Guy Sparkman v. Karen Phillips, Individually & in Her Official Capacity, Stanley Springerly, Individually & in His Official Capacity & Amy Gilbreath in Her Official Capacity as Deputy Civil Clerk of County Court at Law 2

FILED IN COURT OF APPEALS
12th Court of Aoceals District

NO. 12-13-00272-CV

IN THE
COURT OF APPEALS
12th. COURT OF APPEALS DISTRICT
AT TYLER, TEXAS

GUY SPARKMAN, PLAINTIFF
APPELLANT
VS.
KAREN PHILLIPS, INDIVIDUALLY AND IN HER OFFICIAL
CAPACITY, STANLEY SPRINGERLY, INDIVIDUALLY AND IN HIS
OFFICIAL CAPACITY, AMY GILBREATH IN HER OFFICIAL CAPACITY
DEFENDANTS/APPELLEES

ON APPEAL FROM THE DISTRICT COURT
114th JUDICIAL DISTRICT OF
SMITH COUNTY TEXAS
TRIAL COURT NO. 12-1560-b

APPELLANT'S MOTION FOR REHEARING

Guy Sparkman, Pro Se
420 Haden St.
Tyler, Tex. 75701
No Phone
Email: gysparkman@yahoo.com
 TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

POINTS FOR REHEARING

1. There Court's Memorandum opinion and judgment demonstrates the Court

has made a clear, manifest and substantial error of law; and, the error is of such

importance to the jurisprudence ofthe state that, in the opinion ofthe supreme

court, it requires correction. Re. Texas Government Code Title 2, Subtitle A.

Chapter 22 Subchapter A, Section 22,001 (6)

2. The Court's memorandum and judgment involves the constructions of a statute,

(a). Clearly, the Court has made a substantial error in its construction of Tex. Civ.

Prac. & Rem Code. 11.101. Therefore, it requires reconsideration and correction

(b) The error of construction violated Appellants Equal Protection right to the

protection of Tex. Civ. Prac. & Rem Code. 11. 051. Therefore, it requires

reconsideration and correction.

3. The appeal involves fundamental constitutional issues. The Court's memorandum

opinion and Appellant's briefdemonstrate the Court violated Appellant's Due

Process and Equal Protection Rights. Therefore, the memorandum opinion and

judgment require reconsideration and correction.
i
4. The memorandum opinion andjudgment undermine the Public's faith, trust and

confidence in the court's memorandum Opinions and judgments.

INTRODUCTION AND SUMMARY OF ARGUMENT 2, 3

ARGUMENT AND AUTHORITIES 4-12

CONCLUSION AND PRAYER 12,13

CERTIFICATE OF SERVICE 13

TABLE OF AUTHORITIES

In re Douglas,
333 S. W. 3d 273, 283-84 (Tex. App Houston 2010pet denied) 3

Griffin V. Breckenridge,
403 U.S. 88, 102 (1971) 12

HAINES V. KERNER,
404 U.S. 519 (1972) 1

HUGHES V. ROWE
449 U.S 5, 1980 (1980) 1

Maty v. Grasselli Chemical Co.
303 U.S. 197(1938) 1

Norton v. Shelby County,
118U.S. 425, p. 442 3

Texas Government Code Title 2,
Subtitle A. Chapter 22 Subchapter A, Section 22,001 (6) 3

a
 TO THE HONORABLE JUSTICES OF COURT OF APPEALS FOR THE
12th DISTRICT OF TEXAS:

Appellant files this motion requesting reconsideration ofthe clearly erroneous

and fatally flawed memorandum opinion and judgment issued in this appeal, on

March. 18,2015 and respectfully shows the Honorable Court as follows:

PRO SE LITIGANTS

" Aprosse complaint, however inartfully pleaded, must be heldto less stringent
standards than formalpleadings drafted by lawyers andcan only be dismissedfor
failure to state a claim ifit appears beyond doubt that the plaintiffcan prove no
set offacts in support ofhis claim which would entitle him to relief'

HAINES V. KERNER, 404 U.S. 519 (1972),
HUGHES V. ROWE 449 U.S 5,1980 (1980)

" Pleadings are intended to serveas a means ofarriving atfair andjust
settlements ofcontroversies between litigants. They shouldnot raise barriers
whichprevent the achievement ofthat end "
Maty v. Grasselli Chemical Co. 303 U.S. 197 (1938)

Rehearing is appropriate in this important litigation involving fundamental

constitutional issues of utmost importance to the jurisprudence of Texas.

