                                                  227122
                                                  TDCJ-Michael
                                                  2664   FM   2054
                                                  Tennessee Colony, t$LE§>dfel£OURT OF APPEALS
                                                  December     8,    2015     ' 12th_Courtof Appeals District
Clerk
Twelfth Court of Appeals
1517    West    Front    Street
Suite    354                                                                          TYLER TEXAS
Tyler,       TX 75702                                                               RAM ESTES, CLERK
                Re      In re Juan Enriquez, No. jo^lo ~QDo£)(fi -C_V
                        Original Petition for Writ of Mandamus
                        Trial     Court    Case    No.     XXX-XX-XXXX,
                        Enriquez v. Livingston,               et al.,       369th
                        District Court,           Anderson County,           Texas

Dear    Sir or Madam:,

        Enclosed for filing is my:

        1.      Original Petition for Writ of Mandamus
        2.      Unsworn Declaration of Inability to Pay
        3.      Motion      to   Proceed   Without the Record

        Thank you for your time and your assistance in this
matter is appreciated.

                                                  Very truly yours,




                                                         Enriquez

Enclosures  (3 instruments)
cc:  Honorable Bascom W. Bentley,                    III
        Judge,       369th District Court

        Brianna      Webb
        Assistant Attorney General
,«



                   IN    THE    COURT   OF   APPEALS          FILED IN COURT OF APPEALS I
                TWELFTH        DISTRICT      OF    TEXAS
                                                               12th Court of Appeals District
                            TYLER,      TEXAS

                                                                       DEC 162015,

                    No,        13-)5-rtQ;?£)/(>-CV                  TYLER TEXAS
                                                                 PAM ESTES, CLERK



              In    re    JUAN   ENRIQUEZ,        Relator




     Original Proceeding from Anderson County,                   Texas
        369th Judicial         District,     No.    XXX-XX-XXXX
       Honorable Bascom W.        Bentley,        III,     Presiding




         ORIGINAL   PETITION       FOR   WRIT      OF   MANDAMUS




                                  Juan Enriauez
                                  227122
                                  TDCJ-Michael
                                  2664 FM 2054
                                  Tennessee Colony,           TX 75886
                      (a)    Identity of Parties & Counsel



Relator:                                     Respondent:,

     Juan Enriquez                                Bascom W.            Bentley,       III




Counsel    for    Relator:                   Counsel   for Respondent


     Pro    Se                                    Hon.      Ken    Paxton       Jr.
     227122                                       Texas Attorney General
     TDCJ-Michael                                 P.   O.    Box       12548
     2664    FM    2054                           Austin,         TX    78711
     Tennessee Colony,         TX 75886
                                                                                 11




                          (b)   TABLE OF CONTENTS


(a)   IDENTITY OF PARTIES AND COUNSEL                                      i
(b)   TABLE OF CONTENTS                                                    ii
(c)   INDEX OF AUTHORITIES                                                 iii
(d)   STATEMENT OF THE CASF                                                2
(e)   STATEMENT OF JURISDICTION                                            2
(f)   ISSUE PRESENTED                                                  ... 2
(g)   STATEMENT OF FACTS                                                   3
(h)   ARGUMENT                                                          .. 5

      1.   Abuse of Discretion                                               5
           Failure to Rule                                                   5
           Properly Presented                                                6
           Unreasonable Time                                                 7
      2.   Demand Prior to Mandamus                                          8
      3.   No Other Adequate Remedy                                          8

(i)   PRAYER                                                                 8
(j)   CERTIFICATION                                                          9
      Verification                                                           9
      Certificate of    Service                                              9

(k)   APPENDICES                                                             10

      APPENDIX   A:   Motion   for   Nunc   Pro   Tunc   Corrected   Order
      APPENDIX   B:   Demand   Prior   to   Mandamus
                                                                               Ill




                                  (c)   INDEX OF AUTHORITIES


CASES:                                                                   PAGE:


A;mir-Shariff, In re,
      357 S.W.3d 180 (Tex.A,pp. —                        Dallas 2012)      5
Davidson,       In   re,
        153 S.W.3d 450 (Tex.App. —                   Amarillo 2004)        5
Lawson,    In    re,
        357 S.W.3d 134 (Tex.App. —                   San Antonio 2011)     5
Lynd,    In re,
        195 S.W.3d 682 (Tex. 2006)                                         7
Prudential       Ins.      Co.    of   Am.,   In   re,
     148 S.W.3d 121 (Tex. 2004)                                            5
Safety-Kleer Corp. v. Garcia,
     945 S.W.2d 266 (Tex.App. —                      San Antonio 1997)     5




RULES,    STATUTES,         AND    SECTIONS:



Rule 52,    Tex.R.App.P                                                    1,2


Rule 306a, Tex.R.Civ.P                                                     1,2,6
                           IN    THE    COURT   OF   APPEALS
                          TWELFTH       DISTRICT     OF     TEXAS
                                      TYLER,    TEXAS



                            No.




