DocketNumber： 06-14-00047-CV
Filed Date： 1/2/2015
Status： Precedential
Modified Date： 9/28/2016
RECEIVED IN ORIGINAL The i:1 o" Appeals NO. 06-14-00047-CV Th RLED IN iiixtli District ***«" Drsirict JAM Q 2 2015 JAN 02 2015 Texarkana, Texas \ Dib.-aA-irey, Clerk IN THE COURT OF APPEALS FOR "texarkana, "foxas THE SIXTH COURT OF APPEALS DISTRICT D*bra Aufrey, Cimk TEXARKANA, TEXAS CAROL PASELK, Appellant v. JUSTICE OF THE PEACE, PRECINCT 1, YVONNE KING Appellee On Appeal from the Hopkins County Court Trial Court Cause No. CV14-08223 Oral Argument Requested Carol Paselk Pro Se Appellant P.O. Box 1284 Emory, Texas 75440 (940) 435-3210 Appellant's ReplyBrief- 06-14-00047-CV page I of46 pages NO. 06-14-00047-CV IN THE COURT OF APPEALS FOR THE SIXTH COURT OF APPEALS DISTRICT TEXARKANA, TEXAS CAROL PASELK, Appellant v. JUSTICE OF THE PEACE, PRECINCT 1, YVONNE KING Appellee On Appeal from the Hopkins County Court Trial Court Cause No. CV14-08223 Oral Argument Requested Carol Paselk Pro Se Appellant P.O. Box 1284 Emory, Texas 75440 (940) 435-3210 Appellant's Reply Brief- 06-14-00047-CV page 1 of 46pages Identity of Parties and Counsel Pursuant to Rule ofAppellate Procedure 38.1(a), Appellant provides the following list of all parties to the trial court's judgment and the names and addresses of all trial and appellate counsel. Carol Paselk Pro Se Appellant P.O. Box 1284 Emory, Texas 75440 (940)435-3210 Yvonne King Justice of The Peace, Precinct 1 128 Jefferson Street, Suite Sulphur Springs, Texas 75482 (903) 438-4026 Dustana Rabe Hopkins County Attorney 128 Jefferson Street, Suite Prosecutor in the justice of the peace court Sulphur Springs, Texas (903)438-4017 Appellant's Reply Brief- 06-14-00047-CV page 2 of46 pages Table of Contents Identity of Parties and Counsel 2 Table of Contents 3 Table of Authorities 5 Statement of the Case 7 Statement of Facts 8 Introduction 8 Appellant's Reply To Appellees Response ToAppellant's Issue No. 1 10 The County Court erred in denying Appellant's Petition For Writ of Certiorari seeking relief from the "Order Awarding Possession of Seized Horses" issued by the Justice of The Peace Court Appellant's Reply To Appellees Response To Appellant's Issue No. 2 15 The County Court erred in denying Appellant's Motion To Vacate Void Order Issued By Justice Court, Precinct 1, seeking relief from the "Order Awarding Possession of Seized Horses" issued by the Justice of The Peace Court. Appellant's Reply To Appellees Response To Appellant's Issue No. 3 22 The Justice Court erred in issuing the "Order Awarding Possession of Seized Horses", denying Appellant her Constitutionally protected and guaranteed rights of lawful due process under the law, a trial by jury of any matter affecting her property rights, and protection from excessive fines. Appellant's Reply To Appellees Response To Appellant's Issue No. 4 32 The justice Court erred in issuing the "Order Awarding possession of Seized Horses" in violation of 8th Amendment Protections. Conclusion 35 Prayer 37 Certificate of Compliance 38 Certificate of Service 38 EXHIBITS: EXHIBIT No. 1 - Photos of Hay & Grain in the barn - 5/3/09 thru 5/9/09 39 EXHIBIT No. 2 - Photos of Mares in Pasture 1 month before Seizure 44 Appellant's Reply Brief- 06-14-00047-CV page 3 of 46pages EXHIBIT No. 3 -Testimony of State's Witness Melanie DeAeth 45 EXHIBIT No. 4-Testimony of Chief Deputy Ricky Morgan 46 Appellant's Reply Brief- 06-14-00047-CV page 4 of 46pages TABLE OF AUTHORITIES Texas Cases Arrington v. Arrington,613 S.W.2d 565
(1981) Clayton v. Clayton,308 S.W.2d 557
, 564 (Tex.Civ.App.—Texarkana 1957, no writ) City ofLufkin V. McVicker.510 S.W.2d 141
(1973) Dews v. Floyd, 413 S.W2d 800 (Tex.Civ.App. Tyler 1967) Gracia v. State - Tex.Ct.App.2012, See especially: footnote No. 1 Granger v. Folk,931 S.W.2d 390
(1996) Jones v. Jones,592 S.W.2d 19
(Tex.Civ.App.— Beaumont 1979, no writ); Missouri-Kansas-Texas R. Co. v. Roegelein Pro. Co.,260 S.W.2d 605
(1953) Pine v. State,921 S.W.2d 866
(1966); Rayson v. Johns,524 S.W.2d 380
(Tex.Civ.App.— Texarkana 1975, writ refd n.r.e.); Silver v. Shefman,287 S.W.2d 316
(Tex.Civ.App.—Austin 1956, writ refd n.r.e.). Stone v. State,794 S.W.2d 868
, 870 (Tex.App.—El Paso 1990, no pet.) Youngv. Blain,245 S.W. 65
(Tex. Comm'n App.1922, opinion adopted) Federal Cases: Valley v. Northern Fire &Marine Ins. Co.,254 U.S. 348
,41 S. Ct. 116
(1920) Appellant's Reply Brief-06-14-00047-CV page 5 of46pages U.S. Constitution 4th Amendment, United States Constitution 6th Amendment, United States Constitution 7th Amendment, United States Constitution 8th Amendment, United States Constitution Texas Constitution Article 1, Section 9, Texas Constitution Article 1, Section 15, Texas Constitution Article 5, Section 10, Texas Constitution Texas Statutes Texas Code of Criminal Procedure 2.09 Texas Code of Crimninal Procedure, Chapter 18 Texas Code of Criminal Procedure, 18.01(c) Texas Code of Criminal Procedure 18.10 Texas Code of Criminal Procedure 18.11 Texas Health & Safety Code, 821 Texas Health & Safety Code 821.021 et. seq. Texas Health & Safety Code 821.022; Texas Health & Safety Code 821.023(g) Appellant's Reply Brief- 06-14-00047-CV page 6 of 46pages Rules Texas Rules of Civil Procedure, Rule 579 Other Reference Atlantic Coast Line R. Co. v. Mack,64 So. 2d 304
(Fla. S.Ct. 1952) Palmer v. Johnson,97 Fla. 479
