in Re: Juan Enriquez

227122
TDCJ-Michael
2664 FM 2054
Tennessee Colony, t$LE§>dfel£OURT OF APPEALS
December 8, 2015 ' 12th_Courtof Appeals District
Clerk
Twelfth Court of Appeals
1517 West Front Street
Suite 354 TYLER TEXAS
Tyler, TX 75702 RAM ESTES, CLERK
Re In re Juan Enriquez, No. jo^lo ~QDo£)(fi -C_V
Original Petition for Writ of Mandamus
Trial Court Case No. XXX-XX-XXXX,
Enriquez v. Livingston, et al., 369th
District Court, Anderson County, Texas

Dear Sir or Madam:,

Enclosed for filing is my:

1. Original Petition for Writ of Mandamus
2. Unsworn Declaration of Inability to Pay
3. Motion to Proceed Without the Record

Thank you for your time and your assistance in this
matter is appreciated.

Very truly yours,

Enriquez

Enclosures (3 instruments)
cc: Honorable Bascom W. Bentley, III
Judge, 369th District Court

Brianna Webb
Assistant Attorney General
,«

IN THE COURT OF APPEALS FILED IN COURT OF APPEALS I
TWELFTH DISTRICT OF TEXAS
12th Court of Appeals District
TYLER, TEXAS

DEC 162015,

No, 13-)5-rtQ;?£)/(>-CV TYLER TEXAS
PAM ESTES, CLERK

In re JUAN ENRIQUEZ, Relator

Original Proceeding from Anderson County, Texas
369th Judicial District, No. XXX-XX-XXXX
Honorable Bascom W. Bentley, III, Presiding

ORIGINAL PETITION FOR WRIT OF MANDAMUS

Juan Enriauez
227122
TDCJ-Michael
2664 FM 2054
Tennessee Colony, TX 75886
 (a) Identity of Parties & Counsel

Relator: Respondent:,

Juan Enriquez Bascom W. Bentley, III

Counsel for Relator: Counsel for Respondent

Pro Se Hon. Ken Paxton Jr.
227122 Texas Attorney General
TDCJ-Michael P. O. Box 12548
2664 FM 2054 Austin, TX 78711
Tennessee Colony, TX 75886
 11

(b) TABLE OF CONTENTS

(a) IDENTITY OF PARTIES AND COUNSEL i
(b) TABLE OF CONTENTS ii
(c) INDEX OF AUTHORITIES iii
(d) STATEMENT OF THE CASF 2
(e) STATEMENT OF JURISDICTION 2
(f) ISSUE PRESENTED ... 2
(g) STATEMENT OF FACTS 3
(h) ARGUMENT .. 5

1. Abuse of Discretion 5
Failure to Rule 5
Properly Presented 6
Unreasonable Time 7
2. Demand Prior to Mandamus 8
3. No Other Adequate Remedy 8

(i) PRAYER 8
(j) CERTIFICATION 9
Verification 9
Certificate of Service 9

(k) APPENDICES 10

APPENDIX A: Motion for Nunc Pro Tunc Corrected Order
APPENDIX B: Demand Prior to Mandamus
 Ill

(c) INDEX OF AUTHORITIES

CASES: PAGE:

A;mir-Shariff, In re,
357 S.W.3d 180 (Tex.A,pp. — Dallas 2012) 5
Davidson, In re,
153 S.W.3d 450 (Tex.App. — Amarillo 2004) 5
Lawson, In re,
357 S.W.3d 134 (Tex.App. — San Antonio 2011) 5
Lynd, In re,
195 S.W.3d 682 (Tex. 2006) 7
Prudential Ins. Co. of Am., In re,
148 S.W.3d 121 (Tex. 2004) 5
Safety-Kleer Corp. v. Garcia,
945 S.W.2d 266 (Tex.App. — San Antonio 1997) 5

RULES, STATUTES, AND SECTIONS:

Rule 52, Tex.R.App.P 1,2

Rule 306a, Tex.R.Civ.P 1,2,6
 IN THE COURT OF APPEALS
TWELFTH DISTRICT OF TEXAS
TYLER, TEXAS

No.

