. .
RECEXVED
Fifth Court of Appeals Court of Appeals
MAY 1 8 2018
Lisa Matz
NO. 05-17-01475-CV Clerk, 5th District
Samuel T. Russell, Appellant
V.
Dallas County, Appellee
FXLED :IN
APPELLANT'S BRIEF Court of Appeals
MAY .2 1 2018
Appealed from the 162nd District Court (Auxiliary Court, 6A) Lisa Matz
Clerk, 5th Dfstrtct
Dallas County, TX
Trial Cause Number: TX-17-00409
Hon. M. Kent Sims Presiding
Submitted by:
Samuel T. Russell
5412 Stoneboro Trail
Dallas, TX 75241
Email: russell4you@yahoo.com
Prose
ORAL ARGUMENT REQUESTED
"
Fifth Court of Appeals
NO. 05-17-01475-CV
Samuel T. Russell, Appellant
V.
Dallas County, Appellee
APPELLANT'S BRIEF
Appealed from the 162°d District Court (Auxiliary Court, 6A)
Dallas County, TX
Trial Cause Number: TX-17-00409
Hon. M. Kent Sims Presiding
Samuel T. Russell
5412 Stoneboro Trail
Dallas, TX 75241
Email: russe114you@yahoo.com
Prose
ORAL ARGUMENT REQUESTED
Appellant's Brief Page 1 of 16
Identities of Parties and Counsel
Samuel T. Russell, Appellant, 5412 Stoneboro Trail, Dallas, TX 75241; email:
russe114you@yahoo.com
Pro Se
Dallas County, Appellee
Linebarger, Goggan, Blair, & Sampson, LLPO, Attorney for Appellee, 2777
N. Stemmons Frwy., Suite 1000, Dallas, TX 75207; (214) 880-0089
Appellant's Brief Page 2 of 16
a •
Table of Contents
Identity of Parties and Counsel ............................................................................ 2
Table of Contents .................................................................................................. 3
Index of Authorities ............................................................................................... 4
Statement of the Case and Jurisdiction ................................................................ 5
Issues Presented ................................................................................................... 6
Statement of Facts ................................................................................................ 7
Summary of the Arguments ................................................................................. 8
Arguments ....................................................................... .................................... 10
Conclusion/Prayer ........................................................................ 14
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . 16
Certificate of Service ..................................................................... 16
Appendix Included
Appellant's Brief Page 3 of 16
Index of Authorities
Doe v. Tulane University et al (2: 17-cv-12081) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Dimotsis v. Lloyds, 966 SW 2d 657-1998 ........................................... 6,11
Plessy v. Ferguson, 1896 ................................................................ 12
Ryland Enter., Inc. v. Weatherspoon, 355 S. W.3d 664, 665 (Tex. 2011) ........ 6,11
Svetlana Altman v. State ofFlorida (2010) .......................................... 12
Williams, 88 S. W.3d at 632; Dimotsis v. Lloyds, 966 SW 2d 657-1998 ....... 6,11
Constitutions
14th Amendment of the U.S. Constitution (U.S.C.) .................. 5-7,9-10,12-15
Statutes and Rules
Tex. Code of Judicial Conduct, Canon 3.B.5 ........................ 5-7,9-10, 13-15
Texas Rules of Civil Procedure (T.R.C.P.4) ......................... 5,6,8,10-11,14-15
Tex. Rule App. Proc. 26.2(a) ............................................................ 6
Appellant's Brief Page 4of 16
To the Honorable Justices of the Court of Appeals:
Samuel T. Russell, Appellant, submits this Brief in support of his appeal of
his notice of judgment:
Statement of the Case and Jurisdiction
Appellant alleges the court 1) violated his rights in accordance with Texas
Rules of Civil Procedure 4 (T.R.C.P.4), 2) deprived him of his rights in accordance
with the 14th Amendment of the United States Constitution (14 USC), and 3) was
prejudice in accordance with Texas Code of Judicial Conduct 3.B.5 (T.C.J.C.5).
