Plaintiff Reply To Jurisdiction by danzmark

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14 April 2010

Cause No. SC51C0105108

DANIEL W. HARBAUGH v. HOUSTION-GALVESTON AREA COUNCIL (H-GAC)

IN SMALL CLAIMS COURT, HARRIS COUNTY, TEXAS, PRECINCT 5, PLACE 1

SUBjECT (A): PLAINTIFF'S REPLY TO DEFENDANT'S PLEA TO THE JURISTRICTION

(1) LEGISLATIVE IMMUNITY: Defendant H-GAC has motioned the Court that Plaintiff's claims
against H-GAC be dismissed "for want of subject-matter jurisdiction of the ground of governmental
immunity from suit." Defendant cites "Plaintiff does not point to any legislative waiver of immunity that
might be applicable to his suit. None exists."
Correspondingly, other than condoning H-GAC as a Council-Of-Government (COG) entity, the Texas
Legislature has no connection with H-GAC , 'a voluntary association/etc.' . None of the "voluntary
association of local governmental elected officials" in H-GAC has any active role in the routine operations
of H-GAC; and, expressly, none in the AirCheckTexas Program administered by H-GAC, the subject of
this lawsuit. The Legislature authorizes no provisions for blanket immunity from civil suit against H-
GAC, and therefore cannot grant a waiver of such immunity if requested by a Plaintiff. .
The 'Texas Commission On Environmental Quality (TCEQ)' , a bona-fide Texas State Agency with
governmental immunity , appears in the AirCheckTexas literature handed out in any official Texas Vehicle
Inspection Station, as supervisory over H-GAC; however, a letter-in-evidence from the Texas Attorney
General states TCEQ has no control over H-GAC and "H-GAC is a completely separate entity from
TCEQ" . Further, if HGAC was a Texas State Entity, the Texas Attorney General is obligated as Defense
in any lawsuit against same. The very fact that H-GAC has to employ private counsel as Defense indicates
they have no state-furnished immunity from suits


(2) PROPRIETARY FUNCTIONS: Defendant H-GAC states "only a municipality may perform
proprietary functions" ; this statement, other than ridiculous in the face of facts, merely reflects the courts
have yet to substantially rule on any cases involving proprietary functions other than by municipalities..
Per Section 101.0215: "For proprietary functions, a political subdivision has the same liability as a private
person." H-GAC's functions are indisputably proprietary; they have no obligation to perform any
function they chose not to.
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(3) COG LIABILITY EXAMPLE: The Denton County Transportation Authority, a Texas
COG/political subdivision, under Bylaws, Article VII , Indemnification, states: "The Denton County
Transportation Authority shall indemnify any member of the Board of Directors involved in any litigation
including any civil, criminal or administrative action suit or proceeding … except where it is adjudged that
such Board of Directors member acted with gross negligence or willful misconduct in the performance of
their duties."

No mention of any 'governmental immunity' , which, if existed, would negate any need for indemnifying
any member of this COG against "liability and reasonable expenses, including attorney's fees " , nor any
reference to entitlement, as a Texas 'political subdivision' , of Defense provided by the Texas Attorney
General .

Plaintiff can show and prove with indisputable evidence that H-GAC acted with gross negligence and
willful misconduct in the performance of their duties and obligations in administering the AirCheckTexas
Program inconsistent with their own published directives.

(4) PLAINTIFF HEREBY REQUESTS THE COURT TO DENY DEFENDANT H-GAC'S PLEA
TO THE JURISDICTION on grounds that Defendant H-GAC's claim of governmental immunity is
legally moot at this time in the law, is obstructive to notion of simple justice in this suit and is not in the
public interest to permit H-GAC to escape responsibility for the negligence and willful misconduct in
evidence in this suit. Regardless, Small Claims Court, not a court-of-record, is inadequate to rule in an
Oral Hearing separately and prior to trial on the complex legal issue of governmental immunity for a
Texas COG. Defendant H-GAC is free to cite governmental immunity at the trial and, if unsuccessful,
may proceed with same on appeal to a higher court. Likewise, Plaintiff has no appeal to a Small Claims
Court oral hearing decision to dismiss the case prior to the trial; however, Plaintiff can appeal any decision
made at the trial. Per H-GAC's 'Defendant's Original Answer' denying all 'Plaintiff's allegations',
Defendant H-GAC should have no problem proving and winning their case at the trial, and justice will be
served rather than obstructed. Additionally, this oral hearing wastes the Court's and Plaintiff's time,
neither being compensated for; in contrast to the Defense attorney's fees which already vastly exceed the
modest $600 sum sought by Plaintiff in this Small Claims Court suit. This is obviously against the public
interest of the taxpayers footing the bill.
SUBjECT (B): BACKGROUND

