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    CAUSE NO. T2009-5096-J3 THE STATE OF TEXAS )( IN THE JUSTICE COURT VS.
    Message 1 of 1 , Oct 11, 2010
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      CAUSE NO. T2009-5096-J3

      THE STATE OF TEXAS                               )(                      IN THE JUSTICE COURT

      VS.                                                                  )(                                    PRECINCT THREE

      Gary Wayne Owens                                         )(              MCLENNAN COUNTY, TEXAS

      The Clerk of the court, will you please enter any and all documents pertaining to the above styled court and the above styled and numbered alleged cause of action for judicial review and or inquiry and or both pursuant to this case and authority:

      15A Am. Jur.2d "Clerks of Court" § 23 and 21 C.J.S. § 251: It is the official duty of the clerk of a court to file all papers in a cause presented by the parties, and to endorse the correct date of the filing thereon. It is the duty of the clerk of the court, in the absence of instructions from the court to the contrary, to accept for filing any paper presented to him, provided such paper is not scurrilous or obscene, is properly prepared, and is accompanied by the requisite filing fee. Unless otherwise specifically authorized by statute, the duty of the clerk of court to file papers presented to him is purely ministerial and he may not refuse to perform such duty except upon order of the court. When the statute requires the clerk of court to file all papers delivered to him to be filed, he is not concerned with the merit of the papers or with their effect and interpretation. The clerk has no discretion in the matter of filing papers recognized by law as properly belonging in the record of causes. It is not for the clerk to inquire into the purposes or contents of such papers, or into the circumstances giving rise to them or attending their preparation. The power to make any decision as to the propriety of any paper submitted, or as to the right of a person to file such paper, is vested in the court, not the clerk. However, where a statute makes it the duty of the clerk of court to file a particular document, a judge is without authority to interfere with such filing. (15A Am. Jur.2d "Clerks of Court" § 23, Filing of Papers). Clerks of court should file all legal papers tendered and as a rule are not concerned with their merits. (C.J.S. § 21 Filing of Papers 251)

       

      TEXAS Sec. 37.09 TAMPERING WITH OR FABRICATING PHYSICAL EVIDENCE (a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:

      (1)     alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official proceeding; or

      (2)     makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent to affect the course or outcome of the investigation or official proceeding.

      (2) (c)  An offense under Subsection (a) or Subsection (d)(1) is a felony of the third degree, unless the thing altered, destroyed, or concealed is a human corpse, in which case the offense is a felony of the second degree. An offense under Subsection (d) (2) is a Class A misdemeanor.

       

       

      Respectfully submitted

      GARY W. OWENS

      CERTIFICATE OF SERVICE

                      This is to certify that at, on, or about 10/12/2010 a true and correct copy of the above and foregoing motion to dismiss with prejudice and objection was by the undersigned to the clerk of the court and above styled court and its jurist


      CAUSE NO. T2009-5096-J3

      THE STATE OF TEXAS                               )(                      IN THE JUSTICE COURT

      VS.                                                                  )(                                    PRECINCT THREE

      Gary Wayne Owens                                         )(              MCLENNAN COUNTY, TEXAS

      OBJECTION OF NOTICE TO APPEAR NO DUTY TO APPEAR

      VIOLATION OF TEXAS TRANSPORTATION CODE CHAPTER 701

      MOTION FOR DISMISSAL WITH PREJUDICE

      PROSECUTORS FAILURE TO REPLY TO MOTIONS

      LACK OF SUBJECT MATTER JURISDICTION

      LACK OF PERSONAM JURISDICTION

      PROSECUTORIAL ESTOPPEL

      OFFICIAL OPPRESSION

      JUDICIAL ESTOPPEL

      SPEEDY TRIAL ACT

      To the above named Plaintiff and above styled court:

                  You are demanded to dismiss the allegation and or allegations pursuant to this matter at hand set for hearing at, on, or about Thursday, the 14th day of October, 2010, at, on, or about 11:00 a.m. and the reasons are set forth as follows, that the alleged competent jurist of this alleged competent forum was noticed previously by Respondent that the STATE of TEXAS by and thru its actors, agents, and or employees were in violation of the TEXAS

      TRANSPORTATION CODE CHAPTER 701 and by and thru oppressive behavior are trying to compel Respondent to a frivolous charge that is not authorized by the transportation code and to intimidate and harass Respondent with a warrant for arrest when the Respondent has no duty to appear to this form for the breach of the transportation code:

      JUDICIAL NOTICE OF TEXAS STATE LAW

      Judicial notice of law, see Am. Jur. 2d, Evidence §§ 104-128

       

      TEXAS TITLE 7 VEHICLES AND TRAFFIC

      SUBTITLE I. ENFORCEMENT OF TRAFFIC LAWS

      CHAPTER 701 COUNTY TRAFFIC OFFICERS

      Sec. 701.001 AUTHORIZATION (a)  Except as provided by Subsection (c), acting in conjunction with the sheriff of the county, the commissioners court of a county may employ not more than five regular deputies as county traffic officers.