                        In re JUAN         ENRIQUEZ,       Relator



             Original Proceeding from Anderson County, Texas
                369th Judicial         District,      No.    XXX-XX-XXXX
               Honorable Bascom W. Bentley,                III,     Presiding


                 ORIGINAL       PETITION      FOR   WRIT    OF    MANDAMUS

TO   THE   HONORABLE   JUDGES    OF    SAID   COURT:


       Juan Enriquez, Relator, pursuant to Rule 52, et seq.,

Texas Rules of Appellate Procedure (Tex.R.App.p.), seeks

mandamus relief to compel Respondent,                  Bascom W. Bentley,         III,

Judge, 369th District Court, Anderson County, Texas, to rule

on Relator's pending Plaintiff's Motion to Vacate and Correct

Judgment and Plaintiff's Motion for nunc Pro Tunc Corrected

Order, averring as grounds the following:

                          (d)    STATEMENT OF THE CASE

      Relator seeks an evidentiary hearing and a ruling on his

motion to vacate and correct judgment and on his motion for

nunc pro tunc corrected order which requests,                       pursuant to

Rule 306a,    Sections 1    thru      7,   Texas Rules of Civil          Procedure

(Tex.R.Civ.P.), an evidentiary hearing to establish the date
on which Relator first received notice or acquired knowledge

of the judgment entered in the underlying case on April 22,

2015.


        The Respondent is the Honorable Bascom W.       Bentley,   III,

Judge,    369th District Court,     Anderson County,   Texas.   The real

party in interest is Brad Livingston,        Executive Director of the

Texas Department of Criminal Justice -- Correctional Institutions

Division (TDCJ-CID), whom Relator claims ignored his complaints

of denial of dental treatment which caused him needless pain and

suffering and loss of teeth.

        Relator seeks an evidentiary hearing and ruling on his

pending motions as required by Rule 306a, §§ 1-7, Tex.R.Civ.P.

                     (e)   STATEMENT OF JURISDICTION


        This Court has jurisdiction pursuant to Rule 52, et seq.,

Texas Rules of Appellate Procedure (Tex.R.App.P.).

                            (f)   ISSUE PRESENTED

        The issue presented is whether Respondent is abusing his

discretion by refusing or failing to act on Relator's pending

motion to vacate and correct judgment and pending motion for

nunc pro tunc corrected order which were filed July 16, 2015,

and September 21, 2015, respectfully under the mailbox rule

by placing same in the institutional mail system.
                                 (g) STATEMENT OF FACTS


        Respondent entered judgment or dismissal order on April 22,

2015.        However,     the district clerk did not mail the judgment to

Relator until July 1,            2015.

        The motion to vacate judgment was filed on July 16,                         2015,

via the mailbox filing rule and received in the district clerk's

office on July 24,           2015.     The motion informed the district court

that its judgment or order of dismissal entered April 22, 2015,

was not mailed to the Relator by the District Clerk of Anderson

County until July 1, 2015, and not delivered to Relator by

Defendant prison officials until mid-July of 2015.                          The motion
                     1/
is   verified.


        On September 21,         2015,   Relator submitted his Plaintiff's

Motion for Nunc Pro Tunc Corrected Order.                        APPENDIX B.    He urged

the Respondent to hold an evidentiary hearing because as a

prisoner he does not have access to the mail records of the

Michael      Unit   nor   does   he   have   access   to   the   district    clerk's


records.       Relator informed the Respondent he needed an evidentiary

hearing where he can subpoena A.                Cargill,     Mailroom Supervisor,

to testify when mail from the district clerk of Anderson County

for Relator reached the Michael Unit from April 22,                         2015,   to

July 16, 2015, and Janice Staples, District Clerk of Anderson



        1/
          The Court is requested to take judicial notice of its own records
in No. 12-15-00225-CV, Juan Enriquez v. Rick Thaler, et al, which contains
a copy of the Motion to Vacate and Correct Judgment certified by the District
Clerk of Anderson County.
                                                                  4



County,    to testify when she mailed the order of dismissal to

Relator.


     The Respondent has refused or failed to act on the Relator's

motion to vacate and correct judgment or to act on Relator's

motion for nunc pro tunc corrected order.

