,12 85:4 limited [4] 6:6,9 38:2,3 heart [3] 3:25 4:1,3 79:3 87:9 Jay [1] 26:1 keeping [1] 17:10 limits [2] 6:6,8 held [7] 5:1 22:12 30:23 39: infamous [1] 70:21 Jeopardy [1] 79:5 kind [11] 4:21 8:6,21 16:21 line [1] 46:23 14 69:24 70:20 87:9 information [1] 17:5 John [1] 26:1 36:17,21 37:25 38:1 48:17 list [1] 88:23 help [1] 60:4 Inhabitants [1] 26:19 Judge [2] 32:14,23 51:24 74:13 litigated [2] 30:12 57:9 higher [1] 74:13 initio [1] 30:5 judge's [1] 30:6 kinds [1] 6:10 litigation [3] 39:13 86:5 87: hip [1] 67:5 injunction [27] 19:16 50: judges [2] 26:20 27:2 KNEEDLER [49] 1:22 2:9 8 historical [2] 8:10,21 10,19 51:1,16 55:14 57:7 judgment [4] 12:17 66:22, 68:14,15,18 70:25 71:2,21, little [3] 7:22 67:5 74:4 history [6] 19:25 20:3 28: 58:15,17,19 65:23 69:13, 25 72:11 25 72:16 73:5 74:3,16,19 live [2] 41:10 83:9 25 29:13 52:13 83:1 19,21 71:18 72:11 73:4 80: judicial [11] 19:19 20:16,23, 76:9 77:9,14,23 78:1,6,14, local [1] 4:2 hold [1] 39:24 20 82:16 85:9,10,15,18,20, 24 39:21 50:17,18 52:12 15,23 79:11,14 80:2,6,15, logically [1] 4:23 holding [4] 16:16 40:10 44: 25 86:3,6 54:19,22 55:8 18,24 81:3,10,13,20,22,24 long [4] 8:7 11:20 86:4,5 6 70:23 injunction-to-pay [1] 65: jurisdiction [17] 5:17,18 6: 82:9,20 83:12,18,24 84:4, longer [2] 11:23 32:12 holdings [1] 42:15 14 4 7:21 8:5 12:19 17:10 27: 10,16,20,22 85:6,21 86:23 look [11] 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plead [1] 62:8 McClung's 89:12 [1] mountain 8:21,25 [2] 24:9 36:4 38:6,12 47:20 6 55:10 85:15 pleaded [1] 41:5 McDowell [1] 24:15 moved [2] 23:25 88:8 55:1,4 58:11,24 59:7 60: owners [1] 3:22 pleading [2] 6:7,19 McNAMARA [68] 1:18 2:3, much [2] 34:14 56:7 14 61:3,12,24 65:8,12 81: pleadings [2] 62:18 63:1 13 3:6,7,9 5:14 7:17 8:24 municipalities [2] 44:12 23 82:19,22 P pleads [4] 7:14 13:7,9 88:4 9:24 10:5,14,18,22 11:2,8, 45:21 Oldham [2] 32:14,23 p.m [1] 90:17 please [4] 3:10 38:18 55: 13,18,21 12:3,25 13:8,16, must [7] 16:6 39:9,11 41: once [6] 6:18 9:25 23:25 PAGE [1] 2:2 11 68:19 22 14:2,10,23 15:9,22 16: 25 60:20,20 74:12 28:15 30:10,10 paid [8] 12:4 27:24 37:15 pleases [1] 27:18 13 17:9,14 18:4,15,24 19: one [22] 6:13 9:1 12:14 13: 47:17 49:2 50:1 76:25 86: pled [2] 4:12 61:4 11,22 20:13 21:18 22:5,20, N 1,25 21:2 22:7 27:1 39:8 10 plural [1] 60:8 24 25:1,9 27:9,13 28:9 32: narrower 17:18 44:19,19 45:11 53:6 56:11 panel [1] 32:24 [1] plus [4] 74:11,21,21 81:8 13,20 33:8,11 34:17 35:13, nation 24:14 64:1,19 67:6 70:24 79:25 part [3] 5:16 20:15 30:4 [1] point [20] 9:19 13:17 15:25 19,25 36:6,14 37:2,9,12,21 nationwide 4:2 15:24 80:2 81:21 83:2 parte [5] 6:1 25:4,5,7 67:2 [2] 17:5 21:20 22:16 34:17 40: 38:13 47:3 49:19 82:24 87: nature 14:18 51:17 86:5 one-half 74:21,21 partial [2] 35:16 36:19 [3] [2] 17 41:6,23 46:17 50:22 62: 19,20,22 nearly [1] 39:23 ones [1] 42:7 particular [4] 19:14 75:10, 4 67:20 69:16 71:23 72:1, McNamara's [3] 47:17 49: Nebraska 88:22 ongoing [10] 12:5 21:9,13 18 76:15 [1] 1 75:13 78:25 11 50:25 necessarily [6] 9:21 10:24 25:3 26:9 28:19 29:10 47: particularly [2] 29:14 76: pointed [6] 24:5 32:23 70: mean [22] 7:23 8:18 9:21 15:10 18:22 29:22 79:9 6,15 90:4 20 7 75:2 82:25 89:19 10:24,25 11:4 16:10 19:5 necessary [1] 82:15 only [16] 6:13,20 19:10 28: party [1] 67:24 points [3] 30:7 32:14 67:11 43:9 46:6,25 49:8 50:21, need [3] 12:12 65:18 83:10 18 30:20 51:10 54:17 67: passed [1] 87:11 policy [1] 28:23 24 54:21,25 55:24 59:10 needs [1] 9:1 24 72:8,12 83:6 84:7 87:1 Passman [1] 29:3 poor [1] 90:1 67:9 71:16,22 90:10 neither [1] 74:5 88:6 89:9 90:3 past [2] 21:15 25:12 portion [1] 72:1 meaning [5] 10:9,11 51:1 nervous [1] 67:7 onwards [1] 43:17 path [1] 20:20 position [7] 17:17 80:12, 67:25 88:15 never [4] 41:18 54:9 62:19 open [1] 84:25 pay [26] 3:15 16:6 18:1,12 14,14 85:7,12 86:18 means [3] 10:7 88:2 89:21 63:1 operated [1] 11:20 21:4,5,8 25:16 37:24 41: possibility [1] 66:6 meant [2] 86:11 90:10 New [1] 88:22 opinion [5] 20:12 30:7,15 25 50:5,11 53:5 57:7,10 posture [1] 87:25 mechanism [5] 9:18 11:23 next [1] 3:4 32:24 83:13 58:21 65:23 66:10 72:12 power [3] 29:7 39:17 55:12 13:21 14:4 20:8 NIELSON [107] 1:20 2:6 38: opinions [2] 42:10,13 80:20 85:10,17 89:6,8,22 powers [4] 14:6,15 23:11 Meigs [1] 89:12 14,15,17 40:17,21 41:4 42: OPM [1] 72:16 90:7 56:18 mention [2] 63:2,5 8,12,16,23 43:3,8,20 44:3, opportunity [2] 33:4 37:17 paying [4] 50:7 55:25 66: precedent [1] 70:23 mentioned [2] 79:2 88:21 17 45:18 46:11,18 47:8,14, oppose [4] 12:11 13:2 61: 23 77:6 precedents [1] 5:3 mentioning [1] 65:8 19,22 48:3,7,12,24 49:3,9, 18,22 payment [9] 28:19 50:17 precedes [1] 24:18 merits [5] 18:8 22:13 31:16 13,16 50:2,23 51:5,14,19 opposed [1] 19:20 51:13,17 69:10 72:13 77:4, preceding [1] 70:6 46:3 88:11 52:7,22 53:3,9,15,18 54:2, option [1] 12:15 19 81:12 precisely [2] 54:7 68:3 met [1] 18:18 15,23 55:1,4,13 56:4,8,16, Options [1] 5:2 payments [1] 50:19 precondition [1] 21:3 Mexico [1] 88:22 24 57:2,5,8,13,16,19,22 58: oral [7] 1:13 2:2,5,8 3:7 38: pays [1] 16:3 preliminary [1] 86:3 might [10] 9:19,20 12:16 7,11,20,22,25 59:3,8,15,20 15 68:15 pellucid [1] 62:19 premise [1] 58:9 19:15 53:24 70:1 77:9,9, 60:2,6,13,16,19,23 61:2,5, order [4] 17:3 27:23 57:7 pendent [3] 12:19 17:10 premised [1] 56:18 10 86:18 7,10,15,21 62:6,14,17 63:3, 70:13 61:13 premises [1] 56:12 military [2] 26:3 89:13 6,9,15,19,24 64:3,15,20 65: orders [1] 70:13 pending [1] 17:13 prerogative [3] 7:9 51:4, million [1] 34:13 10,16,21,25 66:4,8,13,17, Oregon [5] 16:1,1,3,5 88: Penn [1] 40:24 11 mind [1] 44:1 20,24 67:9,14,22 68:13 21 people [3] 5:25 15:14 56: present [3] 25:16,17 66:6 mine [1] 31:1 none [1] 40:5 original [5] 10:9,10 67:25 15 Presented [5] 3:11 6:11 misunderstand [1] 64:22 nor [2] 24:21 74:6 88:15 89:3 perfect [1] 53:24 16:8 23:20 33:17 misunderstood [2] 60:21 noted [1] 34:22 originalist [1] 52:5 perfectly [1] 23:22 presentment [1] 70:21 65:1 nothing [4] 11:16 39:11 74: other [17] 3:13 7:2 21:6 23: perhaps [4] 9:11 10:12 19: pressing [1] 12:2 Mm-hmm [5] 48:12,24 53: 11,11 2,7 26:25 34:1 43:11 50:3 10 85:17 presupposed [1] 70:1 9 56:4 58:20 notice [1] 50:7 58:14 59:14 75:23 76:18 period [3] 86:2 87:6,7 pretty [2] 8:6 16:11 modern [4] 3:25 6:13 9:3 number [2] 5:25 69:14 78:7 81:15,17 83:3 permanent [1] 36:19 prevent [2] 5:25 86:4 Heritage Reporting Corporation Sheet 5 mandatory - prevent Official prevented [1] 32:18 putting [1] 63:10 regulation [1] 73:21 resist [2] 65:9,11 9 53:10,22 54:4,5 55:17 preventing [2] 69:19 85:25 regulatory [2] 7:8 73:21 resisted [1] 61:7 56:9 59:25 63:16 69:2 70: prevents [1] 88:19 Q Rehnquist [3] 29:2,4 71:9 resolve [3] 12:12 40:24 60: 7,20 72:22 74:10 77:4 79: primary [1] 5:15 qualifications [2] 27:7,11 reimbursed [1] 85:18 7 17,22 83:13 principles [4] 29:23 30:1 quarrel [3] 57:24 59:6 66:9 reimpose [1] 5:23 resolved [2] 3:12 18:13 scenario [2] 54:7 55:16 59:3,4 quarreling [1] 58:23 reiterated [1] 21:7 resolves [1] 45:9 schemes [1] 82:7 private [7] 8:11,15 19:21 Question [33] 3:11 5:18,19 reject [1] 4:13 resort [3] 5:11 89:11,15 Schrock [1] 14:14 24:21 39:12 53:13 76:5 6:10,21 8:5 9:7 12:12 15: rejected [5] 46:16 71:9,24 respect [5] 18:3 24:24 46: scope [5] 17:15 20:24 30: pro [1] 79:2 11 16:7 17:16 21:14,15,19 72:5 73:23 18 73:23 82:9 11,13 31:7 probably [2] 9:6 27:3 23:20 28:18,24 31:20 33: rejecting [1] 72:20 respecting [1] 39:18 Scott [1] 4:19 problem [5] 5:15 9:2 13:12, 16,17 35:5 42:17 48:14 57: rejects [1] 42:3 Respondent [7] 1:7,21,25 searched [1] 48:11 15 41:5 8 65:18 69:18,25 71:13 72: relation [1] 90:1 2:7,11 38:16 68:17 second [3] 45:4 82:23 83:6 problems [2] 6:19,19 3 79:15 82:23 86:7 87:24 relatively [2] 30:7 69:15 response [1] 85:8 Section [9] 5:23 30:21 44: procedural 22:16 32:3 [5] questions [5] 5:5 40:14 57: relegate [1] 89:25 responses [1] 12:25 7,11 45:22 54:4,8 55:11 40:10 83:1 87:25 1 82:2 90:12 relied [1] 75:11 rest [2] 72:20 90:13 63:12 procedure [1] 40:8 quickly [1] 67:20 relief [13] 6:12 7:13 16:18 retain [1] 39:16 see [10] 7:22,25 14:1 23:15 proceed [6] 32:25 45:16 Quincy [1] 29:18 20:19 46:22 48:4 49:17,21, return [1] 27:1 33:9 39:23 59:21 62:22,22 46:7,8,10 71:19 quite [2] 8:25 24:16 23 52:11 53:23,24 57:10 reversal [2] 30:22 88:14 79:7 proceeding [2] 52:12 58: quote 39:16,20 [2] relying [4] 74:13 84:11,12, reversed [1] 22:11 seek [2] 37:14 64:24 13 quotes [1] 41:22 14 review [1] 64:25 seeking [3] 25:11,11 37:14 proceedings [2] 83:19 84: R remains [2] 6:21 61:13 RICHARD [1] 1:3 seem [2] 5:10 71:14 7 Railroad [3] 29:18 51:8 69: remand [5] 17:7 32:21 33: Richmond [1] 72:16 seems [5] 9:16 22:21 23:6 Process [16] 24:17,20 25:3 17 3,13 85:1 rights [23] 12:22 22:10 28: 64:4 71:13 29:22 41:13 54:12 61:16 raised [1] 82:21 remanded [4] 33:16 65:5 10,12,14 30:11,17 31:6,10 seizing [3] 26:3,4,7 70:9,11,13,15,16 78:19 85: rare [1] 30:8 83:18 84:6 33:19,22 35:2 39:2 43:5 seizure [1] 85:20 24 86:1 87:8 rarely [1] 30:3 remedial [3] 9:17 79:17,19 45:6,7 49:12 50:14 72:24 self-executing [1] 4:10 prohibited [1] 72:10 ratification [2] 16:19 40:4 remedied [1] 11:24 87:13 89:25 90:2,10 self-incrimination [1] 79: prohibition [4] 70:9 76:10 ratified [2] 7:24,25 remedies [3] 20:17 48:1 rise [2] 23:17 25:15 4 79:10 82:14 ratifying [1] 8:8 67:3 ROBERT [5] 1:18 2:3,13 3: self-interest [2] 56:15,19 prohibitory [2] 69:8 79:2 read [13] 16:9 24:23 25:2 remedy [47] 3:18 4:7,9 5: 7 87:20 sell [1] 51:9 promised [1] 50:11 46:17,19 52:9 54:16 57:23 21 6:15,16,23,25 10:16,17, ROBERTS [46] 3:3 33:10 seller [1] 38:1 proper [1] 87:10 68:3 75:11 80:22 83:5 84: 19 13:14 14:22 16:16 19:8, 34:6 35:9,17,20 36:4,7 38: semantics [1] 81:1 property [45] 3:22 5:8 7:18 23 14 20:6,7,21,23,24 24:11, 7,14 41:21 42:9,14,21,25 sense [2] 20:4 28:1 9:8 16:25 21:5,10 24:20, reading [2] 20:14,15 13 25:18 27:2 28:24 29:6 43:4,18,22 44:14 45:15 46: separate [2] 19:7 44:20 21 25:15 29:21 30:2 32:7, real [1] 88:17 31:16 32:1,2 37:1,2 39:21 5,15 55:18,22 56:5 67:12, separated [1] 56:18 9 35:6 36:16,25 38:4,20 realize [1] 53:24 48:15,19 49:1 53:16 56:7 16 68:5,8,14 70:25 71:3,22 seriously [3] 13:25 56:10, 47:4,17 51:2,3,6,7 53:6 55: 72:23 76:20,20 79:21,23 72:14,18 74:1 79:13 80:1, 11 really [6] 12:13 51:8 52:5 10,25 63:14 69:3,4,6,13 70: 55:6 69:18 72:2 87:10,10,12,15 4,7,10 81:25 85:3 86:14 set [1] 15:18 8 72:24 73:8 76:5,14 77:5 rearguing [1] 71:23 remember [2] 47:24 87:24 87:17 90:14 shall [7] 24:19,21 69:3,4 70: 81:1 85:13,15,16 89:25 90: reason [5] 4:20 6:15,16 16: remembering [1] 29:16 robust [1] 15:15 8,20 76:4 10 3 45:4 removal [3] 12:11 13:2 45: rogue [6] 53:19 56:20 82:3, shape [1] 6:14 protective [1] 38:22 reasonably [2] 75:11,23 2 13 85:8 88:16 shooting [1] 67:5 provide [15] 8:4 17:1 21:21 reasons [5] 39:7 44:19 55: remove [5] 30:8 31:19 43: Ruckelshaus [1] 69:16 shouldn't [2] 82:3,4 22:17 26:9 39:9 49:1 50: 15 72:3,6 10 44:18 46:9 rule [4] 7:2 31:23 73:13,18 shows [1] 35:4 12 54:14 57:12,25,25 79: REBUTTAL [4] 2:12 82:24 removed [8] 6:19 12:9 18: run [1] 31:1 shut [1] 55:6 23 82:15 88:23 87:19,20 6 23:25 44:15 64:2,19,20 runs [2] 8:11 34:18 side [1] 7:2 provided [4] 11:22 75:7,21 receive [3] 27:21 29:21 30: removing [1] 32:4 rush [1] 50:9 signed [1] 16:2 87:15 render [1] 82:15 similar [2] 19:5 24:16 1 provides [13] 4:6 18:21,23 recent [5] 4:18 42:7 59:22 rent [2] 35:11 37:24 S similarly [1] 27:17 21:3 34:3 52:14 65:19 74: reorganization 69:17 [1] same [15] 4:10,12 28:9 46: simplest [1] 19:13 69:15,15 12 60:18 68:3 70:4,19 76: 6,8 75:5 76:19 83:14 84: recently [1] 14:13 repeat [1] 78:22 simply [2] 32:5 40:12 19 repeated [1] 30:24 11,11 77:22 78:19 79:4,5 Since [1] 43:16 recognize [4] 7:7,10 27:8, 85:22 providing [2] 20:5 28:1 12 reply 5:6 [1] single [2] 44:25 45:1 represented [2] 60:11 84: San 34:20 [1] provision [8] 3:13 75:10, recognized [3] 4:11,22 19: sitting [1] 14:5 23 76:18 77:8 78:3,7 81: 18 satisfies [1] 40:10 situations [1] 70:1 19 saying [26] 6:14 14:5 16:25 15 recognizing [1] 40:2 