Juan Enriquez v. Brad Livingston ( 2015 )

FILED IN COURT OF APPEALS
IN THE
12th Court of AppeateDistrict
TWELFTH COURT OF APPEALS
No. 12-15-00225-CV
TYLER TEXAS
enriquez , PAM ESTES, CLERK
Plaintiff-Appellawfe r~
v -
,
BRAD LIVINGSTON, ET AL.,
Defendants-Appellees
Appeal from the 369th District Court
of Anderson County, No. XXX-XX-XXXX
APPELLANT'S MOTION TO REINSTATE APPEAL OR FOR
REHEARING OR RECONSIDERATION
TO THE HONORABLE JUDGES OF SAID COURT:
Juan Enriquez, Appellant, moves the Court to reinstate
this appeal, or, alternatively, if a motion to reinstate is
improper, to rehear or to reconsider the judgment entered
September 30, 2015, averring as grounds the following:
I.
Appellant does not currently have direct access to the
prison law library nor access to a telephone, so he is uncertain
as to the course to follow to reinstate his dismissed appeal.
The thrust of this motion, however, cannot be mistaken.
II.
The dismissal memorandum reflects the Court dismissed on
incorrect facts.
First, the Court notes that "Appellant states further that,
on July 15, 2015, he filed a 'motion to vacate and correct
judgment.' We have not been provided with a copy of this
motion, but assume that Appellant is attempting to comply with
Rule 306(a)(5)." Dismissal Memorandum, at 2. A copy of this
motion to vacate and correct judgment was provided to the Court.
It is listed in the Index to the Clerk's Record as #157. The
motion is five pages long. It was filed on July 16, 2015, via the
mailbox filing rule and filemarked July 24, 2015, by the district
clerk.
Second, the Court states that it assumes Appellant is
attempting to comply with Rule 306a(5), which is true, but
Appellant did it by specific Motion for Nunc Pro Tunc Corrected
Order filed September 21, 2015, via the mailbox filing rule.
A Demand Prior to Mandamus was mailed to the trial court on
September;30, 2015.
The Appellant on September 21, 2015, provided this Court
with a copy of the Motion for Nunc Pro Tunc Corrected Order.
Unfortunately, he mistakenly wrote No. 12-14-00016-CV as the
number of the appeal, although he correctly designated the
appeal was from the court lower court, namely, the 369th District
Court, No. XXX-XX-XXXX. The Appellant made the same mistake with
the docketing statement. He has written the clerk of this court
requesting her to provide the Court with copies of both the
Advisory and the Docketing Statement.
The reason for the mistakes is that Appllant is currently
in Administrative Segregation (since August 31, 2015) and then
the unit went on lockdown September 10, 2015. Appellant was
III.
The proof available in this case to establish that the
clerk's notice of judgment was not received, and actual notice
of the judgment was not acquired, within twenty days of the
judgment's signing consists of (1) the postmarked envelope
reflecting a date of July 1, 2015, and (2) the mailroom records
of the Michael Unit which reflect no mail from the Anderson
County District Clerk between April 21, 2015, and July 5, 2015.
IV.
Assuming that notice of judgment was received July 1,
2015, a motion for new trial or to vacate judgment would be
timely until July 31, 2015. The district clerk's record reflects
the motion to vacate judgment was received by the clerk's office
on July 24, 2015, which would make it timely and extend the time
to file notice of appeal until September 29, 2015. Appellant's
initial notice of appeal was filemarked September 14, 2015, and
the Amended Notice of Appeal was received by this Court on
September 24, 2015. Thus, notice of appeal is timely if
Appellant did not receive notice of judgment until July 1,
2015.
WHEREFORE, PREMISES CONSIDERED, Appellant prays that this
appeal be reinstated pending an evidentiary hearing of
Appellant's motion in the lower court for Nunc Pro Tunc Corrected
Order pursuant to Rule 306a, §§ 1 thru 7, Tex.R.Civ.P. and that
4
the Court directs the trial court to set such motion for
evidentiary hearing at an early an hour and date as possible
to allow this appeal to proceed.
Respectfully submitted,
s(^l<"
in Enriquez
!7122
TDCJ-Michael
2664 FM 2054
Tennessee Colony, TX 75886
Certificate of Service
I, Juan Enriquez, certify that a correct copy of the
foregoing motion was served by placing same in the United
States mail, postage prepaid, on October 5,2015, addressed
to Ken Paxton, Attorney General of Texas, P. O. Box 12548,
Capitol Station, Austin, TX 78711.
J?'-
Mailbox Rule Filing Verification
I, Juan Enriquez, certify that the foregoing motion was
filed October 5, 2015, by placing same in the Institutional
Mail System, first class mail, postage prepaid, addressed to
Clerk, Twelfth Court of Appeals, 1517 West Front St., Suite
354, Tyler, TX 75702. Executed under penalty of perjury
declaring the filing statements are true on October 5,2015.
CAUSE NO. 369-5019
JUAN ENRIQUEZ, § IN THE DISTRICT COURT
Plaintiff, $
V. § 369TH JUDICIAL DISTRICT
BRAD LIVINGSTON, ET AL., §
Defendants. § ANDERSON COUNTY, TFXl£
PLAINTIFF'S DEMAND PRIOR TO MANDAMUS
TO THE HONORABLE BASCOM W. BENTLFY III,
JUDGE, 369TH JUDICIAL DISTRICT:
Juan Enriquez, Plaintiff, hereby demands that you act,
set for hearing, and rule on Plaintiff's pending Notion for
Nunc Pro Tunc Corrected Order served on you by mail on
September 21, 2015. should you not set the motion for nunc
pro tunc corrected order by October 10, 2015, I shall seek
mandamus from the Twelfth Court of Appeals.
Respectfully submitted,
Fnriquei— £• '
.22
r-Michael
2664 FN 2054
Tennessee Colony, TX 75886
Certificate of Service
I, Juan Enriqeuz, certify that a correct copy of the foregoing demand
was served by placing same in the United States mail, postage prepaid, on
September 30, 2015, addressed to Bascom K. Bentley, ITI.*Judge, 369th
district Court, 500 N. Church Street, Palestine, TX 75301, and Ken Paxton,
Attorney General of Texas, P. 0. Box 125**8, Austin, TX 78711.
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