     The Relator has filed a Demand Prior to Mandamus demanding

the Respondent act on Relator's motion for nunc pro tunc corrected

order where Relator requests an evidentiary hearing to establish

the date he received or acquired knowledge of the order of

dismissal entered by Respondent on April 22,     2015.   APPENDIX B.

Respondent,   however,   has refused or failed to act on Relator's

motion for nunc pro tunc corrected order.
                                          (h)   ARGUMENT

        "Mandamus will           issue only to correct a clear abuse of

discretion for which the relator has no adequate remedy at                                        law."

In re Lawson,        357 S.W.3d 134, 135 (Tex.App.                      —     San Antonio 2011)

(citing In re Prudential Ins.                   Co. of Am.,        148 S.W.3d 121,               135

(Tex.    2004)(Orig. proceeding).

                                 1.   Abuse      of    Discretion

        "A   trial   court       abuses   its    discretion        when       it    fails   to

rule on pretrial motions that have been properly presented to

it within a reasonable time."                    I_n r_e Amir-Shariff, 357 S.W.3d

180, 181 (Tex.App.           —     Dallas 2012), citing In re Davidson,

153 S.W.3d 490-491 (Tex.App. —                    Amarillo 2004, orig. proceeding);

Safety-Kleer Corp.           v. Garcia,         945 S.W.2d 266,269 (Tex.App.                      —

San Antonio 1997, orig. proceeding).

                                      Failure         to   Rule

        Respondent has refused or failed to rule on the pending

 motion to vacate judgment filed on July 16,                                2015,   via the

mailbox filing rule and received in the district clerk's office

on July 24,      2015.       Respondent has also failed or refused to rule

on the pending motion for nunc pro tunc corrected order filed

September 21,        2015.       Respondent has also refused or failed

to act on relator's supplement to motion for nunc pro tunc

corrected      order   filed       October      21,    2015.      The       failure    or   refusal

of the Respondent to act for nearly five months on a matter that

should have been resolved within days to allow Relator to appeal

and to allow this court to execise its jurisdiction to hear

Relator's appeal.
                               Properly Presented


       The Relator's motions sub judice were properly presented.

The Order of Dismissal was siqned April           22,    2015,    but the district

clerk did not mail the order to Relator until July 1, 2015.                   as

reflected by the postmark on the envelope.               The order did not

arrive on the Michael Unit until somewhere between July 2 and

July 22,   2015.       The date when Relator received a copy of the

motion is more than 20 days after it was siqned but less than

90 days allowed by Rule 306(a),           Tex.R.Civ.P.,    to restart the time

periods set by paragraph (1) of said Rule.

       Enriquez filed his verified motion to            vacate and correct

judgment on July 16,        2015,    via the mailbox rule,       which motion

reached the district clerk's office on July 24,              2015, within

ten days after it was mailed.            Enriquez moved the court to

vacate and correct its judgment or order of dismissal entered in

this cause on April 22,        2015,    but not mailed to the plaintiff bv

the District Clerk of Anderson County until July 1,                 2015 [EXHIBIT

A] and not delivered to him by Defendant prison officials until

mid-july   of   2015.

      On September 21,       2015,    Relator submitted his motion for nunc

pro tunc corrected order,           requesting an evidentiary hearinq where

he   "can subpoena A. Carqill,         mailroom supervisor,       Michael Unit,    to

testify when mail from the district clerk for plaintiff reached

the Michael     Unit    from April 22, 2015,   to Julv 16,       2015,   and Janice

Staples, district clerk of Anderson County, to testify when she

mailed the order of dismissal to plaintiff."
                                                                                   7




                                Unreasonable     Time

       The motion to vacate and correct judgment has been pending

over five months.          The motion requesting a nunc pro tunc entry

and an evidentiary hearing to establish the date on which the

Relator first received notice or acquired knowledge of the

order of dismissal or judgment has been pending over three months.

In the meantime,       the Court of Appeals has pending before it a

Motion to Reinstate Appeal or for Rehearing or Reconsideration

submitted October 5, 2015, and a supplement to that motion filed

October 8,      2015 wherein he brought to the attention of the Court

of Appeals the decision by the Supreme Court of Texas in I_n re

Lynd Co., 195 S.W.3d 682 (Tex. 2006), where it was made clear

that "[p]ost-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."              Lynd,   supra,    at 686.