representing 80:17 [1] small [1] 17:5 provisions [1] 68:25 record [1] 35:6 require [6] 24:11 28:19 29: 19:7 21:24 23:11 25:12,14 so-called [1] 73:19 public [5] 24:22 67:25 69:4 recover [2] 71:17 75:22 9 43:5 82:12 88:25 27:19 32:6 33:4 34:18 36: sold [1] 38:1 76:5 77:5 required [4] 11:17 16:16 2 46:20 49:19 55:6 59:5,9 Solicitor [2] 1:20,22 rectify [1] 37:13 60:23 64:22 65:2,18 71:15 purposes [1] 22:1 referring [1] 79:18 21:4 83:25 solution [1] 85:9 pursue [2] 12:23 42:19 requirement 26:12 [1] 74:11 81:8 85:16 somebody [1] 70:24 refuse [2] 31:9 40:12 says [31] 6:24 7:11,17 10:7 pursuing [1] 12:14 refused [1] 27:3 requirements [1] 6:7 somebody's [1] 48:11 put [3] 37:19 44:24 45:2 requires [4] 27:13 52:10, 13:3 18:17 23:2 30:16 34: somehow [2] 40:9 74:8 refuses [1] 85:14 13 39:9,10 50:13 51:23 52: putative [2] 44:21 45:12 11 84:3 someone [3] 19:15 37:24 Heritage Reporting Corporation Sheet 6 prevented - someone Official 45:25 staying [1] 32:22 19,25 13:14,20,22 14:2,3,5, 16 value [5] 32:8 37:5,19,24 someplace [1] 52:2 step [1] 64:23 10,12,19,21 15:24 16:3 17: Tucker [27] 4:5,6,9 26:1,8 38:2 sometimes [2] 15:18 73: still [11] 22:11 41:10,11 52: 7,11,16,18 18:11,12 21:21, 69:21 74:5,6,17 75:3,8,9, vehicle [1] 33:19 15 19 58:14 61:15,16 83:9,22, 24,25 22:1,2,8,17,19,25,25 14,21,24 77:11,12,15 78:2, versus [3] 3:4 69:16 72:16 soon [1] 46:9 24 84:9 23:2,6,25 27:16 30:10,18, 3,8,8 81:8 87:11,14 89:5,7 view [4] 25:22 28:1 42:3 74: sorry [9] 55:21,22 57:5 58: stop [4] 26:6 30:17 81:2,4 19 31:15,17,22,23 32:2,18 Tuesday [1] 1:11 5 5 62:1,2 79:12 80:6 81:24 stopping [1] 34:24 33:3,16,21 35:4,7 37:4 38: turns [2] 31:13 71:14 viewed [1] 8:9 sort [11] 20:9 43:11 49:25 stratum [1] 28:11 21,21,23,23 40:10,18,22 two [16] 11:2,3 12:25 19:10 vigorously [1] 61:7 50:24 52:11 54:12,14,19 structure [1] 82:5 41:3,8,11,17 42:18,19,20 21:1 22:7 42:7 44:18 46: vindicate [7] 11:6 12:21 58:14,14 89:20 subject [1] 28:7 43:13 44:23,24,25 45:4 52: 16 55:23 59:14 74:8,20 75: 14:4 22:10 23:13 28:3 87: SOTOMAYOR [36] 17:4,12, submitted [2] 90:16,18 14,14,19,20 53:2,6,7,10 57: 4 82:2 83:2 13 21 18:9,19 19:2,6 21:24 substance [1] 40:8 24 58:9,12,19,23 59:5,8,23 type [1] 67:3 vindicated [3] 11:10 28:14 38:8 41:20 62:1,4,7,15,25 substantive [14] 4:7,8 18: 60:10 61:17,19,22 62:10, types [1] 45:9 41:3 63:4,7,10,16,20,25 64:4,18 11,21 22:12 39:2 42:17 44: 12,16 63:12,22 64:1,6,13 vindication [1] 54:20 65:3,12 68:9 80:12,16,23, 8 46:21,25 52:11 54:18 75: 65:6,19 66:10,22 67:23 68: U vine [1] 8:6 25 81:6,11,18,21,23 82:25 10 84:13 4 83:9,14,14 84:15 88:1,2, U.S [1] 63:17 violates [1] 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5,13 8:21 10:24 11:23 12: 17 42:19 43:8 44:16 45:7, vitiate [2] 8:2 22:18 specifically [3] 23:8 29:19 22,23 74:18 11 15:15 16:17 20:22 25:3 16,17,17,22,23 46:10,14 vitiating [1] 21:22 89:19 Summarizing [1] 63:20 31:4 41:10,11 43:10 44:7, 60:7 62:10,22 64:6,14 65: squarely [1] 30:23 supplies [1] 26:3 13,21 46:21 47:23 48:1 49: 6,7 68:23 69:21 75:5,7 77: W squares [1] 25:24 supplying [1] 8:1 4 50:16,16 53:14 54:17 62: 10,15 78:2 83:3,4,7,21 86: wait [1] 54:10 St 26:1,8 89:5 [3] support 16:2 [1] 9 64:16 69:11 70:17 71:20 19 88:3,4,24 89:7 waive [2] 15:6,10 standard [3] 75:9,25 78:9 supporting [3] 1:24 2:11 83:12 87:2 underlying [2] 27:19,20 waived [1] 29:9 stands [1] 21:16 68:17 therefore [1] 46:25 understand [20] 4:15 9:7 wanted [2] 41:8 64:8 start [1] 40:2 suppose [7] 15:5 34:8 36: They've [3] 41:17 45:24 50: 12:1 19:13 20:3,18 22:16 wants [3] 30:11 35:2 51:7 started [1] 17:23 10 49:10 52:4 76:1,2 11 23:21 32:16 33:6 37:18 51: warrants [1] 88:13 state [97] 4:2,14 8:19 10:25 supposed 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Heritage Reporting Corporation Sheet 7 someone - without Official 25 33:18 39:25 55:25 69:5, 7 70:8,10,10,14 73:8 76:5, 14 77:5 86:1 wondering [1] 57:4 word [1] 48:19 work [5] 4:15 8:25 53:25 54:2 55:15 worry [2] 82:4,4 worth [2] 29:15 34:14 Wow [1] 34:13 writ [1] 26:18 write [1] 29:5 writing [1] 26:8 writings [2] 89:4 90:8 written [1] 70:18 wrongful [1] 37:13 wrote [4] 26:1,11 42:10,12 Y years [3] 51:21 71:4 75:1 Yep [2] 49:13 57:16 Young [5] 6:1 25:5,5,8 67: 3 Z zero [2] 74:20,21 Heritage Reporting Corporation Sheet 8 without - zero Official REPORTER'S CERTIFICATE The Contractor hereby certifies that the attached pages represent an accurate transcription of electronic sound recording of the oral argument before the Supreme Court of the United States in the matter of Richard Devillier v. Texas, Docket No. 22-913, and that these pages constitute the original transcript of the proceedings for the records of the Court. BY Karen Brynteseon, Court Reporter 6. Miscellaneous Claim Application With Response tr. 74-209 (Rev.10-17/8) Miscellaneous Claim Application Use this form to file a claim against the state of Texas for the following reasons: • Warrant that is void due to expiration date. • Unpaid bill that cannot be paid by receiving state agency due to expiration of appropriation. • Other claim justified by state contract or state law. Instructions on second page I Type of Claim (Please check one) Claim under Tex. Const. Art. 1, Sec. 17 I 111 Void Warrant 111 Unpaid Bill gOther Please type or print Claimant's name (Legal name of individual or business) Johnny Ray Partain Mailing address (P.O. Box. street, city, state and ZIP + 4 code) 7020 N 16th Street Claimant's Social Security number (SSN)* or Texas taxpayer number or Federal Employer Identification Number (FEIN) 454455062 Claimant's telephone (Area code and number) Amount of claim 956-240-1821 $250,000,000.00 Specific reason for claim (For void warrant(s), list specific identification of goods, services. refund or other items for which the warrant(s) were originally issued.) This is my sum certain claim for just compensation specifically required by Texas Constitution, Art 1., Sec. 17, for my property taken, damage, or destroyed by state actors, and particularly state judges, protected under claims of immunity to suit by the Texas judiciary: I have not been sued. The Texas Judiciary waived its right to review my claim on excuse of immunity to suit in Texas courts. Attached is the Third Amended Petition describing the original complaint. Governor Abbott and Attorney General Paxton refuse to meet to negotiate. My request for $250 million compensation through warrant is unopposed. My constitutional claim is due pursuant to Art. 1, Sec. 17, and is superior to any impeding process or statute, being constitutionally derived. Supporting documentation (Please list) 1. Third Amended Petition 3 2. Letters to Governor and Attorney Gen. 4 * Federal Privacy Act Statement: Disclosure of your Social Security number is required and authorized under law for the purpose of tax administration and identification of any individual affected by applicable law, 42 U.S.C. § 405(c)(2)(C)(i) and Tex. Gov't Code §§ 403.011, 403.015. 403.055. 403.056 and 403.078. The Public Information Act. Tex. Gov't Code Ch. 522. and applicable federal law shall govern release of information on this form in response to a public information request. Certification I certify that the information I have furnished on this form is true and correct. I certify that the amount of this claim is still outstanding and is due and payable. Type or print name Title Johnny Ray Partain Citizen of Texas Claimant's signature Date sign herer 8/26/2022 Complete application and mail to: Comptroller of Public Accounts Fiscal Management Division P.O. Box 13528 For questions, call 1-800-531-5441, ext. 5-0966. Austin, TX 78711-3528 The local number in Austin is 512-475-0966. ATTN: Miscellaneous Claims Analyst Or FAX to: 512-463-2138 Under Ch. 559. Texas Government Code, you are entitled to review. request and correct information we have on file about you, with limited exceptions in accordance with Ch. 552 Government Code. To request information for review or to request error correction, contact us at the address or phone number listed on this form. Form 74-209 (Back)(Rev.10-12/7) Eligibility: Claims that are over eight years old, as determined from the day after payment was due on the original claim, are generally not eligible for payment by the Comptroller's office through the provisions of the Miscellaneous Claims Act. For void warrants, the expiration date is eight years from the date the warrant was originally issued. For unpaid bills, the expiration date is eight years from the day after payment was due on the original invoice of delivery of goods or services. If lacking an invoice, eight years from the day after the last day of the contract billing period. Instructions for Completing the Miscellaneous Claim Application Type of Claim Check the box indicating the type of claim you are filing. Claimant Name Enter the name of the person or business in whose behalf this claim is being submitted. Mailing Address Enter the mailing address where correspondence concerning this claim should be sent. Please include your ZIP + 4 code. Claimant's SSN. Texas taxpayer number or FEIN If claimant is an individual, enter the Social Security number. If claimant is a business, enter the Texas taxpayer number or Federal Employer Identification Number. Amount of Claim If the claim is for a void warrant, enter the amount of warrant. If the claim is for an unpaid bill, enter the amount due. If the claim is for any other type of liability, enter amount due. Specific Reason for Filing Claim Fully describe the reason for filing the claim. It must include the following information: • Void Warrant: Description of the goods, services, refund or other item for which the original warrant was issued. Attach original warrant or warrant information. File should contain specific identification of goods, services, refund or other items for which the warrant was originally issued. • Unpaid Bill: Description of goods or services or other item which is unpaid. You must also attach an invoice or other acceptable documentation of the unpaid amount which lists the original date the goods or services were delivered or performed. • Other: Fully describe the reason for the claim. Include all appropriate documentation. Supporting Documentation Application MUST contain supporting documentation (such as void warrants, itemized bills, invoices, contracts, etc.) that will fully substantiate the claim. If not included, a statement must be provided explaining why these items are not available. Certification The claimant or authorized agent (representative of business) signature is required. Submit the completed and signed applciation to the mailing address of FAX number indicated. GLENN TEXAS HEGARTEXAS CI.INN IIECAR COMPTROLLEROF COMPTROLLER PUBLIC ACCOUNTS OFPUBLIC ACCOUNTS P.O. P.O.Box 13528 • . Austin,TX Box 13528 Austin,TX78711-3528 78711-3528 December 7, December 7, 2022 2022 R. Partain Mr. Johnny R. North 16th 7020 North 16`h Street Street McAllen, Texas MCAllen, Texas 78504 78504 RE: Miscellaneous Claims Application Dear Mr. Partain, Partain, II greatly appreciated the greatly appreciated the opportunity opportunity to to talk with you talk with you about about the the $250,000,000.00 $250,000,000.00 Miscellaneous Claims Application Application that you filed with our agency. For the reasons we discussed, For the reasons we discussed, your Application must your Application must be denied as be denied as aa matter matter of of law. law. Your lawsuit was dismissed because the trial court did not court did not have have jurisdiction to hear your jurisdiction to of action due to causes of to sovereign immunity. Sovereign Sovereign immunity entails two immunity entails two separate forms of separate forms immunity for immunity for the the State Stateof ofTexas, itsagencies, Texas,its agencies,and andits officials(collectively, itsofficials (collectively,the "State"). the "State"). (1) Immunity from (1) Immunity fromSuit: Suit: Immunity from suit Immunityfrom suit bars bars aa lawsuit lawsuit against against the the State State unless the unless the State expressly gives its its consent to the the suit. In other suit. In other words, words, although althoughthe claim asserted the claim asserted may be one on which the State acknowledges acknowledges liability, liability, this rule precludes this rule precludes aa remedy remedy until until to suit. the Legislature consents to suit. (2) (2) Immunity from Liability: Immunity from Immunityfrom Liability:Immunity from liability liability protects protects the the State State from judgments from judgments even if the Legislature expressly given Legislature has expressly given consent consent toto the the suit. suit. In other words, In other words, even even if if the the Legislature authorizes suit against the State the question remains whether the claim is is one liability by granting for which the State acknowledges liability. The State neither admits liability granting permission to be sued. permission to be sued. Thus, when trial court made when the trial made its judgment, denie`dyour judgment, itit denied your claim claim as as the the State State isis immune immune from from the suit and the liability. The appellate liability. The appellate court court also did not overtum immunity judgment. overturn the immunity As a result, it is inaccurate property claim. inaccurate to state that the Courts have not determined your real property claim. The judiciary have specifically found that your claims are barred under the doctrine of of sovereign sovereign immunity. immunity. is Even if you disagree and continue to believe that you do have a valid right to payment that is "unopposed," you are still required required to to obtain obtain an an Order Order from from aa Texas Texas court court with with competent competent "unopposed," you are still jurisdiction over jurisdiction over the the matter to agree matter to agree to to enforce enforce your your right righttoto the payment. Absent the payment. Absent aa bona bona tide fide judicial order from such a Court, our Agency has no statutory authority to pay any claim that you judicial order from such a Court, our Agency has no statutory authority to pay any claim that you matter. may present concerning this matter. Respectfully Respectfully yours, yours, Murl E. Miller Chief Counsel for General counsel for General Litigation Litigation Comptroller.Texas.Gov Comptroller.Texas.Gov • .512-463-4000 512-463-4000 • Toll . Free 1-800-531-5441 • TollFreel-800-531-5441. Fax 512-305-9711 Fax512-305-9711 7. Hidalgo County Court case no. CL-29,530-H, Summary (Certified) COUNTY COURT AT LAW #8 CASE SUMMARY CASE NO. CL-29,530-H JOHNNY PARTAIN AND TERESA C. PARTAIN vs. Location: County Court at Law #8 JAMES H. MAPLES, INDIVIDUALLY AND D/B/A Judicial Officer: Cantu, Rolando GLOBAL TOURS & CHARTERS AND KATHY Filed on: 01/26/1998 MAPLES, INDIVIDUALLY AND D/B/A KBM BUS Ableterm Track Number: 10015 LEASING, INC. AND KBM BUS LEASING, INC. CASE INFORMATION Statistical Closures Contract C - Case Type: 06/30/2016 All Other Dispositions (OCA) Consumer/Commercial/Debt Case Flags: Case on Appeal DATE CASE ASSIGNMENT Current Case Assignment Case Number CL-29,530-H Court County Court at Law #8 Date Assigned 01/26/1998 Judicial Officer Cantu, Rolando PARTY INFORMATION Lead Attorneys Defendant GLOBAL TOURS & CHARTERS KBM BUS LEASING INC MAPLES, JAMES H 6)j------.1";* % ...• 0„.Date: '.,,,,„ AN 1 6 2025 Pro Se .... - I, Arturo Crai?:-Po r MAPLES, KATHY 42., ,ir, County C'ierk do ..f.. ,* ;. \,,.. A , Lsk r.7- hereby cortifii that this is a true c.nc? , ,.j. Plaintiff ,,, 3 '. ^ ,-,‘„rrect copy of the Pro Se PARTAIN, JOHNNY -;,,,,), .i.A3 ..' ' : filed in my office original cio . i.:'.. . 9562401821(H) ...H..i.c. PARTAIN, TERESA C Pro Se DATE EVENTS & ORDERS OF "rHE COURT INDEX 06/30/2016 Case Called Judge J. Bonner Dorsey called case for DWOP hearing; no appearances were made by any of the parties. CASE DISMISSED. Order signed. 06/30/2016 Dismissal Want of Prosecution (8:30 AM) Judge Dorsey to preside over said hearing. 06/30/2016 DWOP Order, Signed E-MAILED COPY TO ATTY'S WILLIAM MCCARTHY & MR. JOHNNY PARTAIN CL-29, 530- H ORDER SIGNED June 30, 2016 12:38 PM From: Jacquelyn Perez 'Jacquelyn Perez" ; To: partain "partain" ; thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; CL-29530-H.pdf (547.7 KB) 05/26/2016 DWOP Hearing E-MAILED COPY TO ATTY'S WILLIAM MCCARTHY & MR. JOHNNY PARTAIN CL-29, 530- H DWOP HEARING June 1, 2016 12:43 PM From: Jacquelyn Perez "Jacquelyn Perez" ; To: partain "partain" ; thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; CL-29,530-H.pdf (57.3 KB) PAGE 1 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 05/24/2016 DWOP Notice Sent E-MAILED COPY TO ATTY'S WILLIAM MCCARTHY & MR. JOHNNY PARTAIN CL-29,530- H DWOP NOTICE May 24, 2016 3:25 PM From: Jacquelyn Perez "Jacquelyn Perez" ; To: partain "partain" ; thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; To: partain "partain" ; thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; CL-29,530-H.pdf (143.3 KB) 04/07/2016 '41,.1 Order Signed AMENDED ORDER OF ASSIGNMENT E-MAILED COPY TO ATTY'S WILLIAM MCCARTHY & MR. JOHNNY PARTAIN CL-29, 530-H 2 AMENDED ORDERS OF ASSIGNMENT April 11, 2016 2:25 PM From: Jacquelyn Perez "Jacquelyn Perez" ; To: partain "partain" ; thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; AMENDED ORDER OF ASSIGNMENT 1.pdf (849.2 KB) AMENDED ORDER OFASSIGNMENT.pdf (769.5 KB) 04/05/2016 2 Order Signed AMENDED ORDER OF ASSIGNMENT E-MAILED COPY TO ATTY'S WILLIAM MCCARTHY & MR. JOHNNY PARTAIN CL-29, 530-H 2 AMENDED ORDERS OF ASSIGNMENT April 11, 2016 2:25 PM From: Jacquelyn Perez "Jacquelyn Perez" ; To: partain "partain" ; thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; AMENDED ORDER OF ASSIGNMENT 1.pdf (849.2 KB) AMENDED ORDER OFASSIGNMENT.pdf (769.5 KB) 03/23/2016 '71 Order Signed ORDER OF VOLUNTARY RECUSAL E-MAILED COPY TO ATTY'S WILLIAM MCCARTHY & MR. JOHNNY PARTAIN FAXED COPY TO JUDGE ROBERT M BLACKMON CL-29,530- H ORDER SIGNED March 29, 2016 8:49 AM From: Jacquelyn Perez "Jacquelyn Perez" ; To: partain "partain" ; thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; ORDER OF VOLUNTARY RECUSAL.pdf (1.9 MB) 0 tz' 03/21/2016 +2 Order Signed 7; • ORDER OF ASSIGNMENT E-MAILED COPY TO ATTY'S WILLIAM MCCARTHY & MR. iLI JOHNNY PARTAIN CL-29-530-H ORDER OF ASSIGNMENT SIGNED March 23, 2016 12:0 0=0 PM From: Jacquelyn Perez "Jacquelyn Perez" ; To: ra.7 cJT partain "partain" : thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; CL-29-530-H ORD... ASSIGNMENT.pdf (923.2 KB)///recv'd @ wrhs 3.24.26 PAGE 2 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 08/24/2015 In Notice of Filing, Filed Motion For Additional Mandamus Relief From The Texas Supreme Court 06/01/2015 In Other Minimized Amended Petition For Writs Of Mandamuses And Criminal Complaint 05/08/2015 Notice of Filing, Filed Petition For Writs Of Mandamus 04/02/2015 In Other correspondece from Judge Blackmon 03/02/2015 in Order Signed ORDER DENYING MTN FOR CONTEMPT E-MAILED COPY TO ATIT'S WILLIAM MCCARTHY & MR. JOHNNY PARTAIN CL-29,530-H (ORDER SIGNED) March 11, 2015 10:52 AM From: Jacquelyn Perez "Jacquelyn Perez" ; To: partain "partain" ; thefirm "thefirm" ; mccarthy 625 "mccarthy 625" ; ORDER_DENYING_M..-29530-H[I]pdf (667.2 KB) 02/26/2015 Motion to Dismiss (2:00 PM) Heard by Visiting Judge Hon. Robert Blackmon 02/26/2015 Plea to the Jurisdiction (2:00 PM) Heard by Visiting Judge Hon. Robert Blackmon 02/26/2015 Motion (2:00 PM) **Motion for Contempt** Heard by Visiting Judge Hon. Robert Blackmon 02/25/2015 Plea to the Jurisdiction (11:00 AM) visiting Judge Blackman (RS 2-26-15) 02/25/2015 Motion to Compel (11:00 AM) Visiting Judge Blackman--plea to the jurisdiction (RS 2-26-15) 02/12/2015 in Order Setting Hearing, Signed ON MTN FOR CONTEMPT AND MOTN TO DISMISS FOR LACK OF JURISDICTION; ALTERNATIVELY A RESPONSE HEARING SET ON 2.25.15 @ I1:00 A. M. E-MAILED COPY TO WILLIAM MCCARTHY & JOHNNY PARTAIN CL-29, 530-H (ORDER SIGNED) == a 2 i : s , 1c,-- February 12, 2015 4:40 PM From: Jacquelyn Perez "Jacquelyn Perez" ; To: thefirm "thefirm" ; partain "partain" ; CL-29530-H[I].pdf (608.4 KB) ou .7-..,1. c; _Lr .:— ,5 a P (1) ''',. 0 . 02/03/2015 Other J 6ir . WITHDRAWAL OF OBJECTION TO ASSIGNMENT `e 'f'-'- CD c) 0 ... •') 02/02/2015 Objection .... -60 ,,,.... ao TO ASSIGNMENT o •••••,.,?-.1..•-77 _.... iF 65 co- 0 CT) 01/14/2015 in Order Filed Order ''' aa ‘''' S M3 ° a) r.' .: r%) cri 5- , = K.: 01/14/2015 In Motion Motion to Dismiss for Want of Jurisdiction PAGE 3 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 01/14/2015 1r Order Filed SHOW CAUSE HEARING ORDER 01/14/2015 0 Order Filed SHOW CAUSE HEARING ORDER 01/14/2015 0 Motion for Contempt 01/13/2015 Status Conference Hearing (8:30 AM) 12/16/2014 r Order Setting Hearing, Signed ORDER FOR STATUS HEARING SET ON 1.13.15 @ 8:30 A.M. E-MAILED COPY TO JOHNNY PARTAIN & ATTY WILLIAM J. MCCARTHY CL-29,530-H (ORDER SIGNED) December 16, 2014 8:34 AM From: Jacquelyn Garcia "Jacquelyn Garcia" ; To: partain@atlastechnologies.biz partain@atlastechnologies.biz; mccarthy 625 "mccarthy 625" ; CL-29, 530-H[1J. (470 KB) 12/08/2014 0 Returned Mail DORA MARTINEZ ( ORDER OF TRANSFER) 12/01/2014 0 Other JUDGMENT CREDITOR'S EMERGENCY MOTION FOR STATUS HEARING, ORDER ATTACHED 11/21/2014 0 Order of Transfer, Signed COPY MAILED OUT TO PARTIES 10/09/2014 0 Order, Signed Order faxed to Atty. McCarthy and via hand delivery to Johnny Partain 10/08/2014 Hearing (1:00 PM) CC8 COURT REPORTER; 10/08/2014 in Order Filed 10/08/2014 0 Emergency Hearing FOR TRO 06/09/2014 in Brief Exclusive Jurisdiction of the Probate Court 06/06/2014 Tickler (8:30 AM) RULING TO BE MADE 06/06/2014 r Judgment Filed CREDITOR JOHNNY PARTAIN'S TRCP 155 BRIEF 06/02/2014 Status Conference Hearing (8:30 AM) ALL PARTIES PRESENT; PARTIES TO PROVIDE BRIEFS W/ CASE LAW; RULING TO BE MADE ON JUNE 6, 2014 Held PAGE 4 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 05/28/2014 In Order, Signed Order Denying Rule 155 Motion 05/28/2014 in Response Response to Plaintiffs Motion for A TRCP 155 Hearing 05/22/2014 Status Conference Hearing (8:30 AM) PARTIES PRESENT; MR. MCARTHY UNAVAILABLE; STATUS HEARING SET FOR JUNE 2, 2014 @8.00AM Held 05/20/2014 0 Motion TO PROCEED UNDER UNDER TRCP 155/recy'd at wrhs on 5-22-14 05/19/2014 Status Conference Hearing (8:30 AM) ALL PARTIES PRESENT; SUGGESTION OF DEATH FILED; STATUS HEARING SET FOR MAY 22, 2014 @8.30AM Held 05/19/2014 r Motion to Reset Hearing MOTION TO RE-SET A TRCP 155 05/13/2014 in Suggestion of Death, Filed Suggestion of Death 05/12/2014 Status Conference Hearing (8:30 AM) ALL PARTIES PRESENT; SUGGESTION OF DEATH NOT FILED; STATUS HEARING SET FOR MAY 19, 2014 @8.30AM Held 04/07/2014 Motion (8:30 AM) ALL PARTIES PRESENT; JAMES MAPLES IS NOW DECEASED; STATUS HEARING SET FOR MAY 12, 2014 @8.30AM; MOTION FOR TURNOVER RELIEF OF APPELLANT COST TO DEFEAT THIS COURT'S FINAL JUDGMENT WHICH WAS ADJUDGED VOID BY THE 13TH COURT OF APPEALS Held 04/02/2014 12 Order Filed FOR TURNOVER HEARING 04/01/2014 lir Motion 04/01/2014 0 Objection TO AN APRIL 1,2014 REO UEST FOR TURNOVER AND THE COURTS REFUSAL TO PROVIDE AID 04/01/2014 in Motion 04/01/2014 Court Entries Can not ser for Hearing. Lacking OSH. Upon receipt of OSH will be set for Hearing; as per Judge Sergio Valdez 04/01/2014 0 Motion FOR TUROVER RELIEF OF APPELLANT COST TO DEFEAT THIS COURT'S FINAL C a JUDGMENT WHICH WAS ADJUDGED VOID THE 13TH COURT OF APPEALS PAGE 5 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 01/22/2014 Motion (8:30 AM) ALL PARTIES PRESENT; CREDITOR'S MOTION TO STRIKE; DENIED; Held 01/21/2014 Motion (8:30 AM) JUDGMENT CREDITOR'S MOTION TO STRIKE AND JUDGMENTS CREDITORS MOTION FOR SHOW CAUSE AND ENFORING TURNOVER ORDERS NO. 5 AND NO. 6 AND TO RECOVER STOLEN MONIES Reset 11/25/2013 File Checked In 11/25/2013 Order Setting Hearing, Signed JUDGMENT CREDITORS MOTION TO STRIKE AND JUDGMENT CREDITORS MOTION FOR SHOW CAUSE AND ENFORCING TURNOVER ORDERS NO. 5 AND NO. 6 AND TO RECOVER STOLEN MONIES; JAN. 21, 2014 @8.30AM 11/20/2013 Clerk's Entry Vol 2 is up at court for an order and Vol 1 with accordian is in file room. 11/15/2013 File Checked Out 11/12/2013 Judgment Filed CREDITOR'S MOTION TO STRIKE WITH ORDER TO VACATE ORDER ATTAHCED 10/10/2013 Status Conference Hearing (8:30 AM) @8:00a.m. 10/10/2013 File Checked In 10/10/2013 File Sent to County Clerk 10/10/2013 CI Order of the Court, Signed 10/03/2013 File Checked Out 10/01/2013 12 Other JUDGMENT CREDDITOR JOHNNY PARTAIN'S COLLECTION BREIF WITH EXHIBITS ATTACHED WITH CD ATTACHED 10/01/2013 C Letter Received WITH EXHIBITS ATTACHED RECV'D AT WRHS 10.2.13 =•••• --> 09/18/2013 File Checked In 61. 