, 121 Wo. 466 (1929) STATEMENT OF THE CASE Appellant Carol Paselk appeals from an order denying her Petition For Writ Certiorari (C.R. pgs. 5-60) seeking relief from a wrongful "Order Awarding Possession of Seized Horses" issued by Hopkins County Justice of The Peace, Precinct 1, Yvonne King. (C.R. pg.55) in violation ofAppellant's lawful protections under Texas Health & Safety Code 821.023(g) and in violation of her Constitutionally protected and guaranteed rights to lawful due process of law, the right to a trial by jury of any matter affecting her property rights, and her right to be free from excessive fines and cruel and unusual punishment. Appellant Paselk is also seeking relief from the denial of her Appellant's Reply Brief- 06-14-00047-CV page 7 of46pages Motion To Vacate Void Order Issued By Justice Court, Precinct 1 (C.R. pg. 111). The "Order" was issued in violation of Appellant's lawful protections under Texas Health & Safety Code 821.023(g), and in violation of her Constitutionally protected and guaranteed rights, including the right to lawful due process. STATEMENT OF FACTS On February 19, 2014, Appellant Paselk filed her Petition For Writ of Certiorari with the Hopkins County Court, seeking relief from the "Order Awarding Possession of Seized Horses" issued by Justice of The Peace, Precinct 1, Yvonne King on May 20, 2009. (C.R. pgs. 5-60). The "Order" was issued in denial ofApellant's right to a trial by jury of any matter affecting her property rights. The "Order" includes horses in good condition in direct violation of Texas Health & Safety Code 821.023(g), upheld by the Texas Court ofAppeal in Gracia v. State 2012. The "Order" is already legally null and void and Justice demands that the "Order" be vacated. INTRODUCTION This case is about the fulfillment of the Constitutional promise of Justice and NOT about how manipulation of the law and false statements can be used to justify denying this Appellant her lawful protections, and her Constitutionally protected and Appellant's Reply Brief- 06-14-00047-CV page 8 of46pages guaranteed rights. Although this case comes to this Court as the result of an appeal for a Petition For Certiorari, the underlying null and void "Order Awarding Possession of Seized Horses" (the "Order") is the real issue in this case. This Court must not be led away from the real and true issue of this entire case which is whether the "Order" issued by layman non-lawyer Justice of The Peace Yvonne King is lawfully null and void, with no effect, and invalid. The glaring issue goes beyond whether a Petition For Certiorari was or was not timely filed. The issue begging Justice is whether this "Order" was issued in violation of this Appellant's protections under the law, and in violation of her Constitutionally protected rights to lawful due process, the right to a trial by jury of all matters affecting her property rights, and her protections from excessive fines and cruel and unusual punishment. Appellant Paselk humbly asks this honorable Court NOT to be confused or side tracked, or to lose focus that the "Order Awarding Possession of Seized Horses" (hereinafter the "Order") issued by the Justice of The Peace Court is the foundational, and ONLY true issue before this Court. This 6th District Court of Appeals has NEVER previously heard or considered any "Appeal" of this "Order" issued by J.P. Yvonne King. Dustanna Rabe, attorney for Appellee, attempts to seriously confuse this Court by trying to get this Court to wrongfully believe an August 9, 2010 judgment was an appeal of this "Order". The August 2010 Judgment Rabe refers to was NOT based on an appeal of this "Order" Appellant's Reply Brief- 06-14-00047-CV page 9 of46 pages which is the present subject and issue before this Court. Dustanna Rabe further attempts to confuse this Court by falsely stating in her "Conclusion", "In fact, the Honorable Court of Appeals for the Sixth Appellate District has already visited some if not all of the issues raised in the current appeal in Appellant's previous appeal filed in 2010." Appellant Paselk has not previously brought an appeal of this "Order" to this Court. This Court has NOT previously visited the issues raised in this appeal. APPELLANT'S REPLY TO APPELLE'S RESPONSE TO APPELLANT'S ISSUE NO. 1 Appellant's Contention The County Court erred in denying Appellant's Petition For Writ of Certiorari seeking relief from the "Order Awarding Possession of Seized Horses" issued by the Justice of The Peace Court. Appellee's Reply The County Court did not err in denying Appellant's Petition for Writ of Certiorari seeking relief from the "Order" issued by Judge Yvonne King. Appellant's Reply Brief- 06-14-00047-CV page 10 of46pages Appellant's Reply Argument: Although this Appellant's Petition For Writ of Certiorari was filed after the TRCP Rule 579 deadline of 90 days, the County Court failed to consider the fact that the "Order" includes horses in good condition, in complete violation of Texas Health & Safety Code 821.023(g), making the "Order" null and void, without effect and invalid. Regarding TRCP Rule 579, County Attorney Dustanna Rabe states in her Response to Appellant Paselk's Brief, "such a writ shall not be granted after ninety days from the time the final judgment is signed... Judge Newsom properly denied the "Petition" as being untimely filed." According to TRCP Rule 578 Appellant has previously