Motion To Deny Telephone Hearing

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21 July 2009 To: Hon. Judge Jo Ann Delgado, Harris County Prec. 2, Place 1 From: Daniel W. Harbaugh, Plaintiff Re: SC21C002760S, Harbaugh v. TCEQ, et al. Subj: MOTION TO DENY DEFENDANT'S REQUEST TO APPEAR BY TELEPHONE (A) Defendant has filed a REQUEST TO APPEAR BY TELEPHONE at the HEARING by this Court on Defendant's MOTION TO TRANSFER VENUE, scheduled for 01 Sept 2009. "A 'Legal Motion' is a procedural device in law to bring a limited, contested issue before a Court for decision. A MOTION may be thought of as a REQUEST to the Judge to make a decision on the issue." For the purposes of Texas Small Claims Court, an institution established with the Legislative Intent to provide ordinary citizens "an informal, uncomplicated proceedings to resolve small disputes ... " , the terms MOTION and REQUEST may be considered synonymous, and Plaintiff hereby elects to do so.

(B) Defendant's MOTION TO TRANSFER VENUE requires a HEARING prior to the Judge's decision, with opportunity for Plaintiff to show cause why the Motion should be denied . Likewise, Defendant's REQUEST TO APPEAR BY TELEPHONE requires a HEARING, with opportunity for Plaintiff to show cause why the Request should be denied; and, Plaintiff hereby •• requests this HEARING be scheduled by the Court. © Plaintiff will have no objections to Defendant appearing by telephone at this Hearing on Defendant's REQUEST TO APPEAR BY TELEPHONE, obviously to Defendant's disadvantage, since Plaintiff will attend in person. If the Court sees fit to deny Defendant's REQUEST TO APPEAR BY TELEPHONE without this Hearing, the subject is moot and Plaintiff cancels his request. (D) Defendant's MOTION TO TRANSFER VENUE is entirely Defendant's idea, knowing the result would be a Hearing by the Court to plead their case and permit Plaintiff to plead his case. If the Defendant is permitted to appear by telephone, then it is just as logical to permit Plaintiff to appear by telephone, and the result would be tele-farce completely at odds with the stated mission of Texas Small Claims Courts. Plaintiff has already submitted Court a MOTION TO DENY TRANSFER OF VENUE containing sufficient reasonable and legal basis to deny Transfer. r




(E) Defendant states: "Tex.Gov't Code 28.011 " ... venue for this case is clearly in Travis County." ; failing to note: "28.011 (1) at action on an obligation that the defendant has contracted to perform in a certain county may be brought in that county".


TCEQ/TexasAirCheckIHouston-Galveston Area Council has an obligation and performs in Harris County, not Travis County. Regardless, "Venue" is what this Hearing is all about, and if Defendant wants to change it, he should be represented at the Hearing in person, not at the end of a telephone wire.

(F) While the State may have "limited resources ... and seek to conserve", the Court might note the Plaintiffs resources are far less and, indeed, the basis for and stated upon the application for the "Low Income" ... 'Repair Voucher' requested from AirCheckTexas/H-GAC. (G) Plaintiff is 82 ,a WWII Veteran, discharged with "30% Disability "rating in 1946, has had over 50 appointments for treatment at the V A Medical Center so far in 2009. It would cause substantial hardship for Plaintiff to be required to appear in a Travis County Court. (H) If the Venue is transferred to Travis County, Plaintiff will immediately file an action to prevent this under the 'Americans with Disabilities Act (ADA), Amendments Act of2008 , on general provisions therein plus the "Reasonable Accommodations For Attorneys With Disabilities" section. Plaintiff is permitted to act as his own Attorney in Small Claims Court, therefore is an "Attorney" in the eyes of Small Claims Court law. One may note the ADA has a major presence in Houston, well-staffed with user-friendly aggressive legal personnel, and, in their own recent words to Plaintiff, "ADA trumps over all other legalities." (F) Plaintiffs previously submitted MOTION TO DENY TRANSFER OF VENUE, "(A) Intent Of Small Claims Court:" offers an opportunity for this Court to confirm these Small Claims ~ Court principles and set a needed Precedent under Common Law .



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