(1) As precisely detailed in Plaintiff's Original Petition to this Small Claims Court, Plaintiff submitted an
application and properly qualified for an AirCheckTexas Emissions Repair Voucher valued at $600.00.
Through H-GAC negligence and willful misconduct, this application was denied without explanation.
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AirCheckTexas published literature states:


AirCheckTexas - Drive A Clean Machine

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 airchecktexas@h-gac.com



Plaintiff and vehicle complied with all the qualifications in applying for a REPAIR VOUCHER, with the
exception of , as published on the H-GAC website under "WHO QUALIFIES" , "The vehicle failed an
emission test in the last 30 days " . This vehicle had previously failed an emission check conducted at an
official TX Dept. Of Transportation inspection facility and was issued a 'low income waiver ' to operate
for 1-year thereafter. There is no record evident in automotive history where a vehicle cured its emission
problem by itself, therefore any Ordinary Reasonable Prudent Person is entitled to assume AirCheckTexas
would honor a TX DOT failed inspection certificate as sufficient proof in applying for a Repair Voucher;
all Texas vehicle emission inspection records are viewable online by any authorized party, which,
certainly, AirCheckTexas is.

Regardless, the above officially published "WHO QUALIFIES" also states: "Or at least 10 years old" ,
and Plaintiff's 1997 Mercury Villager was over 10 years old. The '30 day inspection' is therefore
irrelevant.

No "letter describing why you are unable to receive a voucher" was ever sent, nor was any "list of
participating repair facilities" , without which it would be virtually impossible to discern same from the
multitude of ordinary repair facilities. Plaintiff's "questions about applications" to airchecktex.h-gac.com
and phone calls were not responded to. Plaintiff was forced to expend his own $600 for emission repairs
to continue lawfully using his vehicle. Plaintiff's Original Petition contains all the relevant issues and
documentation in this suit and need not be further reiterated here.
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SUBECT (C) : CIVIL CONSPIRACY

Plaintiff has a right to fully participate as a beneficiary in the H-GAC AirCheckTexas Program, a recipient
of vast public funding. H-GAC's failure to respond to Plaintiff's 15 communication attempts, including
by email, telephone, fax and Certified Mail is no accidental coincidence; the average ground-level public-
contact H-GAC employee has no reason not to be as helpful as possible. The initial failure by one
employee to properly process Plaintiff's application for a Repair Voucher may be considered Simple
Negligence. All Plaintiff's subsequent15 inquires on the application were blocked from being responded to
by someone in a supervisory capacity; this is Willful Misconduct summing to Civil Conspiracy.

Mr. Ronnie Barnes, H-GAC AircheckTexas 'Project Coordinator' is the logical supervisory suspect.
Plaintiff conversed with Mr. Barnes in one of the 15 communication attempts and found him belligerent
and uncooperative. The position of H-GAC AircheckTexas Project Coordinator is currently advertised as
an employment vacancy by H-GAC. In summary:


Air Check Texas PROJECT COORDINATOR Position Location: Houston-Galveston Area Council Job Code:
HS07002 # of openings: 1
Description
POSITION: Air check texas PROJECT COORDINATOR Position no. HS07002
Summary Description of Position: The individual in this position supervises the team implementing the AirCheck Texas
Repair and Replacement Assistance Program for the H-GAC area. This financial aid program helps eligible vehicle owners
replace or repair cars that fail the state emissions inspection …
Organizational Relationships: The individual in this position supervises the AirCheck Texas team….
 SheShe/he has regular contact with H-GAC’s Finance, Data Services and Transportation Departments; the Texas
Commission for Environmental Quality (TCEQ); car dealerships, repair facilities, dismantlers and recyclers; and applicants
for assistance.
.Examples of Work:
· Develops the team’s work plan, including the processes to apply for aid, review and approve applications, …, and manage
customer complaints …
· Resolves complaints from customers and vendors
· Troubleshoots problems with processes
. She/he must be able to manage a daily operation that processes applications and requests for payment efficiently and
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effectively, ensuring good customer service and high rates of accuracy and timeliness.
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The above job description for H-GAC AircheckTexas Project Coordinator leaves little doubt that Mr.
Ronnie Barnes was inadequate in this position, and the result was H-GAC employees engaged in a Civil
Conspiracy to deny Plaintiff access to a Repair Voucher. Civil Conspiracy is a matter for an action in a
civil Court of Record , not Small Claims Court, and will be an option for the Plaintiff.