By this Motion for Rehearing, Appellant respectfully asks the Court to revisit its

memorandum opinion andjudgment. Rehearing is appropriate in this most

important case involving fundamental, inalienable constitutional rights, privileges

1.
and immunities of the people of Texas

CLEARLY

The Court's Memorandum Opinion contains substantial errors oflaw important to

the jurisprudence ofthe state; and requires correction through reconsideration.
Also, The Memorandum and judgment violate fundamental constitutional rights!

THEREFORE

It is crucial that the Court thoroughly and correctly address each ofthe issues

presented to the Court. Plainly the opinion does not address all ofthe issues
presented by Appellants brief. This statement does not refer to the numbered
issues; but, to the numerous times the Courts ignores many ofAppellants arguments
and supporting authorities. The ignoring ofAppellants arguments and supporting
authorities violates Appellant's Due Process and Equal Protection Rights.

This irrefutable fact violates Plaintiffs fundamental and inalienable right to due

process and equal protection rights guaranteed and protected by the Constitution of
the United States and the State of Texas. Appellant respectfully moves for

rehearing, by this Motion for Rehearing. AppeUant respectfully asks the Court to

revisit its memorandum opinion and judgment..

2.
 INTRODUCTION AND SUMMARY OF ARGUMENT

There Court's Memorandum opinion demonstrates the Courthas made clear

and manifest errors of law; and, the errors are of substantial importance to the

jurisprudence ofthe state; because it involves the proper construction of Tex.

Civ. Prac & Rem Code 11.051 et seq; therefore, they requires correction

Re. Texas Government Code Title 2, Subtitle A. Chapter 22 Subchapter A,

Section 22,001 (6) I.e.,

"Furthermore, a court may declare aparty a vexatious litigant on it own motion.

In reDouglas, 333 S. W. 3d273, 283-84 (Tex. App Houston 2010pet denied "

Bottom of page 4 of memorandum opinion

"As explained above, the trial court may, sua sponte, declare aparty to bea
vexatious litigant, in which case the ninety-day timeframeforfiling a motion
does not apply SeeIn reDouglass, 333 S. W. 3dat283-84" Middle of page 5 of
memorandum opinion

ADDITIONALLY

The Court's memorandum opinion and judgment violates Plaintiffs due

process and equal protection rights. Therefore, they are void, as a matter of

law. I.e.,

"An unconstitutional act is not law; it confers no rights; it imposes no duties;
affords noprotections; it creates no office; it is legal contemplation, as inoperative
as though it had never beenpassed."
Norton v. Shelby County, 118 U.S. 425, p. 442
3.
 THE MEMORANDUM OPINION AND JUDGMENT ARE
UNCONSTITUTIONAL AND VOID AS A MATTER OF LAW
BECAUSE

1. The Court violated Appellants Due Process and Equal Protecting rights

(a) "An unconstitutional act is not law; itconfers no rights; itimposes no duties;
affords no protections; itcreates no office; itis legal contemplation, as inoperative as
though it had never beenpassed "
Norton v. Shelby County, 118 U.S. 425, p. 442

PUBLIC TRUST AND CONFIDENCE
IN THE COURTS

"Because thejudicial branch relies heavily onpublic, support to perform
its role in our system ofgovernment, public trust and confidence is aprecious
commodityfor the courts " Re. National Center for State courts

CONCLUSION

Therefore the Court should reconsider the fundamentally and fatally flawed

memorandum opinion and judgment.

