in Re: Billy Ross Sims ( 2015 )

JURISDICTIONAL DEFECT
CAUSE NUMBER: \3>-l5~OQ [3D ~0\)
TRIAL COURT NUMBER: 3-42362
IN RE BILLY ROSS SIMS, pro se § IN THE
Relator
§ 12 th COURT OF jAPPEALS^OURT OF APPEALS
§ AT TYLER, rEX%§ Courtof Af?fteg?sDistrict
§
JUL 29 2015
MOTION FOR THE SUSPENSION OF OPERATION OF RfJLE:
PURSUANT TO TEXAS RULES OF APPELLATE PROCEDURE
TYLER TEXAS
TO THE HONORABLE COURT OF APPEALS: CATHY S. LUSK, CLERK
COMES NOW the Relator, Billy Ross Sims, (Sims), pro se, and
files this Motion for Suspension of Operation of Rules under TRAP
Rule 2, and would show the Court the following:
JURISDICTION: This Court has jurisdiction over the trial court -
1. Relator is a State prisoner of the TDCJ. It appears that Rule
9.3 requires filing of an original and multiple copies. Relator has
no outside help and no access to copy machines at the prison unit.
The Court is asked to suspend Rule 9.3, and allow Sims to file only
this original and no other copies. No parties other than the trial
court judge and district clerk are involved at this stage of the
proceeding, and no service of process was issued upon the named
defendants in the civil suit.
2. With no service of process, there were no parties to confer with
other than the court judge and district clerk to see if they would
oppose this motion, and the Court is asked to suspend TRAP Rule 10.
3. Relator asserts that this appellate process is only necessary
due to a bad faith ruling by the trial court judge intended to dis
miss Relator's consitutional claims without due process and without
jurisdiction to enter an Order that included imposition of cost and
fees.
4. TRAP Rule 2 allows the Court of Appeals to order a different
procedure, and Relator asks the court to review the trial court's
ruling, in part, under TRAP Rule 24.4(a)(5) abuse of discretion
under 24.3(a) for the reasons stated in the attached petition for
writ of mandamus . In Ordering Dismissal of the claims under Chapter
14 Tex .Civ .Prac .Rem-Code, the trial court called the claims 'fri
volous' and imposed costs and fees and order the department to
seize Relator's trust fund account, which it did, and Relator has
suffered irrepairable harm, because State Law in RIOS vs CALHOON,
889 SW2 257, 258-59 (Texas 1004) holds that the trial court had no
jurisdiction to impose costs and fees because no challenge was made
to the In Forma Pauperis Application. Also, the law states that it
is imroper, at the pleading stage to dismiss an inmate's civil suit
without any factfinding, and the trial court failed to provide any
due process protections at the pleading stage, when Texas operates
on notice pleading and Sims' complaint complied with the law.
The trial court initialed the Order of Dismissal on June 30, 2015,
and timed the mailing to arrive at the prison at the same time the
Relator's Veteran Benefit and the Order of Dismissal cause the prison
to seize the funds that are exempt from seizure, levy, attachment or
assignment. It was an abuse of discretion not only to dismiss the
claims at the pleading stage, but also the court knew or should have
known it had no jurisdiction to impose cost and fees.
5. Relator has started the appellate process in a timely manner by
filing a request for findings of fact and conclusions of law with
the trial court, which extends the deadline for filing the notice
of appeal to 90 days under TRAP Rule 25.1(a)(4). However, this
creates a problem:
2
An appeal requires Relator to file the notice of appeal with
the trial court clerk and it is the trial court that determines if
an appeal is 'frivolous;' see Chapter 13.003(a) Civ.Prac.Rem .Code
and while Chapter 13 isn't applicable to prisoner litigation, see
13.004, Chapter 14 was fashioned on Chapter 13, and this would force
Relator to go through a trial court that has failed to provide a
neutral and detached hearing officer in order to achieve an appeal
to this court . The trial court hearing officer would have an incentive
to prevent an appeal by Relator to ask this court to review the void
Order of Dismissal that is based on abuse of the court's discretion
and lack of jurisdiction .
