" SMALL CLAIMS PETITION Case No. Plaintiff vs. SC2l C0027605 § In the Small Claims Court of § Harris County~ Texas § § § Precinct 2 J Place 1 THE STATE OF TEXAS COUNTY OF HARRIS: Plaintiff - DANIEL W. HARBAUGH 8218 Braniff Street Houston~ TX 77061 - being duly sworn, on oath,, deposes and says that: ~----------------------------------------------------------------------------------------- -~- ~ DEFENDANT: Texas Commission On Environmental Quality, Mark R. Vickery/Executive Director. At: TCEQ, Mark R. Vickery/Executive Director, 12100 Park 35 Circle, Austin, Texas 76753, ph. (512) 239-3900 Mail: TCEQ,MarkR.Vickery/ExecutiveDirector, MC109, PO Box13087, Austin, Texas 78711-3087 AND: Texas Attorney General/Greg Abbott, 300 W. 15th Street, Austin, Texas 78701 Mail: Greg Abbott, Office Of The Attorney General, PO Box 12548, Austin, Texas 78711-2548 Is justly indebted to Plaintiff in the amount ofS600.00 for REIMBURSEMENT for vehicle emission repair costs due to failure of H-GAC to comply with LIRAP provisions Chapter 382.209 TX Health & Safety Code/AirCheckTexas, and issue REPAIR VOUCHER on properly qualified and documented Application submitted April 2009. See ATTACHMENTS - and there are no counterclaims existing in favor of the Defendant and against the Plaintiff: except: (describe ~ claim the Defendant is making against the plaintiff/) SUBSCRIBED and SWORN TO BEFORE ME on Clerk of the Court . Justice of the Peace. Precinct ~ Place _ .. Page 1 ATTACHMENTS HARBAUGH VS TCEQ PART A: PREFACE: (1) PLAINTIFF, per Texas Civil Practice & Remedies Code, Chapter 107.001, is granted "permission to sue the state or any of the agencies of government that collectively constitute the government of this state". Per 107.002 (a)(3) " service of citation and other required process must be made on the attorney general and on a person named in the resolution as a representative of the affected state agency. " ; this has been complied with in naming Mark R. Vickery, Executive Director TCEQ, and Greg Abbott, Texas Attorney General, from current June 2009 data listed on their respective web-sites. (2) DEFENDANT Texas Commission On Environmental Quality, in published statement, states: "Agency Philosophy: To accomplish our mission, we will: * base decisions on the law, common sense, good science, and fiscal responsibility; * apply regulations clearly and consistently; * ensure meaningful public participation in the decision-making process; " TCEQ is tasked by their Charter from the State Of Texas with responsibility for the AirCheckTexas Program, and therefore the "Agency Philosophy" is legally mandated followed by the AirCheckTexas Program. (3) PLAINTIFF will show and prove AirCheckTexas/Houston-Galveston Area Council (HGAC) in Non-Compliance with TCEQ "Agency Philosophy" stated in (2) above; the most glaring dereliction-of-duty being H-GAC's failure/inability to communicate to properly submitted phone/Fax/emailIUS Mail inquiries. (4) PLAINTIFF, 82 , a. WWII Veteran in "Service-Connected" Category in the V A Healthcare ~ System, retired on a fixed-income meeting all the qualifications for the AirCheckTexas Repair and Replacement Program; properly applied for and was denied a Repair Voucher due to the , incompetence of H-GAC; was, as an Ordinary-Reasonable-Prudent-Person in the eyes of the law, forced to self-pay for emissions problem repairs on 1997 Mercury Villager to avoid illegal driving with an expired inspection sticker, said vehicle being essential for local and transportation to the V A Medical Center for frequent treatment including radiation therapy for cancer. This Small Claims Court lawsuit is for reimbursement of the $600.00 in "repair assistance" as provided by law in the mission of AirCheckTexas, plus Court Fees, plus attorney fees if not settled prior to trial. J . r page 2 ATTACHMENTS - HARBAUGH v. TCEQ PART (B): PLAINTIFF STATES: (1) PLAINTIFF submitted