ARGUMENT AND AUTHORITIES

I
CLEARLY AND MANIFESTLY
CONSEQUENTIAL ERRORS OF CONTROLLING
AND DISPOSITIVE LAW

"Furthermore, a court may declare aparty a vexatious litigant on it own motion.

In re Douglas, 333S. W. 3d 273, 283-84 (Tex. App Houston 2010pet denied "

Bottom of page 4 of memorandum opinion
4.
"As explained above, thetrial court may, sua sponte, declare aparty to bea
vexatious litigant, in which case the ninety-day timeframeforfiling a motion does
not apply SeeIn reDouglass, 333S. W. 3dat283-84" Middle of page 5 of
memorandum opinion.

THE DEFENDANT'S UNTIMELY FILED " MOTION TO FURNISH
SECURITY' IS THE CONTROLLING AND PRIMARY DISPOSITIVE
ISSUE IN THIS APPEAL

(a) The Defendant's Motion to furnish security was blatantly untimely, under

the provisions of Tex. Civ. Prac & Rem Code. 11.051. Therefore, the trial court

had no authority to consider the motion for any purpose.

(b). The trial court had no authority to sua sponte find Appellant to be a

vexatious litigant and order him to furnish security under Tex. Civ. Prac &

Rem Code 11. 051 et seq. or any other statute;

(c) Therefore, the Memorandum Opinion and Judgement signed March 18,

2015 are unconstitutional; because, the memorandum opinion in support of the

judgment violates Appellants procedural Due Process andEqual Protection

Rights, Therefore void as a matter of law

The memorandum opinion states and the Court relies on the following unsupported

And clearly erroneous conclusions of controlling and dispositive facts and law:

1.
"Furthermore, a court may declare a party a vexatious litigant on it own motion.
In re Douglas, 333 S. W. 3d 273, 283-84 (Tex. App Houston 2010pet denied "
Bottom of page 4 of memorandum opinion

2.
"As explained above, the trial court may, sua sponte, declare aparty to be a
vexatious litigant, in which case the ninety-day timeframeforfiling a motion does
not apply See In re Douglass, 333 S. W. 3d at 283-84" Middle ofpage 5of
memorandum opinion

IRREFUTABLE AND DISPOSITIVE FACTS

1. The record demonstrates the court acted on and dismissed the case on

Defendant's untimely MOTION TO FURNISH SECURITY. THE TRIAL

COURT DID NOT ACT SUA SPONTE AND COULD NOT UNDER THE

FACTS AND THE CONTROLLING LAW.

1. It is clear and manifest violation of Appellant's due process and equal

protection rights for this Court to base its decision on what atrial court could

have done; but, did not.

2. Furthermore, the Statements are clearly erroneous; Because, it was not possible for

the trial court to sua sponte find appellant a vexatious litigant and require security.

Under the irrefutable facts of this case the trial court has no authority to act sua

sponte pursuant to Tex Civ. Prac. &Rem. Code § 10! orany other statute orlaw.

3. The courts holding is manifestly erroneous, false, fraudulent and a violation of

6.
Appellant's Due Process and Equal Protection Rights.

4. The opinion cites no statute or law supporting the naked conclusion "that the

trial court may declare aparty to be a vexatious litigant in which case the

ninety-day timefrom forfiling a motion does not apply" but, cites In re Douglas

5. Plainly and indisputably the Court committed reversible error by relying on

those two manifest errors of law to affirm the trial court's decision; because,

(a) In re Douglas is clearly and manifestly not applicable or controlling of
the facts in this case. The facts are clearly distinguishable from this case.

(b) In re Douglas cites Tex Civ. Prac. & Rem, Code § 101

6. Clearly, under the irrefutable facts ofthis case; Tex Civ. Prac. & Rem. Code

§ 101. is not applicable to the facts of this case.

