                                                                                FILED IN COURT OF APPEALS
                                          IN       THE
                                                                                12th Court of AppeateDistrict
                              TWELFTH    COURT         OF   APPEALS


                                 No.    12-15-00225-CV
                                                                                        TYLER TEXAS
                                              enriquez ,                              PAM ESTES, CLERK
                                               Plaintiff-Appellawfe r~

                                               v   -

                                                                            ,


                              BRAD   LIVINGSTON,            ET   AL.,
                                               Defendants-Appellees


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


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


TO    THE   HONORABLE   JUDGES    OF    SAID       COURT:


        Juan Enriquez, Appellant, moves the Court to reinstate

this appeal,      or,   alternatively,             if a motion to reinstate is

improper,      to rehear or to reconsider the judgment entered

September 30,         2015, averring as grounds the following:

                                               I.


        Appellant does not currently have direct access to the

prison law library nor access to a telephone,                              so he is uncertain

as to the course to follow to reinstate his dismissed appeal.

The     thrust   of   this    motion,    however,           cannot    be   mistaken.


                                               II.


        The   dismissal      memorandum    reflects           the    Court       dismissed    on

incorrect      facts.


        First,   the Court notes that "Appellant states further that,

on July 15,      2015, he filed a 'motion to vacate and correct
judgment.'           We have not been provided with a copy of this

motion,       but assume that Appellant is attempting to comply with

Rule 306(a)(5)."             Dismissal Memorandum,            at 2.     A copy of this

motion        to vacate and correct judgment was provided to the Court.

It    is    listed    in the   Index    to   the    Clerk's Record as         #157.     The

motion is five pages long.               It was filed on July 16,              2015, via the

mailbox filing rule and filemarked July 24,                          2015, by the district

clerk.


           Second,    the Court states that it assumes Appellant is

attempting to comply with Rule 306a(5), which is true,                            but

Appellant did it by specific Motion for Nunc Pro Tunc Corrected

Order filed September 21,               2015,      via the mailbox filing rule.

A    Demand    Prior    to   Mandamus    was    mailed   to    the    trial   court   on

September;30,          2015.

           The Appellant on September 21,              2015,    provided this Court

with a copy of the Motion for Nunc Pro Tunc Corrected Order.

Unfortunately,          he mistakenly wrote No.           12-14-00016-CV as the

number of the appeal,            although he correctly designated the

appeal was from the court lower court,                    namely,       the 369th District

Court,       No.   XXX-XX-XXXX.        The Appellant made the same mistake with

the docketing statement.                He has written the clerk of this court

requesting her to provide the Court with copies of both the
Advisory and the Docketing Statement.

       The reason for the mistakes is that Appllant is currently

in Administrative Segregation (since August 31, 2015) and then

the unit went on lockdown September 10,                    2015.       Appellant was
                                  III.


        The proof available in this case to establish that the

clerk's notice of judgment was not received, and actual notice

of the judgment was not acquired, within twenty days of the

judgment's signing consists of (1) the postmarked envelope

reflecting a date of July 1, 2015, and (2) the mailroom records

of the Michael Unit which reflect no mail from the Anderson

County District Clerk between April 21, 2015, and July 5, 2015.

                                  IV.


        Assuming that notice of judgment was received July 1,

2015, a motion for new trial or to vacate judgment would be

timely until July 31, 2015.     The district clerk's record reflects

the motion to vacate judgment was received by the clerk's office

on July 24, 2015, which would make it timely and extend the time

to file notice of appeal until September 29, 2015.     Appellant's

initial notice of appeal was filemarked September 14, 2015, and

the Amended Notice of Appeal was received by this Court on

September 24, 2015.     Thus, notice of appeal is timely if

Appellant did not receive notice of judgment until July 1,
2015.