5 Si. va , Sit .. EL 0. NOTICE (NOTICE) 3 0 0 0 ,. : _- \o's1‘, 01/05/2004 2 Motion to Withdraw as Attorney, Order Approving x i• -- 1-c-i MOTION TO WITHDRAW AS ATTY (COUNSEL)/ORDER APPROVING (MOT. WAA) •:.7-1 iec.- 1.6,- - -, 0"---- ).,,....._...,-.z,....,,,•:-.. ",.'. 11/13/2003 0 Writ of Mandamus 0 > 173 EI- : 0 = .. 0 WRIT OF MANDAMUS (WRIT.M) `.c-;-9 o: FZ D' c--: — co = 0 0 (3 11/03/2003 Report •• '„..' (Mtn to Amend or Modem Judgment or Alteratively, Mtn for New trial) ;' t1S * ,•` o -- z-- 0 02/25/2003 Ruling 'S , Fif -, a. 9, .(53 > _ .. go 1029530 02/25/2003 COURT RULING PREVIOUS ORDER REF: ATTY'S FEES REMAINS i 3- 8 ,,- E. Ir" ORDERED EXCEPT APPELLATE A7TY FEES UPON SUCCESS OTBS COURT RULING 8 cci ca; (CTR) a. ..,- "•••.‘-...(..- ..z. .2- c.., , ...': 7.. .2.- 'cc • A 7. 11/19/2002 2 Amended ... . C.' ... -... 1 O)..••• •:-...S CD C. -. - '..V JUDGMENT CREDITOR'S PETITION FOR AID IN ENFORCING JUDGMENT i,,,,,,„.s...c.:zio 11/19/2002 2 Amended Judgment Signed AMENDED JUDGMENT, SIGNED (AMD.JUD) .... e,L.. • --la,. c'). ... .s• 10/03/2002 Certificate of Written Discovery ',1,,,,n,'' CERTIFICATE OF WRITTEN DISCOVERY (CERTWD) m ...., n 7 g 2-.:., w .5 (a-T- cNI:k2.,.. ---, I"ii. E.- R 10/01/2002 Motion 3o %..c 0 0 0 G) 3 1029530 10/01/2002 MOTION PLAINTIFFS' SUBSTITUTE MOTION FOR REHEARING OF L- ,—, DEFENDANT'S MOTION FOR EXTENSION OF EFFECTIVE DATE OF JUDGMENT MOTION (MOT) aF cD a,5 g— d' c Ames sc < (13R. (7 i 5.) ,_,• 09/26/2002 Order Setting Hearing Er EL so c 1029530 09/26/2002 ORDER SETTING HEARIN HRG SET FOR 10/29/02 @ 9:30 A.M ON X' 0a 0 ••= •-‹ C:3 c) cp 0 1•41 DEF'S MTN FOR EXTENSION OF EFFECTIVE DATE OF JUDGMENT ORDER SETTING CTI g ST HEARING (OSH) maw (:).. 0 09/24/2002 2 Motion for New Trial XXX-DO NOT USE-MOTION FOR NEW TRIAL (MFNT) PAGE 34 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 09/16/2002 Order Signed 1029530 09/16/2002 ORDER, SIGNED ORDER GRANTING DEF'S MTN FOR EXTENSION OF EFFECTIVE DATE OF JUDGMENT SIGNED-DEF SHALL BE PERMITTED TO FILE ALL POST JUDGMETN MTNS UNTIL 9/28/02 ORDER, SIGNED (OS) 09/12/2002 C Motion FOR REHEARING OF DEFENDANT'S MOTION FOR EXTENSION OF EFFECTIVE DATE OF JUDGMENT 09/04/2002 Hearing (10:30 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") (Defs mtn for Extension of Effective Date of Judgment) 09/03/2002 Discovery 1029530 09/03/2002 DISCOVERY PLAINTIFF'S DISCOVERY IN AID OF ENFORCEMENT OF JUDGMENT DISCOVERY (DISC) 08/29/2002 Motion 1029530 08/29/2002 MOTION MOTION FOR EXTENSIONOF EFFECTIVE DATE OF JUDGEMNT MOTION (MOT) 08/29/2002 Order Setting Hearing 1029530 08/29/2002 ORDER SETTING HEARIN DEF'S MTN FOR EXTENSION FOR EXTENSION DATE OF JUDGEMENT SET FOR 9/4/02 ORDER SETTING HEARING (OSH) 08/22/2002 Abstract of Judgement (Fee) 08/12/2002 C Motion 1029530 08/12/2002 MOTION MOTION FOR APPROVAL OF ATTORNEY FEES AND ORDER, EX PARTE MOTION (MOT) 08/09/2002 Affidavit 1029530 08/09/2002 AFFIDAVIT AN ITEMIZED STATEMENT OF LEGAL SERVICES AFFIDAVIT (AFF) 07/25/2002 I:11 Counter Claim/Counter Petition (Fee) = -27 1029530 07/25/2002 COUNTER CLAIM DEFS' SECOND SUPPLEMENTAL COUNTER CM z CLAIM COUNTER CLAIM (CCLAIM) 7' f 0 \ .... . .V1- ,,, ••••«, " AS lit,A -S.S 07/24/2002 n Other ,ii BILL OF COSTS 07/24/2002 0 Final Judgment, Signed 37 FINAL JUDGMENT SIGNED (FJS) 07/23/2002 Writ of Execution 1029530 07/23/2002 WRIT OF EXECUTION RETURNED NOLLA/BONA WRIT OF al EXECUTION (WRIT.EXEC) O IV 07/03/2002 Entry of Judgment Hearing (10:00 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") 06/26/2002 Hearing (8:30 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") (Objection to Finding of Fact and Conclusions of Law) 06/26/2002 Hearing (8:30 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") PAGE 35 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 06/24/2002 trjj Response 1029530 06/24/2002 RESPONSE DEFS' RESPONSE TO PLTFS' REQUEST FOR TEMPORARY INJUNCTION RESPONSE (RESPONSE) 06/18/2002 Counter Claim/Counter Petition (Fee) 1029530 06/18/2002 COUNTER CLAIM SUPPLEMENTAL COUNTER CLAIM (CCLAIM) 06/13/2002 2 Petition (OCA) 1029530 06/13/2002 PETITION PLTFS' THIRD AMENDED ORIGINAL PETITION PETITION FOR NON-DISCLOSURE (PET) 06/04/2002 2 Objection TO ENTRY OF ANY JUDGMENT 06/04/2002 2 Response 1029530 06/04/2002 RESPONSE DEFS' RESPONSE TO PLTFS' REPLY TO DEFS' RESPONSE TO PLTFS' MOTION FOR ENTRY OF JUDGMENT AND DEFS' OBJECTION TO ENTRY OF ANY JUDGMENT RESPONSE (RESPONSE) 05/30/2002 Order Setting Hearing 1029530 05/30/2002 ORDER SETTING HEARIN FOR 06/26/02 @ 9:30 AM ORDER SETTING HEARING (OSH) 05/28/2002 Objection 1029530 05/28/2002 OBJECTION OBJECTION TO FINDINGS OF FACT AND CONCLUSIONS OF LAW OBJECTION (OBJ) 05/24/2002 Motion 1029530 05/24/2002 MOTION MOTION FOR INJUNCTION AGAINST DEF MOTION (MOT) 05/23/2002 CI Findings of Fact and Conclusions of Law ADMENDMENT 05/22/2002 CI Brief 1029530 05/22/2002 BRIEF PLTFS' POST-VERDICT TRIAL BRIEF BRIEF (BRIEF) 05/22/2002 i2 Brief 1029530 05/22/2002 BRIEF PLTFS' POST-VERDICT TRIEL BRIEF. BRIEF (BRIEF) 05/15/2002 C Findings of Fact and Conclusions of Law Como FINDINGS OF FACT AND CONCLUSIONS OF LAW SIGNED (FOFCOLS) 05/15/2002 2 Other rn 1029530 05/15/2002 OTHER JOHNNY PARTAIN FILED FINDINGS OF FACTS & tv CONCLUSIONS OF LAW OTHER (OTH) IN3 C71 05/14/2002 12 Findings of Fact and Conclusions of Law 0. 0 FINDINGS OF FACT AND CONCLUSIONS OF LAW (FOFACOL) 05/10/2002 Motion 1029530 05/10/2002 MOTION PLTF'S MOTION TO TERMINATE SIDNEY R. MEADOWS, ATTORNEY TO THE PLAINTIFFS, AND NOTIFICATION CERTIFICATE MOTION (MOT) PAGE 36 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 04/19/2002 in Motion 1029530 04/19/2002 MOTION FOR ENTRY OF JUDGMENT MOT SITHST ANDING THE JUTY VERDICT MOTION (MOT) 03/05/2002 IC Response 1029530 03/05/2002 RESPONSE DEFS' RESPONSE TO PLTFS' MOTION FOR ENTRY OF JUDGMENT RESPONSE (RESPONSE) 02/21/2002 Hearing (9:00 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") (Pl's Mtn for Entry of Judgment) 02/06/2002 C Order Setting Hearing 1029530 02/06/2002 ORDER SETTING HEARIN PL'S MTN FOR ENTRY OF JUDGMENT ON 2/21/02 @ 9:00 A.M. ORDER SETTING HEARING (OSH) 02/04/2002 in Motion 1029530 02/04/2002 MOTION PLAINTIFFS' MOTION FOR ENTRY OF JUDGMENT MOTION (MOT) 01/31/2002 Charge of the Court CHARGE OF THE COURT (COC) 01/31/2002 Order Signed 1029530 01/31/2002 ORDER, SIGNED CHARGE OF THE COURT SIGNED. ORDER, SIGNED (OS) 01/29/2002 in Certificate 1029530 01/29/2002 CERTIFICATE DEPOSITION OF JAMES HAROLD MAPLES CERTIFICATE (CERT) 01/28/2002 11:1 Motion in Limine, Filed ORDER ATTACHED 00 111,,,,, /,, 01/28/2002 Subpoena Issued soss'''.c,,3 71 . '''',,, .. .".... '''' '..:. 1029530 01/28/2002 SUBPOENA ISSUED SERVED RICHARD ESTEVANES SOUTH TEXAS 1.. / 1. ..z. -.4 FREIGHTLINER SUBPOENA ISSUED (SUB) =a: -< r. Jury Trial (9:00 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") .r.,,,,, ...qs ,,,,,,, 01/22/2002 .., (r,, 01 0, , ' s (PT & JT) CO 22, <-7 - -0 , c "di' 0 5 ,_ -, 0- 4 a' e, :41- 01/22/2002 in Motion =:...a ,cZ. s" c' .moo 0, r,) 1029530 01/22/2002 MOTION FOR LIMINE MOTION (MOT) ez, ,... -.. .0 — 0 ce...:2. I ( / --,, 01/17/2002 Motion to Compel (9:30 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") O CD (1) 0 g a .-4- 5.1 (Pl's Mtn to Compel) o o to. 2 Er). •R,. SD c 01/14/2002 ri1 Order Setting Hearing o 1029530 01/14/2002 ORDER SETTING HEARIN HRG SET FOR PL'S MTN TO COMPEL 2 0 PD- CD O. SET FOR 1/17/02 ORDER SETTING HEARING (OSH) 0 01/09/2002 in Affidavit AFFIDAVIT (AFF) 01/09/2002 Certificate PAGE 37 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 1029530 01/09/2002 CERTIFICATE DEPOSITION OF JAMES HARLD MAPLES CERTIFICATE (CERT) 12/26/2001 Certificate of Written Discovery CERTIFICATE OF WRITTEN DISCOVERY (CERTWD) 12/26/2001 Motion 1029530 12/26/2001 MOTION TO COMPEL AND FOR SANCTIONS MOTION (MOT) 11/26/2001 Jury Trial (9:00 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") (Passed) 11/15/2001 Final Pre-Trial Hearing (9:00 AM) (Judicial Officer: Gonzalez, Rodolfo "Rudy") (Passed) 10/11/2001 2 Notice 1029530 10/11/2001 NOTICE OF FILING RULE 11 AGREEMENT NOTICE (NOTICE) 09/26/2001 12 Docket Control Conference 1029530 09/26/2001 DOCKET CONTROL CONFE FINAL PRE-TRIAL CONF SET FOR 11/15/01 @ 9:00 A.M. & JURY TRIAL SET FOR 11/26/01 @ 9:00 A.M. DOCKET CONTROL CONFERENCE (DCC) Docket Control Conference Hearing/Telephonic (3:00 PM) (Judicial Officer: Gonzalez, 08/24/2001 Rodolfo "Rudy") 08/07/2001 t2 Docket Control Order 1029530 08/07/2001 DOCKET CONTROL ORDER DOCKET CONTROL CONFERENCE SSET FOR 8/24/01 @ 3:00 P.M. DOCKET CONTROL ORDER (DCO) 06/22/2001 Docket Control Conference 05/29/2001 Jury Trial (9:30 AM) (Judicial Officer: Garza, Homero) MOT/4/CONT GRANTED 5/25/01 05/29/2001 Order 1029530 05/29/2001 ORDER SIGNED ORDER GRANTING PLTFS' UNOPPOSED VERIFIED MOTION FOR CONTINUANCE ORDER SIGNED (ORD) * 05/24/2001 12 Motion 1029530 05/24/2001 MOTION PLTFS' UNOPPOSED VERIFIED MOTION FOR CONTINUANCE MOTION (MOT) 05/17/2001 2 Order Setting Hearing 1029530 05/17/2001 ORDER SETTING HEARIN FOR 05-29-01 @ 9:30 AM ORDER SETTING HEARING (OSH) 02/12/2001 Jury Trial (9:30 AM) (Judicial Officer: Garza, Homero) PLTS/CTNR/DEFS/SPEX 0. 02/12/2001 CI Subpoena Filed 0 02/06/2001 2 Order 1029530 02/06/2001 ORDER SIGNED ORDER SETTING HEARING ORDER SIGNED (ORD) PAGE 38 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 02/02/2001 2 Notice 1029530 02/02/2001 NOTICE NOTICE OF APPEARANCE NOTICE (NOTICE) 02/02/2001 51 Special Exceptions 1029530 02/02/2001 SPECIAL EXCEPTIONS PLTFS/COUNTER-DEFS' SPECIAL EXCEPTIONS TO DEFS/COUNTER/PLTFS' FIRST AMENDED COUNTERCLAIM SPECIAL EXCEPTIONS (SPEX) 11/06/2000 Jury Trial (9:30 AM) (Judicial Officer: Garza, Homero) MOTION FOR CONTINUANCE GRANTED 11/01/2000 1,,_10fficer's Certification (Deposition) 1029530 11/01/2000 OFFICERS CERTIFICATI ORAL DEPOSITION OF KATHY MAPLES OFFICERS CERTIFICATION (DEPOSITION) (OFFCERT) 10/18/2000 Pre Trial Hearing (9:30 AM) (Judicial Officer: Garza, Homero) MOTION FOR CONTINUANCE GRANTED 10/4/00 10/10/2000 Officer's Certification (Deposition) 1029530 10/10/2000 OFFICERS CERTIFICATI DEPOSITION OF JOHNNY PARTAIN OFFICERS CERTIFICATION (DEPOSITION) (OFFCERT) 10/04/2000 Motion to Withdraw (9:30 AM) (Judicial Officer: Garza, Homero) 10/03/2000 2 Motion 1029530 10/03/2000 MOTION FIRST SUPPLEMENTAL MOTION FOR WITHDRAWAL OF COUNSEL MOTION (MOT) 09/21/2000 Rule 11 Agreement, Filed RULE 11 AGREEMENT (RULE11) 09/21/2000 Order 1029530 09/21/2000 ORDER SIGNED ORDER SETTING HEARING FOR 10-04-00 ORDER SIGNED (01W) 09/20/2000 2 Motion 1029530 09/20/2000 MOTION MOTION FOR WITHDRAWAL OF COUNSEL MOTION (MOT) 08/29/2000 Counter Claim/Counter Petition (Fee) 1029530 08/29/2000 COUNTER CLAIM DEF/COUNTER-PLTF'S FIRST AMENDED COUNTERCLAIM AGAINST PLTF/COUNTER-DEFS JOHNNY AND TERESA PARTAIN. COUNTER CLAIM (CCLAIM) a) 0 08/11/2000 2 Discovery 1029530 08/11/2000 DISCOVERY CERTIFICATE OF WRITTEN DISCOVERY DISCOVERY CO, (DISC) ro O IV 08/09/2000 Motion for Sanctions (9:30 AM) (Judicial Officer: Garza, Homero) 08/08/2000 Amended Petition SECOND AMENDED ORIGINAL PETITION 06/22/2000 r2 Order Setting Hearing, Signed PAGE 39 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 06/22/2000 2 Discovery 1029530 06/22/2000 DISCOVERY PLTFS' REQUEST FOR RULING ON DEFS' OBJECTIONS TO DISCOVERY DISCOVERY (DISC) 06/19/2000 Jury Trial (9:30 AM) (Judicial Officer: Garza, Homero) MOT/2/CMPL - 3 DAYS 06/19/2000 Motion Plaintiffs response to defendants' MOTION TO COMPEL, Johnny Partain and Teresa C. Partain, to RESPOND TO FIRST SET OF INTERRROGATORIES AND REQUESTS FOR PRODUCTION, AND DEFENDANTS' SECOND SET OF REQUEST FOR PRODUCTION. 