. Tex Civ. Prac. & Rem. Code § 101 IS CLEARLY AND MANIFESTLY NOT
APPLICABLE TO THE IRREFUTABLE FACTS OF THIS CASE
BECAUSE:\

INDISPUTABLE DISPOSITIVE FACTS

First: Appellant filed this lawsuit May 31, 2012. Appellant was not designated a

vexatious litigant until February 14, 2013 in the County Court at law of Smith

County. Therefore, Tex. Civ. Prac & Rem Code § 11.101 does not apply to this

case.

7.
SECONDLY:

Tex Civ. Prac. & Rem. Code § 101
SUBCHAPTER C. PROHIBITING FILING OF NEW LITIGATION

uSec. 11.101. PREFILING ORDER; CONTEMPT (a) A court may, on its own
motion or the motion ofany party, enter an order prohibiting apersonfrom filing,
pro se, anew litigation in acourt to which the order applies under this section
withoutpermission of(he appropriate local administrativejudge described by Section
11.102(a) to file the litigation ifthe courtfinds, after notice and hearing as provided
bySubchapter B, that the person is a vexatious litigant
(b) Aperson who disobeys an order under Subsection (a) is subject to contempt of
court

(c) A litigant may appealfrom aprefiling order entered under Subsection (a)
designating the person a vexatious litigant
(d) Aprefiling order entered under Subsection (a) by ajustice or constitutional
county court applies only to the court that entered the order.
(e) Aprefiling order entered under Subsection (a) by a district orstatutory county
court applies to each court in this state."

PLAINLY

1. Tex. Civ. Prac & Rem Code § 11.101 does not give a trial court authority

to sua sponte find a litigant to be a vexatious litigant and order security.

2. Plainly, § 11.101 applies only to a pro se litigant who has been previously been

designated a vexatious litigant, with a prefiling order and attempts to file a new

lawsuit without getting permission of the local administrative judge.

3. Tex. Civ. Prac & Rem Code § 11.101 only gives a trial court authority to

8.
sua sponte dismiss a new lawsuit filed after the date the litigant was designated a
vexatious litigant, with a prefiling order without the permission ofthe local

administrative judge.

FURTHERMORE

The Tex. Civ. Prac & Rem Code sec 11 is unconstitutional on it face and as it

has been applied to Appellant.

INESCAPABLE CONCLUSION

1. The Defendant's Motion to furnish security was blatantly untimely, under the

provisions ofTex. Civ. Prac & Rem ,as a matter oflaw.

2. Therefore, the trial court had not authority to consider the motion for any

purpose.

3. The trial court had no authority to sua sponte find Appellant to be a vexatious

litigant and order him to furnish security under Tex. Civ. Prac & Rem Code

sec. 11 or any other statute.

4. The Court's memorandum opinion andjudgment violates Appellants Due

Process of law and Equal Protections rights. Therefore they are void as a matter

of law!

5. The Court's judgment relies on clear and manifestly erroneous statements of

fact and law in the memorandum.
9.
6. Consequently, the Court should grant this legitimate Motion for Rehearing and
reconsider the issues Appellant's brief submitted to the Court for adjudication.

II
ARTICLE 5 SECTION 11 OF THE TEXAS CONSTITUTION

Appellant's briefto the Court stated:

FIRST ISSUE RESTATED AND ARGUMENT

FIRSTISSUE: The Order Requiring Security and the Order ofDismissal are
VOID; because, Visiting Retired Judge Jerry Calhoon has no valid authority to act
in the case:
(a)Theprovisions of Article 5, Section 11 ofthe Texas Constitution were violated;
Article 5, Section 11 of The Texas Constitution, in the relevant part, explicitly
provides:
"When ajudge ofthe District Court is disqualified by any ofthe causes above
stated, theparties may, by consent, appoint aproperperson to try said case; or upon
theirfailing to do so, a competentperson may be appointed to try the same in the
county where it ispending, in such manner as may beprescribed by law."
These procedures were not followed and Appellant relied on the failure to follow the
law in his brief to the Court

However, the Court erroneously upheld the trial court on grounds not cited and
relied on by the Appellant. This is a violation of Due Process and Equal

Protections and Fraud upon the Court, the Appellant and tl^e people of Texas.