      (b)  Except as provided by Subsection (c), the commissioners court may employ not more than two additional deputies as county traffic officers to aid the regular officers in special emergencies.

      (c)  The limitation on the number of deputies that may be employed under Subsections (a) and (b) does not apply to a county with a population of more than two million

       

                  Sec. 701.002 POWER TO ACT; GUIDANCE (a) A county traffic officer:

      (1)  must be deputized by the sheriff or a constable of the county in which the officer is employed;

      (2)  must give a bond and take an oath of office as other deputy sheriffs;

      (3)  must work under the direction of the sheriff;  and

      (4)  has the same right and duty as a deputy sheriff to arrest a person who violates a law.

       

                  Sec. 701.003 DUTIES (a) a county traffic officer shall:

      (1)  be a motorcycle rider when practicable;

      (2)  cooperate with the police department of each municipality in the county to enforce state traffic laws in that municipality and in the county;

      (3)  enforce state laws that regulate the operation of a motor vehicle on a highway, street, or alley;  and

      (4)  remain on and patrol the highway at all times when performing the officer's duties.

      (b)  An officer may leave a highway only in pursuit of an offender the officer is unable to apprehend on the highway.

       

      TEXAS ABUSE OF OFFICE

      CHAPTER 39 ABUSE OF OFFICE

      § 39.03.  OFFICIAL OPPRESSION

        (a)  A public servant acting under color of his office or employment commits an offense if he:

        (1)  intentionally subjects another to mistreatment or to arrest, detention, search, seizure, dispossession, assessment, or lien that he knows is unlawful;

        (2)  intentionally denies or impedes another in the exercise or enjoyment of any right, privilege, power, or immunity, knowing his conduct is unlawful;

       

      Am. Jur.2d. See 63A Am. Jur.2d, Public Officers and Employees, § 410

      Am. Jur.2d. See 63A Am. Jur.2d, Public Officers and Employees, §§ 48, 49, 407

       

      Malfeasance consists of the doing of an act which is wholly wrongful and unlawful; it involves an act which the officer has no authority to do and it is readily distinguished from misfeasance or nonfeasance. People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956)

       

      Elements of offense: Malfeasance in office cannot be charged except for breach of a positive statutory duty or for the performance of a discretionary act with an improper or corrupt motive. People v. Schneider, 133 Colo. 173, 292 P.2d 982 (1956)

       

                  Furthermore this judicial forum has been noticed on several occasions for a

      Teleconference and Respondent has waited by the phone and no one has ever called for the teleconference so therefore there is estoppel on the prosecutions side and the judicial side of the matter at hand and the prosecutor in this matter has never replied to Respondent with motions and or objections to matter at hand in violations of any type of rules of procedure and at best anything in a timely matter and therefore there is a procedural and judicial default and or not limited to a possible administrative default in the matter at hand.

      DEMANDED RELIEF

                  Wherefore as set forth, Respondent demands this alleged judicial forum to dismiss any and all alleged charges in the matter at hand immediately or Respondent will institute a Title 42 U.S.C. § 1983 against any and all actors, agents, and or employees.

       

       

                                                                                          Submitted by

                                                                                          Gary Wayne Owens

      CERTIFICATE OF SERVICE

                      This is to certify that at, on, or about 10/12/2010 a true and correct copy of the above and foregoing objection was faxed by the undersigned to the clerk of the court and above styled court and its jurist


      CAUSE NO. T2009-5096-J3

      THE STATE OF TEXAS                               )(                      IN THE JUSTICE COURT

      VS.                                                                  )(                                    PRECINCT THREE

      Gary Wayne Owens                                         )(              MCLENNAN COUNTY, TEXAS

      BRIEF IN SUPPORT OF

      MOTION TO DISMISS WITH PREJUDICE

      OBJECTION TO APPEAR

      To the above named Plaintiff and above styled court:

                  You are demanded to dismiss the allegation and or allegations pursuant to this matter at hand set for hearing at, on, or about Thursday, the 14th day of October, 2010, at, on, or about 11:00 a.m. and the reasons are set forth as follows:

       

                  1. Estoppel by silence; this above styled court and its jurist was noticed at, on, or about

      1/21/2010 of the actions of disparate profiling, fruits of the poisonous tree doctrine, extortion under color of law, and interference with interstate commerce directly or indirectly 18 U.S.C. § 1951 par (a) & (b) and of which there has been no reply to the allegations and of which was in excess of 30 days and therefore the jurist of this above styled court and the STATE OF TEXAS and by and thru its actors, agents, and employees has admitted to guilt in this before mentioned matter at hand through silence.