Whereas, T.R.C.P.4 says, "In computing any period of time prescribed or
allowed by these rules, by order of court, or by any applicable statute, the day of
the act, event, or default after which the designated period of time begins to run is
not to be included. The last day of the period so computed is to be included, unless
it is a Saturday, Sunday, or legal holiday, in which event the period runs until the
end of the next day which is not a Saturday, Sunday, or legal holiday. Saturdays,
Sundays, and legal holidays shall not be counted for any purpose in any time
period of five days or less in these rules, except that Saturdays, Sundays, and legal
holidays shall be counted for purpose of the three-day periods in Rules 21 and 21 a,
extending other periods by three days when service is made by mail." (See Exhibit
A).
Appellant's Brief Page 5 of 16
Whereas, 14 USC says, "that no state shall deprive anyone of either "due
process of law" or of the "equal protection of the law"". (Plessy v. Ferguson,
1896).
Whereas, T.C.J.C.5 says," "A judge shall perform judicial duties without ...
prejudice."
Jurisdiction
On December 22, 201 7, Appellant filed a timely notice of appeal, thus
perfecting this appeal. (CR, 84); See Tex. Rule App. Proc. 26.2(a). As a result, this
Court has jurisdiction over this appeal.
Issues Presented
Issue 1
Appellant alleges that according to T.R.C.P.4, the Court errored when it
ruled/judged that Appellant violated the Filing Out-of-Time Rule due to the State
of Texas Rules of Civil Procedures, which says Appellant did not. (Ryland Enter.,
Inc. v. Weatherspoon, 355 S. W.3d 664, 665 (Tex. 2011); Williams, 88 S. W.3d at
632; Dimotsis v. Lloyds, 966 SW 2d 657-1998). (See Exhibit B).
Appellant's Brief Page 6 of 16
Issue 2
Appellant further alleges that the Court errored by granting Appellee 's
request without granting Appellant equal due process of the same cause. (14th
Amendment of the U.S. Constitution (U.S.C.))
Issue 3
Appellant thirdly alleges that the Court errored by proceeding with the ruling
in spite of opposition from both the Defendant and Plaintiff for him to do so. (T. C.
J.C. 5).
Statement of Facts
Issue 1
According to the Reporter's Record, the Court ruled (without the Appellee
requesting for Defendant's Briefs dismissal) that Defendant's Brief exceeded the
designated period of time to file; thus, the Court self-imposed its ruling that
Defendant's brief was "non-admissible."
The Court asked Appellant why his Brief was filed out of time.
Appellant responded, "Due to the 4-day Holiday weekend (Thanksgiving
2017), he was unable to file on the due date because the Courts were closed, and
the first Monday after the Holiday weekend was the earliest he could file his Brief'
(see Reporter's Record).
Appellant's Brief Page 7 of 16
Issue 2
According to the Reporter's Record, while in court, Appellee insisted upon
the court that it record an objection to the court's self-imposed ruling on the non-
admissible filed Out-of-Time Defendant's Brief for the "protection" of her client
and the Court granted Appellee's request (see Reporter's Record).
After Appellee recorded her response to Defendant's non-admissible Out-of-
Time Filed Brief, the court asks the Appellant ifhe opposed; and the Appellant
said "yes, he opposed" (see Reporter's Record).
Issue 3
According to the Reporter's Record, Appellant opposed that the record was
filed out of time; likewise, Appellee opposed this ruling of the court by insisting
that the court/judge record her response to Defendant's Brief (see Reporter's
Record).
Summaries of the Arguments
Summary of the Statement
In conclusion, Appellant sums up that the Court made a rush decision when
the Law for filing out-of-time is very clear where Holidays and weekends are
involved (see Statement of the Case and T.R.C.P.4).
Appellant's Brief Page 8 of 16
Summary of the Issues
Furthermore, Appellant sums up that the Court's ruling to allow testimony
about a brief (legal document) that it had said was inadmissible (due it being filed
out-of-time) was a simple error on the Court's behalf that led to Appellant's due
process rights being violated, overlooked, and non-recognized, which 'encroach'
upon the rights guaranteed by 14 USC.
Summary of the Facts
Thirdly, Appellant sums up that the Court was overzealous with its ruling
when both Defendant and Plaintiff to the suit openly opposed Court's self-imposed
decision that the brief was filed out-of-time; whereas Appellant said he opposed
(see Reporter's Record).
Appellee opposed by insisting her verbal response be recorded regardless of
the Judge's/Court's ruling (see Reporter's Record).