In re JUAN ENRIQUEZ, Relator

Original Proceeding from Anderson County, Texas
369th Judicial District, No. XXX-XX-XXXX
Honorable Bascom W. Bentley, III, Presiding

ORIGINAL PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE JUDGES OF SAID COURT:

Juan Enriquez, Relator, pursuant to Rule 52, et seq.,

Texas Rules of Appellate Procedure (Tex.R.App.p.), seeks

mandamus relief to compel Respondent, Bascom W. Bentley, III,

Judge, 369th District Court, Anderson County, Texas, to rule

on Relator's pending Plaintiff's Motion to Vacate and Correct

Judgment and Plaintiff's Motion for nunc Pro Tunc Corrected

Order, averring as grounds the following:

(d) STATEMENT OF THE CASE

Relator seeks an evidentiary hearing and a ruling on his

motion to vacate and correct judgment and on his motion for

nunc pro tunc corrected order which requests, pursuant to

Rule 306a, Sections 1 thru 7, Texas Rules of Civil Procedure

(Tex.R.Civ.P.), an evidentiary hearing to establish the date
on which Relator first received notice or acquired knowledge

of the judgment entered in the underlying case on April 22,

2015.

The Respondent is the Honorable Bascom W. Bentley, III,

Judge, 369th District Court, Anderson County, Texas. The real

party in interest is Brad Livingston, Executive Director of the

Texas Department of Criminal Justice -- Correctional Institutions

Division (TDCJ-CID), whom Relator claims ignored his complaints

of denial of dental treatment which caused him needless pain and

suffering and loss of teeth.

Relator seeks an evidentiary hearing and ruling on his

pending motions as required by Rule 306a, §§ 1-7, Tex.R.Civ.P.

(e) STATEMENT OF JURISDICTION

This Court has jurisdiction pursuant to Rule 52, et seq.,

Texas Rules of Appellate Procedure (Tex.R.App.P.).

(f) ISSUE PRESENTED

The issue presented is whether Respondent is abusing his

discretion by refusing or failing to act on Relator's pending

motion to vacate and correct judgment and pending motion for

nunc pro tunc corrected order which were filed July 16, 2015,

and September 21, 2015, respectfully under the mailbox rule

by placing same in the institutional mail system.
 (g) STATEMENT OF FACTS

Respondent entered judgment or dismissal order on April 22,

2015. However, the district clerk did not mail the judgment to

Relator until July 1, 2015.

The motion to vacate judgment was filed on July 16, 2015,

via the mailbox filing rule and received in the district clerk's

office on July 24, 2015. The motion informed the district court

that its judgment or order of dismissal entered April 22, 2015,

was not mailed to the Relator by the District Clerk of Anderson

County until July 1, 2015, and not delivered to Relator by

Defendant prison officials until mid-July of 2015. The motion
1/
is verified.

On September 21, 2015, Relator submitted his Plaintiff's

Motion for Nunc Pro Tunc Corrected Order. APPENDIX B. He urged

the Respondent to hold an evidentiary hearing because as a

prisoner he does not have access to the mail records of the

Michael Unit nor does he have access to the district clerk's

records. Relator informed the Respondent he needed an evidentiary

hearing where he can subpoena A. Cargill, Mailroom Supervisor,

to testify when mail from the district clerk of Anderson County

for Relator reached the Michael Unit from April 22, 2015, to

July 16, 2015, and Janice Staples, District Clerk of Anderson

1/
The Court is requested to take judicial notice of its own records
in No. 12-15-00225-CV, Juan Enriquez v. Rick Thaler, et al, which contains
a copy of the Motion to Vacate and Correct Judgment certified by the District
Clerk of Anderson County.
 4

County, to testify when she mailed the order of dismissal to

Relator.

The Respondent has refused or failed to act on the Relator's

motion to vacate and correct judgment or to act on Relator's

motion for nunc pro tunc corrected order.

The Relator has filed a Demand Prior to Mandamus demanding

the Respondent act on Relator's motion for nunc pro tunc corrected

order where Relator requests an evidentiary hearing to establish

the date he received or acquired knowledge of the order of

dismissal entered by Respondent on April 22, 2015. APPENDIX B.

Respondent, however, has refused or failed to act on Relator's

motion for nunc pro tunc corrected order.
 (h) ARGUMENT

"Mandamus will issue only to correct a clear abuse of

discretion for which the relator has no adequate remedy at law."

