texas supreme court-amended motion for rehearing on denied writ
Post on 30-May-2018
221 Views
Preview:
TRANSCRIPT
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
1/9
No. 09-1013_________________________________
In the
Supreme Court of Texas__________________________________
In Re ROBERT JOHN WRIGHT
============================================================
AMENDED
MOTION FOR REHEARING and EN BANC RECONSIDERATION in INSTANTER
=====================================================================
TO THE HONORABLE SUPREME COURT OF TEXAS:
Relator ROBERT JOHN WRIGHT, per T.R.A.P. 49.6, amends his Motion for Rehearing
and En Banc Reconsideration on a denied Writ of Mandamus and states the following:
Relator asserts that the Respondent court(s) have committed grave errors of judgment that
are of such importance to the public interest of this state, it should compel correction. To wit:
Relator is being consistently denied his right to due process and an appeal because he is indigent;
Respondent trial court patently rejected the Texas Property Codes century-old mandate that
demands an eviction suit be filed in a JP court where the property is located - prior to an eviction.
Relator believes his only remedy lies in this Courts granting of his Writ of Mandamus.
This disturbing1 case, is beguiling in its simplicity and presents two simple questions:
# 1. May the Court of Appeals dismiss an appeal before it is due?
# 2. _Does a partys indigence provide an equitable and legal basis for denying an appeal?
1 The Texas Supreme Courts authorized process server was so shocked by the contents of Relators trial courtpetition that he elected to serve the summons at no cost.
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
2/9
2
BACKGROUND
Relator was evicted from his lawfully-owned home as part of a mortgage fraud/
foreclosure/transference of wealth/concealment of fraud scheme. The unrestrained lawlessness
of the scheme has reached crisis proportions across the country. The eviction; the final process
to consummate the scam, was simply executed without the written legal authority of a JP court
located in the county where the property is located as mandated by law. (Tex. Prop. Code 24.)
That single act denied Relators constitutional right to protect his property from unlawful seizure.
MAY THE COURT OF APPEALS DISMISS AN APPEAL BEFORE IT IS DUE?
1. Relators appeal was due on September 28, 2009. On September 20, 2009, while
perfecting the timely filing of his docketing statement, affidavit of indigence (Affidavit) and
request for the trial court record, Relator received a Memorandum Opinion stating the appeal had
already been dismissed on September 16, 2009; 12 days before the appeal, docketing statement,
affidavit and request for the record were due to be filed. The 9/16/09 Opinion stated:
By letter dated August 11, 2009, the Court directed appellant to pay the $175 filing feefor the appeal within 10 days. The letter further warned that failure to pay the feewould result in dismissal of the appeal without further notice. To date appellant hasneither paid the filing fee nor otherwise communicated with the Court regarding theappeal. Accordingly, we dismiss the appeal. See TEX. R. App. P. 42.3(c).
2. The Respondent courts docket (Apx. 9 of the writ) contains no entry of a letter
sent on August 11 or any other date. Relator did not receive a letter, court order, or notice from
the clerk under TRAP 42.3(c) or 32.1 prior to the dismissal. A court should be particularly
careful to ensure proper notice to a pro se litigant.Herron v. Beck, 693 F.2d at 127.
3. The Respondent appellate docket does contain a September 8, 2009, 32.1
NOTICE, entered 20 days before the docketing statement was due.
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
3/9
3
4. In arguendo and assuming that a docket entry is constructive notice that complies
with the notice delivery requirements under Rules 42.3 and 32.1 giving ten days notice to all
parties, that would still have allowed Relator until September 18 to comply with any alleged
defects but the appeal had already been dismissed two days earlier on September 16.
5. If the dismissal was due to a procedural error, the docket itself confirms it was a
court error, and therefore the Respondent appellate courts dismissal should be vacated.
Texas Rules of Appellate Procedure 41.1(a)(1) states:
[the court may dismiss the appeal or affirm the appealed judgment or order unless suchdisposition would prevent a party from seeking relief to which it would otherwise be
entitled.]
6. Should it be determined that Relator caused the error, then proper procedure
requires that the party be notified of the error and given an opportunity to correct the error.
Court errs if court dismisses pro se litigant without instructions of how pleadings are deficient
and how to repair pleadings. Plaskey v CIA, 953 F .2nd 25. The trial judge should inform a pro
se litigant of the proper procedure for the action he or she is obviously attempting to
accomplish. (emphasis added) Breck v. Ulmer, 745 P.2d 66, 75 (1987).
7. Relator only became aware of the reason for dismissal upon receipt of
Respondents Memorandum Opinion, which came prior to his application to proceed at no cost.
No Notice, No Review, No Ruling + No Appeal = No Equal Protection or Due Process.
8. Denial of equal protection of the laws and denial of due process was clearly the
product of bias and prejudice of the Court. See Griffen v. Breckenridge, 403 U.S. 88, 102 (1971).