HGAC a properly prepared application properly proving low income eligibility for self and household per IRS Forms 1040 for 2008, as filed with IRS March 2009. (2) PLAINTIFF SPECIFICALLY applied for a REPAIR VOUCHER, HGAC sent "REPLACEMENT ONLY" Voucher No. 41170. (Exhibit 1 ) (3) DEFENDANT states: "If you are not eligible, we'll send you a letter describing why you were unable to receive a voucher" ; no such letter on ineligibility to receive the specifically requested REPAIR VOUCHER was ever sent, therefore: 4) DEFENDANT is in non-compliance with their own published procedures. (5) PLAINTIFF, on receipt of Voucher No. 41170, "sent an email (Exhibit3) 23 Apr2009,to the email address stated in Exhibit 2 below, requesting the Voucher be changed to the initially specified REPAIR VOUCHER. NO reply was ever received.. EXHIBIT 2: Per Webpage :"AirCheck Texas - Drive A Clean Machine - HGAC " ... "Human Services" "Repair & Replacement Assistance ~ To help clean up the air, we provide financial assistance for eligible residents of Brazoria, Fort Bend, Galveston, Harris and Montgomery counties to replace or repair their vehicles. Get A Voucher If you live in Brazoria, Fort Bend, Galveston, Harris or Montgomery County and your car has failed the state's emissions test or is at least 10 model years old, you may be eligible for assistance. If you are eligible, we'll send your voucher to your mailing address with instructions on how to use it and with a list of participating repair facilities and dealers. If you are not eligible, we'll send you a letter describing why you are unable to receive a voucher. " Direct questions about applications to us at email@example.com . " Page 3 ATTACHMENTS- HARBAUGH v. TCEQ PART C: PLAINTIFF STATES: (1) PLAINTIFF submitted H-GAC a letter of 07 May 2009, (Exhibit 4) - "Subject: Request For Payment For Emission Repairs" (Exhibit 4). This letter is self-explanatory. This letter was sent US Postal Service CERTIFIED MAIL. It was delivered to and signed for on "05/11/2009 at 07:19" hrs by an HGAC representative, (Exhibit 5) NO reply was ever sent or received to this letter, either by mail or phone to the two numbers furnished in the letter. (2) DEFENDANT, in response to Plaintiffs phone conversation with H-GAC, "Juanita", at 713 993-4531, the first of many calls to H-GAC ever answered by any person apparently interested in being helpful, had H-GAC representative "L.R" phone Plaintiff requesting all the pertinent data on the case be faxed to her. This Fax (Exhibit 6) was accomplished 27 May 2009 "To: H-GAC, Attention: L.R. Fax 832 6812531". NO response was ever received from this Fax. (3) DEFENDANT, per Attachments Parts (A)(B)(C) above, is in NON-COMPLIANCE with TCEQ published procedures and Mission Statement/ “Agency Philosophy"; most specifically the lack of "common sense" and the lack of implied common courtesy, as shown by H-GAC's failure/inability to communicate with the public they are presumably mandated to serve. PART D: PLAINTIFF STATES: CONCLUSION: (1) PLAINTIFF submitted H-GAC a proper Application SPECIFYING a vehicle REPAIR VOUCHER, in timely fashion for renewing the required annual Texas Safety & Emissions ~ Inspection on 1997 Mercury Villager. H-GAC sent a" REPLACEMENT ONLY" VOUCHER, said Voucher being totally useless to Plaintiff. H-GAC has irresponsibly failed to communicate on or correct this ERROR. Therefore: Plaintiff prays this COURT will grant Plaintiff a Judgment for the stated Monetary Relief of $600.00, plus Court costs. EXHIBITS: (1) H-GAC Voucher Number 41170, issued 16 April 09 for "Replacement Only" (2) AirCheckTexas Webpage (3) Email23 April 09 to H-GAC requesting Voucher 41170 amended to "Repair" (4) Letter of 07 May 09 to H-GAC, sent CertifIed Mail (5) Proof Of Delivery, Letter of 07 May 09 to H-GAC. (6) Fax of27 May 09 to H-GAC " . (7) Martrix Auto Repair Invoice 04 May 09 for Emission Repairs.