In re Lawson, 357 S.W.3d 134, 135 (Tex.App. — San Antonio 2011)

(citing In re Prudential Ins. Co. of Am., 148 S.W.3d 121, 135

(Tex. 2004)(Orig. proceeding).

1. Abuse of Discretion

"A trial court abuses its discretion when it fails to

rule on pretrial motions that have been properly presented to

it within a reasonable time." I_n r_e Amir-Shariff, 357 S.W.3d

180, 181 (Tex.App. — Dallas 2012), citing In re Davidson,

153 S.W.3d 490-491 (Tex.App. — Amarillo 2004, orig. proceeding);

Safety-Kleer Corp. v. Garcia, 945 S.W.2d 266,269 (Tex.App. —

San Antonio 1997, orig. proceeding).

Failure to Rule

Respondent has refused or failed to rule on the pending

motion to vacate judgment filed on July 16, 2015, via the

mailbox filing rule and received in the district clerk's office

on July 24, 2015. Respondent has also failed or refused to rule

on the pending motion for nunc pro tunc corrected order filed

September 21, 2015. Respondent has also refused or failed

to act on relator's supplement to motion for nunc pro tunc

corrected order filed October 21, 2015. The failure or refusal

of the Respondent to act for nearly five months on a matter that

should have been resolved within days to allow Relator to appeal

and to allow this court to execise its jurisdiction to hear

Relator's appeal.
 Properly Presented

The Relator's motions sub judice were properly presented.

The Order of Dismissal was siqned April 22, 2015, but the district

clerk did not mail the order to Relator until July 1, 2015. as

reflected by the postmark on the envelope. The order did not

arrive on the Michael Unit until somewhere between July 2 and

July 22, 2015. The date when Relator received a copy of the

motion is more than 20 days after it was siqned but less than

90 days allowed by Rule 306(a), Tex.R.Civ.P., to restart the time

periods set by paragraph (1) of said Rule.

Enriquez filed his verified motion to vacate and correct

judgment on July 16, 2015, via the mailbox rule, which motion

reached the district clerk's office on July 24, 2015, within

ten days after it was mailed. Enriquez moved the court to

vacate and correct its judgment or order of dismissal entered in

this cause on April 22, 2015, but not mailed to the plaintiff bv

the District Clerk of Anderson County until July 1, 2015 [EXHIBIT

A] and not delivered to him by Defendant prison officials until

mid-july of 2015.

On September 21, 2015, Relator submitted his motion for nunc

pro tunc corrected order, requesting an evidentiary hearinq where

he "can subpoena A. Carqill, mailroom supervisor, Michael Unit, to

testify when mail from the district clerk for plaintiff reached

the Michael Unit from April 22, 2015, to Julv 16, 2015, and Janice

Staples, district clerk of Anderson County, to testify when she

mailed the order of dismissal to plaintiff."
 7

Unreasonable Time

The motion to vacate and correct judgment has been pending

over five months. The motion requesting a nunc pro tunc entry

and an evidentiary hearing to establish the date on which the

Relator first received notice or acquired knowledge of the

order of dismissal or judgment has been pending over three months.

In the meantime, the Court of Appeals has pending before it a

Motion to Reinstate Appeal or for Rehearing or Reconsideration

submitted October 5, 2015, and a supplement to that motion filed

October 8, 2015 wherein he brought to the attention of the Court

of Appeals the decision by the Supreme Court of Texas in I_n re

Lynd Co., 195 S.W.3d 682 (Tex. 2006), where it was made clear

that "[p]ost-judgment procedural timetables -- including the period

of the trial court's plenary power -- run from the day a party

receives notice of judgment, rather than the day judgment is

signed, if the party: (1) complies with the sworn motion, notice

and hearing requirements mandated by Rule 306a(5), and (2) proves

it received notice of the judgment more than twenty (but less

than ninety-one) days after it was signed." Lynd, supra, at 686.

Lynd holds that the trial court has jurisdiction for the

specific purpose of holding an evidentiary hearing to determine

the date on which the party or its counsel first received notice

or acquired knowledge of the judgment." Id. at 686. Under these

circumstances the trial court's failure to hold an evidentiary

hear for over five months since the motion to vacate and correct

judgment was filed is an unreasonable time.
 2. Demand Prior to Mandamus

Plaintiff filed a Demand prior to Mandamus to set for hearing

plaintiff's motion for nunc pro tunc corrected order by October 10,

2015, or that Plaintiff would seek mandamus from the Twelfth

Court of Appeals. The trial court has not set for hearing

Plaintiff's request for evidentiary hearing to establish the

date he received nofice or acquired actual knowledge of the trial

court's dismissal order or judgment of April 22, 2015.