9. In the instant case, the trial court reporter and court clerk did not contest Relators
affidavit. At best, Real Parties informally contested the affidavit by letter, but no contest was
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
4/9
4
held, and the affidavit received no administrative or judicial ruling. Instead, the Respondent
appellate court dismissed the appeal 12 days before it was due by citing Relators failure to pay
fees, and without first ruling on Relators affidavit. (See Writs Apx. 9)
10. Moreover, after the trial court evidence converted Relators allegations to facts,
Relator filed a Motion for Declaratory Judgment, and due to the cost, asked the Respondent trial
court to rule on the pleading without a hearing. Relators motion was ignored and no ruling on
the motion was rendered. Respondent trial court did rule however, on Real Parties Motions for
Summary Judgment, without first, reviewing Relators Reply brief submitted, docketed and
presented to the bench just prior to the hearing. Relators request(s) for a controlling law that
would allow this Court to rule the eviction was lawful. were ignored. (Hearing transcript and
reply brief) The court is under a duty to examine the complaint to determine if the allegations
provide for relief on any possible theory. Bonner v. Circuit Court of St. Louis, 526 F.2d 1331,
1334 (8th Cir. 1975), quotingBramlet v. Wilson, 495 F.2d 714, 716 (8th Cir. 1971).
11. The hearing also dismissed Real Party Todd and imposed sanctions against
Relator mere minutes after the court irrefutably heard the false testimony given by Todds
counsel. (hearing transcript and See Writ1, 5)
DOES A PARTYS INDIGENCE PROVIDE AN EQUITABLE AND LEGAL BASIS FOR
DENYING AN APPEAL?
12. Pro Se parties have the right to Appeal, and submit their briefs on appeal even
though they may be inartfully drawn, Vega v. Johnson, 149 F.3d 354 (5th Cir. 1998). Also,
Courts will go to particular pains to protect pro se litigants consequences of technical errors if
injustice would otherwise result. (emphasis) U. S. v. Sanchez, 88 F.3d 1243 (D.C. Cir. 1996).
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
5/9
5
THIS COURTS POSITION ON THE RIGHTS OF INDIGENTS IS CLEAR.
13. This Court has embraced [t]he concept that courts should be open to all, including
those who cannot afford the costs of admission, is firmly embedded in Texas jurisprudence. See,
e.g., TEX. CONST. art. I, 13; Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d
349, 353 (Tex. 1996); Pinchback v. Hockless, 164 S.W.2d 19, 1920 (Tex. 1942); also Goffney
v. Lowry, 554 S.W.2d 157, 159 (Tex. 1977); Pendley v. Berry, 65 S.W. 32, 33 (Tex. 1901).
14. This Court is also aware that [t]he option of submitting an affidavit of indigence
in lieu of a filing fee has been available in civil appeals for more than a century, first by statute
and now by rule. See Act of May 3, 1871, 12th Leg., R.S., ch. 71, 12, 1871 Tex. Gen. Laws
74, amended by Act of Apr. 14, 1879, 16th Leg., R.S., ch. 81, 1, art. 1401, 1879 Tex. Gen.
Laws 90, amended by Act of May 18, 1931, 42d Leg., R.S., ch. 134, 1, 1931 Tex. Gen. Laws
226, repealed by Act of May 15, 1939, 46th Leg., ch. 25, 1, 1939 Tex. Gen. Laws 06-0917 -
201 (current version at TEX. R. APP. P. 20.1); see also Pendley, 65 S.W. at 3233.
15. And [t]hroughout this time, the fundamental requirement for asserting indigence
has remained the same: the applicant must declare to the court, by affidavit, an inability to pay
any, or the ability to pay only some, of the costs of appeal. TEX. R. APP. P. 20.1(a)(1), (b), (k);
Pendley, 65 S.W. at 3233.
16. The aforementioned was taken from the Texas Supreme Court Opinion in Higgins
v. Randall County Sheriffs Office, 193 S.W.3d 898, 899900 (Tex. 2006) (Higgins I).
17. Higgins, a pro se inmate, timely appealed the trial courts dismissal of his civil
suit for want of prosecution but failed to either pay the filing fee or file an affidavit of indigence.
When the court of appeals requested payment of the filing fee within ten days, Higgins filed an
affidavit of indigence. Because Higgins failed to file the affidavit with his appeal as Texas Rule
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
6/9
6
of Appellate Procedure 20.1(c)(1) provides, and because the affidavit failed to fully comply with
Rule 20.1(b), the court dismissed Higginss appeal, just as Respondent did in this instant case.
18. This Court reversed holding that an appeal may not be dismissed for a formal
procedural defect unless the party is provided a reasonable opportunity to correct the defect. See
Higgins v. Randall County Sheriffs Office, 193 S.W.3d 898, 899900 (Tex. 2006) (Higgins I).
19. This Court stated that its Higgins decision... reflects[s] the policy embodied in
our appellate rules that disfavors disposing of appeals based upon harmless procedural defects.
Id. at 616; see Jones, 747 S.W.2d at 370. We have steadfastly adhered to this policy in refusing
to require strict conformance with other formal aspects of Rule 20.1, including the requirement
that an affidavit of indigence be filed with or before the notice of appeal. See, e.g., Sprowl v.
Payne, 236 S.W.3d 786, 787 (Tex. 2007); Springer v. Springer, 240 S.W.3d 871, 872 (Tex.