                  Judicial notice of law, see Am. Jur. 2d, Evidence §§ 104-128

                      Am. Jur. 2d, Courts §§ 147-178 Judicial precedents as binding or persuasive

      U.S. v. Twell, 550 F2d 297, 299-300 (1977) "Silence can only be equated with fraud when there is a legal or moral duty to speak, or when an inquiry left unanswered would be intentionally misleading... We cannot condone this shocking conduct... If this is the case we hope our message is clear. This sort of deception will not be tolerated and if this is routine it should be corrected immediately"

      Carmine v. Bower, 64 A. 932 "Silence is a species of conduct, and constitutes an implied representation of the existence of facts in question, and the estoppel by misrepresentation. When silence is of such a character and under such circumstances that it would become a fraud on the other party to permit the silent party to deny what his silence has induced the other party to believe and act upon, it will operate as an estoppel.

       

       

                  2. Speedy trial; Respondent states that the jurist of this above styled court, the STATE OF TEXAS, the prosecuting district attorney are in direct violation and or violations of the speedy trial act pursuant to the state statutes of the STATE OF TEXAS and the speedy trial act of the UNITED STATES OF AMERICA as follows:

      TEXAS Art. 28.061. DISCHARGE FOR DELAY.  If a motion to set aside an indictment, information, or complaint for failure to provide a speedy trial is sustained, the court shall discharge the defendant. A discharge under this article is a bar to any further prosecution for the offense discharged and for any other offense arising out of the same transaction, other than an offense of a higher grade that the attorney representing the state and prosecuting the offense that was discharged does not have the primary duty to prosecute.

       

      TEXAS Art. 32A.01. TRIAL PRIORITIES  Insofar as is practicable, the trial of a criminal action shall be given preference over trials of civil cases, and the trial of a criminal action against a defendant who is detained in jail pending trial of the action shall be given preference over trials of other criminal actions.

       

      TITLE 18 U.S.C. 208—SPEEDY TRIAL ACT

       

       

      3. No signing of alleged criminal complaint; Respondent states that the STATE OF TEXAS by and thru its actors, agents, and employees not have signed an alleged violation and or violations of criminal law and that there are no affidavits in this matter that have been presented for the alleged criminal violation and or violations of this matter at hand.

      TEXAS Art 38.25 WRITTEN PART OF INSTRUMENT CONTROLS.  When an instrument is partly written and partly printed, the written shall control the printed portion when the two are inconsistent.

       

       

                  4. False printed document of STATE OF TEXAS; Respondent states that the printed document that was given to Respondent is a fraudulent document as to stating that the jurist of this above styled court was there at time of alleged criminal action and or actions and Respondent further states that with the jurist’s of this court printed signature on the alleged criminal complaint and or complaints and or summons and states that this alleged document is materially defective and may constitute a fraud by the court and a fraud upon the court as to the fact that the jurist of this court was not present at the time of the alleged action and or actions and the jurist of this court was not at the scene of the alleged violation and or violations and is not a competent fact witness with first hand knowledge.

      TEXAS Art 38.44 ADMISSIBILITY OF ELECTRONICALLY PRESERVED DOCUMENT An electronically preserved document has the same legal significance and admissibility as if the document had been maintained in hard-copy form.  If a party opposes admission of the document on the grounds that the document has been materially altered, the proponent of the document must disprove the allegation by a preponderance of the evidence

       

       

      5.      False imprisonment and false arrest; Respondent states as follows that any

      competent legal authority knows that when a person has allegedly done a criminal action and or actions and is given an alleged citation and or citations, that such a person is technically under arrest and of which when the allegation and or allegations are made, the perpetrator is to be taken immediately to a magistrate to make a plead and or pleading of which was not done and therefore this amounts to nothing more than a false arrest and or not limited to false imprisonment.