3. Np_ Other Adequate Remedy

The Relator has no other adequate remedy to compel the

evidentiary hearing contemplated by Rule 306a, supra, to establish

and determine the date on which he first received notice or

acquired knowledge of the judqment or order of dismissal entered

in this case on April 22, 2015, but which judqment or order was

not mailed to him bv the district clerk until July 1, 2015, as

reflected on the postmark on the envelope in which the judgment

or notice was mailed. This Court erroneously dismissed the

appeal of the dismissal order or judqment sub judice on the

mistaken notion that a copy of the motion to vacate judgment

had not been provided to the court when in fact the motion to

vacate judgment is part of the record on appeal. Thus, the

remedy of appeal is not available to the Relator until he

is able to have the evidentiary hearing contemplated by Rule

306a, supra.

(i) Prayer

WHEREFORE, PREMISES CONSIDERED, Relator prays for the

Court to issue the writ of mandamus directing the Honorable
 9

Bascom W. Bentley, III, Judqe, 369th District Court, set

for evidentiary hearinct Relator's motion to vacate and correct

judgment and motion for nunc pro tunc currected order to allow

Relator to establish the date he received notice or acquired

actual knowledge of the trial court's dismissal order of

April 22, 2015.

Respectfully submitted,

^yt-

Juan) Enriquez
222122
TDCJ-Michael
2664 FM 2054
Tennessee Colony, TX 75886

(j) Certification

I, Juan Enriquez, certify that i have reviewed the petition
for writ of mandamus and concluded that every factual statement
in the petition is supported by competent evidence included in
the Appendix or the record.

Verification

I, Juan Enriquez, declare under penalty of perjury, that the
statements made in the foregoing Original Petition for Writ of
Mandamus are true and correct. Executed on December 8, 2015.

Certificate of Service

I, Juan Enriquez, certify that the foregoing Original Petition
for Writ of Mandamus was served by placing same in the United States
mail, postage prepaid, on December 8, 2015, addressed to Bascom W.
Bentley III, Judge, 369th District Court, 500 N. Church St.,
Palestine, TX 75801, and ^4ft^.-iEtr3r3rg^,^^^^ W*mmK
 APPENDIX A:

Motion for Nunc pro Tunc Corrected Order

Verification

I, Juan Enriquez, declare under penalty of perjury, that
the Motion for Nunc Pro Tunc Corrected Order provided herein as
Appendix A is a correct typed copy of the Motion for Nunc pro Tunc
Corrected Order filed by me in No. XXX-XX-XXXX, Enriquez v.
Livingston, et al., 369th District Court, Anderson County, Texas.
Executed on December 8, 2015.
 CAUSE NO. 369-5019

JUAN ENRIQUEZ, § IN THE DISTRICT COURT
Plaintiff, §
§
v § 369TH JUDICIAL DISTRICT
§
BRAD LIVINGSTON, ET AL., §
Defendants. § ANDERSON COUNTY, TEXAS

PLAINTIFF'S MOTION FOR NUNC PRO TUNC CORRECTED ORDER

TO THE HONORABLE JUDGE OF SAID COURT:

Juan Enriquez, Plaintiff, pursuant to Rule 36a, Sections

1 thru 7, Texas Rules of Civil Procedure, moves the Court for

a nunc pro tunc corrected Order of Dismissal, averring as

grounds the following;

I.

The order of dismissal in this case was signed April 22,

2015. However, the district clerk did not mail the order to

Plaintiff until July 1, 2015, as reflected by the postmark on

the envelope. This order did not arrive on the Michael Unit

until somewhere between July 2, and July 22, 3025. Prison

records will reflect the exact date.

II.

The date when Plaintiff received a copy of the judgment

is more than 20 days it was signed.

III.