Chapter 14 TCPR code seems to refer to inmate litigation against
'the department;' see 14.001(2), and Relator's suit is not against
the 'department' and should not be applicable to suits filed against
elected and appointed state officials in their individual capacities.
The statute doesn't mention anyone else in its scope. Since the
department isn't a party to the litigation, Chapter 14 should not
apply, and Relator asks the Court to suspend that rule as well.
This Court is asked to Order a different procedure and allow
Relator to file his notice of appeal with this court at the appro
priate time; suspending Rule 25.1(b) and (e).
6. Because there was no due process hearing in the trial court, as
permitted by 14.003(c) and 14.008(a)(b), there is no reporter's
record; however, the clerk's record is important to this appellate
review and Relator cannot afford to pay for copies, and this court
is asked to order the trial court clerk to produce the clerk's
record under TRAP Rule 34 and 35. Also, that it will Order that
the Relator's typed verbatim copies of the partial clerk's record
attached as Exhibits to the underlying petition for writ of mandamus
be deemed suitable under GARRETT vs BORDEN, 283 SW3d 852 (Texas 2009).
7. Under the prison mailbox rule, Relator filed a timely request
for findings of fact and conclusions of law with the trial court on
July 8, 2015. The case was tried under Chapter 14.003(a), (b), without
a jury and before service of process on the defendants and the court
hearing official relied solely on 14.003(a)(2) 'frivolous' without
explaining how the law applied to the facts or the facts applied to
the law. This Court is asked to find that Rule 25.1(a)(4) is relevant
and that if findings of fact and conclusions of law are not required
by the rules of civil procedure that they could properly be considered
by the appellate court in determining if the trial court abused its
discretion, because Relator asserts that the constitutional claims
he raised are not 'frivolous' under the State's definition, and that
'notice pleading' statements that state officials are violating the
relator's equal protection rights and imposing a new law in an ex
post facto, retroactive manner and how this is occurring, are not in
fact 'frivolous' claims, and call for factfinding. 'Frivolous' might
be a claim like 'the department isn't selling me chunky peanut butter'
but, the department isn't a party to the litigation sub judice and
Relator's short, plain notice pleading statements complied with State
law and are not 'frivolous' by definition, thus the trial court
official abused the court's discretion at the pleading stage referring
to Chapter 14, et seq to dismiss relator's claims. This Court is asked
to require the trial court to produce findings of fact and conclusions
of law for this appellate review.
PRAYER
This Court is asked to suspend the operation of the Rules set
forth above and grant this motion to provide relator with equitable
relief. The Court is asked to waive its filing fee in the interest
of justice and allow relator to proceed in forma pauperis during
the petition for writ of mandamus.
Further that the Court allow relator to file only this original
copy of the motion sub judice, and, the petition for writ of mandamus
The Court is asked to suspend Rule 10; and review the trial court's
abuse of discretion, in part under Rule 24.3(a) and 24.4(a)(5); and
that under RIOS, supra, find the trial court had no jurisdiction to
impose cost and fees because no challenge was made to the IFP appli
cation . The Court is asked to accept the Exhibits in the appendix of
the petition for writ of mandamus as adequate under GARRETT, supra,
and Order the trial court clerk to produce the Clerk's Record in its
entirety, including relator's request for findings of fact and
conclusions of law. The Court is asked to suspend TRAP Rule 52.3
(j)(l)(C), and take judicial notice of its own records, as relator
does not have the capacity to copy and mail the texts of the case-
law or statutes, or Rules of Civil Procedure, or Appellate Procedure
or Civil Practices & Remedies Code referred to above . This Court is
asked to suspend TRAP Rule 25 and allow relator to file his notice
of appeal with the clerk of this court and send a copy to the trial
court clerk. Respectfully prayed for.
VERIFICATION
I, Billy R. Sims, #511649, being presently incarcerated in the
TDCJ, Powledge Unit, declare under penalty of perjury that the
foregoing is true and correct of my own beliefs, signed this 27th
Day of July, 2015. ^-p"-^
BILLY R. SIMS, 511649 " \ V->
1400 FM 3452, Palestine, TX 75803