shown, and now shows in this Reply that the justice court did not have jurisdiction to issue the "Order" and that an injustice has been done to Appellant, and that the injustice was not cause by Appellant's own inexcusable neglect." The responsibility and duty of any Texas court is to ultimately defend and uphold both the Constitution of the United States and the Constitution of Texas. In fulfilling these duties and responsibilities, defending and upholding these Constitutions means to protect the citizens from infringement of their Constitutionally protected and guaranteed rights. The Florida Supreme Court has clearly established the responsibility of Courts, and the proper emphasis and character for upholding Constitutionally protected and guaranteed rights. When presented with a Petition For Writ of Certiorari more than 2 years after the deadline, the Florida State Supreme Court stated, Appellant's Reply Brief- 06-14-00047-CV page 11 of46pages "We are, therefore, confronted with the dilemma as to whether we will adhere strictly to the Rule and deny jurisdiction to the petitioner on the merits, or whether we will waive the Rule and exercise our constitutional responsibility to take jurisdiction of the case. Where a rule which is not jurisdictional, but directory only, conflicts with the justice of the case, it is justice and not the rule which must prevail. Rules should implement rather than prevent the administration of justice." Atlantic Coast Line R. Co. v. Mack,64 So. 2d 304
(Fla. S.Ct. 1952). TRCP Rule 579 is ONLY a procedural directive and is not jurisdictional, therefore the County Court had a responsibility to exercise it's constitutional responsibility to take jurisdiction of this case, to afford this Appellant the justice this case demands. The failure of the County Court has brought this case before this Court which must now exercise its duty and responsibility to protect this Appellant's protections under law, and her Constitutionally protected and guaranteed rights. The Florida Supreme Court further established the proper emphasis and character for upholding Constitutionally protected and guaranteed rights by stating: "It has also been held that if the inferior tribunal had no jurisdiction, the superior court may entertain a petition for certiorari and quash the judgment, in spite of the fact that the petition was not filed within the statutory period." Palmer v. Johnson.97 Fla. 479
, 121 Wo. 466 £1929); cited in Atlantic Coast Line R. Co. v. Mack.64 So. 2d 304
(Fla. S.Ct. 1952). Appellant's Reply Brief- 06-14-00047-CV page 12 of 46pages The Justice of the Peace court is a low level inferior tribunal in the State judicial scheme. According to Texas Health & Safety Code § 821.023(g) and the decision of the 14th Court of Appeals in Gracia v. State, Tex: Court of Appeals. 14th Dist. 2012 footnote No. K Justice of the Peace Yvonne King had NO jurisdiction to include horses in good condition as part of the "Order." THSC § 821.023(g) states: "The court SHALL order the animal returned to the owner if the court does not find that the animal's owner has cruelly treated the animal." [bold, underline, and caps emphasis added.] The language of THSC § 821.023(g) is clearly upheld by the Court ofAppeals in Gracia v. State, Tex: Court of Appeals. 14th Dist. 2012 footnote No. 1: "Thejury did not find cruel treatment ofa German Shepherd dog and some chickens, and those animals were ordered returned to appellants. See former Tex. Health & Safety Code § 821.023(g) (eff. Sept. 1, 2007 to Aug. 31, 2011), which is identical to the current version." In Gracia v. State. Tex: Court ofAppeals, 14th Dist. 2012. the Texas Court of Appeals clearly shows that the justice court MUST abide by the language of the law and consider each and every INDIVIDUAL animal before ANY individual animal is ordered taken from an owner. Appellee Yvonne King had a lawful duty and responsibility to adhere to and abide by the very clear language of the law, as well as the statutory protections, conditions and limitations intentionally codified by the Legislature. King Appellant's Reply Brief- 06-14-00047-CV page 13 of 46pages had the responsibility, under law, to consider each and every individual animal according to § 821.022 AND § 821.023(g). The "Order" is null and void, because it violates THSC 821.023(g) by including horses which were in good condition in a "blanket order" for an entire herd of horses. The holding of the Texas Court ofAppeals in Gracia v. State, clearly shows there is no lawful justification for ordering horses in good condition to be taken from this Appellant. (See APPENDX "E" and APPENDIX "F" of the "Petition For Writ Of Certiorari" - C.R. pg. 51-54) There is NO statutory limitation which can deny remedy from a null and void "Order", according to the Supreme Court of the United States, "A voidjudgment, order or decree may he attacked at any time or in any court, either directly or collaterally - The law is well-settled that a void order orjudgment is void even before reversal. " Valley v. Northern Fire & Marine Ins. Co.,254 U.S. 348
.41 S. Ct. 116
(1920). The Texas Court ofAppeals has also held that: "Voidjudgment is one which has no legal force or effect whatever, it is an absolute nullity, its invalidity may be asserted by any person whose rights are affected at any time and at any place and it need not be attacked directly but may be attacked collaterally whenever and wherever it is interposed." City ofLufkin v. McVicker,510 S.W.2d 141
