5 SEPT 15
Ms. Cathy S. Lusk, Clerk
Twelfth Court of Appeals
1517 West Front Street, Suite 354
Tyler, TX 75702
RE: Clerk's Record APPEALS COURT NO: 12-15-00190-CV
Trial Court No: 3-42362
Style: In Re Billy Ross Sims
To The Honorable Cathy S. Lusk:
Please find enclosed a recent filing at the trial court, at the
district clerk's office as follows:
1. A Motion to Extend the Time for Filing a Notice of Appeal;
2. A Motion for Recusal.
These filings should be made a part of the Clerk's Record in the
matter pending. I apologize for the typos on the carbons.
Kind regards,
Billy R. Sims, 511649
Powledge Unit
1400 FM 3452
Palestine, TX 75803
FILED IN COURT OF APPEALS
12tfi Court of Appeals Dtarict
SEP 102015
TYLER TEXAS
PAM ESTES. CLERK
5 SEPT 15
Ms. Janice Staples, Clerk
Anderson County District Clerk
500 N. Church Street, Room IS
Palestine, TX 75801
RE; Motion For Recusal, and Motion For Extension of Time to File
Notice of Appeal:
Dear Ms. Staples,
I have enclosed here a Motion for Recusal against judge
Mark A. Calhoon.
I have also enclosed a Motion to Extend the Time for Filing a
Notice of Appeal.
Would you please abide by your oath of office and file these
with the court.
The cause is numbered and styled as:
TRIAL COURT NUMBER 3-42362
COURT OF APPEALS NUMBER 12-15-00190-CV
3rd Judicial District Court of Anderson County, Texas
BILLY ROSS SIMS, 511649
vs
Carter Thompson
David Bridges
Douglas Lang
Robert Fillmore
Elizabeth Lang-Miers
Lana Myers
Rissie Owens
Michelle Skyrme
James Hensarling
James Kiel Kind regards.
Billy R. Sims, 511649
Powiedge Unit
1400 FM 3452
Palestine, TX 75803
TRIAL COURT NUMBER 3-42362
COURT OF APPEALS No. 12-15-00190-CV
BILLY ROSS SIMS, 511649 § IN THE DISTRICT COURT
vs § 3rd JUDICIAL DISTRICT
Carter Thompson § ANDERSON COUNTY, TEXAS
David Bridges
Douglas Lang §
Robert Fillmore §
Elizabeth Lang-Miers
Lana Myers §
Rissie Owens §
Michelle Skyrme
James Hensarling §
James Kiel §
MOTION TO EXTEND THE TIME FOR FILING A NOTICE OF APPEAL
TO THE COURT:
COMES NOW THE PETITIONER, BILLY ROSS SIMS, pro se, and files
this Motion to Extend the Time for Filing a Notice of Appeal, and
would show:
1. On June 30, 2015, the Court's hearing official initialed a bad
faith Order of Dismissal without Jurisdiction, and in violation of
Judicial Code of Conduct Canons 2A, 3B£2$, $5$, ,£7$.
2. On July 8, 2015, under the prison mailbox rule, a timely request
for findings of fact and conclusions of law was filed under Texas
Rules of Civil Procedure Rules296. The Court's hearing official
refused to act to make findings of fact and conclusions of law
within the time prescribed by Rule 297, which was due July 28, 2015;
and a timely Notice of Past Due Findings of Fact and Conclusions of
Law was filed under Rule 297, which extended the time out to 40 days
from the date the original request for findings of fact and conclusions
of law was made on July 8, 2015, making the due date August 17, 2015.
3.
3. The filing of the Request for Findings of Fact and Conclusions
of Law on July 8, 2015, under Rule 25.1(a)(4) TRCP, extended the
Eime for Perfecting the Appeal out to 90 days from the date the
Order of Dismissal was initialed on June 30, 2015, and 90 days
from that date is September 28, 2015.
4. On July 29, 2015, the Clerk of the 12th Court of Appeals
accepted filing of a Petition for Writ of Mandamus against the bad
faith Order of Dismissal, and the ruling is pending.
5. A judicial misconduct complaint is being filed with the State
Commission on Judicial Conduct against the Court's hearing official.
6. An extension of 90 days from September 28, 2015, is requested
out to December 22, 2015, pending the outcome of the ruling by the
12th Court of Appeals. No previous motions to extend the time for
filing a notice of appeal have been filed. Petitioner seeks to
protect his right to appeal while waiting for the 12th Court of
0
(
Appeals to rule on the Petition for Mandamus regarding the bad faith
Order of Dismissal.