       Lynd holds that the trial court has jurisdiction for the

specific 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."                 Id.    at 686.    Under these

circumstances the trial court's failure to hold an evidentiary

hear   for   over   five   months   since   the motion    to    vacate   and    correct

judgment was filed is an unreasonable time.
                         2.   Demand   Prior   to   Mandamus

        Plaintiff filed a Demand prior to Mandamus to set for hearing

plaintiff's motion for nunc pro tunc corrected order by October 10,

2015,    or that Plaintiff would seek mandamus from the Twelfth

Court of Appeals.         The trial court has not set for hearing

Plaintiff's request for evidentiary hearing to establish the

date he received nofice or acquired actual knowledge of the trial

court's dismissal order or judgment of April 22, 2015.

                         3.   Np_ Other Adequate Remedy

        The Relator has no other adequate remedy to compel the

evidentiary hearing contemplated by Rule 306a, supra, to establish

and determine the date on which he             first received notice or

acquired knowledge of the judqment or order of dismissal entered

in this case on April 22, 2015, but which judqment or order was

not mailed to him bv the district clerk until July 1, 2015,                      as

reflected on the postmark on the envelope in which the judgment

or notice was mailed.            This Court erroneously dismissed the

appeal of the dismissal order or judqment sub judice on the

mistaken notion that a copy of the motion to vacate judgment

had not been provided to the court when in fact the motion to

vacate judgment is part of the record on appeal.                   Thus,   the

remedy of appeal is not available to the Relator until he

is able to have the evidentiary hearing contemplated by Rule

306a,    supra.

                                     (i)   Prayer

        WHEREFORE,    PREMISES CONSIDERED,       Relator   prays    for the

Court    to   issue   the writ    of mandamus directing     the Honorable
                                                                        9




Bascom W. Bentley,   III,   Judqe,    369th District Court, set

for evidentiary hearinct Relator's motion to vacate and correct

judgment and motion for nunc pro tunc currected order to allow

Relator to establish the date he received notice or acquired

actual knowledge of the trial court's dismissal order of

April 22,   2015.

                                     Respectfully submitted,



                                                      ^yt-

                                     Juan) Enriquez
                                     222122
                                     TDCJ-Michael
                                     2664 FM 2054
                                     Tennessee Colony,   TX 75886

                            (j) Certification

     I, Juan Enriquez, certify that i have reviewed the petition
for writ of mandamus and concluded that every factual statement
in the petition is supported by competent evidence included in
the Appendix or the record.




                              Verification

     I, Juan Enriquez, declare under penalty of perjury, that the
statements made in the foregoing Original Petition for Writ of
Mandamus are true and correct.         Executed on December 8,      2015.




                        Certificate of Service

     I, Juan Enriquez, certify that the foregoing Original Petition
for Writ of Mandamus was served by placing same in the United States
mail, postage prepaid, on December 8, 2015, addressed to Bascom W.
Bentley III, Judge, 369th District Court, 500 N. Church St.,
Palestine, TX 75801, and ^4ft^.-iEtr3r3rg^,^^^^                         W*mmK
                                    APPENDIX   A:


                Motion for Nunc pro Tunc Corrected Order




                                   Verification


     I, Juan Enriquez,          declare under penalty of perjury,   that
the Motion for Nunc Pro Tunc Corrected Order provided herein as
Appendix A is a correct typed copy of the Motion for Nunc pro Tunc
Corrected Order filed by me in No. XXX-XX-XXXX, Enriquez v.
Livingston, et al., 369th District Court, Anderson County, Texas.
Executed   on   December   8,    2015.
                               CAUSE    NO.       369-5019

JUAN ENRIQUEZ,                              §       IN THE DISTRICT COURT
               Plaintiff,                   §
                                            §
v                                           §       369TH JUDICIAL DISTRICT
                                            §
BRAD LIVINGSTON, ET AL.,                    §
          Defendants.                       §       ANDERSON COUNTY,      TEXAS

           PLAINTIFF'S MOTION FOR NUNC PRO TUNC CORRECTED ORDER

TO   THE    HONORABLE JUDGE    OF   SAID    COURT:

        Juan Enriquez, Plaintiff, pursuant to Rule 36a, Sections

1 thru 7, Texas Rules of Civil Procedure,                    moves the Court for

a nunc pro tunc corrected Order of Dismissal, averring as

grounds the following;

                                             I.


        The order of dismissal         in this case was signed April 22,

2015.       However,    the district clerk did not              mail the order to

Plaintiff until July 1, 2015, as reflected by the postmark on

the envelope.          This order did not arrive on the Michael Unit

until somewhere between July 2, and July 22, 3025.                        Prison

records will      reflect    the    exact   date.

                                            II.


        The date when Plaintiff received a copy of the judgment

is more than 20 days it was signed.

                                            III.


