                                              IN    THE
                                TWELFTH     COURT       OF     APPEALS



                                     No.    12-15-00225-CV
                                                                                         OCTIJZ0B
                                       JUAN    ENRIQUEZ,
                                                                                        ^r——in
                                                  Plaintiff-Appellanj

                                                   v.



                                BRAD   LIVINGSTON,             ET   AL.,
                                                  Defendants-Appellees.


                     Appeal from the 369th District Court
                     of Anderson County, No. XXX-XX-XXXX


              SUPPLEMENT        TO   APPELLANT'S          MOTION       TO   REINSTATE
                  APPEAL   OR   FOR    REHEARING          OR   RECONSIDERATION


TO   THE   HONORABLE   JUDGES        OF    SAID    COURT:


       Juan Enriquez, Appellant,supplements his motion to

reinstate appeal or for rehearing or for reconsideration,

showing as grounds the following.

                                                  I.


       The Court noted that Appellant                     informed the Court            in his

amended notice of appeal that he had on July 15,2015,                               filed a

motion to vacate and correct judgment, but incorrectly stated

it had not been provided with a copy of the motion.                                The motion,

as pointed out in the motion to reinstate, was provided to the

Court as part of the record on appeal.                              The motion to vacate.:..

           1.   Informs the district court that its judgment
      or order of dismissal entered in this cause on April 22,
      2015, but not mailed to the Plaintiff by the District
      Clerk of Anderson County until July 1,2015 and not
      delivered to him by Defendant prison officials until
      mid-July of 2015.

             2.      The motion        is    verified.

             3.      Mid-July is more than 20 days but less than
      90 days after the judgment or order was signed.
          4.   The motion to vacate was filed on July 16, 2015,
     via the mailbox filing rule and received in the district
     clerk's office on July 24, 2015.

                                    IT.


     In In re Lynd Co.,      195 S.W.3d 682 (Tex. 2006), the Texas

Supreme Court held:'

     Post-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. See Tex.R.Civ.P. 306a. Specifically,
     Rule 306a(5) requires that the party alleging late notice of
     judgment file a sworn motion with the trial court establishing
     the date the party or its counsel first learned of the judgment.
     Tex.R.Civ.P. 306a(5); see also Gillis, 741 S.W.2d at 365. The
     motion must be filed before the trial court's plenary power —
     measured from the date of notice established under Rule 306a(4 —
     expires. John v. Marshall Health Servs, 58 S.W.3d 738, 741 (Tex.
     2001). The sworn motin establishes a prima facie case that the
     party lacked timely notice and invokes a trial court's
     otherwise—expired jurisdiction for the limited 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. See Grondona v. Sutton, 991 S.W.2d 90, 91-92 (Tex.App.—
     Austin 1998, pet. denied); Cont'l Cas. Co. v. Davilla, 139 S.W.3d
     374, 379 (Tex.App. -- Fort Worth 2004, pet. denied); Cont'l Cas. Co. v.
     Davilla, 139 S.W.3d 374, 379 (Tex.App. — Fort Worth 2004, pet.
     denied); see also Jonv. Stanley, 150 S.W.3d 244, 248 (Tex.App. --
     Texarkana 2004, no pet.J.

Lynd Co.,   at 686.


                                   III.


     It   is beyond argument that on the facts of this case and

the controlling law as set forth in I_n r_e Lynd Co. , supra, the

lower court's plenary power ran from the day Appellant received

notice of judgment.     The motion to vacate judgment tracks the

requirements of Rule 306a(5), Tex .R .C,iv .P., which invoked the
trial court's jurisdiction for the limited purpose of holding
an evidentiary hearing to determine the date on which the

Appellant first received notice or acquired knowledge of the

judgment.

      Appellant has already filed a motion for nunc pro tunc

corrected order seeking an evidentiary hearing.             He has already

filed a demand prior to mandamus.          He has also filed an

amended motion for nunc pro tunc order and will file a petition

for mandamus with this court within a few days.

                                     IV.


      Appellant submits that this Court,           probably because it

was not aware that the motion to vacate            judgment was before the

Court in the record on appeal,       improperly dismissed this appeal

for lack of    jurisdiction.    Appellant submits that this Court has

jurisdiction under Rule 306a, supra, until an evidentiary hearing
is held to determine the date notice of judgment was received by
Appellant.

      WHEREFORE,   PREMISES CONSIDERED, Appellant prays that his

motion be granted and that this appeal be reinstated.

                                     Respectfully submitted,




                                       anEnriqu^z
                                       7122         <-~
                                     ?DCJ-Michael
                                     2664 FM 2054
                                     Tennessee Colony,     TX 75886

                          Certificate of     Service

      The foregoing motion was served by placing same in the United States
mail, postage prepaid, on October 8, 2015, addressed to Ken Paxton, Attorney
General of Texas, P. 0. Box 12548, Capitol Station, Austin, TX 78711.

                                           Sst^f

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