PRAYER
WHEREFORE ALL PREMISIS CONSIDERED, Petitioner prays for the
90 day extension of time out to December 22, 2015, and that the
Court will grant this motion to extend the time for filing a notice
of appeal.
VERIFICATION
I, Billy R. Sims, 511649, being presently incarcerated in the
TDCJ at the Powledge Unit, declare under penalty of perjury that the
foregoing is true and correct according to my own beliefs.
Signed this 5th Day of September, 2015..
BILLY R. SIMS', 511649
Powledge Unit, 1400 FM 3452
Palestine, TX 75803
TRIAL COURT NUMBER 3-42362
APPELLATE COURT NUMBER 12-15-00190-CV
BILLY ROSS SIMS, 511649 § IN THE DISTRICT COURT
vs § 3rd JUDICIAL DISTRICT
Carter Thompson § ANDERSON COUNTY, TEXAS
David Bridges
Douglas Lang §
Robert Fillmore §
Elizabeth Lang-Miers
Lana Myers §
Rissie Owens §
Michelle Skyrme
James Hensarling §
James Kiel §
§
MOTION FOR RECUSAL
TO THE COURT:
COMES NOW THE PETITIONER, BILLY ROSS SIMS, pro se, and files
this Motion For Recusal, pursuant to Rules 18.1 and 18.2 of the
Texas Rules of Civil Procedure, and would show1? the facts are
within the affiant's personal knowledge except those facts stated
on information and belief which are herein specifically stated:
1. One June 30, 2015, the trial court hearing official, Mark A.
Calhoon, initialed a bad faith Order of Dismissal imposing costs
and fees without jurisdiction in the above styled and numbered
cause, in violation of Judicial Code of Conduct Canons 2A, 3B(2),
3B(5) and 3B(7).
2. Mr. Calhoon's bad faith Order of Dismissal gave the appearance
of impropriety because it violates clearly established state and
federal law regarding In Forma Pauperis and costs and fees, RIOS,
infra, bringing into question Mr. Calhoon's ability to carry out
judicial responsibilities with integrity, impartiality and competence.
The bad faith Order of Dismissal initialed by Mr. Calhoon,
dismissing the civil suit while imposing costs and fees without
any jurisdiction clearly demonstrates that Mr. Calhoon has not
maintained professional competence in the law, and that he is not
faithful to the law as required by Canon 3B(2).
Mr. Calhoon was required to know the law regarding costs and
fees, RIOS vs CALHOON, 889 SW2d 257, 258-59 (Texas 1994). While
Rule 18.1(a)(3) TRCP, indicates motions for rcusal must not be
based on a judge's ruling in the case, this Information is given
as background to show Mr. Calhoon's bad faith misconduct that calls
into question his integrity and impartiality and his personal bias
to use his elected office to cheat citizens out of the rule of law.
3. The Petitioner filed the civil suit with an In Forma Pauperis
application that was not challenged by the clerk . The Supreme Court
of Texas has ruled that the law in Texas abslutely entitled Sims to
the IFP status and that Mr. Calhoon had no jurisdiction to impose
costs and fees at a later time. RIOS, supra.
Canon 2A required Mr. Calhoon to respect and comply with the law
and he refuses to do so in violation of his oath of office, and he
is refusing to uphold the Constitutions. Canon 3B(2) required that
Mr. Calhoon "shall be faithful to the law and maintain professional
competence in it." Canon 3B(7) required Mr. Calhoon to accord Sims
"the right to be heard according to law" which Mr. Calhoon refuses
to do,9thus his bias is so strong as to deny the party the absolute
fiifeg&fcitutional right to a neutral and detached judge. BLUE vs STATE,
41 SW3d 129, 138 (TCA 2000), McCLENAN vs STATE, 661 SW2d 108, 109
(TCA 1983).
4. After Mr. Calhoon initialed the bad faith Orderoof Dismissal
on June 30, 2015, he allowed his clerk to intentionally misaddress
the letter that contained the copy of the bad faith Order so that
Sims' notice was intentionally delayed in order that Calhoon could
accomplish a harm as defined defined by the penal code.
