Don R. Johnson and Freddie L. Oliver v. Texas Serenity Academy, Inc. D/B/A Texas Serenity Academy Charter School

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ACCEPTED 1-14-00438 FIRST COURT OF APPEALS HOUSTON, TEXAS 4/27/2015 3:41:37 PM CHRISTOPHER PRINE CLERK COURT of APPEALS FIRST DISTRICT COURT OF TEXAS HOUSTON, TEXAS FILED IN DON R. JOHNSON AND FREDDIE L. OLIVER ( 1st COURT OF APPEALS HOUSTON, TEXAS APPEALLANTS ( 4/27/2015 3:41:37 PM ( V. ( CASE: 01-14-00438-CV CHRISTOPHER A. PRINE Clerk ( HONORABLE JUSTICES ( ( ( TEXAS SERENITY ACADEMY INC ( D/B/A TEXAS SERENITY ACADEMY ( CHARTER SCHOOL ( APPEALEE ( ( APPEALLANTS DON R. JOHNSON AND FREDDIE L. OLIVER FILES AND MAKE OBJECTION TO TSA’S FILING OF THE 215TH DISTRICT COURT DOCKET CONTROL ORDER FILED ON APRIL 23, 2015. NOW COMES Appellants Don R. Johnson (“Johnson”) and Freddie L. Oliver (“Oliver”) files a motion to the First Court of Appeals respectfully making an objecting to Appellee’s filing a 215th District Court Docket control order on April 23, 2015 during the Appellants Johnson’s and Oliver’s appeal phase. On March 27, 2015 Appellant Johnson and Oliver filed a motion to request a Rehearing based on constitutional issues, namely the 14th amendment related to TRCP 21, 21(a) and 165(a). The First Court of Appeals (CA) accepted the request on March 30, 2015. As of April 27, 2015, Appellants Johnson and Oliver await the CA’s ruling on this motion. Appellants Johnson and Oliver is making this objection based on the fact that TSA Appellee is attempting to further violate Appellants Johnson’s and Oliver’s right to due process by prematurely filing a Docket Control 1 Order for a hearing on June 29, 2015 to avoid a trial by Jury in 215th District court and request a hearing by Judge only, when the First Court of Appeals has not ruled on the Appellants ‘motion for Rehearing request. STATEMENT OF FACTS: The mandate is the document issued by the Court of Appeals to the trial court directing the enforcement of the Court of Appeal’s judgment. See Texas Park & Wildlife Dept. v. Dearing, 240 S.W.3d 330, 347 (Tex- App-Austin 2007, pet. Denied); see also Black’s Law Dictionary 1047 (9th ed.2009) (mandate is a judicial order issued by higher court directing lower court to take action). Once the deadline for appealing to the Supreme Court has passed or the Supreme has denied the petition for review, the clerk of the Court of Appeals’ court will issue the court’s mandate pursuant to TRAP 18.1. The CA judgment becomes enforceable only after the mandate is issued. “The trial court should look to Appellate Court’s opinion for guidance on how to proceed.” See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Cessna Aircraft, 345 S.W.3d at 144. Pursuant to TRAP 18.1 the clerk of the Court of Appeals will issue the mandate no earlier than 70 days after the Court of Appeals last ruling on all timely filed motions for Rehearing or en Banc Reconsideration, if no party files (1) a petition for review in the Supreme Court or (2) a motion to extend the time to file a petition for review. Pursuant to TRAP 53.7 (a) 45 days from Court of Appeals overruling motion for Rehearing or en Banc Reconsideration to file petition for review), TRAP 53.7 (f) 15 days from date the petition is due in Supreme Court to file petition. If the Court of Appeals issues a new Judgment on 2. Rehearing, Appellants Johnson and Oliver may file further motions for Rehearing, and a mandate will not be issued until after those motions are decided. See TRAP 49.5 “Additional Motions for Rehearing,” The clerk will issue the mandate of the of the Court of Appeals no earlier than 40 days after the Supreme Court denies review, if Appellants Johnson and Oliver do not file (1) a motion for Rehearing of the Supreme Court’s order on the petition or (2) file a motion to extend the time to file a motion for Rehearing in the Supreme Court. If the Texas Supreme Court denies the petition for review, petitioners Johnson and Oliver may move that the Court of Appeals stay the mandate pending disposition of a petition for writ of certiorari in the U.S. Supreme Court pursuant to TRAP 18.2. CONCLUSION AND PRAYER: Appellants Johnson and Oliver declares that the Jun 29, 2015 date is premature and unreasonable , in addition, to being illegal because the 215th District court has not received a court mandate from the higher court (CA) who has the jurisdiction and plenary authority (full) over this case. A case cannot be executed in the jurisdiction and plenary authority of 2 courts at the same time. To act outside the authority/jurisdiction of the First Court of Appeals in this case in any manner is without grounds and further violates these Appellants right to due process under Texas Rules of Appeals Procedures. The minimum time to exhaust Appellants Johnson’s and Oliver’s appeal process is 70 days after the last judgment issued by the First Court of Appeals. Therefore, TSA’s motion for a Docket Control Order scheduled for June 29, 2015, is made objectionable and Appellants pray that the court “Strike down” the Appellee’s 3. Docket Control Order motion. Appellant pray that the CA issue a mandate after Appellant Johnson and Oliver has exhausted the appeal process ordering the Trial Court to set this case for trial by jury after it receives the mandate. Appellant prays that the CA orders the trial court to grant discovery on the issues it has remanded back to the trial court and to grant time for Appellant/Defendant to respond to the motions Appellee/Plaintiff must file to fix the remand the CA has denied. RESPECTFULLY SUBMITTED //S// Don R. Johnson DON R. JOHNSON, PRO SE APPELLANT 25619 Alp Springs SPRING, TEXAS 77373 832-444-4834 //S// Freddie L. Oliver FREDDIE L. OLIVER, PRO SE AAPPELLANT 11006 LONG GATE HOUSTON, TEXAS 77047 713-385-9720 4. Certificate of Service I Don R. Johnson, Pro se and Freddie L. Oliver hereby certify that on April 27, 2015 a notice of this Request for making objection to the Docket Control Order was sent to Texas Serenity Academy Inc. d/b/a Texas Serenity Academy Charter School through the organization’s attorney, Ms. Tina M. Andrews by U.S. mail. Texas Serenity Academy Tina M. Andrews P.O. Box 655 Bellaire, TX 77402 E-mail: tina.andrews26@,gmail.com //S// Don R. Johnson ___________________ Don R. Johnson 4/27/2015 //S // Freddie L. Oliver ___________________ Freddie L. Oliver 4/27/2015 5.