With this being said, proven, and within the scopes of a final determiner (the
written laws of the State of Texas and the U. S.), the Court was prejudiced (Texas
Code of Judicial Conduct, Canon 3. B. 5).
Appellant's Brief Page 9 of 16
Final Summary
Appellant believes Judge M. Kent Sims made a simple mistake based on
T.R.C.P.4, 14 USC, and T.C.J.C.5; however, he is yet a judge capable of learning.
Judge Sims is the one that advised Appellant to "take my claims to another
court" (see Reporter's Record).
Appellant requests a re-hearing with the same judge or a jury trial to avoid
attracting another judge that could make similar mistakes.
Arguments
Issue 1 Argument
The State of Texas rule for filing periods out of time, when court is closed,
on the filing period due date because of weekends or Holidays says:
"In computing any period of time prescribed or allowed by these rules, by order of
court, or by any applicable statute, the day of the act, event, or default after which
the designated period of time begins to run is not to be included. The last day of
the period so computed is to be included, unless it is a Saturday, Sunday, or legal
holiday, in which event the period runs until the end of the next day which is not a
Saturday, Sunday, or legal holiday. Saturdays, Sundays, and legal holidays shall
not be counted for any purpose in any time period of five days or less in these
rules, except that Saturdays, Sundays, and legal holidays shall be counted for
Appellant's Brief Page 10 of 16
purpose of the three-day periods in Rules 21 and 21 a, extending other periods by
three days when service is made by mail." (Texas Rules of Civil Procedure
(T.R.C.P.4)). (See Exhibit A).
The Court ruled (without the Appellee requesting for Defendant's Briefs
dismissal) that Defendant's Brief exceeded the designated period of time to file;
thus, the Court self-imposed its ruling that Defendant's brief was "non-
admissible".
The Court asked Appellant why his Brief was filed out of time.
Appellant responded, "Due to the 4-day Holiday weekend (Thanksgiving
201 7), he was unable to file on the due date because the Courts were closed, and
the first Monday after the Holiday weekend was the earliest he could file his Brief'
(see Reporter's Record)
Appellant alleges that according to T.R.C.P.4, the Court errored when it
ruled/judged that Appellant violated the Filing Out-of-Time Rule due to the State
of Texas Rules of Civil Procedures. (Ryland Enter., Inc. v. Weatherspoon, 355
S. W.3d 664, 665 (Tex. 2011); Williams, 88 S. W.3d at 632; Dimotsis v. Lloyds,
966 SW 2d 657-1998). (See Exhibit B).
Appellant's Brief Page 11 of 16
Issue 2 Argument
Appellant's 2nd Argument is based on the Court granting Appellee's request
of an official recording response to Defendant's "non-admissible" filed Out-of-
Time Brief.
While in court, Appellee insisted upon the court that it record an objection to
the court's self-imposed ruling on the non-admissible filed Out-of-Time
Defendant's Brief for the "protection" of her client and the Court granted
Appellee's request (see Reporter's Record).
Appellant alleges his 14th Amendment of the U.S. Constitution (U.S.C.)
rights were violated because it says, "that no state shall deprive anyone of either
"due process of law" or of the "equal protection of the law"". (Plessy v. Ferguson,
1896).
After Appellee recorded her response to Defendant's non-admissible Out-
of-Time Filed Brief, the court asks the Appellant ifhe opposed; and the Appellant
said "yes, he opposed" (see Reporter's Record). Does not an error occur when a
Court allows, supports, and officially records the Appellant's writ; yet does not
allow the Appellant to defend his "non-admissible" writ? (Doe v. Tulane
University et al (2:17-cv-12081).
In accordance with the 14th Amendment of the U.S.C., why wasn't
Appellant given a chance to offer rebuttal in support of his "non-admissible" writ
Appellant's Brief Page 12 of 16
that the Appellee officially challenged? (Svetlana Altman v. State of Florida
(2010).
Were Appellant's U.S.C. 14th Amendment's Rights violated when he was
not granted "due process of the law" and "equal protection of the law" by the Court
depriving him an opportunity to counter-respond on his non-admissible Out-of-
Time Filed Brief?