2007);Hood v. Wal-Mart Stores, Inc., 216 S.W.3d 829, 830 (Tex. 2007);Higgins I, 193 S.W.3d
at 899900.
20. This Courts view on the rights of indigents was also memorialized in the opinion:
In re Sosa2. Sosa filed a writ of mandamus to compel the court to set aside an order sustaining a
contest to an affidavit of indigence. The court of appeals granted the writ, stating: [B]ecause we
are bound by the supreme courts decision to favor the rights of indigents on appeal, we must
conditionally grant the writ. (Id. with emphasis) It is unambiguous that Relators courts have
repeatedly rejected this Supreme Courts holding that favors the rights of indigents.
21. In Sosa, the appellant was receiving social security benefits; had family members
who provided her with financial assistance, and an attorney who agreed not to charge her a fee
for the appeal. (Id.)
2In re Sosa (980 SW 2d 814 - Tex: Court of Appeals, San Antonio 1998980 S.W.2d 814 (1998).
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
7/9
7
22. In stark contrast to Sosa, Relator is not receiving social security benefits; does not
have family providing financial assistance, and does not have an attorney - for reasons expressed
in Relators writ. (Please review the Writ in its entirety)
23. However, after conforming to the strict guidelines, Relator does receive
government entitlements in the form of food stamps, and provided a copy of this incontrovertible
government entitlement and the government-issued card with his affidavit to the Respondent
court and to this Court. (See exhibit attached to Apx. 11 of Relators Writ.) Had a contest to the
affidavit been heard, Real Parties argument would be limited only with respect to the veracity
of the government entitlement evidence. (Id. TRCP 145(d)) Regarding other assets, Relators
only remaining assets were intentionally damaged, destroyed, stolen or discarded by the unlawful
and illegal acts of the Real Parties as set forth in Relators original petition. (See Writ - Apx. 1)
24. Furthermore, the Respondent trial court indicated bias and prejudice when it
stated: I am holding you (Relator) to the highest standards of an attorney. (hearing transcript)
Pro Se Litigants pleadings are to be construed liberally and held to less stringent standards than
lawyers.Haines v Kerner, 404 US 519 (1972)." ... the right to file a lawsuit pro se is one of the
most important rights under the constitution and laws." Elmore v. McCammon (1986) 640 F.
Supp. 905. Relator avers he has been denied those most important rights.
25. To reiterate; no hearing was held to contest the affidavit, and no administrative or
judicial determination was made. Relators appeal was instead wrongfully dismissed.
CONCLUSION
26. Relator has no other remedy at law or in equity to recover the severity of his
damages. His only hope of restitution requires a complete record so he may exercise his right to
appeal (at no cost) the lower courts error(s) in judgment, which are clearly - manifestly unjust.
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
8/9
8
PRAYER
Relator believes he has satisfied his burden of proof, including the requirements that must
be met in order to be granted mandamus relief. Relator adds this case has far too many
inconsistencies and suspect circumstances pointing to denials of due process that preclude
Respondents judgments and dismissal of the appeal and presents a final question:
Would the appeal have been dismissed if Relator had been able to pay the fees?
Relators request for an en banc reconsideration of his Writ of Mandamus is critical to
the equitable and proper administration of law and would allow the relief to which Relator would
otherwise be entitled. Relator requests that an Opinion and Order issue to vacate Respondents
dismissal under TRAP 61.1 (a) and (b) and that Relator be granted the relief requested for in his
writ and any other relief this Court deem just and proper.
Respectfully submitted,
/s/:Robert John Wright_____Robert John Wright - Relator pro se in forma pauperis
VERIFICATION
BEFORE ME, the undersigned notary public, on this _16th_ day of February, 2010,personally appeared Robert John Wright, who being duly sworn by me deposed and said:
1. "I am Robert John Wright, the Relator in this case.
2. I am over 21 years of age and am competent to make this affidavit.
3. I have read the Motion for Leave and the Amended Motion for Rehearing and EnBanc Reconsideration in Instanter and exhibit to which this verification is
attached, and every factual statement contained therein is within my personalknowledge and is true and correct.
FURTHER AFFIANT SAYETH NOT.
____Original signed and notarized____Robert John Wright Relator
-
8/9/2019 Texas Supreme Court-Amended Motion for Rehearing on Denied Writ
9/9
9
CERTIFICATE OF SERVICE
I certify that, on or about February _16th_, 2010, I electronically served a copy of themotion for leave and this motion to the email addresses listed below:
_/s/:Robert John Wright__Robert John WrightP.O. Box 797762Dallas, Texas 75379(972) 955-6735
Wm. Lance Lewisllewis@qsclpc.comQuilling, Selander, Cummiskey & Lownds
2001 Bryan Street, Suite 1800Dallas, Texas 75201
David N. Kitnerdavid.kitner@strasburger.com,Strasburger & Price, L.L.P.
901 Main Street, Suite 4400Dallas, Texas 75202
Robert J. Davisbdavis@mssattorneys.comMatthews, Stein, Shiels, Pearce, Knott, Eden &Davis, L.L.P.8131 LBJ Freeway, Suite 700Dallas, Texas 75251
***
top related