The district clerk's civil docket does not reflect when

the order was mailed to Plaintiff. Also, the plaintiff as a

prisoner does not have access to the mail records of the Michael
Unit, Texas Department of Criminal Justice — Correctional
Institutions Division (TDCJ_CID). Plaintiff, thus, needs an

evidentiary hearing where he can subpoena A. Cargill, mailroom

supervisor, Michael Unit,to testify when mail from the district

clerk for plaintiff reached the Michael Unit from April 22, 2015,

to July 16, 2015, and Janice Staples, district clerk of Anderson

County, to testify when she mailed the order of dismissal to

plaintiff.

IV.

Rule 306a, supra, sections 4 through 6 provide:

4. No notice of judgment. If within twenty days after the judgment
or other appealable order is signed, a party adversely affected by it
or his attorney has neither received the notice required by paragraph
(3) of this rule nor acquired actual knowledge of the order, then with
respect to that party all the periods mentioned in paragraph (1) shall
begin on the date that such party or his attorney recieved such notice
or acquired actual knowledge of the signing, whichever occurred first,
but in no event shall such periods begin more than ninety days after
the original judgmetn or other appealable order was signed.

5. Motion, notice and hearing. In order to establish the application
of paragraph (4) of this rule, the party adversely affected is required
to prove in the trial court, on sworn motion and notice, the date on
which the party or his attorney first either received a notice of the
judgment or acquired actual knowledge of the signing and that this
date was more than twenty days after the judgment was signed.

6. Nunc pro tunc order. When a corrected judgment has been signed
after ex;iration of the court's plenary power pursuant to Rule 316,
the periods mentioned in paragraph 910 of this rule shall run from
the date of signing the corrected judgment with respect to any
complaint that would not be applicable to the original document.

v.

A copy of the Julyl, 2015, postmarked envelope from the

district clerk was provided as EXHIBIT A to Plaintiff's petition

for mandamus filed September 14, 2015, by mailbox rule filing.
 VI.

Plaintiff did not receive notice of the April 22, 2015,

signing until after July 1, 2015, nor did he acquire actual

knowledge of the signing until after July 1, 2015.

WHEREFORE, PREMISES CONSIDERED, Plaintiff prays that

this motion be granted and that the motion be set for evidentiary

hearing at an early a time and date as is consistent with the

business of the court.

Respectfully submitted,

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 above
motion was served by placing same in the United States mail,
postage prepaid, on September 21, 2015, addressed to Ken Paxton,
Attorney General of Texas, P. O. Box 12548, Austin, TX 78711.
 APPENDIX B:

Demand Prior to Mandamus

Verification

I, Juan Enriquez, declare under penalty of perjury, that
the Demand Prior to Mandamus provided herein as Appendix B is
a correct typed copy of the Demand Qrior to Mandamus filed by
me in No. XXX-XX-XXXX, Enriquez v. Livingston, 369th District
Court, Anderson County, Texas. Executed on December 8, 2015.

sliy~<£p.
/Ju^an Enrique Z^
 CAUSE NO. 369-5019

JUAN ENRIQUEZ, §
Plaintiff, § IN THE DISTRICT COURT
§
v. § 369TH JUDICIAL DISTRICT
§
BRAD LIVINGSTON, ET AL., §
Defendants. § ANDERSON COUNTY, TEXAS

PLAINTIFF'S DEMAND PRIOR TO MANDAMUS

TO THE HONORABLE BASCOM W. BENTLEY III,
JUDGE, 369TH JUDICIAL DISTRICT:

Juan Enriqeuz, Plaintiff, hereby demands that you act,

set for hearing, and rule on Plaintiff's pending Motion 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,

in Enriquez
22.7122
TDCJ-Michael
2664 FM 2054
Tennessee Colony, TX 75886

Certificate of Service

I, Juan Enriquez, certifv that a correct copy of the foregoinq demand
was served by placinq same in the United States mail, postage prepaid, on
September 30, 2015, addressed to Bascom W. Bentley, III, Judge, 369th
District Court, 500 N. Church Stret, Palestine, tx 75801, and Ken Paxton,
Attorney General of Texas, P. O. Rox 12548, Austin, TX 78711.

^T^Cian Enriquez
Mailbox Rule Filing Verification
I, Juan Enriquez, declare under penalty of perjury, that the foreqoing
demand was filed September 30, 2015, by placing same in the Institutional Mail
System, first class mail, postage prepaid, addressed to Clerk, 12th Court of
Appeals,1517 W.Front St., Suite 354, Tyler, TX 75702. Executed on September 30,
2015.

Juati Enriquez