(Tex. Civ. App. - Beaumont 1973). The County Court has a constitutional responsibility to uphold and protect this Appellant's lawful protections under THSC 821.023(g), as well as to uphold and protect Appellant's Reply Brief- 06-14-00047-CV page 14 of46pages this Appellant's Constitutionally protected and guaranteed rights. By denying Appellant Paselk's Petition For Writ of Certiorari, the County Court erred in adhering to a Rule which is not jurisdictional, rather than exercising it's duty and responsibility to implement the administration ofjustice. According to THSC 821.023(g) the County Court has a duty and responsibility to overrule and quash the justice court "Order" because it includes horses in good condition which the justice court had the responsibility to order returned to Appellant(C.R. pgs. 51-54) APPELLANT'S REPLY TO APPELLE'S RESPONSE TO APPELLANT'S ISSUE NO. 2 Appellant's Contention The County Court erred in denying Appellant's Motion To Vacate Void Order Issued By Justice Court, Precinct 1, seeking relief from the "Order Awarding Possession of Seized Horses" issued by the Justice of The Peace Court. Appellee's Reply The County Court did not err in denying Appellant's Motion To Vacate the Order seeking relief from the "Order Awarding Possession Of Seized Horses"" issued by Justice of The Peace Yvonne King. Appellant's Reply Brief- 06-14-00047-CV page 15 of46pages Appellant's Reply Argument: Appellant Paselk's Motion To Vacate the Order has substantial merit under the law. The "Order" is already null and void because it includes horses in good condition in complete violation of 821.023(g) therefore it is void and invalid with no effect. Three things substantiate Appellant's claim that the "Order" includes horses that were in good condition, in violation of THSC 821.023(g), making the "Order" already null and void: 1. In his official eyewitness report, filed May 1, 2009, nine days before the seizure, Sgt. Tanner Crump states: "Not all of the horses were poor and she has a rotation plan for the horses on the grazing land she owns. Most of the horses that were poor were older horses and it is expected that they would not look as good as horses that were younger." Crump further stated, "I do not feel that the horses are in need of immediate care or removal from the owner."(C.R. pg. 44) 2. Photos of horses found six days AFTER they were taken from Appellant's property show horses in good condition which, according to THSC 821.023(g) should never have been included in the "Order". (C.R. pgs. 51-54) 3. Photos of Hay and grain usage for ten days BEFORE the seizure clearly shows Appellant was providing feed to the horses. (See EXHIBIT No. 1) 4. States witness Melanie DeAeth, who instigated the "raid" against this Appellant Appellant's Reply Brief- 06-14-00047-CV page 16of46pages and eventually ended up taking all the horses, as the beneficiary of the "Order", testified in the County-Court-At-Law: "Yes, right. There were some that were okay. There was one pasture that probably had enough grass and was maintaining those horses." (R.R. State v. Paselk, CR0926723, 10/27/09, Vol. 3 of 6, pg. 62, lines 12-14.) Thirty eight mares were in pasture. (See EXHIBIT No. 2 & 3) 5. When asked IF he would have a different opinion IF he had been told that Appellant Paselk was feeding the horses, Chief Deputy Rickey Morgan testified: "I would have. She would probably still have the horses today because she was attempting to feed them." (R.R., State v. Paselk, CR0926723, 10/27/09 Vol. 3 of 6, pg. 285 lines 16 - 25) (EXHIBIT No. 4) These five items clearly show that there were horses in good condition included in the "Order" making the "Order" already null and void as it is written, because at the very least it violates the protections codified by the Legislature in THSC 821.023(g). In her Response to Appellant's Brief, Dustanna Rabe, makes sweeping claims there is no authority to support the "Motion To Vacate the Void Order Issued By Justice Court, Precinct 1", however, the "Order" is issued in direct violation of Texas Health & Safety Code, 821.023(g). The "Order" includes horses in good condition in violation of 821.023(g), making the entire "Order" void. The Texas Legislature has intentionally codified "the animal" or "an animal" throughout the Texas Health & Safety Code, Section 821. This intentional "single Appellant's Reply Brief-06-14-00047-CV page 17 of46pages animal" limitation is an intentional protection and safeguard for livestock owners, to restrict the reach of the court over the personal property of livestock owners. The Texas Court ofAppeals made special point to clarify this protection and safeguard for livestock owners in Gracia v. State, Tex: Court ofAppeals, 14th Dist. 2012, stating in footnote 1: "Thejury did notfind cruel treatment ofa German Shepherd dog and some chickens, and those animals were ordered returnedto appellants. See former Tex. Health & Safety Code § 821.023(g) (eff Sept. 1, 2007 to Aug. 31, 2011):' The "Order" is a "blanket order" for an entire herd of horses. The holding of the Texas Court ofAppeals in Gracia v. State, clearly shows there is no lawful justification for ordering horses in good condition taken from Petitioner. (See APPENDX "E" and APPENDIX "F" of the "Petition For Writ Of Certiorari" - C.R. pg. 51-54) The Justice Court did NOT adhere to the codified single animal limitation. The Justice Court did NOT consider each and every single animal on its own merits, based on admissible evidence specific for each and every individual animal. There is NO language codified by the Texas Legislature anywhere in the entire Texas Health & Safety Code § 821.021 et seq. which states, "if you find one animal to be cruelly treated, you must take them all." The language of the law is specific to "an animal" or "the animal" - not an entire herd, group, or collection of animals. The "Order" is issued in violation of the single animal protections codified into law by the Legislature. The "Order" includes animals that were in good condition, which must be Appellant's Reply Brief- 06-14-00047-CV page 18 of46pages ordered returned to the owner according to 821.023(g). Because animals in good condition are included in this "Order" the "Order" exceeds the specific jurisdictional limitations placed by the Legislature on the Justice Court, making the "Order" void on its face. "A justice court judgment in excess of the jurisdictional amount is void on its face." Dews v. Floyd,413 S.W.2d 800
(Tex.Civ.App. Tyler 1967). To further exacerbate this situation, Rabe states: "...Appellant, in keeping with the law, was not entitled to a jury trial at the seizure hearing." The Texas Court of Appeals very clearly and very thoroughly describes that an animal owner clearly has the right to a Trial by Jury, before animals can be taken from the owner, in Granger v. Folk. 931 SW2d (1996) Tex: 9th Dist. Court ofAppeals In Granger v. Folk, the Court of Appeals states: "A close reading of paragraphs (a) and (b) of Section 821.023 may provide some slight illumination. Paragraph (a) presumes a criminal proceeding prior to the civil proceeding while paragraph (b) presumes the reverse. Obviously, in the criminal proceeding, a defendant may face loss of freedom or fine or both, whereas, a proceeding under Section 821.023 may subject the defendant to a loss, forfeiture and confiscation of property rights and interests. In either case, the defendant is entitled by right to all those guarantees affording full due process. The Court further states: "Sixth Amendment, United States Constitution. In Suits at common law, where Appellant's Reply Brief- 06-14-00047-CV page 19 of46pages the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law. U.S. CONST. Amend. VII. The right of trial by jury shall remain inviolate. The Legislature shall pass such laws as may be needed to regulate the same, and to maintain its purity and efficiency.... TEX. CONST, art. I, § 15. It is fundamental to our system ofjustice and the intention and policy of the law to permit all persons to have a trial by jury of any facts affecting their property rights. Clayton v. Clayton, 308 S.W2d 557, 564 (Tex.Civ.App.—Texarkana 1957, no writ). The right to a jury trial as guaranteed by our Constitution is one of our most precious rights, TEX. CONST, art. I, § 15; TEX. CONST, art. V, § 10; Young v. Blain,245 S.W. 65
(Tex. Comm'n App.1922, opinion adopted), and the denial of that right is a very serious matter. Restrictions placed on the right to a jury trial will be subjected to the utmost scrutiny. See Jones v. Jones, 592 S.W2d 19 (Tex.Civ.App.— Beaumont 1979, no writ); Rayson v. Johns, 524 S.W2d 380 (Tex.Civ.App.— Texarkana 1975, writ refd n.r.e.); Silver v. Shefman,287 S.W.2d 316
(Tex.Civ.App.— Austin 1956. writ refd n.r.e.). It is very clear that Granger v. Folk is the legal authority which clearly Appellant's Reply Brief- 06-14-00047-CV page 20 of46pages establishes that an animal owner has the inviolable, Constitutionally protected right to a jury trial before any animals can be legally "ordered" to be taken from the owner. As Rabe verifies in her "Appellee's Response To Appellant's Brief Appellant was denied a trial by jury in the Justice Court, and therefore was denied her inviolable, constitutionally protected right to a trial by jury of any matter affecting her property rights. The County Court erred in denying the Motion To Vacate Void Order Issued by Justiced Court, Precinct 1, because the County Corut had the responsibility to uphold this Appellant's inviolable and Constitutionally protected right to a trial by jury. This Court has the duty and responsibility to uphold this Appellant's inviolable and constitutionally protected right to a trial by jury, as already established by Granger v. Folk, "It isfundamental to our system ofjustice and the intention and policy ofthe law topermit all persons to have a trial byjury ofanyfacts affecting theirproperty rights. Clayton v. Clayton,308 S.W.2d 557
, 564 (Tex.Civ.App.—Texarkana 1957, no writ). This Court has the further responsibility to uphold that "The right to a jury trial as guaranteed by our Constitution is one of our most precious rights, TEX. CONST, art. I, § 15; TEX. CONST, art. V, § 10; Young v. Blain, 245 S.W 65 (Tex. Comm'n App.1922. opinion adopted), and the denial of that right is a very serious matter." This honorable Court has the responsibility to ensure that "Restrictions placed on the right to a jury trial will be subjected to the utmost scrutiny." See Jones v. Jones, 592 S.W2d 19 Appellant's Reply Brief- 06-14-00047-CV page 21 of46pages (Tex.Civ.App.— Beaumont 1979. no writ); Rayson v. Johns, 524 S.W2d 380 (Tex.Civ.App.— Texarkana 1975. writ refd n.r.e.); Silver v. Shefman,287 S.W.2d 316