Likewise, was Appellant not entitled to "equal protection" and "due
process" as defined in the U.S.C. 14th Amendment; and did not the Court error by
granting Appellee's request without granting Appellant equal due process of the
same cause?
Issue 3 Argument
The law says "A judge shall perform judicial duties without ... prejudice," (a
forejudgment, bias; partiality; preconceived opinion. (A leaning toward one side of
a cause for some reason other than a conviction of its justice) (T.C.J.C.5).
Appellant thinks the Court was overzealous with its ruling when both
Defendant and Plaintiff to the suit openly opposed the Judge's self-imposed
decision that the brief was filed out-of-time.
Appellant said he openly opposed the Court's prejudice judgment (see
Reporter's Record).
Appellant's Brief Page 13 of 16
Appellee openly opposed the Court's prejudice judgment by insisting on
having an official court recording of her verbal response (see Reporter's Record).
Appellant alleges that the Court errored by proceeding with the ruling in
spite of opposition from both Defendant and Plaintiff for him to do so. (T. C. J. C.
5).
Was not the Court prejudice with its ruling when both Defendant and
Plaintiff objected to said ruling?
Conclusion/Prayer
Does not an error occur when the Court's judgment is not aligned with the
Rule of Law? (See Exhibit C).
Has not the Appellant exposed error on the behalf of the Court when a
governing State Rule of Law applies (Holiday Out-of-Time Filing - T.R.C.P.4)?
Has not the Appellant raised a Federal inquiry of error on behalf of the Court
when a Federal Rule of Law is at question (Deprivation of Due Process and Equal
Protection - 14th Amendment of the U.S.C.)?
Appellant prays for a jury trial if this Appeal is granted and not sent back to
the same Court (Justice M. Kent Sims, Auxiliary Court-6A).
Is Appellant out of order in his belief that the case should be set for re-
hearing because court errored by self-imposing that Defendant's Brief was
Appellant's Brief Page 14 of 16
somehow filed in violation ofT.R.C.P.4, which says Appellant filed within the
allotted Rule time?
Likewise, should Appellant expect this case be set for re-hearing, because
the court errored by granting Appellee 's request for an official court recording
when the court had just previously judged Defendant's brief was non-admissible or
defendable, which is in violation of the U.S.C. 14th Amendment?
Finally, is Appellant incorrect in his allegation that Judge Sims violated
T.C.J.C.5?
Submitted by:
//\_/TQ_J (
Samuel T. Russell
5412 Stoneboro Trail
Dallas, TX 75241
Email: russell4you@yahoo.com
Prose
Appellant's Brief Page 15 of 16
Certificate of Service
I hereby certify pursuant to TEX. R. CIV. P. 21 a, that a true and correct copy of
the foregoing instrument was served upon counsel for all parties via (certified mail,
>+-
return receipt requested/hand delivery) on this, the <""L{ - day of May,
2018.
Samuel T. Russell, pro se
Certificate of Compliance with Rule 9.4
Pursuant to Texas Rule of Appellate Procedure 9.4, this certifies that this document
complies with the type-volume limitations because it is computer generated and
does not exceed 15,000 words. Using the word-count feature of Microsoft Word,
the undersigned certifies that this document contains 2,312 words in the entire
document. This document also complies with the typeface requirements because it
has been prepared in a proportionally spaced typeface using Microsoft Word in 14-
point Times New Roman. This document complies with the paper size and margin
requirements as well.
I
u j,Q_l(
Samuel T. Russell,pro se
Appellant's Brief Page 16 of 16
INDEX
I. Exhibit A - Court Holiday Schedule
II. Exhibit B -Proof of Defendant's Brief Filing Date
III. Exhibit C - Notice of Judgment
Appellant's Brief Index
County Clerk Holiday Schedule: 2017
Dallas/Fort Worth-area
Prepared by Title Data, Inc.
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February 20, 2017
(Piaidaits' Dav) Monday Clo.ud Clrm:d CIMtd- CID.,(3) of the Texas Rules of Civil
ProcedW'C, you are hereby notifiaf that a Judgment has been entered in the above-referenced
matter. The judgment is in favor of PLAINTIFF and against the DEFENDANT(s) signed on
11/29/2017.
Respectfully,
Felicia Pitre, District Clerk