        WHEREFORE, PREMISES CONSIDERED, Appellant prays that this

appeal be reinstated pending an evidentiary hearing of

Appellant's motion in the lower court for Nunc Pro Tunc Corrected

Order pursuant to Rule 306a, §§ 1 thru 7, Tex.R.Civ.P. and that
                                                                     4




the Court directs the trial   court   to set such motion      for

evidentiary hearing at an early an hour and date as possible

to allow this appeal to proceed.

                                 Respectfully submitted,


                                           s(^l<^^
                                      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
foregoing motion was served by placing same in the United
States mail, postage prepaid, on October 5,2015, addressed
to Ken Paxton, Attorney General of Texas, P. O. Box 12548,
Capitol Station, Austin, TX 78711.
                                                   J?'-

                Mailbox Rule Filing Verification

     I, Juan Enriquez, certify that the foregoing motion was
filed October 5, 2015, by placing same in the Institutional
Mail System, first class mail, postage prepaid, addressed to
Clerk, Twelfth Court of Appeals, 1517 West Front St., Suite
354, Tyler, TX 75702.  Executed under penalty of perjury
declaring the filing statements are true on October 5,2015.
                             CAUSE   NO.   369-5019

JUAN ENRIQUEZ,                        §      IN THE DISTRICT COURT
          Plaintiff,                  $

V.                                    §      369TH JUDICIAL DISTRICT

BRAD LIVINGSTON, ET AL.,              §
          Defendants.                 §      ANDERSON COUNTY, TFXl£

                  PLAINTIFF'S DEMAND PRIOR TO MANDAMUS

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

        Juan Enriquez, Plaintiff, hereby demands that you act,

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



                                             Fnriquei—     £•    '
                                           .22
                                          r-Michael
                                      2664 FN 2054
                                      Tennessee Colony, TX 75886

                          Certificate of Service

      I, Juan Enriqeuz, certify that a correct copy of the foregoing demand
was served by placing same in the United States mail, postage prepaid, on
September 30, 2015, addressed to Bascom K. Bentley, ITI.*Judge, 369th
district Court, 500 N. Church Street, Palestine, TX 75301, and Ken Paxton,
Attorney General of Texas, P. 0. Box 125**8, Austin, TX 78711.

                                     ><Tuan Enrique^
                    Mailbox Rule Firllng
                                 PHring Verification
                                         Verificat:
      I, Juan Enriquez, declare under penalty of perfury, that the foregoing
denand was filed September 30, 2015, by placing same in the Institutional Mail
System, first class mail, postffe prepaid, addressed to Clerk, 12th Court of
Appeals, 1517 W. Front St., Suite 354, Tyler, TX 75702.   Executed on September 30,
2015.
                                        227122
                                        TDCJ-Michael
                                        2664 tH 205*
                                        Tennessee Colony, TX 75886
                                        October 5,   2015

Ms.   Bam   Fstes
Clerk                   _
Twelfth Court of Sppeals
1517 West     Front St.
Suite 35*
Tyler, TX 75702


              Re§     Case Number 12-15-00225-CV; Enriquez v.   Brad Livingston
                      Trial   Court Nomber:    XXX-XX-XXXX

                      Mistakenly designated as No. 12-14-00016-CV
                      Docketing Statement and Advisory to the Court

Dear Ms.     Estesl

     On September 21, 2015, I submitted for filing in
No. 12-15-00225-CV an AppelMnt's Advisory to the Court which
had a copy of a Plaintiff's Motion for Nunc Pro Tunc Corrected
Order and a copy of a letter to a Travis County Reporter.
I had the right trial court number of XXX-XX-XXXX.  Unfortunately,
I mistakenly designated the number in this court as 12-14-00016-CV.

     I made the same mistake with a docketing Statement mailed
prior to the Advisory.

     Should it be possible for you to place copies of the
advisor and the Docketing Statement in the record of this case
where I wanted them filedf The trial court number was correctly
cited.

        Your help in this matter will be greatly apprenticed.

        If you are not permitted to do as I requested, would you
be able to place a notation in the record of this case that
this instruments were filed in No.            12-14-00016-CV.

                                        Very truly




cc    Ken   Paxton