(Tex.Civ.App.— Austin 1956, writ refd n.r.e.). The County Court erred in denying Appellant's Motion To Vacate Void Order Issued By Justice Court, Precinct 1 because the "Order" is already null and void, having been issued in excess of and in violation of the protections found codified by the Legislature in THSC § 821.023(g). The County Court furthered erred in denying Appellant's Motion To Vacate Void Order Issued by Justice Court, Precinct 1 because the "Order" is already null and void having been issued in direct violation of this Appellant's inviolable Constitutionally protected and guaranteed right to a trial by jury of any matter affecting her property rights. APPELLANT'S REPLY TO APPELLE'S RESPONSE TO APPELLANT'S ISSUE NO. 3 Appellant's Contention The Justice Court erred in issuing the "Order Awarding Possession of Seized Horses", denying Appellant her Constitutionally protected and guaranteed rights of lawful due process under the law, a trial by jury of any matter affecting her property rights, and protection from excessive fines. Appellant's Reply Brief- 06-14-00047-CV page 22 of46pages Appellee's Reply The Justice Court did not err in issuing the "Order Awarding Possession of Seized Horses". Further Appellant was not deprived due process under the law, was not denied a trial by jury and was not denied protection from excessive fines. Appellant's Reply Argument: If we are truly going to play by the rules and if we are going to abide by the law codified by the Legislature, then the ENTIRE law must be followed, and not just "portions" of the law wherever it can be "manipulated" to "fit" what law enforcement, prosecutors, or judges want it to say. Rabe attempts to manipulate the language of the law by wrongfully stating, "...§ 821.0211 clearly allows for application to be in front of a justice of the peace to the exclusion of other judges within the county." [bold, underline emphasis added]. Actually, THSC § 821.0211 states something much different than Rabe's erroneous interpretation of the law: THSC, Sec. 821.0211. ADDITIONAL DEFINITION. In this subchapter, "magistrate" means any officer as defined in Article 2.09, Code of Criminal Procedure, except that the term does not include justices of the supreme court, judges of the court of criminal appeals, or courts of appeals, judges or associate judges of statutory probate courts, or judges or associate judges Appellant's Reply Brief- 06-14-00047-CV page 23 of46pages of district courts that give preference to family law matters or family district courts under Subchapter D, Chapter 24, Government Code." THSC § 821.0211 excludes certain judges from presiding over matters concerning allegations of animal cruelty. THSC § 821.0211 does not say anything about allowing "... application to be in front of a justice of the peace to the exclusion of other judges within the county." [bold, underline emphasis added.] Again, Rabe attempts to manipulate the law, when she states "Once an application is presented, the justice court judge shall issue a warrant to have the animal(s) in question seized if the statutory showing of "probable cause to believe the animal has been or is being cruelly treated" is met." Although, on the surface, or "at first blush", this statement appears to "sound" good, this is NOT what the law actually says. The law very clearly designates ONLY "an animal" or "the animal". Nowhere in the entire THSC § 821 statute does the language codified by the Legislature state "animal(s)" (plural). THSC actually says: THSC, Sec. 821.022. SEIZURE OF CRUELLY TREATED ANIMAL, (a) "If a peace officer or an officer who has responsibility for animal control in a county or municipality has reason to believe that an animal has been or is being cruelly treated, the officer may apply to a justice court or magistrate in the county or to a municipal court in the municipality in :which-Jhe animal is located for a warrant to seize the animal, (b)0n^showing.ofprobabje:.cause to believe that the animal Appellant's Reply Brief- 06-14-00047-CV •* v.'* page 24 of46pages has been or is being cruelly treated, the court or magistrate shall issue the warrant and set a time within 10 calendar days of the date of issuance for a hearing in the appropriate justice court or municipal court to determine whether the animal has been cruelly treated."[bold, underline emphasis added] In these two statements, Rabe has quite subtly re-written the law to "exclude" other judges in the county from issuing a "warrant to seize the animal", and to say "animal(s)" (plural) when the fact really is that the actual law does NOT "exclude" other judges in the county from issuing a "warrant to seize the animal", and allows consideration for only a single individual "animal" at one time, thus complying with the warrant requirement of the 4th Amendment to "particularly describe" the item to be seized and the location where the item is located, as well as Article 1, Section 9 of the Texas Constitution mandate to describe the item to be seized and the location where the item is to found "as near as may be." Only by describing ONLY a particular animal, will a warrant comply with the Legislative intent of "an animal" or "the animal", as well as comply