Perkins v. Brewster et al
REPORT AND RECOMMENDATIONS re 21 Motion to Dismiss filed by Bruce Elfant, 13 Motion to Dismiss filed by Whitney Brewster, Steve McCraw. Signed by Judge Andrew W. Austin. (td)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
WHITNEY BREWSTER, et al.
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
Before this Court are Defendants’ Motions to Dismiss (Dkt. Nos. 13 & 21), Plaintiff’s
Responses (Dkt. Nos. 20 &22), and Defendants’ Replies (Dkt. No. 25 & 28). The District Court
referred the motions to the undersigned Magistrate Judge for report and recommendation pursuant
to 28 U.S.C. §636(b)(1)(A), FED. R. CIV. P. 72, and Rule 1(c) of Appendix C of the Local Rules.
I. GENERAL BACKGROUND
Wesley Perkins brings this suit against the Executive Director of the Texas Department of
Motor Vehicles (DMV), the Tax Assessor Collector for Travis County, and the Director of Texas
Department of Public Safety (DPS). In the Complaint, Wesley appears to argue that because he has
“terminated the trusts” (i.e., the Certificate of Title issued to owners of vehicles) between himself
and the DMV that there is no longer a “viable commercial nexus” by which he might be governed
by the Texas Transportation Code. Defendants move to dismiss his claims.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(1) allows a party to assert lack of subject-matter
jurisdiction as a defense to suit. Federal district courts are courts of limited jurisdiction, and may
only exercise such jurisdiction as is expressly conferred by the Constitution and federal statutes.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). A federal court properly
dismisses a case for lack of subject matter jurisdiction when it lacks the statutory or constitutional
power to adjudicate the case. Home Builders Assn. of Miss., Inc. v. City of Madison, 143 F.3d 1006,
1010 (5th Cir. 1998). “The burden of proof for a Rule 12(b)(1) motion to dismiss is on the party
asserting jurisdiction.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001), cert. denied,
536 U.S. 960 (2002). “Accordingly, the plaintiff constantly bears the burden of proof that
jurisdiction does in fact exist.” Id. In ruling on a Rule 12(b)(1) motion, the court may consider any
one of the following: (1) the complaint alone; (2) the complaint plus undisputed facts evidenced in
the record; or (3) the complaint, undisputed facts, and the court’s resolution of disputed facts. Lane
v. Halliburton, 529 F.3d 548, 557 (5th Cir. 2008).
Rule 12(b)(6) allows for dismissal of an action “for failure to state a claim upon which relief
can be granted.” While a complaint attacked by a Rule 12(b)(6) motion does not need detailed
factual allegations in order to avoid dismissal, the plaintiff's factual allegations “must be enough to
raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007); see also, Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007). A plaintiff's obligation
“requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.” Id. The Supreme Court recently expounded on the Twombly standard,
explaining that a complaint must contain sufficient factual matter to state a claim to relief that is
plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662 (2009). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. In evaluating a motion to dismiss, the Court
must construe the complaint liberally and accept all of the plaintiff's factual allegations in the
complaint as true. See In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2009).
Finally, although this Court construes the briefs of pro se litigants liberally, a pro se litigant must
still comply with the court rules of procedural and substantive law. Bird v. Estelle, 660 F.2d 592,
593 (5th Cir. 1981); see also Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002)
(“whether the plaintiff is proceeding pro se or is represented by counsel, conclusory allegations or
legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.”) (internal quotation marks and citations omitted), cert. denied, 537 U.S. 1200 (2003).
Perkins has been arrested on a number of traffic related charges over the last five years. In
each of these cases, Perkins argued that any violation of the Transportation Code has as an element,
a requirement of “commercial consent,” and therefore he is not subject to the laws. Dkt. No. 1 at
5. This is at the heart of his argument in this case. Perkins claims that he derives this requirement
from Lozman v. Riviera Beach, 568 U.S. 115 (2013), in which the Supreme Court interpreted the
word “transport” as it was used to define “vessel” in 1 U.S.C. § 3. There, the Supreme Court noted
that transportation may be shown by the “conveyance (of things or persons) from one place to
another.” Id. at 121. Perkins reads this case to construe the Transportation Code to require
“commercial consent to be regulated.” Dkt. No. 1 at 6. He has previously brought this exact
argument in each of his appeals of his convictions for violations of the Transportation Code. Here,
he takes the argument a step further. Finding no relief in the Texas criminal appeals systems,
Perkins has now “terminated the trusts” by which he argues was derived his “commercial consent.”