SUBJECT (D): VIOLATION OF PLAINTIFF'S SPECIAL RIGHTS
Texas Human Resources Code - Section 102.003. Rights Of The Elderly


"[3.1] Texas law provides special rights for citizens age 60 and over … these
rights are in addition to those enjoyed by all Texans ..."
§ 102.003. RIGHTS OF THE ELDERLY.
(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 …
(2) has the right to be free from abuse, neglect, and exploitation; and
(f) An elderly individual may complain about the individual's care or treatment. The person
providing service shall promptly respond to resolve the complaint.


Plaintiff is 83, a WWII disabled Veteran, and so identified in all communication attempts with H-GAC.
H-GAC 's willful misconduct in denying Plaintiff participation in the AirCheckTexas Repair Voucher
program violates Texas law 102.003 , including interference, lack of treatment with dignity and respect,
and failure to respond to resolve a complaint; failure to respond 15 times !



SUBJECT (D): CONSPIRACY AGAINST FEDERAL CIVIL RIGHTS
H-GAC's willful misconduct actions amount to a Conspiracy against Plaintiff's Civil Rights, unlawful
under Federal Law; and will be investigated by the FBI and prosecuted by a Federal Prosecutor in a
Federal Court.
                                         Title 18, U.S.C., Section 241
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                                         Conspiracy Against Rights

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This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state,
territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of th e
United States, (or because of his/her having exercised the same).
                                                         Title 18, U.S.C., Section 245
                                                        Federally Protected Activities
1) This statute prohibits willful injury, intimidation, or interference, or attempt to do so, by force or threat of force of any person or class
of persons because of their activity as:

b) a participant in any benefit, service, privilege, program, facility, or activity provided or administered by the United States;

e) a participant in any program or activity receiving Federal financial assistance.

2) Prohibits willful injury, intimidation, or interference or attempt to do so, by force or threat of force of any person because
of race, color, religion, or national origin and because of his/her activity as:

b) a participant in any benefit, service, privilege, program, facility, or activity provided or administered by a state or
local government;
                                                      Title 18, U.S.C., Section 242
                                                Deprivation of Rights Under Color of Law


This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or
cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the
U.S. . Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their
lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unl awful acts of
any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in
the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individu als such as Mayors,
Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or
customs.

SUBECT (E) : SETTLEMENT OFFER
Plaintiff will accept an Out-Of-Court settlement, promptly tendered upon receipt of this letter, for the sum
of $600.00, the exact sum denied by H-GAC's willful misconduct in failing to afford Plaintiff participation
in the Repair Voucher Program, and thereupon cease any further legal action against H-GAC. Lacking
this settlement, Plaintiff will proceed to file a Federal Civil Rights Violation Complaint under U.S.C.
against H-GAC. Further, Plaintiff may proceed to file a suit for Civil Conspiracy in a civil court, plus
may file an additional civil rights complaint under American Disabilities Act (ADA) and, as already
advised by ADA, "ADA trumps all laws" .. Both U.S.C. and ADA provide for substantial financial
penalties for violations. The public interest is not served by permitting H-GAC to get away with the
incompetence and willful misconduct exhibited in this case, nor are the taxpayers ahead by H-GAC
squandering their money on private lawyers to avoid paying Plaintiff the $600.00 justly due on a
legitimate application for an AirCheckTexas Repair Voucher.
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Daniel W. Harbaugh , Plaintiff, Pro Se
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8218 Braniff St. , Houston, Texas 77061
Cell: 713 376 9563


Certified Mail Copy To:
(a) Chief Clerk, Harris County Small Claims Court, Precinct 5,Place 1
6000 Chimney Rock , Suite 102, Houston, Texas 77081
(b) Viada & Strayer , Attorneys for H-GAC,
17 Swallow Tail Court, Suite 100, The Woodlands, Texas 77381


(c) Hon. Kerry Neves , Chair H-GAC Board of Directors. Councilman, City of Dickinson,
225 FM 517 West, Dickinson, Texas 77539


(d) Hon. Ed Emmett, Harris County Judge, H-GAC Board Member,
Harris County Admin. Bldg., 1001 Preston, Suite 911, Houston, TX 77002




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