02novAG 280ct letter response

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02 November 2009 To: Mr. Mark Steinbach , Texas Assistant Attorney General P.O. Box 12548 , Capitol Station, Austin, Texas 78711-2548 Fr: Daniel W. Harbaugh, 8218 Braniff St., Houston, TX 77061 Subject: Reply to your 28 October 09 Letter Dear. Mr. Steinbach Thank you for your letter of 28 October 09 outlining your views on and procedures required on my 'First Request for Discovery Deposition ' and my 'Motion for Continuance'. I will respond to your Response to Deny Continuance via formal Move addressed to the Court, with Copy to you as Attorney for the Defense. My response to this letter is informal and directed to you individually, you may copy to anyone desired. [1] The proximate cause of Harbaugh v. TCEQ is the plain, simple and provable fact that HGAC did not send the “If you are not eligible, we will send you‟re a letter describing why you are unable to receive a voucher,” and thereafter did not respond to any of my fifteen (15) inquiries; twelve of which were made prior to the necessity to have emissions repairs accomplished at my expense at my repair facility, in order not to violate the law requiring a current inspection sticker on my vehicle. Twelve of these fifteen inquiries were telephone calls to HGAC made on my cell phone, which I can obtain a record of on request. The remaining three HGAC inquires were email, Certified Mail and Fax, all of which are self evident. The notion that all fifteen inquires were individual isolated events in HGAC not responding is a stretch of the imagination. The probable scenario is each HGAC representative, such as "I'll check and call you back", actually did check, and was told by some HGAC individual not to respond. As I have no means to identify that individual, my only option is to request the particulars from the so stated and published AirCheckTexas Project Coordinator, Mr. Ronnie Barnes, notwithstanding the fact that one of the twelve telephone calls was directly with him. [2] My 'First Request For Discovery Deposition' , stated as “Pursuant to the stated mission of and informal procedures afforded in Texas Small Claims Court actions..” was sent to you, with Copy to the Court and Copy to Ronnie Barnes. The word "First", in the real world, implies an option for a 'Second', or further, Request. Neither the Court nor Ronnie Barnes was listed in the "To:" address of this First Request, therefore either can ignore same if so desired. However, answers to the three "How and Why" questions in this First Request are prima facie evidence essential to a correct judgment by the Judge, and the Judge has Duty to consider same. Sec. 28.033. . .(e) Reasonable discovery in small claims court shall be permitted. Discovery is limited to that considered appropriate and permitted by the judge.

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Sec. 28.034. DUTY OF JUDGE TO DEVELOP CASE: The judge shall develop the facts of the case, and for that purpose may question a witness or party and may summon any party to appear as a witness as the judge considers necessary to a correct judgment and speedy disposition of the case [3] Per (B) of my First Request: "This First Request For Discovery Deposition may be complied with by 'eDiscovery/email, or by USPS Certified Mail.". Time and place are not relevant, nor are the services of a court reporter required.  Discovery: Discovery is a broad term used to describe many different ways of obtaining information and evidence prior to trial, to be used at trial. While discovery is common in Justice Court cases, the permission of the Judge must be sought for limited discovery in Small Claims cases. No Written Record: The Justice of the Peace forums are not “courts of record”. There is no court reporter recording witness testimony. Recording devices are not permitted without the Judge‟s prior consent.

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[4] Electronic Discovery in Texas 2009: I made a specific request for simple electronic discovery, “eDiscovery” in current legalese, and specified the simple form of production: email. Per below, Mr. Ronnie Barnes should make reasonable effort to provide the Discovery sought without court intervention. “Although the Texas Rules of Civil Procedure have addressed electronic discovery since 1999, only minimal Texas case law interpreting the topic exists. Finally, on August 28, 2009, the Supreme Court of Texas issued its first substantive opinion on the subject. In re Weekley Homes, L.P., 2009 WL 2666774 (Tex. Aug. 28, 2009). Fourth, the Court outlined the proper procedure for electronic discovery under the Texas Rules:   The party seeking to discover electronic information must make a specific request for that information and specify the form of production. The responding party must then produce any electronic information that is "responsive to the request and ... reasonably available to the responding party in its ordinary course of business." If "the responding party cannot — through reasonable efforts — retrieve the data or information requested or produce it in the form requested," the responding party must object on those grounds. The parties should make reasonable efforts to resolve the dispute without court intervention. If the parties are unable to resolve the dispute, either party may request a hearing on the objection, at which the responding party must demonstrate that the requested information is not reasonably available because of undue burden or cost.

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Your opposition to Discovery seems illogical, because the discovery sought is irrelevant to your obvious primary objective of dismissing this case on Sovereign Immunity grounds. Your opposition “..because of the small sum at issue" is rather astounding, but I will refrain from further comment. While I appreciate your efforts detailed in your 01 October 09 letter, no such "complete explanation" of why I was denied a repair voucher is evident, only a sequence of events with no mention of HGAC misfeasance in occasioning same. If you can logically deny the fact that I would have received a Repair Voucher but for the deliberate inattention of HGAC to HGAC published procedures, please do so. As to Mr. Ronnie Barnes not being "a party to this case", the link between TCEQ and HGAC commences with the AirCheckTexas Repair & Replacement Program brochure "What to do if my vehicle fails the emissions test" , "Form TCEQ-20018" , handed out at every inspection station, and proceeds on the TCEQ website, AirCheckTexas website , and HGAC website. Any ORPP is entitled by same to assume HGAC is a subordinate to TCEQ. Your distancing TCEQ from HGAC is just fine with me, I will cite same in pursuing further legal action against HGAC, and now, logically, the Texas Attorney General is ineligible as HGAC Defense Attorney. [6] Considering the standard legal practice for Defense Attorneys is to Move For Dismissal at the first opportunity, I have to wonder why you didn‟t at the first Harris County court hearing on Venue. This Judge paid no attention to my written and oral testimony, other then to say “Get a lawyer.” , and, asking the Defense only “Is everything here?” , referring to his written material, which she didn‟t read either, granted the Change of Venue. Furnished a similar stack of written material by the Defense on Sovereign Immunity grounds, which she wouldn‟t read either, this would similarly have granted the Dismissal; a vast saving of the state‟s (taxpayer‟s) money now expended by the Attorney General to counter a “small sum at issue”, $600.00. Small Claims Court action; and, certainly, not in the interest of Justice. [7] Noting the typical „Capitol social scene‟, the 0.6 miles distance between the Judge and the Attorney General, there could be the appearance of out-of-court „good old boy‟ discussion of this case, such being against legal ethics. Per George W. Warvelle, Essays On Legal Ethics; ( IISBN 10: 0837713056 LCCN: 81110109 Dewey: 174/.3/0973 LC: KF306 .W3 1980): “It is gross impropriety for counsel to discuss his pending cases with the judge or to privately argue their merits, or to address to him private communications respecting his causes in court.” Such, if indicated, will be explored. This issue arises from your Response to my Continuance Motion wherein you state you did not discover the motion until provided same by the Court on 26 Oct. 09 , the same Monday the Court received it. Since the Motion states you were provided a Certified Mail copy, the Court‟s action is unusual on that date. [8] My request for Discovery will stand as submitted. Sincerely, Daniel Warvelle Harbaugh

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