                  Am. Jur. 2d, Courts §§ 147-178 Judicial precedents as binding or persuasive

      Heath v. Boyd, 175 S.W.2d. 217 (1943); Brock v. Stimson, 108 Mass. 520 (1871) the one arresting has "a duty to immediately seek a magistrate," and failure to do so "makes a case of false imprisonment

       

       

      6.      Lack of standing to sue; Respondent states as follows that the STATE OF TEXAS

      by and thru its actors, agents, and employees lack standing to sue as to the fact that there was not any alleged criminal intent on behalf of the Respondent and or trucking company and that states cannot sue their own citizens and or citizens of another state, it strictly falls under the jurisdiction of the SUPREME COURT OF THE UNITED STATES as stated in Article 3 section 2 and that there has been no indictment that has been properly filed in the alleged criminal complaint or complaints and or both so there is no criminal intent and this is nothing but a frivolous action and or actions and is not properly in compliance with procedure pursuant to the before mentioned Article 3 and or not limited to the STATE OF TEXAS rules of procedure.

                  Am. Jur. 2d, Courts §§ 147-178 Judicial precedents as binding or persuasive

      Allen v. Wright, 468 U.S. 737, 751 (1984) the requirement of standing, however, has a core component derived directly from the Constitution. A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.”

       

      Article 3 - The Judicial Branch Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

      (The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

      In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

       

      7.      Perjury and or aggravated perjury and or both of state trooper; Respondent

      states as follows that with the issuing of the alleged criminal complaint or summons to appear aka (traffic violation) and having the printed name of the jurist of this above styled court allegedly being at the scene and allegedly being a competent fact witness with first hand knowledge is nothing more than perjury and or aggravated perjury and or both on the alleged complaint and or summons and or both and may amount to another fraud by the court and a fraud upon the court and forgery of the jurist of this above styled court with out having authority and authentication as to the using of the jurist of this courts printed name on the alleged complaint or summons and or both.

      TEXAS Art. 38.21. STATEMENT.  A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion, under the rules hereafter prescribed.

      TEXAS PENAL CODE CHAPTER 37. PERJURY AND OTHER FALSIFICATION

      Sec. 37.01.  DEFINITIONS.  In this chapter:

      (1)     "Court record" means a decree, judgment, order, subpoena, warrant, minutes, or other document issued by a court of:

      (2)     "Statement" means any representation of fact.

      Sec. 37.02.  PERJURY.  (a)  A person commits an offense if, with intent to deceive and with knowledge of the statement's meaning:

      (1)  he makes a false statement under oath or swears to the truth of a false statement previously made and the statement is required or authorized by law to be made under oath; or

      (2)  he makes a false unsworn declaration under Chapter 132, Civil Practice and Remedies Code.

      (b)  An offense under this section is a Class A misdemeanor.

      Sec. 37.03.  AGGRAVATED PERJURY.  (a)  A person commits an offense if he commits perjury as defined in Section 37.02, and the false statement:

      (1)  is made during or in connection with an official proceeding; and

      (2)  is material.

      (b)  An offense under this section is a felony of the third degree.

      Sec. 37.04.  MATERIALITY.  (a)  A statement is material, regardless of the admissibility of the statement under the rules of evidence, if it could have affected the course or outcome of the official proceeding.

      (b)  It is no defense to prosecution under Section 37.03 (Aggravated Perjury) that the declarant mistakenly believed the statement to be immaterial.

      (c)  Whether a statement is material in a given factual situation is a question of law.

      Sec. 37.06.  INCONSISTENT STATEMENTS.  An information or indictment for perjury under Section 37.02 or aggravated perjury under Section 37.03 that alleges that the declarant has made statements under oath, both of which cannot be true, need not allege which statement is false. At the trial the prosecution need not prove which statement is false.

      Sec. 37.07.  IRREGULARITIES NO DEFENSE.  (a)  It is no defense to prosecution under Section 37.02 (Perjury) or 37.03 (Aggravated Perjury) that the oath was administered or taken in an irregular manner, or that there was some irregularity in the appointment or qualification of the person who administered the oath.

      (b)  It is no defense to prosecution under Section 37.02 (Perjury) or 37.03 (Aggravated Perjury) that a document was not sworn to if the document contains a recital that it was made under oath, the declarant was aware of the recital when he signed the document, and the document contains the signed jurat of a public servant authorized to administer oaths.

       

       

      DEMAND FOR RELIEF

                  Wherefore the Respondent in this alleged matter and or matters demands this above styled court to dismiss this action and or actions with prejudice as to the fact that there is no criminal intent, lack of standing to sue, and procedural defectiveness.

       

       

       

                                                                                          Submitted by

                                                                                          Gary Wayne Owens

      CERTIFICATE OF SERVICE

                      This is to certify that at, on, or about 10/12/2010 a true and correct copy of the above and foregoing brief and motion to dismiss with prejudice was faxed by the undersigned to the clerk of the court and above styled court and its jurist

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