with the 4th Amendment requirement to "particularly describe" and the Texas Constitution, Article 1, Section 9 requirement to describe "as near as may be" Rabe's subtle re-writing of the law is the start down a very slippery slope of government infringement upon the constitutionally protected and guaranteed rights of this Appellant and eventually ALL animal owning citizens in general. With regard to the lawfulness of the "Warrant" (C.R. pgs. 45 - 46), although Appellant's Reply Brief- 06-14-00047-CV page 25 of46pages THSC § 821.022(b) allows that a warrant can be issued in a justice court, there is NO other directive contained in the entire § 821 Statute which directs the proper application for, issuance of, service of, and return for a warrant to seize an animal. In footnote No. 5 of Pine v. State,921 S.W.2d 866
(1996). the Texas Court ofAppeals shows that the "Warrant" is controlled by Chapter 18 of the Texas Code of Criminal Procedure. Since there is NO direction for the lawful procedures concerning a warrant anywhere in the language of THSC § 821, and since TCCP Chapter 18 controls the Warrant authorized by THSC § 821.022(a), there is a huge conflict within the law that must now be addressed by the Legislature. The conflict is the fact that TCCP 18.01(c) very clearly states that ONLY judges who are licensed attorneys with the state may issue a warrant to search/seize. Here lies the great problem within the language of the law, that can ONLY be corrected by the Legislature. No judge has the authority to "write" new law... and since the THSC § 821 statute does NOT contain any direction for the application for, issuance of, service of or return for a lawful warrant, then TCCP Chapter 18 controls. Understanding that the warrant authorized by THSC § 821.022(a) MUST comply with TCCP Chapter 18, then layman non-lawyer Justices of the Peace are clearly excluded from issuing a "warrant to seize the animal." TCCP Chapter 18.01(c) clearly excludes justices of the peace who are NOT licensed attorneys with the state, from issuing a "warrant to seize the animal." Thus, the "Warrant" issued by layman non-lawyer Justice of The Peace Yvonne King (C.R. pg. 46) is in direct violation of the Appellant's Reply Brief- 06-14-00047-CV page 26 of46pages language of the law found in TCCP 18.01(c) which CONTROLS the issuance of the "warrant to seize the animal", authorized by THSC § 821.022(a). Appellant alleges that the "Warrant" used to take the entire herd of horses from her property is NOT valid, because it was signed by a layman, non-lawyer in direct violation of TCCP 18.01(c). Rabe states, "The statute [82 J] refers to the right to a hearing but does not allow for a jury trial." Rabe is a licensed attorney and as such has supposedly been trained in Constitutional law, yet she is claiming that if the statute doesn't provide for the right to a trial by jury, then it is proper to deny this Appellant a trial by jury, which is in complete violation ofAppellant's inviolable, Constitutionally protected and guaranteed right to a trial by jury. As previously shown, Granger v. Folk clearly establishes that an animal owner has the inviolable right to a trial by jury of any right affecting her property rights. Animals are considered property under the law. Arrington v. Arrington,613 S.W.2d 565
- Tex: Court of Civil Appeals, 2nd Dist. 1981. Livestock animals are considered "highly perishable property" under the law. Missouri-Kansas-Texas R. Co. v. Roegelein Pro. Co.,260 S.W.2d 605
- Tex: Court of Civil Appeals, 4th Dist. 1953. As such, there is no question that "animals" are considered "property" under the law, thus this Appellant has the inviolable right to a trial by jury of any matter affecting her property rights. Granger v. Folk,931 S.W.2d 390
(Tex. App. Beaumont 1996) citing Clayton v. Clayton,308 S.W.2d 557
, 564 (Tex.Civ.App.-Texarkana 1957. no writ) Appellant's Reply Brief- 06-14-00047-CV page 27 of46pages Rabe states, "Appellant received timely notice of the hearing..." however, Rabe fails to tell the Court that Appellant was not given any notice as to which animal was to be the subject of the hearing. The only notice which Appellant received about any hearing is contained on the face of the Warrant. (GR. pg. 46). The "notice" paragraph is clearly confusing and provides NO notice of exactly "which" individual animal is to be the subject of the hearing. The paragraph containing the only "notice" which this Appellant received, states: "You are therefore commanded to forthwith seize and impound the animals (plural) described in application or located on the premises identified in the application which is/are alleged (to be) or (to have been ) cruelly treated, and you will also give written notice to Carol Paselk, the alleged owner(s) of said animal(s), that a hearing will be held in the J.P. Court of Hopkins County, Texas, at the Justice Of the Peace, 298 Rosemont Street, Sulphur Springs, Hopkins County, Texas on the 19th day of May, 2009 at 1:30PM to determine whether the animal (singlular) has been cruelly treated." [bold, underline, and italics addedfor emphasis] The ONLY animals listed on the "Application For Warrant To Seize Animals" are "55 Arabian Breed Studs And Mares."