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Re: Cause No. 070423 Harbaugh v. TCEQ EXHIBIT: MOVE TO DENY DEFENDANT’S RESPONSE ON CONTINUANCE This Exhibit will cite Defendant’s words, with Plaintiff’s comments as relevant to, inbold/in brackets. (a) “Plaintiff has filed a Motion for Continuance. The motion is dated October 21,2009. However, it was never served on Defendants, and Defendants did not discover that such a motion was pending until the court clerk provided this information on October 26,2009. [Defendant was served copy by USPS Certified Mail mailed at Houston USPS Windmill Station late afternoon Oct. 21.2009. Plaintiff has "Certified Mail Receipt" for both Court and Defendant in evidence. A two day transit time Oct. 22 and 23 is reasonable; October 24 and 25 were a weekend; October 26 was a Monday. Ineptness of Defendant office mail handling is not the responsibility of Plaintiff. By whatever means, Defendant was "provided this information" in ample time to respond to same.] (b) "II. Arguments and Authorities. Plaintiff seeks a continuance on the Defendants Plea to the Jurisdiction and Special Exceptions, not on the merits of this case. [The "merits of this case" are a matter of opinion by the Attorney General. The facts of this case, not the merits, are the only relevancies for the Court to consider.] (c) “Accordingly, the Court should deny this continuance for three reasons. First, the continuance is not necessary to develop facts or resolve any issues related to the Defendants' Plea to the Jurisdiction or Special Exceptions, but is sought only for delay. “ [Whether "First, the continuance is not necessary" is a matter of opinion by the Attorney General. Issues related to 'Jurisdiction or Special Exceptions' include consideration of Federal Funding to TCEQ/HGAC and waiver of 11th Amendment immunity in acceptance. State Agency immunity is a complicated subject. The Attorney General has all the lawyers /time/ money to expend on legalese at his disposal; Plaintiff has none-of-the-above, therefore is at least entitled sufficient time to prepare his case.] (d)“Second, contrary to Plaintiff's assertion, he was served with Defendants' Plea to the Jurisdiction and Special Exceptions with Defendants' Original Answer. “
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[Nowhere in Plaintiff's Motion For Continuance is there any mention of this "Plaintiff's assertion". The Attorney General should confine to relevancies] (e)“Third, if the continuance is based on difficulties or financial hardship arranging for travel to Austin, the Defendants will not object to Plaintiff appearing by telephone.” [Defendant will arrive at this Hearing complete with lawyers loaded with volumes of case law, legalese and ready access to additional. .Plaintiff has no such advantage by telephone, nor physical ability to read lengthy documents over the telephone. Plaintiff declines appearing by telephone.] (f) “Plaintiff has listed several reasons why he believes he is entitled to a continuance, but none of these show" good cause" because none of them show what facts need to be discovered or issues resolved before the Court may fairly decide these issues. Plaintiff cannot make such a showing because there are no facts or issues to resolve before the hearing. Both Defendants' Special Exceptions and Plea to the Jurisdiction are based on undisputed facts contained in the pleadings alone.” [Whether there are no "good cause", "facts or issues" is the Attorney General's opinion, not factual. ] (g) “The Defendants have asserted sovereign immunity as a bar to Plaintiff's claim. This plea to the jurisdiction is based solely on the sufficiency of Plaintiff's pleadings to demonstrate a waiver of sovereign immunity.” [The Plaintiff's "pleadings to demonstrate a waiver of sovereign immunity" require either permission of the Legislature, which the Attorney General may note is not in session and won't reconvene until 2011; or consideration of Federal Funding laws and TX case law overcoming sovereign immunity.] (h) “Plaintiff appears to raise the need for legal assistance in another lawsuit as a basis for his continuance. However, he has not shown any scheduling conflicts or other legitimate reasons why he cannot appear at the hearing on November 12. The fact that Plaintiff may be involved in another suit is not in itself good cause for a continuance.”
[The "other lawsuit" is 'Public Citizen v. TCEQ', and Plaintiff has no involvement in same. However, undoubtedly the Attorney General will play "sovereign immunity" as his ace-card, therefore Plaintiff is entitled time to research this case as applicable to his case. ]
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(i) “His other reasons appear to be objections based on the Attorney General as a party to this suit. Such objections have no bearing on his Motion for Continuance.” [Such objections, likewise, have no bearing on Defendant's Response to Continuance] FINAL COMMENT: This case is in Texas Small Claims Court, not the U.S. Supreme Court. The stated mission and procedures of Small Claims Court are based on providing an informal, uncomplicated and inexpensive lower court to afford ordinary non-lawyer litigants a chance at justice involving modest sums of money. This Plaintiff seeks a modest and justly due remedy of $600.00. The Attorney General has expended $mega-thousands, by any lawyer scale-of-fees, in obscuring any notion of justice in this case, by legalese prose and maneuvering. Texas Attorney General Greg Abbott wrote an article extolling Small Claims Court, published on his website and in major Texas newspapers. I recommend he and all Assistant Attorney Generals actually read it .