MEMORANDUM OPINION

Article 5, Section 11 ofthe Texas Constitution provides that ajudge may not sitin
a case in which he has an interest, where either oftheparties may be connected
to thejudge, or when thejudgeparticipated in the case ascounsel. Sparkman
has presented no evidence here. Top ofpage 3 ofmemorandum opinion
10
 PLAINLY

Appellant DID NOT cite that section ofArticle 5, Section 11 ofthe Texas

Constitution. Appellant's brief cited and relied on

When ajudge of the District Court is disqualified by any of the causes above
stated, the parties may, by consent, appoint aproperperson to try said case; or
upon theirfailing to do so, a competentperson may be appointed to try the same
in the county where itispending, in such manner as may be prescribed by law.
TOP OF PAGE 14 OF APPELLANTS BRIEF

HOWEVER
The Court's memorandum opinions states and relies on the portion of Sec 11
not cited and relied on by the appellant I.e.,

"Article 5 Section 11 of the Texas Constitution provides that ajudge many not sit
in a case in which he has an interest, where either oftheparties may be
connected to thejudge, or where thejudgeparticipated in the case as counse.
Tex. Const Art 11.

Sparkman has presented no evidence that any of these situations exist in this
case. Therefore, Article 5 Section 11 is inapplicable here." Top of page 5
Memorandum Opinion.

PLAINLY

The Court did not address and rule on Appellants FIRST ISSUE ; but instead made

its finding on a portion of Article 5 Art 11 that Appellant did not cite or rely on as

error.

PLAINLY

(a) This is a blatant violation of Appellants due process and equal protection

rights. Therefore, the Court's finding is unconstitutional and void as a matter
11.
of law.

(b) Therefore, it is void as a matter of law!!

SECTION 11 OF THE TEXAS CONSTITUTION

"Article 5 Sec. 11. DISQUALIFICATION OFJUDGES; EXCHANGE OF
DISTRICTS; HOLDING COURT FOR OTHER JUDGES. Nojudge shall sit in
any case wherein thejudge may beinterested, orwhere either ofthe parties may
be connected with the judge, either by affinity or consanguinity, within such a
degree as may beprescribed by law, or when thejudge shall have been counsel in
thecase. When the Supreme Court, the Court ofCriminal Appeals, the Court of
Appeals, or any member ofany ofthose courts shallbethus disqualified to hear
anddetermine any case or cases in saidcourt, thesameshall be certified to the
Governor ofthe State, who shall immediately commission the requisite number of
persons learned in the lawfor the trial and determination ofsuch cause or
causes. When ajudge ofthe District Court is disqualified by any ofthe causes
above stated, theparties may, by consent, appoint aproperperson to try said
case; or upon theirfailing to doso, a competentperson may be appointed to try
the same in the county where it ispending, in such manner as may beprescribed
by law."

NO EQUAL PROTECTION OR DUE PROCESS

Clearly, the memorandum opinion and judgment violates Appellant's due process

and equal protection lights. This denial of equal protection of the laws and denial

of due process was clearly the product of class based, bias and prejudice against pro

se litigants . See Griffin V. Breckenridge, 403 U.S. 88, 102 (1971)
 CONCLUSION AND PRAYER

Appellant respectfully requests the Court grant this Motion for Reconsideration
and reconsider its memorandum opinion and judgment..

For all the foregoing compelling reasons and in the interest of Due Process and

Equal Protection rehearing and reconsideration is warranted and necessary for
the validity ofthe Court's memorandum opinion and judgment and the Public's

faith, trust and confidence in the judiciary, the judicial.processes and the

administration of justice in Smith County, Texas

Respectfully submitted

,/*^
my Sj3lirkman
420 Haden St.
Tyler. Texas 75701
No phone
Email: gysparkman @yahoo.com

CERTIFICATE OF SERVICE

I hereby certify that April 1, 2015 I hand delivered a true copy ofthis Motion For
Rehearing to the office of the attorneys for the Defendant

Guy Sparkman