(C.R. pg. 45). There is nothing indicated anywhere in the "notice" exactly "which" individual animal was to be the subject of the hearing, as stated in the "notice" "...to determine whether THE ANIMAL has been Appellant's Reply Brief- 06-14-00047-CV page 28 of46pages cruelly treated." [bold, underline, and caps addedfor emphasis] NO Thoroughbred breed horses or Geldings are listed anywhere on the "Warrant" or the "Application." (C.R. pgs. 45-46). Approximately half of the horses taken from Appellant's property were Thoroughbred breed horses, and two Geldings were taken, (C.R. pgs. 51-54) all of which were NOT particularly described as near as may be on the "Warrant" or the "Application", so can not in any way be considered to be "noticed" for the hearing. With no description indicating any particular animal, Appellant had no idea which animal was to be the subject of the hearing, and had no idea what the allegations against her or the animals were. Appellant was deprived of the right to be properly noticed about the court proceeding so that she could prepare a proper and adequate defense. As clearly shown, horses in good condition were taken from Appellant's property, and were included in the "Order" in violation of THSC § 821.023(g).(C.R. pgs. 51-54) Including horses in good condition, violates not only the protections of THSC § 821.023(g), but also violates this Appellant's right to be free from excessive fines or cruel and unusual punishments. Rabe states, "As to excessive fines, I am unaware of any excessive fines Appellant was ordered to pay as tied to the seized horses." Horses which were in good condition were made part of the "Order" (C.R. pg. 55), in direct violation of THSC § 821.023(g) and Appellant's 8th Amendment right to be free from excessive fines and cruel and unusual punishments. Horses made subject to the "Order" which were in good condition, in violation of THSC § 821.023(g) can be considered Appellant's Reply Brief- 06-14-00047-CV page 29 of 46pages nothing less than "excessive fine" and also cruel and unusual punishment against this Appellant. A professional licensed Veterinarian is the ONLY lawful voice which can speak about the true condition of any animal. At the time the animals were taken from Appellant's property, No professional licensed Veterinarian was on-site to evaluate any of the horses BEFORE they were removed from Appellant's farm property. No professional evaluation establishing the condition of any horse was complete by a licensed Veterinarian BEFORE any horse was removed from Appellant's property. No professional Veterinarian established any grounds for any allegations against this Appellant of animal cruelty BEFORE any horse was removed from Appellant's property. With NO professional licensed Veterinarian on-site at the time of the seizure, and with NO evaluation of any horse by a professional licensed Veterinarian BEFORE any horse was removed from the property, there is NO way the State can establish ANY "beginning" chain of custody of the evidence, therefore there is NO way to prove that the condition of any horses was not altered AFTER they were removed from the property. There was also NO court ordered directing how the horses were to be safely kept after they were removed from Appellant's farm, in violation of TCCP §18.10 & § 18.11. With NO court order directing the manner of safe keeping, and with NO professional evaluation of any horse BEFORE it was taken from Appllant's farm, there Appellant's ReplyBrief- 06-14-00047-CV page 30 of46pages is no possible way to show that the condition of any horse was NO altered by the private citizens who ended up the beneficiaries of the "Order." This is a great denial of Appellant's right to lawful due process of law. With regard to the denial ofAppellant's right to an appeal, Rabe states: "Appellant claims she was unable to appeal the outcome of the seizure hearing. Please note that such an appeal was not allowed under the law in place at the time of the hearing. Judge King ordered the horses be given to two different non-profit animal protection agencies instead of having the seized horses sold at public auction. At the time the "Order" was signed, an individual could only appeal an order that animals be sold at public auction and could not appeal an order transferring animals to a cruelty prevention society. Pitts v. State (App. 14 Dist. 1995) 918 S.W2d 4, rehearing overruled." Rabe attempts to use Pitts v. State to say that Appellant had no right to an appeal. In 1996, a year after the Pitts v. State decision, in 1996, the Court ofAppeals clearly shows the problem with the Pitts decision, stating in Granger v. Folk 931 SW2d (1996) 9th Dist. Court ofAppeals.: "...the State of Texas represented by the County Attorney for Jasper County, Texas, represents that not only is Relator not entitled to a jury trial under Section 821.021 et seq, Relator is not entitled to a de novo appeal from justice court to county court. We hold that Relator is not only entitled to a jury trial under Section 821.021, as a matter of right, but is also entitled to appeal. Thus, this Court comes to irreconcilable crossroads with our Fourteenth Court ofAppeal's discussion in Pitts v. Appellant's Reply Brief- 06-14-00047-CV page 31 of46pages State,918 S.W.2d 4
, 5 (Tex.App.— Houston f!4th Dist.j 1995. orig. proceeding). Pitts held that our State Legislature "specifically" limited the rights of appeal in these cases to those involving animals ordered sold at public auction.Id. at 4.