Canon 3B(8) required Mr. Calhoon to "demonstrate due regards
for the rights of parties to be heard and to have issues resolved
without unnecessary costs or delay" thus his bad faith Order of
Dismissal imposing costs and fees without jurisdiction caused harm
and for Sims to enter into an expensive appeals process.
5. On July 8, 2015, Sims filed a timely "Request for Findings of
Fact and Conclusions of Law" and Mr. Calhoon refused to rule in a
timely manner, thus causing Sims to file a 'Notice of Past Due
Findings of Fact and Conclusions of Law* and Mr. Calhoon refuses
to comply with that law, Rules 296 and 297, which is a SHALL statute.
Indeed, the bad faith Order of Dismissal has no basis in fact or law
and Mr. Calhoon would be aware of this.
Under Rule 18.2(b)(1), Mr. Calhoon*s refusal to act to provide
findings of fact and conclusions of law clearly demonstrates that he
is refusing to abide by the law, or the constitutions, or, his oath of
office, and is engaged in criminal abuse of his elected position to
deny or impede Sims in the exercise or enjoyment of his right to an
impartial tribunal and to have the law's protection against the
illegal, bad faith imposition of costs and fees, thus, Mr. Calhoon's
impartiality MIGHT reasonably be questioned under the applicable rule.
Further, under 18.2(b)(2), it appears that Mr. Calhoon's
refusal to act like a judge gives the appearance of a personal
bias or a prejudice concerning the subject or the parties to the
suit, since a dismissal at the pleading stage without any fact
finding, using the term "frivolous" in reference to Constitutional
claims presented by Sims that state officials are acting to deny
him equal protection of the law, and imposing a new law in a
retroactive, ex post facto manner in violation of the Constitutions
is improper under state and federal law.
Mr. Calhoon's misconduct calls into question his integrity, ethics,
and impartiality, sdoce state law clearly states that Texas Civil
Practice operates on "Notice Pleading" and the Complaint Sims filed
complied fcith the law and he was not required to make a prima facie
case in pleading, nor to cite any caselaw or to include any evidence,
at the pleading stage. Mr. Calhoon evoid have known this law and
intentionally disregarded the law to harm the party outside of the
rule of law.
Factual claims that state officials are denying equal protection
of the law, and imposing a new law retroactively in violation of the
Constitution, is not, by definition a "frivolous" claim, and clearly
established laws call for fact-finding and a right to be heard in a
meaningful manner, which Mr. Calhoon refuses to do, and this gives
the appearance that Mr. Calhoon is acting to protect political
cronies in his political party from any consequences for their
unconstitutional misconduct.
Mr. Calhoon's disregard for Sims' rights as a party to the
litigation and his refusal to act on the request for findings of
fact and conclusions of law clearly indicate that he is involved in
judicial misconduct outside of the rule of law. Recusal is mandatory
and the court is required to provide a neutral and detached hearing
official, and Mr. Calhoon is not neutral and detached. His actions
clearly show that he is not informed of the law, and is refusing to
abide by the laws enacted for the public good.
Since no service of process was effected on any of the named
defendants to the suit, the court is asked to examine if Mr. Calhoon
knew that the clerk filed a fraudulent Bill of Costs and Fees in the
amount of $274.
DUTY OF CLERK
Undar Rule 18.1(e), the clerk is required to deliver a copy of
this Motion to the respondent judge and to the presiding judge of
the administrative judicial region in which the trial court is located
"the regional presiding judge."
DUTY OF RESPONDENT JUDGE
Under Rule 18.1(f)(1)(A) and (B), regardless of whether the
Motion complies with this rule, the respondent judge, within three
business days after the motion is filed, must either:
(A) sign and file with the clerk an order of recusal; or
(B) sign and file with the clerk an order referring the motion
to the regional presiding judge.
PRAYER
All premisis considered, Petitioner prays the motion for recusal
be granted and for the reasons stated. That the court will then
assign the cause to a neutral and detached judicial official so that
any further delay is avoided and the parties can move forward with
the extension of time to file notice of appeal motion filed with this
motion for recusal.
VERIFICATION
Ii Billy Ross Sims, 511649, being presently incarcerated in the
TDCJ Powledge Unit, declare under penalty of perjury that the foregoing
is true and correct according to my own beliefs and the facts are
witihin my personal knowledge. Signed this 5th Day of September, 2015.
3-
~&^S
BILLY R. SIMS, 511649
Powledge Unit, 1400 FM 3452
Palestine, TX 75803-2350