06/19/2000 E3 Motion 1029530 06/19/2000 MOTION MTN. FOR SANCTIONS FOR FAILURE TO APPEAR FOR DEPOSITION MOTION (MOT) 06/19/2000 2 Notice of Bankruptcy 1029530 06/19/2000 NOTICE COURT REPORTER'S CERTIFICATE OF NON- APPEARANCE NOTICE OF BANKRUPTCY (NOT) 06/19/2000 2 Notice of Bankruptcy 1029530 06/19/2000 NOTICE NOTICE OF INTENTION TO TAKE ORAL AND/OR VIDEOTAPED DEPOSITION OF KATHY H. MAPLES NOTICE OF BANKRUPTCY (NOT) 05/25/2000 ,CIFiat, Signed 05/25/2000 2 Defendant Original Answer THIRD AMENDED ORIGINAL ANSWER 05/25/2000 2 Original Petition DEFENDANTS' SPECIAL EXCEPTIONS TO PLAINTIFFS; FIRST AMENDED ORIGINAL PETITION 05/23/2000 2 Fiat, Signed 05/19/2000 Motion MOTION TO COMPEL PLAINTIFFS, JOHNNY PARTAIN AND TERESA C. PARTAIN, TO RESPOND TO FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION, AND DEFENDANTS' SECOND SET OF REQUEST FOR PRODUCTION 05/17/2000 Pre Trial Hearing (9:30 AM) (Judicial Officer: Garza, Homero) MOT/4/CONT-J/T-6/19/00 05/16/2000 2 Order Setting Hearing, Signed MOTION FOR CONTINUANCE 05/10/2000 921 Motion for Continuance ••• 0 0 01/28/2000 r21 Order, Signed ORDER IN LIMINE SIGNED 1/28/2000 11/08/1999 0 Docket Control Order PAGE 40 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 11/05/1999 Docket Control Conference Hearing/Telephonic (9:30 AM) (Judicial Officer: Garza, Homero) 10/19/1999 0 Docket Control Conference ORDER SIGNED 10/19/1999 07/12/1999 0 Order 1029530 07/12/99 ORDER SIGNED GRANTING MOTION FOR SUBSTITUTION OF COUNSEL ORDER SIGNED (ORD) 07/06/1999 Amended DEFENDANTS' SECOND AMENDED ORIGINAL ANSWER 07/01/1999 0 Notice to Defendant SERVER'S RETURN ATTACHED 06/24/1999 0 Amended Petition PLAINTIFFS' FIRST AMENDED ORIGINAL PETITION 06/21/1999 0 Order to Withdraw as Attorney of Record, Signed ORDER TO WITHDRAW AS ATTY OF RECORD SIGNED (OWAORS) 06/15/1999 0 Supplemental Petition PLAINTIFFS' FIRST SUPPLEMENT TO ORIGINAL PETITION 03/03/1999 Pre Trial Hearing (9:30 AM) (Judicial Officer: Garza, Homero) 03/03/1999 0 Agreed Order, Signed 1029530 03/03/99 AGREED ORDER SIGNED AGREED ORDER FOR CONTINUANCE - SIGNED AGREED ORDER SIGNED (AOS) 02/12/1999 Answer DEFENDANT'S FIRST AMENDED ORIGINAL ANSWER 01/11/1999 Letter Received 01/08/1999 0 Supplemental Defendant's Supplemental Answer and Objections to Plaintiffs Interrogatories Accompanying Requests 01/06/1999 Motion to Compel (9:30 AM) (Judicial Officer: Garza, Homero) 11/16/1998 Fiat, Signed 11/12/1998 0 Motion MOTION TO COMPEL ANSWERS TO INTERROGATORIES 2 (1) 0 t r. 11/06/1998 0 Other CD g rc" 0. R` DEFENDANT/COUNTER-PLAINTIFF'S CONTEERCLAIM AGAINST 0 0 PLAINTIFF/COUNTER-DEFENDANTS JOHNNY PARTAIN AND TERESA PARTAIN 10/30/1998 0 Affidavit PAGE 41 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H 10/21/1998 ,D Answer defendant's answers and objections to plaintiffs interrogatories accompanying requests 10/21/1998 0 Answer DEFENDANT'S ANSWERS TO PLAINTIFFS REQUESTS FOR ADMISSIONS 09/29/1998 (D Request for Admission PLAINTIFF'S REOUEST FOR ADMISSIONS AND INTERROGATORIES ACCOMPANYING REOUESTS 09/17/1998 0 Docket Control Order 09/09/1998 ,0 Other RECEIPT 09/09/1998 tr:,1 Application AND DEMAND FOR JURY TRIAL 09/04/1998 Notice of Filing, Filed 06/15/1998 Ci Docket Control Order, Signed 06/11/1998 Motion for Trial Setting with CERTIFICATE OF SERVICE attached 04/13/1998 ID Defendant Original Answer s' , Date: JAM 2Ct5 .g0e;"-- I, Arturo Guajardo, Jr. County Clerk do 04/03/1998 0 Notice hereby certify that this is a true and 1*E correct copy of the original document fled in my office 01/26/1998 fl Notice `G2T~~F HIDALGO '4? By Deptty Cler 01/26/1998 Ll Other Receipt 01/26/1998 LI Unknown 1029530 01/26/98 Doc Comment from Cony Original Petition; * PLAINTIFF'S ORIGINAL PETITION, FILED DOC COMM FROM CONV (DOCC) 01/26/1998 PI Original XXX-DO NOT USE-ORIGINAL (ORG) DATE FINANCIAL INFORMATION Defendant MAPLES, JAMES H Total Charges 241.00 Total Payments and Credits 241.00 Balance Due as of 1/16/2025 0.00 Plaintiff PARTAIN, JOHNNY Total Charges 795.00 Total Payments and Credits 795.00 Balance Due as of 1/16/2025 0.00 PAGE 42 OF 43 Printed on 01/16/2025 at 3:03 PM COUNTY COURT AT LAW #8 CASE SUMMARY CASE No. CL-29,530-H UNKNOWN Registry Beneficiary for CV10015 TRUST ACCOUNT (CC-TRUST-CV) Balance as of 1/16/2025 30.90 ,,,,, , OC/"- Date: JAN 16 2025 I Arturo Guajardo, Jr. County Clerk do hereby certify that this is a true and .*E.. correct copy of the original documen filed in my office ••• • By: Deputy CI PAGE 43 OF 43 Printed on 01/16/2025 at 3:03 PM 8. Governor Abbott’s Press Release GOVERNOR GREG ABBOTT January 24, 2024 The federal government has broken the compact between the United States and the States. The Executive Branch of the United States has a constitutional duty to enforce federal laws protecting States, including immigration laws on the books right now. President Biden has refused to enforce those laws and has even violated them. The result is that he has smashed records for illegal immigration. Despite having been put on notice in a series of letters—one of which I delivered to him by hand—President Biden has ignored Texas’s demand that he perform his constitutional duties. • President Biden has violated his oath to faithfully execute immigration laws enacted by Congress. Instead of prosecuting immigrants for the federal crime of illegal entry, President Biden has sent his lawyers into federal courts to sue Texas for taking action to secure the border. • President Biden has instructed his agencies to ignore federal statutes that mandate the detention of illegal immigrants. The effect is to illegally allow their en masse parole into the United States. • By wasting taxpayer dollars to tear open Texas’s border security infrastructure, President Biden has enticed illegal immigrants away from the 28 legal entry points along this State’s southern border— bridges where nobody drowns—and into the dangerous waters of the Rio Grande. Under President Biden’s lawless border policies, more than 6 million illegal immigrants have crossed our southern border in just 3 years. That is more than the population of 33 different States in this country. This illegal refusal to protect the States has inflicted unprecedented harm on the People all across the United States. James Madison, Alexander Hamilton, and the other visionaries who wrote the U.S. Constitution foresaw that States should not be left to the mercy of a lawless president who does nothing to stop external threats like cartels smuggling millions of illegal immigrants across the border. That is why the Framers included both Article IV, § 4, which promises that the federal government “shall protect each [State] against invasion,” and Article I, § 10, Clause 3, which acknowledges “the States’ sovereign interest in protecting their borders.” Arizona v. United States, 567 U.S. 387, 419 (2012) (Scalia, J., dissenting). The failure of the Biden Administration to fulfill the duties imposed by Article IV, § 4 has triggered Article I, § 10, Clause 3, which reserves to this State the right of self-defense. For these reasons, I have already declared an invasion under Article I, § 10, Clause 3 to invoke Texas’s constitutional authority to defend and protect itself. That authority is the supreme law of the land and supersedes any federal statutes to the contrary. The Texas National Guard, the Texas Department of Public Safety, and other Texas personnel are acting on that authority, as well as state law, to secure the Texas border. Greg Abbott Governor of Texas 9. Petition To Texas Legislature Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz THE 87TH TEXAS LEGISLATURE 1100 Congress Avenue Austin, Texas 78701 January 12, 2021 21 21 Re: Johnny Partain – Petition For Relief Through Private Bills And General Constitutional Amendment Greetings THE 87TH TEXAS LEGISLATURE; Attached is a Petition For Relief Through Private Bills And General Constitutional Amendment. It is intended to finally resolve issues that have evolved over 20 years of successful but ultimately unproductive litigation that continues to effect my businesses and my person. I am requesting assistance, and ultimately, I am requesting a solution to a well recognized and endemic problem afflicting our government. I leave my contact information below to help move this process. Respectfully, Johnny Partain 956-240-1821 partain@atlastechnologies.biz IN RE JOHNNY RAY PARTAIN § IN THE 87TH TEXAS LEGISLATURE § § § § PETITION FOR RELIEF THROUGH PRIVATE BILLS AND GENERAL CONSTITUTIONAL AMENDMENT Relief Requested 1. A Private Bill removing all immunities and allocating up to $250 million to Johnny Ray Partain on judgment for inverse condemnation claims against the State of Texas and its agencies. 2. A Private Bill removing all immunities and accepting liability for the state’s and counties’ respective employees including Texas District Judges, County Judges, District Attorneys in Cameron County, and District Attorneys in Hidalgo County for their constitutional torts against Johnny Ray Partain, allowing him to proceed with a lawsuit against same. 3. A constitutional amendment implementing comprehensive definitions, rules, and regulations regarding state immunities and liabilities from civilian constitutional and civil tort complaints, consistent with the Texas Constitution, including disposing of absolute immunities for all public officers, and providing at least one cause of action to protect Texan’s constitutional rights in the judiciary. 4. Alternately, a constitutional amendment immunizing citizens from prosecution for directly protecting their civil rights. 5. Adding a felony level offense to official oppression. An Argument To Diminish Corruption1 In Texas In 2014, Texas Attorney General Greg Abbott stated of South Texas, “The creeping corruption resembles third-world country practices that erode the social fabric of our communities and destroy Texans’ trust and confidence in government.” Presumably, solutions have been pursued after Gov. Greg Abbott became governor of Texas in January 2015 to combat government corruption - but corruption hasn’t abated. The State of Texas is still currently able to violate contracts, property rights, and civil rights outlined by the United States and Texas 1 Corruption defined as - Illegality; a vicious and fraudulent intention to evade the prohibitions of the law. The act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others. U. S. v. Johnson (C. C.) 20 Fed. 082; State v. Ragsdale. 59 Mo. App. 003; Wight v. Rindskopf, 43 Wis. 351; Worsham v. Murchison, 00 Ga. 719; U. S. v. Edwards (C. C.) 43 Fed. 07. Page 1 of 7 Constitution with impunity because the state claims immunity to suit and liability, and because there is no civil cause of action available to prosecute constitutional torts against the state or her agencies. Governmental entities that enjoy sovereign immunity are not liable for the torts of their employees, absent a constitutional or statutory waiver of that immunity. Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 611 (Tex. 2000); Lowe v. Tex. Tech Univ. 540 S.W.2d 297, 298 (Tex. 1976). Government employees also enjoy other personal immunities invented by the courts known as absolute immunity, qualified immunity, and official immunity making fertile ground for incompetence and corruption. Consequently, certain citizens and businesses are directly burdened with prejudices and losses separate from the rest of the population, with little or no recourse at law. There is virtually no accountability or recourse against judges (except probate judges) who close their courts to complainants or engage in crimes and constitutional torts against citizens, for prosecutors who abuse their authority to prejudice defendants and violate their due process, for police who target, lie, and kill, for counties and cities who form sanctuaries to protect illegal activity, or even when the healthy public is declared closed to the public as in recent COVID 19 lockdowns. The solution to this systemic incompetence or corruption is to make the concept of government immunity something the citizens of Texas can agree upon, so that legal recourse to incompetence and corruption can be obvious and obtainable through black letter law instead of shrouded in tenuous opinions and personalities of the courts in whatever era relief is attempted by the state’s victims. Additionally, the practice of “Absolute Immunity” must be abolished. It serves no purpose than to protect incompetence and corruption. It is contrary to accountability because it denies any meaningful civil protest or discussion against illegal acts by the judiciary. Even the Texas State Commission on Judicial Conduct and the State Bar of Texas (both departments under the Texas Supreme Court) recognize absolute immunity as they conduct their inquiries in secret, with severe limitations on who can complain, what they can do, and what they will disclose. For example, attached is correspondence from the State Commission on Judicial Conduct regarding one of four complaints against four different judges engaged in constitutional torts and illegal property seizures belonging to Johnny Ray Partain - whom may not even be a party to their courts. The correspondence makes it clear that whoever the unidentified judicial officer may be, their official discretion usurps all restraints of the law and is beyond reproach (absolute immunity). Because of the secrecy the petitioner is not even able to identify or make a response to the correspondence, and consequently, there is no meaningful recourse through the commission. The State Bar of Texas is even worse because they will preempt a claim with prejudice on terms and procedure that they “instigate” after the fact without ever addressing the issue raised. These government watchdogs are feckless because they don’t have an interest or a charter to police constitutional violation, much less criminality. They barely respond to, and resist, the complaints filed. Consequently an amendment, or at least a statute, is necessary to eradicate government immunities derived by the courts and to legally define the boundaries of government immunity with respect to our civil rights so that we citizens may exercise our burdens and plainly petition our grievances to the judiciary without continuing hitting imaginary firewalls. Texans need a cause of action for constitutional torts, a version of 42 USC §1983 that includes liability for the State of Texas and her employees, to give ourselves a civil means to protect our rights under the constitution and to be made whole. Alternately, Texans need legal Page 2 of 7 immunity to prosecution when acting to self-execute our civil rights just as government claims immunity to complaints when it violates our civil rights. Government immunity to the law isn’t a novel issue. The Texas Supreme Court (Hosner v. De Young, 1 Tex. 764, 769 (1847)) arbitrarily imposed immunity from evolving English common law in 1847 to cloak the new Republic of Texas with immunity on the idea that the King can’t be sued in his own courts, that the King can do no wrong. Under this doctrine, the State is not liable for the torts of its officers or agents in the absence of a constitutional or statutory provision creating such liability. Texas Highway Department v. Weber, 147 Tex. 628, 219 S.W.2d 70 (1949). But…toward the end of the 1960 race wars government immunity became a major topic in the 61st Texas Legislature (1969) who almost reversed these crippling court invented immunities through Bill 117 before falling to a veto by Texas Governor Preston Smith on account that he feared the costs for government accountability. The 61st Legislature finally passed a weak tort claims reform in response to the governor’s veto, leaving the doctrine of common law governmental immunity in place to dominate regardless of the birth of its new Texas Tort Claims Act (TTCA allows suits in auto accidents, with exceptions, and some suits against municipalities provided strict conformance to the statute is met). While government immunity to the constitution wasn’t rendered in our original governing documents, it has been recognized by lawyers and students of the courts, which later led to a constitutional amendment in 1987 authorizing the legislature to identify municipal governmental functions and proprietary functions responsive to the court’s opinion of waiver for judicial immunity on municipalities. This amendment does not apply to the state or counties in any way, only to municipalities. Why? Because lawyers know that it was established by a Texas appeals court in State v. Brannan, 111 S.W.2d 347 (Tex. Civ. App.--Waco 1937, writ ref'd), that “All authority possessed by a state is that conferred on it as a sovereignty by the people and consequently it can act in no other capacity than that of a sovereignty. It is inherently and exclusively sovereign and must necessarily act as such at all times and in all capacities. As a sovereignty, it is immune from liability for torts and since it can act in no other capacity than that of a sovereignty, it is necessarily immune from liability for torts at all times and in all its capacities.” However, the lawyers elected as legislators should also know there is a constitutional separation of powers and it is the domain of the legislators who represent the people, not the courts, to determine policy regarding the range of accountability and immunity to the law pursuant to our constitution. Until that happens this time worn judicially derived immunity which allows the State of Texas and its officials to trespass with impunity on the civil rights of the average Texas citizen remains a large factor in sustaining government corruption and incompetence. There is also no recourse available under the federal civil action statute 42 U.S.C. §1983 because it doesn’t apply to states, and the court’s resist applying it to municipalities. Accordingly, there is no direct recourse or cause of action for the violation of the Texas Constitution. See City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. 1995). 50 years after Bill 117 was vetoed, after the last race wars waned, very little substantive has happened and we seem to have entered civil unrest again with Antifa, Black Lives Matter, Black Panthers, Proud Boys, Patriot Prayer, and other political organizations foregoing policy and resorting to direct force (to violence) to achieve their goals since government appears to be the tool creating problems. It is Page 3 of 7 poignantly evident that court derived government immunities are a necessary component for police brutality, poverty, antagonism among races, sanctuary city proclamations, unconstitutional lockdowns of healthy citizens2, the closing of businesses, destruction of freedoms, and destruction of lives. The “King” can do a lot of wrong, and the worse is still coming. Criminal organizations (cartels) can easily, and probably already have, infiltrate the government at all levels to be immune to the law. Above the law. Isn’t that a problem? The solution has been banging on the doors of the Texas legislature for years. The Texas Supreme Court states, ”While it may have been a decision of the Texas Supreme Court that first interjected sovereign immunity into Texas jurisprudence, the court has consistently held that any waiver of immunity rests within the sole discretion of the Texas Legislature. Most sovereigns have long abandoned the fiction that governments and their officials can ‘do no wrong.’ To varying degrees, states and the federal government have voluntarily relinquished the privilege of absolute immunity by waiving immunity in certain contexts. ··· Courts in other jurisdictions have occasionally abrogated sovereign immunity by judicial decree. We have held, however, that the Legislature is better suited to balance the conflicting policy issues associated with waiving immunity.” Wichita Falls State Hosp., 106 S.W.3d 692 (Tex. 2003). Texas Supreme Court Chief Justice Hecht and Justice Enoch have written concurring opinions in which they have noted that unless the Legislature addresses certain problems with sovereign immunity and/or the Tort Claims Act, the Texas Supreme Court may act to abrogate immunity for the purpose of forcing the Legislature to act. See IT-Davy, 74 S.W.3d 863 (Enoch, J. Dissenting) (stating the Supreme Court should abrogate sovereign immunity in all breach of contract cases). Tex. Dep’t of Criminal Justice v. Miller, 51 S.W.3d 583, 590-592 (Tex. 2001) (Hecht, J., concurring) (noting that the distinction between use of property for which immunity has been waived and non-use of property for which there is no waiver creates distinctions that cannot be justified, articulated, explained, or understood; thus, judicial abolition of immunity may be necessary to prompt Legislature to enact legislation for determining when immunity is waived for the non-use of property). Further, the Texas Supreme Court has repeatedly stated that immunity from suit serves the purpose of allowing governmental entities to avoid contractual obligations. While Justice Hecht has stated that sovereign immunity must not be used as a means of stealing goods or services from contractors, a majority of that court continues to hold out the possibility that a governmental entity may waive immunity by contract. To date the Texas Supreme Court has not found a single instance in which a governmental entity has waived its immunity from suit by its conduct. See IT-Davy, 74 S.W.3d 860-61 (Hecht, J., concurring), 863-64 (Enoch, J.,dissenting). Allegedly, sovereign immunity does not bar claims for violation of the constitution, including takings claims, or ultra vires claims. City of Dallas v Stewart, 361 S.W.3d 562 (Tex. 2012); Tex. Parks & Wildlife Dept v. Sawyer Trust, 354 S.W.3d 384, 388–89 (Tex. 2011). The Supreme Court acknowledged that prior to 1980 its opinions could be read to hold that sovereign immunity barred takings claims (see Sawyer Trust), but following its decision in Steele v. City of Houston, 603 S.W.2d 786 (Tex. 1980), the Supreme Court has consistently held that immunity does not bar constitutional claims, including takings claims. City of Dallas v Stewart, 361 S.W.3d 562 (Tex. 2012). You see how the principles change overnight? The court now says to establish 2 How is a citizen, a human being, non-essential? Page 4 of 7 a taking of property the plaintiff is required to plead and prove that the government exercised dominion and control over the property. Sawyer Trust at 390, 391. But that’s not necessarily true being that immunity is dependent on the mood, competency, and personality of the judge hearing a takings claim since