        The district      clerk's civil         docket   does   not   reflect   when

the order was mailed to Plaintiff.                  Also,    the plaintiff as a

prisoner does not have access to the mail records of the Michael
Unit, Texas Department of Criminal Justice —                      Correctional
Institutions Division (TDCJ_CID).              Plaintiff, thus, needs an

evidentiary hearing where he can subpoena A. Cargill,             mailroom

supervisor, Michael Unit,to testify when mail from the district

clerk for plaintiff reached the Michael Unit from April 22, 2015,

to July 16,   2015, and Janice Staples,          district clerk of Anderson

County,   to testify when she mailed the order of dismissal to

plaintiff.

                                         IV.


     Rule 306a,    supra,   sections 4 through 6 provide:

     4. No notice of judgment. If within twenty days after the judgment
     or other appealable order is signed, a party adversely affected by it
     or his attorney has neither received the notice required by paragraph
     (3) of this rule nor acquired actual knowledge of the order, then with
     respect to that party all the periods mentioned in paragraph (1) shall
     begin on the date that such party or his attorney recieved such notice
     or acquired actual knowledge of the signing, whichever occurred first,
     but in no event shall such periods begin more than ninety days after
     the original judgmetn or other appealable order was signed.

     5. Motion, notice and hearing. In order to establish the application
     of paragraph (4) of this rule, the party adversely affected is required
     to prove in the trial court, on sworn motion and notice, the date on
     which the party or his attorney first either received a notice of the
     judgment or acquired actual knowledge of the signing and that this
     date was more than twenty days after the judgment was signed.

     6.   Nunc pro tunc order.   When a corrected judgment has been signed
     after ex;iration of the court's plenary power pursuant to Rule 316,
     the periods mentioned in paragraph 910 of this rule shall run from
     the date of signing the corrected judgment with respect to any
     complaint that would not be applicable to the original document.

                                         v.



     A copy of the Julyl,        2015,    postmarked envelope from the

district clerk was provided as EXHIBIT A to Plaintiff's petition

for mandamus filed September 14,           2015, by mailbox rule filing.
                                       VI.


     Plaintiff did not receive notice of the April 22,                  2015,

signing until after July 1, 2015, nor did he acquire actual

knowledge of the signing until after July 1,                2015.

     WHEREFORE,       PREMISES CONSIDERED,         Plaintiff prays that

this motion be granted and that the motion be set for evidentiary

hearing at an early a time and date as               is consistent with the

business   of   the   court.

                                       Respectfully submitted,




                                            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 above
motion was served by placing same in the United States mail,
postage prepaid, on September 21, 2015, addressed to Ken Paxton,
Attorney General of Texas,       P.   O.   Box 12548,      Austin,   TX 78711.
                             APPENDIX      B:


                    Demand    Prior   to   Mandamus




                             Verification


     I, Juan Enriquez, declare under penalty of perjury, that
the Demand Prior to Mandamus provided herein as Appendix B is
a correct typed copy of the Demand Qrior to Mandamus filed by
me in No. XXX-XX-XXXX, Enriquez v. Livingston, 369th District
Court, Anderson County, Texas.  Executed on December 8, 2015.


                                                  sliy~<£p.
                                /Ju^an Enrique        Z^
                                 CAUSE    NO.    369-5019


JUAN ENRIQUEZ,                            §
              Plaintiff,                  §           IN THE DISTRICT COURT
                                          §
v.                                        §           369TH JUDICIAL DISTRICT
                                          §
BRAD LIVINGSTON, ET AL.,                  §
          Defendants.                     §           ANDERSON COUNTY,     TEXAS

                    PLAINTIFF'S        DEMAND    PRIOR   TO   MANDAMUS


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


        Juan Enriqeuz,       Plaintiff,       hereby demands that you act,

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




                                                in Enriquez
                                          22.7122
                                          TDCJ-Michael
                                          2664    FM   2054
                                          Tennessee Colony,           TX 75886

                              Certificate        of   Service

      I, Juan Enriquez, certifv that a correct copy of the foregoinq demand
was served by placinq same in the United States mail, postage prepaid, on
September 30, 2015, addressed to Bascom W. Bentley, III, Judge, 369th
District Court, 500 N. Church Stret, Palestine, tx 75801, and Ken Paxton,
Attorney General of Texas, P. O. Rox 12548, Austin, TX 78711.



                                         ^T^Cian Enriquez
                            Mailbox Rule Filing Verification
      I, Juan Enriquez, declare under penalty of perjury, that the foreqoing
demand was filed September 30, 2015, by placing same in the Institutional Mail
System, first class mail, postage prepaid, addressed to Clerk, 12th Court of
Appeals,1517 W.Front St., Suite 354, Tyler, TX 75702. Executed on September 30,
2015.

                                          Juati Enriquez