Thus, from the starting point noted above, Perkins’ logic has expanded—as best the Court can
determine—as follows: the Certificate of Title issued to the purchaser of an automobile is evidence
of commercial consent to be regulated because the financial institution—who owns the car before
all payments are made—needs protection of its collateral, and this need for collateral is the basis
of the laws governing roadways. The Certificate of Title, according to Perkins, then creates the
consent that is needed in order for a person to be bound by the Transportation Code and subject to
its requirements; whereas termination of the Certificate of Title (i.e., the uneconomic trust) is
evidence of non-consent such that Perkins cannot be regulated by the Transportation Code.
Leaving aside how non-sensical this argument is, the Court’s analysis need go no further than
the very first assertion: that to be regulated under the Transportation Code, one must assert
“commercial consent.” Because this assertion is incorrect (as numerous courts have told Perkins),
the remaining steps in his analysis cannot stand, as they are based on a false premise. To begin with,
nowhere in Lozman are the words “commercial” or “consent” to be found, much less used as a
phrase; nor is the phrase “for profit or hire,” from which Perkins had construed the commercial
consent element. Moreover, the court in Lozman was addressing the definition of “vessel” as it
applies in admiralty, a completely different area of the law than the Transportation Code of Texas.
Disregarding Perkins’ reliance on Lozman, his argument has been rejected by a number of courts.
First, the Texas Court of Appeals has rejected Perkins’ use of this definition of “transportation” as
a defense on no less than three occasions.
See Perkins v. State, 2016 WL 691265 (Tex.
App.—Austin Feb. 19, 2016) (rejecting the argument that a vehicle must be used for a commercial
purpose to be regulated under the Transportation Code); Perkins v. State, 2016 WL 4272109 (Tex.
App.—Austin Aug. 11, 2016, pet. denied) (same); Perkins v. State, 2015 WL 3941572 (Tex.
App.—Austin June 25, 2015) (same). Similarly, other courts have found no requirement of
“commercial activity” in order to be bound by a state’s motor vehicle laws. See, e.g., Snavely v. City
of Huntsville, 785 So.2d 1162 (Ala. Crim. App. 2000) (rejecting the defendant’s argument that
commercial activity was required to be subject to the state’s transportation laws); see also Leverson
v. State, 2016 WL 4628054 (Tex. App.—Austin Aug, 30, 2016) (“[A]pellant’s interpretation of
‘transportation’ misapplies that term to the Transportation Code provisions at issue in these cases.
In light of that misinterpretation and misapplication, we disagree that he was not required to comply
with the applicable statutes.”).
Instead, courts have held that “driving an automobile on public roads is not a constitutionally
protected right, but a privilege.” Leverson, 2016 WL 4628054, at *9. A state is necessarily
permitted to reasonably regulate any who use public roads under the State’s police powers. Id.
Admittedly, Perkins’ argument is slightly different than that of the plaintiffs in the cases cited by
Leverson. In those cases, the plaintiffs were challenging various transportation statutes on the basis
of a property right or the fundamental right to travel. See Gillaspie v. Dept. of Public Safety, 259
S.W.2d 177, 466 (Tex. 1953); Al-Yahnai Fountain Hawkins v. State, 2005 WL 2156981 (Tex.
App.—Eastland Sept. 8, 2005). Here, Perkins is basing his entire argument on an alleged
constitutional “right not to contract.” In other words, he is asserting that he has a constitutional right
to choose whether to be bound by the laws. However, it should go without saying that consent is not
required for a person to be bound by the law. And even if consent were somehow required, a driver
consents by the simple expedient of using a public road. No more is required; a person using the
public roads is required to abide by the governing laws, just as any person that engages in activity
governed by law is required to abide by those laws. As such, Perkins’ argument that “terminating
the trusts” evidences non-consent to be bound by the Texas Transportation Code—even if it made
sense—is baseless. Thus, Perkins’ claims should be dismissed for failure to state a claim upon which
relief may be granted.
In accordance with the foregoing discussion, the Court RECOMMENDS that the District
Court GRANT Defendants’ Motions to Dismiss (Dkt. Nos. 13 & 21).
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections. See
Battle v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the District Court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153 (1985);
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-1429 (5th Cir. 1996) (en banc).
SIGNED this 9th day of February, 2018.
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE
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