immunity is a court contrivance - not black letter law. See the Case In Point below for example. Case In Point Johnny Ray Partain, petitioner hereof, has been severely abused and left behind by the Texas judiciary. Nearly nine years ago (9 years), Johnny Partain, an owner of several businesses, filed a lawsuit in 2012 in Hidalgo County District Court case no. C-0929-12-F, to prevent the seizure of his real property which had been ordered taken through advice of the Hidalgo Attorneys Office, without any due process at all on Mr. Partain after he had been warned by a commander of the Hidalgo County Sheriff Office that he “had pissed off the power that be” with his United States congressional campaign against public corruption; that they were going to retaliate. See Texas Supreme Court case no. 20-0362. Just prior to this time, approximately seven county and district judges from Hidalgo County, Starr County, and Nueces County threatened Johnny Partain with incarceration for contempt, even before a first hearing, for complaining about many specific judges engaging in bank fraud, bribery, money laundering, conspiracy, and official oppression. Seven judges started collaterally attacking Johnny Partain’s final judgment from a Hidalgo County court which had survived a bankruptcy discharge against the judgment debtor. Johnny Partain had become a super-creditor in bankruptcy against the judgment debtor who was neighbors and close friends to the president of a large local bank whom interfered in their litigation (not necessarily as a party) to sway court judges and to protect bank’s interests in the judgment debtor. The president was also a member of the Texas State Commission on Judicial Conduct. Instead of the courts enforcing Johnny Partain’s hard won final judgment per statute, he was forced to face down a SWAT team (approved by the district court he had petitioned for protection, per police records) who tried to seize his property that he was using as a congressional campaign headquarters. The SWAT team backed off after the District Attorney affirmed that there was no legal way to enter the property. Johnny Partain’s property was eventually broken into, seized, and destroyed on court order days after the SWAT team left and while Johnny Partain was away from his office. The original order taking Johnny Partain’s real property was later determined to be illegal and void, not voidable, after the Texas Supreme Court communicated directly with the 13th Court of Appeals - who had lost Johnny Partain’s complaint regarding the illegal seizure the year before. See 13th Court of Appeals case no. 13-12-00267- CV. The 13th Court of Appeals opined that Johnny Partain had to be sued first before his property could be taken. But the lower courts refused to return his property and continued to threaten Johnny Partain with incarceration for complaining. Johnny Partain eventually recovered his property using self-help, and then another court order was issued to seize his real property again (Johnny Partain was campaigning for Congress again) despite the 13th Court of Appeal Opinion that Johnny Partain had to be sued first before taking his property. Strangely this order went all the way up to the Texas Supreme Court and was allowed to stand because Mr. Partain had not been sued and he wasn’t part of any litigation, even though he had petitioned for intervention: Page 5 of 7 Same complaint, different results and Johnny Partain was deprived his real property without any due process of the law under the constitution because he was artificially denied standing. See Texas Supreme Court case no. 15-0720. Johnny Partain amended his petition in District Judge Mario Ramirez’ Court, case no. C-0929-12-F, to include all the bad public actors. Judge Mario Ramirez immediately dismissed the case on his “authority as a judge” after he received the 13th Court of Appeals Opinion vindicating Johnny Partain. Again, Johnny Partain appealed to the 13th Court of Appeals who again lost his complaint for another two years until Johnny Partain reported eight judges to the Texas Supreme Court for engaging in tortious and criminal acts, including (but not exclusive to) ordering the title of his real property to be put into the name of a dead man, refusing to enforce court decrees, protecting crimes and civil right violations in the judiciary, using the State of Texas as a racketeering enterprise, and again for seizing and destroying his property. See Texas Supreme Court case no. 15-0343. Johnny Ray Partain requested a district judge be assigned who would then assign a special prosecutor since the Hidalgo County District Attorney was involved and on the wrong side of the law, but the Texas Supreme Court refused to get involved. Chief Justice Hecht did however assign a judge from the 14th Court of Appeals to review Johnny Partain’s complaint regarding his missing 13th Court of Appeals case (case no. 13-13-00341-CV) and the district court’s dismissal. The appellant judge agreed with Johnny Partain and re-opened case no. C-0929-12-F, with a mandate that District Judge Mario Ramirez would conform to his opinion, that the judge would take Johnny Partain to trial, and that the defendants would pay for Johnny Partain’s legal cost. None of this mandate ever happened and the 13th Court of Appeals and Texas Supreme Court refused to enforce it. At a hearing approximately 5 months later the Texas Attorney General argued that all the judges were protected with sovereign immunity even if Johnny Partain were correct that they lacked jurisdiction and didn’t have absolute immunity. Johnny Ray Partain sued the State of Texas for inverse condemnation after District Judge Ramirez stated that he may have to take Johnny Partain to trial but Mr. Partain wouldn’t have a defendant. Thereafter, Judge Ramirez closed his court and refused to respond to Johnny Partain or the defendants for over four years.3 Johnny Partain petitioned for enforcement of the higher court mandates and for writ of mandamus but the judiciary would never enforce their decrees. The district court finally opened after Johnny Partain sent Governor Greg Abbott a request for compensation for his seized property pursuant to Texas Constitution Article 1, Section 17, and after the Texas State Commission for Judicial Conduct reported they were investigating four judges. See the attached Request for Property Compensation to Gov. Greg Abbott. At the same time, Mr. Partain was threatened that the District Attorneys Office was looking for a way to prosecute him. To felonized him to prevent him from campaigning for public office. Almost exactly one month after being threatened Mr. Partain was prosecuted for a felony based solely on the fraudulent affidavit of a police detective. Johnny Partain eventually survived the prosecution and was acquitted because it was well established law that there could be no crime, but again only after the Texas Supreme Court had to remove a 13th Court of Appeals judge whom refused to follow the rules of appellant procedure and instead attempted to 3 District Court’s case no. C-0929-12-F Register of Actions was significantly altered and cleaned after Texas Supreme Court case no. 20-0362. Page 6 of 7 hang Mr. Partain on her authority as a judge (the same appellant judge that Johnny Partain had previously reported to the Hidalgo County District Attorneys Office on three separate occasions for official oppression). After acquittal, Johnny Partain requested another judge sitting over the original criminal proceedings to return over $23,000 that had been taken from him. Nelson v. Colorado, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017) (To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions dependent upon a conviction subsequently invalidated.). This judge also refused to conform to the law or the opinions of the highest court in the land arguing that Johnny Partain was a rich man and he didn’t need it. This judge was just voted onto the 13th Court of Appeals. Johnny Ray Partain is constitutionally entitled to be compensated his property losses under Texas Constitution Article 1, Section 17, because the Texas Supreme Court alleges that the State of Texas waived its immunity under that particular section in our bill of rights. But the 332nd District Court in case no. C-0929-12-F recently reported that Judge Mario Ramirez has again decided to ignore the Texas Supreme Court and the Texas Constitution to bless all public officials who are defendants in the case, whom engaged in the seizure and destruction of Johnny Partain’s property, whom engaged in ultra vires acts, with immunity above the law - nine years into the case. Multiple appeals to higher courts to constantly correct illegal acts based on “official discretion” for almost a decade is not recourse and is a mathematically losing proposition for most litigants. What kind of government do we want? Prayer Obviously, our constitutional rights under the Texas Constitution are not self-executing and Johnny Ray Partain is requesting relief and fairness through private bills to be compensated his losses and to expose blatant corruption in South Texas to the consequences of law as any ordinary citizen would be. See Requested Relief above. Johnny Ray Partain is also requesting this Legislature’s consideration for a constitutional amendment regulating sovereign immunity or establishing public immunity to prosecution from government overreach, to legally protect his neighbors from the same unfettered governmental assaults. Finally, Johnny Ray Partain requests an amendment to statute that official oppression should have a felony level offense, especially if two or more public officials conspire to violate the rights of citizens. Respectfully submitted, _________________________ Johnny Ray Partain 7020 N 16th Street McAllen, Texas 78504 ~~ 956-240-1821 Page 7 of 7 Johnny Partain 7020 N 16th Street McAllen, Texas 78504 partain@atlastechnologies.biz Governor Greg Abbott Office of the Governor P.O. Box 12428 Austin, Texas 78711-2428 August 3, 2020 20 Re: Johnny Partain – Request Forr Property Property Compensation Compe: Pursuant To Texas Constitution, Art. 1, Sec. 17 and US US Constitution, Constitution, .Ai6Amendment 5. Governor Greg Abbott; I am currently in the Texas Supreme Court, In Re Johnny Partain, case no. 20- 0362, regarding an inverse condemnation complaint against public officials and the State of Texas with additional complaints of public officials engaging in and protecting institutionalized incompetence and public corruption – the status quo. I’m certain that you, Governor Abbott, know of what I speak since you raised the issue of public corruption in South Texas by comparing it to “third-world country practices” in your campaign near the Fort Bliss Army base in February of 2014 as you campaigned for governor. Unfortunately, the corruption hasn’t changed since your inauguration and the Texas judiciary has, in a most obvious and spectacular way, placed itself in the embarrassing situation of engaging in and then protecting this well documented public corruption in South Texas with sovereign immunity. See Hidalgo District Court case no. C-0929-12-F. Case no. C-0929-12-F is a case I petitioned in 2012 to protect my property and my final judgment in Hidalgo County case no. CL-29,530-A from retaliatory seizure and destruction. The litigation didn’t work, the rule of law did not prevail, because too many large extrajudicial interests connected to the Hidalgo County courthouse with stake in sustaining local government corruption and protecting the county interfered with the judicial process placing the judiciary into its instant embarrassment. See In Re Johnny Partain, case no. 20-0362, Petition For Writs of