Motion To Remove Attorney General Defendant by danzmark

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26 October 2009

To: Judge Herb Evans , Justice Of The Peace, Precinct 5 P.O. Box 1748 , Austin, Texas 78767 Fr: Daniel W. Harbaugh , 8218 Braniff St., Houston TX 77061 Re: Cause No. 070423 Harbaugh v. TCEQ

MOTION TO REMOVE TEXAS ATTORNEY GENERAL AS DEFENDANT

[1] PER PLAINTIFF'S ORIGINAL SMALL CLAIMS PETITION , CASE NO.. SC21C0027605 , HARRIS CO. PRECINCT 2 PLACE 1:

“(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.” The Citation required “must be made on the attorney general”, per 107.002(a)(3), commences with: “TO THE DEFENDANT: You have been sued.” . 107.002(a)(3) does NOT say the Attorney General must be served a COPY of the Citation, therefore an Ordinary Reasonable Prudent Person (ORPP) non-lawyer is entitled to presume the Attorney General must be named as a Defendant. Plaintiff, an ORPP non-lawyer, entitled by Texas Small Claims Court published procedures to represent himself pro se, presumed exactly that. The Attorney General had every opportunity, and legal obligation under Texas Human Resources Code 102.003 and ADA II, to advise Plaintiff that 107.002(a)(3) does not make the Attorney General a Defendant, but rather just Attorney for the Defense.
[2] PER DEFENDANT'S MOTION TO TRANSFER VENUE, PLEA TO THE JURISDICTION, SPECIAL EXCEPTIONS, AND ORIGINAL ANSWER:

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The Attorney General goes to great length, and subsequent waste of the public’s money, to argue on legal issues irrelevant to his position as a non-Defendant simply acting, per Texas law, as Defense Attorney for the actual and properly named Defendant, Mark R. Vickery, as TCEQ Executive Director. To wit: “18. Plaintiff's Original Petition does not specify any claims brought against the Attorney General of Texas. If, however, the Court finds any claims made against the Attorney General of Texas, Plaintiff's claims should be dismissed because Plaintiff has .. failed to state a jurisdictional basis for bringing a suit against the Attorney General of Texas. A suit against a State official in his official capacity is a suit against the State, and sovereign immunity applies. See ld. Plaintiff has failed to allege or indicate that there has

been legislative consent for him to bring this lawsuit against the Attorney General of Texas.
SPECIAL EXCEPTIONS 19. Defendant, the Attorney General of Texas, specially excepts to Plaintiff's Original Petition in that it fails to specify a cause of action or other relief sought against the Attorney General of Texas. Defendant, the Attorney General of Texas, requests that the Court require Plaintiff to replead within 30 days and specify each cause of action and request for relief asserted against the Attorney General of Texas.” [3] PLAINTIFF HAS SPECIAL RIGHTS: Plaintiff is sufficiently identified in Plaintiff's Original SCC Petition as age 82, 'Service Connected' Disabled WWII Veteran. "Texas law provides special rights for citizens age 60 and over. These rights are in addition to those enjoyed by all Texans...”

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§ 102.003 Texas Human Resources Code says: (a) An elderly individual has all the rights, benefits, responsibilities, and privileges granted by the constitution and laws of this state and the United States, except where lawfully restricted. The elderly individual has the right to be free of interference, coercion, discrimination, and reprisal in exercising these civil rights. (b) An elderly individual has the right to be treated with dignity and respect for the personal integrity of the individual status, (2) has the right to be free from abuse, neglect, and exploitation; .. In addition to the Special Rights under 102.003, Plaintiff is afforded further rights under American Disabilities Act (ADA) II.. A competent Plaintiff’s Attorney would have no problem citing particulars in 102.003 and ADA II in pursuing an action under same. [4] PLAINTIFF HEREBY REQUESTS ATTORNEY GENERAL GREG ABBOTT BE REMOVED AS DEFENDANT; and: This Lawsuit be permitted continuance to Trial under the State Of Texas published rules, regulations and stated mission of Texas Small Claims Court, such as cited by Attorney General Greg Abbott in his article published on his website and in major Texas newspapers. Sincerely, Daniel W. Harbaugh Copy To: Texas Attorney General , c/o Mark Steinbach, Assistant Attorney General, P.O. Box 12548, Capitol Station, Austin, TX 78711-2548


								
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