Mandamus. You can relax. I am not mixing current judicial process with my request to you for reimbursement of my seized and destroyed property, as required under Texas Constitution, Art. 1, Sec. 17 and US Constitution, Amendment 5. Due process as MI 1 explained by the United State Supreme Court1 is not necessarily judicial: It only requires some kind of meaningful and timely process. You will find that while case no. C-0929-12-F was reinstated by a 14th Appeals Court judge assigned by Texas Supreme Court Justice Nathan L. Hecht in 2015 after it was illegally dismissed only “on the authority” of a district judge, that same district judge has since then refused to answer any of my motions or to take me to trial as mandated by the 14th Appeals Court justice. Many judges I’ve encountered over the past 22 years routinely demonstrate contempt for their own judiciary and the rule of law. I am denied justice under any common judicial practice and there is nothing you could add or subtract from the process. Even the Texas Supreme Court appears to abuse its own discretion2 by refusing to enforce the appeal court’s mandate or the constitution when it obviously has the authority to do so, apparently to protect the appearance of propriety in the system. The courts, not the issue, were closed to me exactly four years ago without any adjudication except to bless nearly all parties with immunity for invading, seizing, and destroying my property. Regardless of what little scant processes are available that can be used to enforce a person’s civil rights under the constitution, the required lawful reimbursement for my property losses by the state always leads to your office to negotiate an order for repayment from the Secretary of State. I think that after 22 years of litigating the same issues over and over without resolution or enforcement in the judiciary only to be finally excluded from all court processes, that its reasonable for any man or the public to conclude the Texas Judiciary is an impotency relying on its court concocted immunity to escape public accountability while at the same time collecting paychecks and consuming public resources. The judiciary is failed and is probably irrelevant anyways to those who know its workings. Bringing me to a bigger point. The courts go further to bless nearly all other public offices with immunity from accountability - and the status quo embraces it. I’m not certain how the Executive or Legislative branches will respond to my efforts in this upcoming 87th Legislature to pierce this immunity to accountability, but it appears the political environment is ripe to raise the issue. There is a poignant point to be made by recent protests and 1 Mathews v. Eldridge, 424 U.S. 319 (1976) - This Court consistently has held that some form of hearing is required before an individual is finally deprived of a property interest. Wolff v. McDonnell, 418 U. S. 539, 418 U. S. 557-558 (1974). See, e.g., Phillips v. Commissioner, 283 U. S. 589, 283 U. S. 596-597 (1931). See also Dent v. West Virginia, 129 U. S. 114, 129 U. S. 124-125 (1889). The "right to be heard before being condemned to suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a criminal conviction, is a principle basic to our society." Joint Anti- Fascist Comm. v. McGrath, 341 U. S. 123, 341 U. S. 168 (1951) (Frankfurter, J., concurring). The fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545, 380 U. S. 552 (1965). See Grannis v. Ordean, 234 U. S. 385, 234 U. S. 394 (1914). Nelson v. Colorado, 137 S. Ct. 1249, 197 L. Ed. 2d 611 (2017) To comport with due process, a State may not impose anything more than minimal procedures on the refund of exactions. 2 A judge abuses his discretion if he acts in an arbitrary or unreasonable manner or if he acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). MI 2 riots that injustice is rooted in institutionalized bias and corruption, that there is a serious problem with our government, and that there is no rule of law. Public corruption, immunities, and injustice are the root of anger3, inciting Black Lives Matter, Antifa, and even the Democratic Party to protest and to riot. Its not even a new issue being that the piercing of government immunity was an issue that was voted through the Sixty-first Legislature in 1969 under House Bill 117 (vetoed by the governor). That was over 50 years ago when protests and race riots were just about as they are now. 50 years ago and so little progress has been made regarding the accountability of our government to corruption and injustice. Article 1 of the Texas Constitution is our bill of rights which describes a compact defining the relationship of our Texas republic and our citizens. It includes the rights to be secured in our persons, houses, papers and possessions and to enjoy life, liberty, property, privileges, and certain immunities. Our Bill of Rights is declared in the constitution to be inviolate and excepted to modification to “guard against transgressions of the high powers herein delegated … [wherein] all laws contrary thereto … shall be void.” But the fact is that our bill of rights is already violated, that my rights have been serially violated, and that our civil rights are mostly unactionable, unenforceable, and not self-executing, pursuant to public corruption protected by the courts implementation of its own “common law” which modify the effect of our constitutional compact - to protect the State of Texas from its own citizens. These immunities displace the “rule of law” and cultivate injustices by undermining official accountability and by protecting public corruption and malfeasance under the veil of state propriety. You see, I am in the middle of a political crisis because I cannot prosecute or punish state corruption. I cannot force the Judiciary to perform or to dispense justice, especially when it will discredit itself. I can only request reimbursement for my significant losses as required by the Texas Constitution which will always end up in your office under current Texas law for consideration of payment. Your consideration is certainly political - even if the judiciary had timely performed its job, had my due process been respected. My property losses include, my hard won civil judgment ($2,720,126) in Hidalgo County Court No. 1 case no. CL-29,530-A which was finally destroyed through dismissal for want of prosecution (16 years after the judgment became final and 3 executions had been attempted); my real property ($116,000) which was invaded and first seized after an assault by a SWAT team as directed by the Hidalgo County District Attorney to interfere with my US Congressional campaign against public corruption; about eight years of rents ($96,000) after the seizure of my house; my transportation business and assets ($19 million) which were never return per court order (the court’s refused to enforce their decrees and instead threatened me with contempt and incarceration for insisting that the courts enforce their decrees); my established and prospective business interests in one of my electrical service companies ($55 million) which was partially destroyed after a failed attempt to “felonize” me following a threat by a Justice of the Peace that the 3 Racial injustice is a subset of the bigger problem. MI 3 District Attorney looking for a way to prosecute me (my company[ies] requires security clearance); and treble damages for the aforementioned losses that I am denied because the courts are closed to me.4 I can currently prove to a jury or the public that my property losses are approximately $236,796,378 and rising, and I’ve won a plethora of court opinions and orders supporting my claims - a stinging and constitutional rebuke against established south Texas corruption that you have already identified, and that has now landed in your office. Its an opportunity for you to address corruption in South Texas and right some wrongs. Should the corruption continue to be protected at the highest office in Texas? Should I be denied my constitutional rights to my property or its value? What will you do? I am requesting a timely scheduled meeting with you to negotiate reasonable compensation for my property losses so that I might finally resume my life, liberty, property, privileges, and immunities with my family as promised under our Texas Constitution. I would also like to bend your ear regarding accountability in our Texas government by considering new legislation in the 87th Legislature to modify common law government immunities imposed by the courts which are intrinsically unjust. Thank you in advance for your time and efforts. Respectfully, Johnny Partain 956-240-1821 partain@atlastechnologies.biz 4 "All courts shall be open, and every person for injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law." Tex. Const. art. I, §13 4 State Commis sion on Judicial Conduc Commission Conductt Ofliters Officers Executive Director David C. David C. Hall, Hall,Chair Chair Jacqueline R. Habersham Habersham Ronald E. Ronald Ronald E. Bunch, Bunch, Vice-Chair Vice-Chair Members Patronella David M. Patronella Darrick L. MCGill Darrick L. McGill Sujeeth B. Sujeeth 8. Iiraksharam Draksharam Ruben G. Reyes November 20, November 20, 2020 2020 Iiii= Valerie Ertz Frederick C. Frederick "Fred" -Free Tate C. ``Fred" Janis Holt M. Patrick Maguire David Schenck CONFIDENTIAL CONFIDENTIAL Johnny Partain Johmy Partain 7020 N. 16th Street N.16th McAllen, Texas 78504 MCAllen,Texas 78504 Re: CJC CJC No. No. 20-1178 Partain: Dear Mr. Partain: We appreciate appreciate the concerns concerns raised raised in letter. However, in your letter. However, thethe matters matters raised raised inin your your complaint pertain complaintpert to decisions or aintodecisions rulings made bythejudgewh orrulingsmade by the judge while exercising his/her discretion. ileexercisinghistherdiscretion.As As a general general rule, rule,aajudge's judge's discretionary decisions— -even discretionarydecisions even ififthey theyare arewrong wrong—-areare not not examples examplesof of judicial misconduct. This Agency has no authority to intervene in a court case, ask a judge judicial misconduct. This Agency has no authority to intervene in a court case, ask a judge to step to step down down from from aa case, case,ororchange changeaajudge's judge's rulings. Therefore, Therefore,based basedononlaws lawsthat thatgovern governthis thisAgency's Agency's authority and define what and define what actions actions can can be be considered misconduct, this judicial misconduct, considered judicial this case has been case has been dismissed. You may, may, onon a one-time one-time basis, request that basis, request that the the Agency Agencyreconsider reconsiderits itsdecision decisiontotodismiss dismiss your complaint. In your complaint. order to do so, please fill out the Request for Reconsideration form included In order to do so, please fill out the Request for Reconsideration form included with this letter as instructed. Please note that the Reconsideratio Reconsideration request must n request must be be postmarked postmarked no no later than thirty days from the date ofof this letter. While we were not able to assist you with your concerns, concerns, we appreciate appreciate your your interest interest in in assisting us us in maintaining maintaining the thehigh high ethical standards of ethical standards of the the Texas Texasjudiciary. Thank you judiciary. Thank you for for bringing these issues to our attention. COMMISSION ON STATE COMMISSION JUDICIAL CONDUCT 0N JUDICIAL CONDUCT Box 12265 PO Box 12265 (512) (512) 463-5533 (512)463-5533 463-5533 Austin TX TX 78711-2265 78711-2265 www.scjc.state.tx.gov www.sejc.state.tx.gov Toll-Free (877) (877) 228-5750 228-5750